Reporter Jonathan Blitzer Interviews a top ACLU litigator on Trump’s Asylum Ban, the Supreme Court’s Enabling of it, and the Threat to the Legal Right to Asylum
The Trump administration is rewriting our asylum laws in an attempt to virtually eliminate access to a full and fair process. A revealing interview and Q&A between The New Yorker reporter Jonathan Blitzer and Lee Gelernt of the ACLU helps to clarify the cruelty, chaos and motivations of the Trump administration’s asylum policy. The interview sheds light on the consequences of the Supreme Court’s recent ruling enabling Trump’s crackdown.
As Gelernt notes, “‘there are so many different policies in place, at so many different stages of litigation,’ that the over-all effect is approaching a kind of chaos. ‘It’s becoming difficult to figure out which policies are in place, which are enjoined, which are partially enjoined, and what it all means…’” He adds that the Supreme Court decision to allow “Asylum Ban 2.0” — also know as the transit ban — “would effectively end asylum at the southern border.”
Read “An Immigration Attorney at the A.C.L.U. on Fighting Trump’s Asylum Ban” in full at The New Yorker website (here) or see below for key excerpts of the interview between Blitzer and Gelernt:
Trump has tried to ban asylum at the southern border before, and the Supreme Court got in his way. How does that previous episode relate to what the Supreme Court is doing now?
There have been two direct asylum bans by the Trump Administration. The first one was last year, and that ban would have barred asylum for anybody who crossed [the border] between ports of entry. We challenged it within a few hours of the President issuing the ban, and got a nationwide injunction to block the ban from a judge in San Francisco, saying the ban could not go into effect. The government appealed that ruling but at the same time asked the Ninth Circuit Court of Appeals to issue what’s called a stay of the injunction, to allow the ban to go into effect immediately while the case worked its way through the appellate courts. The Ninth Circuit refused. And so the government went to the Supreme Court to ask it for an emergency stay of the injunction to allow the ban to go into effect while the case went through appeals. The Supreme Court, in a 5–4 decision, said that it would not allow the ban to go into effect immediately and refused the Administration’s request for an emergency stay.
What about the asylum ban announced this summer?
Next we have asylum ban 2.0, which is called the transit ban, and was issued this past July. This asylum ban says that you must apply for asylum in a country you transited through: if you’ve travelled through a third country on your way to the United States, you must apply for asylum in that country. (If you don’t, the government would consider you ineligible to apply for asylum in the United States.) That would effectively end asylum at the southern border—for everyone but Mexicans, who obviously don’t need to transit through a third country to reach the U.S. …
… The Supreme Court has ruled on a matter of procedure with the second asylum ban, but the stakes are much higher than that. How would you describe them?
Congress has been in charge of asylum law since the asylum statute, in 1980, sought to bring the country into conformity with international standards. The Administration should not be able to radically change asylum laws to the point of effectively eliminating asylum at the southern border, at the stay stage, without a full hearing. For the first asylum ban, the court decided that it would not allow the Administration to upend forty years of unbroken practice. For the second asylum ban, it decided to allow the Administration to do so. The fact is that as bad as the first asylum ban is, the second ban is that much more extreme. The first asylum ban would have at least allowed people to apply for asylum at a port of entry, as hard as that may be. The second asylum ban, we fear, will effectively end asylum at the southern border. …
…What happens now to the people who came to the U.S. seeking asylum and were placed in M.P.P.?
It depends on whether they were out there before July 16th or not. We’re waiting to see exactly what the Administration does. Supposedly, if you were apprehended before July 16th, you will still get to apply for asylum. But for people arrested after that, it may be that they will only be able to apply for withholding of removal. It’s going to be a complete mess.