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Justice Department asks Supreme Court to allow border asylum ban

Trump plans new rules for asylum claims

Washington — The Justice Department on Monday asked the Supreme Court to allow the Trump administration to implement its most sweeping effort yet to overhaul the asylum system along the border while a legal challenge plays out in court.

U.S. Solicitor General Noel Francisco, who represents the federal government before the court, urged the justices to issue an administrative stay on a ruling by a judge in San Francisco, who earlier in the summer blocked a regulation that would make most migrants from Central America and other countries ineligible for asylum at the U.S.-Mexico border.

The administration had already asked the 9th Circuit Court of Appeals to do so. Earlier this month, the appellate court did not grant the government's request, but it said the injunction blocking the near-total asylum ban only applies within the court's jurisdiction. The decision meant that administration could proceed with the policy in New Mexico and Texas, but not in California and Arizona, which fall within the purview of the 9th Circuit. 

Through its filing on Monday, the administration is asking the high court to allow the government to implement the rule along the entire border. Francisco said the policy "serves important public purposes" and "alleviates a crushing burden on the U.S. asylum system by prioritizing asylum seekers who most need asylum in the United States."

Migrant families turn themselves in to U.S. Border Patrol to seek asylum following an illegal crossing of the Rio Grande in Hidalgo
Thirteen year-old Joseline and father Jose Luis, Guatemalan migrants, turn themselves in to U.S. Border Patrol with fellow asylum seekers after an illegal crossing of the Rio Grande in Hidalgo, Texas, U.S., August 23, 2019. Picture taken August 23, 2019. LOREN ELLIOTT / REUTERS

The rule, a joint effort by the Justice Department and the Department of Homeland Security, restricts access to the U.S. asylum system for non-Mexican migrants who traveled through Mexico and other countries to reach the southwestern border, but did not seek protection in those nations. 

Although designed to stem the flow of Central American migrants journeying north, the regulation also would affect people from other parts of the world trying to reach the U.S. through Mexico, including Cubans, Venezuelans, Brazilians and central Africans, who have traveled to the U.S.-Mexico border in higher numbers this year.

Administration officials have maintained that the rule would help curb what they call "forum shopping" by migrants. They have repeatedly accused migrants of preferring to seek asylum in the U.S., rather than in the countries along their journey that might be able to offer them safe haven. 

"The rule also screens out asylum claims that are less likely to be meritorious by denying asylum to aliens who refused to seek protection in third countries en route to the southern border," Francisco wrote Monday. "In turn, the rule deters aliens without a genuine need for asylum from making the arduous and potentially dangerous journey from Central America to the United States."

A U.S. Border Patrol agent helps asylum-seeking migrant families unload from a U.S. Border Patrol riverine unit in Hidalgo
U.S. Border Patrol agent Carlos Ruiz helps asylum-seeking migrant families unload from a U.S. Border Patrol riverine unit after they were rescued during an attempted illegal crossing of the Rio Grande in Hidalgo, Texas, U.S., August 23, 2019. Picture taken August 23, 2019. Loren Elliott / REUTERS

But immigrant advocates have said the policy ignores U.S. and international refugee law and would force countless migrants and asylum seekers to return to places where they may face persecution. 

When he approved a injunction against the ban in late July, Judge Jon Tigar of U.S. District Court in San Francisco seemed to agree with the concerns raised by the plaintiffs in one of two lawsuits. "An injunction would vindicate the public's interest — which our existing immigration laws clearly articulate — in ensuring that we do not deliver aliens into the hands of their persecutors," he wrote in his ruling. 

Late last year, Tigar halted a similar effort by the administration to prohibit migrants who cross the border illegally from being able to seek asylum. The Supreme Court, by a vote of 5 to 4, later rejected the administration's request to stay Tigar's ruling. 

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