The Trump administration’s war on legal asylum in the U.S.

So the Five Guys Supreme Court gave the Trump administration a temporary reprieve from the nationwide injunction against its Asylum ban 2.0, a day after the Ninth Circuit Court of Appeals limited the ban to California and Arizona.

The New York Times reports, Supreme Court Says Trump Can Bar Asylum Seekers While Legal Fight Continues:

The Supreme Court on Wednesday allowed the Trump administration to bar most Central American migrants from seeking asylum in the United States, while the legal fight plays out in the courts.

The Supreme Court, in a brief, unsigned order, said the administration may enforce new rules that generally forbid asylum applications from migrants who have traveled through another country on their way to the United States without being denied asylum in that country.

It was the second time in recent months that the Supreme Court has allowed a major Trump administration immigration initiative to go forward. In July, the court allowed the administration to begin using $2.5 billion in Pentagon money for the construction of a barrier along the Mexican border. Last year, the court upheld President Trump’s ban on travel from several predominantly Muslim countries.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented, saying the court’s action will “upend longstanding practices regarding refugees who seek shelter from persecution.”

Justice Sonia Sotomayor in a forceful dissent wrote:

“Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution,” wrote Sotomayor. “Although this Nation has long kept its doors open to refugees—and although the stakes for asylum seekers could not be higher—the Government implemented its rule without first providing the public notice and inviting the public input generally required by law.”

There are three reasons why the lower district court concluded that the rules were likely in violation of federal law and thus that an injunction was warranted, Sotomayor explained.

First, the court found that the new rules likely conflict with existing asylum law. Second, the Trump administration “skirted” the usual process for making new rules — by, for example, not allowing for a period of public comment. And third, the district court believed the Trump administration’s new rule was likely “arbitrary and capricious” because its arguments in favor of the policy are “flatly refuted” by the evidence.

Lifting the injunction in such a case would be “extraordinary,” Sotomayor — and such requests used to be quite rare. Now, the Trump administration makes these demands on the court all the time, and the court plays along.

“It is especially concerning, moreover, that the rule the Government promulgated topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere—without affording the public a chance to weigh in,” she wrote. “I fear that the Court’s precipitous action today risks undermining the interbranch governmental processes that encourage deliberation, public participation, and transparency.”

The rules reversed longstanding asylum policies that allowed people to seek haven no matter how they got to the United States. A federal appeals court had largely blocked the policy.

So the Five Guys Supreme Court departed from the long-standing judicial doctrine of maintaining the status quo while the legality of a governmental action is litigated in court. To what end? To appease their “Dear Leader”?

Lee Gelernt, a lawyer with the American Civil Liberties Union, which represents the challengers in the new case, stressed that the Supreme Court’s action was provisional. “This is just a temporary step,” he said, “and we’re hopeful we’ll prevail at the end of the day. The lives of thousands of families are at stake.”

The case will almost certainly return to the Supreme Court, but that will take many months.

Kenneth T. Cuccinelli II, the acting director of United States Citizenship and Immigration Services, pledged on Wednesday night to “commence implementing the asylum rule ASAP.”

Under the new rules, Hondurans and Salvadorans must seek and be denied asylum in Guatemala or Mexico before they can apply in the United States. Guatemalans must seek and be denied asylum in Mexico.

Also on Wednesday, Medically Deferred Action immigrants testified before a House Oversight subcommittee as to why it was imperative that they remain in the country, despite the Trump administration’s abrupt elimination of the program that had enabled them to receive lifesaving medical care without the fear of deportation. ‘If I’m Sent Back, I Will Die’: Sick Immigrants Tell Their Stories to Congress:

One immigrant went to California as a child to participate in a drug study that has helped Americans survive with a rare genetic disease. Another, an adolescent girl from Spain, was told by a cardiologist that she must remain in Boston to receive critical care for which her family borrowed thousands of dollars. A teenage boy with cystic fibrosis arrived in the United States “literally dying,” he said, but now has a new lease on life.

The fate of the immigrants, who all came to the United States legally, remains unclear more than a month after they were first informed by letter that they would have to leave — only to be told early this month that the government would reconsider.

“If I’m sent back, I will die,” Maria Isabel Bueso, 24, of Guatemala, told lawmakers on Wednesday. At three feet tall, sitting in a wheelchair, she was a sympathetic witness.

The unannounced termination on Aug. 7 of the so-called medically deferred action program, except for military personnel, generated public outrage and drew sharp rebuke from the medical establishment. . . Ms. Bueso had been ordered to leave the country in 33 days or face deportation [this Saturday].

Ms. Bueso is among the immigrants who have received a letter in recent days saying that their cases will be reopened but not whether they need to take any action.

“Our future is still in question with no further communication or direction,” Ms. Bueso said.

Last month, United States Citizenship and Immigration Services, without public notice, began sending letters to immigrants like her telling them that it was no longer accepting requests for “deferred action,” renewable every two years. On Labor Day, the agency backtracked and announced that cases pending on Aug. 7 would be reconsidered. It also said that deportation proceedings had not been initiated against anyone who had received the letter.

However, it has not yet said whether the government will continue to grant immigrants the opportunity to stay in the country. It has also not clarified how applicants who need to file extensions must proceed.

In response, Democrats called an emergency hearing, seeking answers about the origin, rationale and revision of the program. They received little information.

* * *

Daniel Renaud, the associate director for field operations at Citizenship and Immigration Services, testified the agency received 1,000 applications annually for deferred action. About 424 cases had been reopened since the government decided to reconsider the policy, he added. He could not answer what would happen to those who have needed to file requests for extensions or apply after Aug. 7.

For those caught in the middle, the stakes are high. “It’s a relatively small program but for the individual who receives deferred action, it is lifesaving protection,” said Shoba Wadhia, an immigration scholar at Penn State Law, who testified and wrote a book on the history of deferred action.

* * *

The American Civil Liberties Union of Massachusetts and Lawyers for Civil Rights on Sept. 5 filed a lawsuit challenging the termination of the policy on behalf of the center.

According to the lawsuit, the elimination of the policy without public comment or standard regulatory procedures violated the Administrative Procedure Act as well as the guarantee of equal protection in the Constitution.

The federal court could issue an injunction staying any deportations until the legality of ending the medically deferred action program is resolved in court, but the Five Guys Supreme Court might overturn that injunction allowing the policy to go into effect during the litigation (see above). And how many participants in the medically deferred program will die as a result of being deported to a country where they cannot receive the necessary medical attention? Does the Five Guys Supreme Court even care?

This follows earlier this week when acting Customs and Border Protection head Mark Morgan offered some peace of mind to Bahamians seeking humanitarian relief in the United States in the wake of Hurricane Dorian, following news reports that some were turned away for not having the proper visas.

“This is a humanitarian mission,” Morgan assured. “If your life is in jeopardy and you’re in the Bahamas … you’re going to be allowed to come to the United States, whether you have travel documents or not.” He said the processing would be handled expeditiously.

Not so fast. Our white nationalist racist-in-chief offered a very different message. Trump contradicts CBP head on Bahamian refugees, argues they might have been infiltrated by ‘very bad people’:

In a later Q&A with reporters, Trump emphasized that “very bad people” could exploit the process and warned against welcoming Bahamians.

“We have to be very careful,” Trump said. “Everybody needs totally proper documentation. Because, look, the Bahamas had some tremendous problems with people going to the Bahamas that weren’t supposed to be there.”

The president added, “I don’t want to allow people that weren’t supposed to be in the Bahamas to come into the United States — including some very bad people and very bad gang members.”

* * *

Trump emphasized Monday that, “believe it or not,” many parts of the Bahamas were not hit hard by Dorian, suggesting the humanitarian need isn’t that great. The capital of Nassau and southern parts of the Bahamas sustained significantly less damage.

His comments, notably, suggest not just that some refugees are gang members but that they might pose other problems. He even seems to suggest that people might have gone to the Bahamas so they could pose as refugees to gain admission to the United States. Trump has often spoken in this manner about potential terrorists. It’s not clear whether he was saying they went to the Bahamas before the hurricane or somehow got there afterward.

Experts told the Washington Post that while Temporary Protected Status (TPS) would typically be granted to victims of a storm like Hurricane Dorian—which destroyed tens of thousands of homes—the White House’s stance is not entirely surprising given President Donald Trump’s anti-immigrant, anti-refugee policy agenda.

Finally, there is this new developing story. Buzzfeed News reports, The Trump Administration Opened Secretive Tent Courts At The Border. The Public Is Not Allowed Inside.

Tent courts erected at the southern border to hear the cases of thousands of asylum-seekers forced to return to Mexico under a Trump administration policy opened for the first time Wednesday in Laredo, Texas — but few got to see inside as the public, including media, was denied access.

A Department of Homeland Security officer who wasn’t wearing a name tag and declined to provide his name said the hearings were not open to the public and that only law enforcement, attorneys with clients who had hearings that day, and government contractors would be allowed inside.

“It’s not a public hearing,” the officer told BuzzFeed News.

A DHS official said that while immigration court proceedings are generally open to the public, asylum hearings at the tent facilities were unique from other immigration courts because of “the law enforcement sensitive priorities” of the nearby official border crossings.

“These soft-sided facilities will not be open to in-person public access, including media access,” the DHS official said.

The public, including the media, will have the ability to observe proceedings at immigration courts in San Antonio, DHS said, where judges who are conducting hearings via video teleconference are located more than 150 miles away. Migrant Protection Protocols (MPP) hearings at tents in Brownsville are expected to start Thursday.

Ashley Huebner, associate director of legal services at the National Immigrant Justice Center, was able to enter the tent facility briefly before being told to leave because she didn’t have a client appearing before the court. She said the lack of access to court observers and reporters was concerning.

“It’s particularly critical here because the entire process is taking place with such a lack of transparency,” Huebner told BuzzFeed News. “The entire setup confirmed how absurd it is to call this a courtroom and court proceedings.”

As of early September, more than 42,000 asylum-seekers have been forced to wait in Mexico while their immigration proceedings play out, according to acting Customs and Border Protection Commissioner Mark Morgan. Asylum-seekers in MPP, also known as “Remain in Mexico,” have reported being assaulted, kidnapped, and extorted while being forced to wait in Mexico. With limited shelter space, some have to rent apartments or rooms, while others are homeless and relying on donations.

It’s unclear how many have given up their cases, but some asylum-seekers have taken up the Mexican government’s offer to be bused to the interior of Mexico or as far as the state of Chiapas, which borders Guatemala.

Kennji Kizuka, senior researcher in refugee protection at Human Rights First, said that by banning independent monitors and potential pro bono lawyers from tent courts, the Trump administration was hiding information about the human rights abuses asylum-seekers are suffering after being forced to return to Mexico.

“It is just another attempt to cover up the flaws in this sham asylum process, a process created to block refugees from finding safety in the United States,” Kizuka said in a statement. “Now it seems that the administration is blocking legal observers from monitoring the due process deficiencies in these immigration hearings and the harms suffered by asylum seekers returned back to danger by the Trump administration.”

Immigrants in MPP can ask the government for a non-refoulement interview if they believe they will be persecuted if they return to Mexico. Attorneys say it’s rare that immigrants are removed from MPP and allowed into the US following these interviews, which lawyers have not been allowed to attend.

Huebner said there was space for these hearings at the Laredo tent court facility but attorneys would still not be allowed to participate. It’s significant, Huebner said, because the previous reason given for prohibiting lawyers at non-refoulement interviews was that they occurred as part of secondary inspection, but this space is not secondary inspection.

“I don’t know any other word to describe this other than a sham,” Huebner said.

* * *

All of the MPP hearings at the tent court facilities will be conducted via video teleconference, DHS said.

Judy Perry Martinez, president of the American Bar Association, who toured the tent facilities in Brownsville, Texas, echoed the concern. It will be difficult for the 150 judges expected to hold MPP hearings via teleconference to see an asylum-seeker’s emotions when they are making a determination on their credibility, she said.

Because it’s difficult for lawyers to go into the Mexican border cities these immigrants are sent back to, Perry Martinez said it’s crucial that asylum-seekers at the tent facilities have enough time to discuss their case with their attorneys. She asked DHS officials to allow lawyers and their clients to meet before and after hearings at the tents, even on the days they don’t have hearings.

“Meaningful access to counsel cannot be impeded in any sense and we believe what we’re asking for is fair,” Perry Martinez told BuzzFeed News.

Most asylum-seekers in MPP hearings haven’t been able to get legal representation, according to an analysis from the Transactional Records Access Clearinghouse at Syracuse University. Having legal representation increases the chances of an immigrant winning their asylum case or getting some other type of relief that allows them to stay in the US.

Perry Martinez met with asylum-seekers waiting in Matamoros, Mexico, hundreds of whom were living on the streets under the threat of violence. She met families who were living without fresh water and were told to bathe in the Rio Grande River. When the US launched MPP, it did so with the understanding that Mexico would be offering returned asylum-seekers humanitarian aid, but that hasn’t been the case Perry Martinez said.

“The conditions I saw in Matamoros was not something this country would be proud of,” Perry Martinez said. “If the premise of the program is not being upheld, our country needs to do something about it.”

Not in Trump World. The Cruelty Is the Point.