President Donald Trump won another victory on March 11, against a federal district court judge and progressive immigration advocates. The administration appealed decisions from two federal courts in California, which blocked its “Remain In Mexico” asylum policy. It has credited the program with alleviating the crush of Central American migrants swamping the southern border. Obama appointee Jon S. Tigar issued an international injunction against the policy. Various Supreme Court justices have groused about these types of sweeping injunctions only recently, and now they have acted. The injunction is lifted until the case is heard all the way back up to the Supreme Court.
The unsigned order handed down from the Supreme Court simply says the policy will stay in force unless and until the high court rules on the case. Justice Sonia Sotomayor wanted it noted that she would not have lifted the injunction, but she did not write a separate dissent. The international injunction against the administration was ordered in 2018 by District Judge Tigar, who prompted Trump to make headlines by calling him an “Obama judge.” The president said:
“And I’m going to put in a major complaint because you cannot win — if you’re us — a case in the 9th Circuit and I think it’s a disgrace. This was an Obama judge. And I’ll tell you what, it’s not going to happen like this anymore.”
Tigar suspended his own injunction, however, and that decision was appealed by immigration activists driving the litigation to the Ninth Circuit, where Tigar’s district lies. The appellate judges decided that while the lower court ruling was sound, the scope of the injunction should be trimmed back. Several justices have remarked at the unprecedented frequency and breadth of lower court injunctions against the Trump administration. The Ninth Circuit Court of Appeals mentioned this and declared the ruling valid solely within the confines of that circuit. That wasn’t good enough for the administration, which warned:
[A]bsent a stay, the injunction is virtually guaranteed to impose irreparable harm by prompting a rush on the border and potentially requiring the government to allow into the United States and detain thousands of aliens who lack any entitlement to enter this country, or else to release them into the interior where many will simply disappear.
That may be a feature, rather than a bug, for some.
Stopping The Bleeding
One popular way for Central Americans who hoped to live in the U.S. to do so was to come here and claim they wished to be granted asylum. Remain in Mexico is the colloquial name of a Homeland Security program known as the Migrant Protection Protocols (MPP). It applies to aliens with no legal entitlement to enter the U.S. who depart from a third country and transit through Mexico to reach our border. Remember the caravans? This policy is why they aren’t here now.
Wanting to live in the United States because of the standard of living, economic opportunities, and overall safety are not valid claims for asylum. Asylum may be granted to people who fear persecution in their home country, by the government or others, provided the motivation for the persecution involves one of five categories: race, nationality, religion, political opinion, or participation in a particular social group.
The case of Wolf v. Innovation Law Lab will likely return to the Supreme Court in the future – next time to be heard on its merits though, not to shut down a maverick Obama judge.
Read more from Scott D. Cosenza.