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Photo: US Customs and Border Protection

Since the courts keep telling him he can't actually rewrite US immigration law all by himself, Donald Trump has asked the Supreme Court to swoop in and review his idiotic asylum ban, which attempts to bar anyone crossing the border outside official ports of entry from qualifying for asylum. Lower courts have held that until the matter is resolved, the administration can't put the new restrictions into effect, and even Trump's own immigration bureaucracy is unsure how to implement the policy, but Trump really wants to screw asylum-seekers, since that's the only thing that can help his supporters get it up.


In the government's application for a stay of the lower court's injunction, submitted yesterday, Solicitor General Noel Francisco argued the injunction was hurting America super, super bad by allowing a flood of bad people into the country.

The nationwide injunction prohibits the Executive Branch from implementing an interim final rule adopted to address an ongoing crisis at the southern border, with significant implications for ongoing diplomatic negotiations and foreign relations.

Team Trump is insisting there's a "crisis" on the border despite the number of illegal border crossings actually having declined over the past decade. On the other hand, requests for asylum have been rising because the demographics at the border have changed: a lot fewer single men from Mexico coming for jobs, and a lot more families from Central America fleeing violence. In fact, Vox immigration reporter Dara Lind makes a strong case that the "crisis" of large numbers of people requesting asylum at ports of entry is largely the result of Trump policy. The administration demanded people "do it the right way" by applying at official border stations, and by golly, staff at ports of entry just can't handle all the applicants.

Interestingly, Lind notes, the "share of illegal border crossers who sought asylum increased just 1 percentage point, from 13 percent to 14 percent, from fiscal year 2017 to fiscal year 2018." That really doesn't sound like a crisis that would require a whole new set of rules aimed at ending asylum. But yes, the percentage of people seeking asylum at ports of entry has nearly doubled in the past year, which means the message about crossing "the right way" seems to be getting through.

The downside is that the ports of entry weren't at all prepared to handle all those people intent on doing it "the right way," and staff have been turning thousands away, making them wait in Mexican border towns, where they're often preyed on by gangs. Lind suggests the practice of restricting access to asylum -- sometimes called "metering" -- has actually made matters worse. Trump wanted to end the so-called "catch and release" process, in which asylum seekers are screened for a "credible fear" of violence if they're sent back to their home countries, then given a court date for a formal asylum hearing. Those court dates could take as long as two years, thanks to a backlog in immigration courts.

But instead of trying to resolve the problem through hiring more judges, who might not deport people aggressively enough, the administration has tried to restrict access to the asylum process altogether, through limiting what "counts" as a valid asylum claim, metering at ports of entry, and now this bullshit attempt to sharply restrict asylum altogether, which is what Trump wants the Supremes to allow.

Trump's new rule is an attempt to subvert Section 208 of the Immigration and Nationality Act (INA) which is pretty specific when it comes to asylum claims:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival [...]), irrespective of such alien's status, may apply for asylum [.]

Oh, man, that law passed by Congress, annoys rightwing loonies! Common sense tells them that crossing between ports of entry is the most heinous crime in existence, worthy of shooting people for, even though it's a misdemeanor for a first offense. The border is sacred, and none who cross it illegally may enter, regardless of the stupid law. That's literally the reason the new rules were written: to bring actual procedure at the border into accord with what Twitter trolls think the law should be.

So far, the adminstration's claim that it can ignore that "whether or not" clause hasn't won over any courts. It was met with a lawsuit by the ACLU immediately after it was announced, and on November 19, US District Judge Jon S. Tigar issued an injunction blocking the new rule from going into effect. Trump, true to form, dismissed the ruling as invalid, because after all, it was issued by an "Obama judge" who has no authority at all, silly.

On December 7, a three-judge panel of the 9th Circuit Court of Appeals -- the FAKE CIRCUIT, accrording to Trump's addled brain -- upheld Tigar's injunction putting the new rule on hold. The opinion, by Judge Jay Bybee, held the "Rule is likely inconsistent with existing United States law." Then Bybee got pretty salty, as far as legal opinions go. Buzzfeed's Chris Geidner points out that Bybee, a G.W. Bush appointee, has "written strong defenses of executive power (including signing the opinions now known as the 'torture memos' in the Bush administration)," and wasn't amused by DOJ's assertion that the injunction constituted "unwarranted judicial interference":

Bybee shot back that "if there is a separation-of-powers concern here, it is between the President and Congress."

"Here, the Executive has attempted an end-run around Congress," Bybee continued. "In combination with the rule, [the presidential order] does indirectly what the executive cannot do directly: amend the INA. Just as we may not, as we are often reminded, 'legislate from the bench,' neither may the executive legislate from the Oval Office."

Given the predilection of Trump's SCOTUS appointees for saying they follow the "original intent" of laws, it seems like maybe even his boys Kavanaugh and Gorsuch will have some difficulty finding a way around what looks like a clear congressional decision to allow people to claim asylum no matter how they crossed the border.

Like, unless maybe they don't really believe that "textual originalism" stuff every Republican judicial nominee says at every confirmation hearing. That would sure be a surprise.

[Buzzfeed News / Vox / Vox / Photo by US Customs and Border Patrol on Flickr, public domain]

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Doktor Zoom

Doktor Zoom's real name is Marty Kelley, and he lives in the wilds of Boise, Idaho. He is not a medical doctor, but does have a real PhD in Rhetoric. You should definitely donate some money to this little mommyblog where he has finally found acceptance and cat pictures. He is on maternity leave until 2033. Here is his Twitter, also. His quest to avoid prolixity is not going so great.

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