Again and again, the federal government continues to deny im/migrants the most elementary human rights. On Sept. 11, seven of the nine unelected, appointed-for-life “justices” on the U.S. Supreme Court again sided with the Trump administration against asylum seekers. This seven included Elena Kagan and Stephen Breyer, two of the four members of the so-called “liberal wing.”
The court provisionally upheld a July 16 order, promulgated by U.S. Attorney General William Barr and the Department of Homeland Security, to deny entry to asylum seekers who travel through a third country — Central Americans who pass through Guatemala and/or Mexico. Now they must first apply for and be denied asylum in those countries before they can apply for asylum here.
The American Civil Liberties Union represented migrant organizations which sued to have the order overturned. On July 24, Judge Jon S. Tigar of the Federal District Court in San Francisco and Judge Timothy Kelly of the Federal District Court in Washington issued contradictory rulings. Judge Tigar issued an injunction ordering that all asylum requests continue to be accepted without the new stipulations and said his ruling applied countrywide. Judge Kelly ruled that the racist rule could stand.
In August, the U.S. Ninth Circuit Court of Appeals narrowed enforcement of Judge Tigar’s injunction to those states in the Ninth Circuit. On Sept. 9, Judge Tigar reissued his injunction for the whole country, citing “administrability issues” that would result if different rules applied to different regions.
Normally the case would have to make its way through the lower courts before it got to SCOTUS. Solicitor General Noel Francisco made an “emergency” appeal to the high court, seeking to limit Tigar’s order even further. The alleged emergency, by which Francisco’s appeal bypassed the standard progression through the courts, was a potential new “surge of asylum-seekers.” (New York Times, Sept. 11)
The one-paragraph, unsigned majority decision stayed Judge Tigar’s decision to block Trump’s order, as well as the Ninth Circuit Decision allowing Tigar’s injunction to stand within the proscribed area.
Central American migrants targeted
The specific aim of this new xenophobic ruling, following the SCOTUS decision to allow Pentagon funds to be diverted to building Trump’s border wall, is to keep Hondurans, Salvadorans and Guatemalans out. In this fiscal year alone, Customs and Border Patrol has arrested nearly 420,000 asylum seekers from those three countries. They include whole families and unaccompanied children, now languishing in concentration camps.
Central Americans are coming here to escape state and paramilitary terror in their home countries, a product of U.S. foreign policy under both Democratic and Republican administrations. Now, even if someone is denied asylum in Mexico or Guatemala, they still have to wait there for their U.S. asylum cases to be heard here. Conditions on either side of the border are deplorable.
Dissenting Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, pointed out that the rule in question is “probably illegal.” The current U.S. asylum statute “generally provides that any noncitizen ‘physically present in the United States or who arrives in the United States … may apply for asylum,’ §1158(a)(1). And unlike the rule, the [Ninth] District Court explained, the statute provides narrow, carefully calibrated exceptions to asylum eligibility.”
However, it is not unprecedented for SCOTUS to make a blatantly racist decision concerning im/migrants. In 1889, the court upheld the Scott Act, an amendment to the Chinese Exclusion Act barring legal Chinese residents from reentering the U.S. after leaving the country temporarily. From its creation in 1789, the Supreme Court has made all kinds of reactionary decisions protecting the property of the rich.
The high court’s stay of Judge Tigar’s injunction is provisional while the lawsuits make their way through each court level. The ACLU is “hopeful we’ll prevail at the end of the day. The lives of thousands of families are at stake.” The key to winning in the courts is, as always, building a powerful grassroots movement to challenge the oppressive status quo.
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