In a refreshing turn from the deluge of dour news, Federal Judge Jon Tigar reinstated a nationwide block on Donald Trump’s “safe third country” asylum ban Monday. Judge Tigar had already issued an injunction against the ban, but the 9th Circuit Court of Appeals ruled that the injunction did not apply in states outside of its jurisdiction, leaving the ban enforceable in New Mexico and Texas. Monday’s ruling would take the ban off the table again in all states along the southern border.
Several organizations, including the American Civil Liberties Union (ACLU), have been pressing a suit against the ban since July. One ACLU attorney, Lee Gelernt, called the regulation “the Trump administration’s most extreme run at an asylum ban yet.” “It clearly violates domestic and international law, and cannot stand,” Gelernt said.
The safe third country regulation would prevent anyone from claiming asylum in the United States if they passed through another country and did not file for asylum there. Once stricken from the list, migrants would be deported to their home countries at U.S. expense. According to the White House, this regulation will prevent “forum shopping.” However, the ban violates the Immigration and Nationality Act, which specifies that non-citizens can only be denied asylum if they have been “firmly resettled” before arriving or are affected by a safe third-country agreement.
This is what the ACLU-spearheaded lawsuit is arguing. The suit reads, “The Rule is part of an unlawful effort to significantly undermine, if not virtually repeal, the U.S. asylum system at the southern border, and cruelly closes our doors to refugees facing persecution, forcing them to return to harm.”
Many migrants would in fact be placed in harm’s way. The southern border between the United States and Mexico is a popular place to cross, for Mexican migrants, Central and South American migrants, and African migrants, many of whom are refugees. But many are sickened by the idea of being forced to live in countries they see as just as dangerous as their own. “How are we going to apply for asylum in Nicaragua when it’s just as communist [as Cuba, which we had to leave]?” asked one man, Dileber Urrista Sanchez. Still, he told CBS News, anything was preferable to being deported. “I’d rather be in prison the rest of my life than go back to Cuba.”
Judge Tigar’s injunction would again prevent the ban from taking effect in any state along the border, meaning migrants and refugees have one fewer barrier between them and safety.
Mark Morgan, acting commissioner of U.S. Customs and Border Protection, called Tigar’s ruling “unprecedented judicial activism,” as if judicial review weren’t a key lynchpin in our system of checks and balances. Judicial activism is precedented. It has been an established principle of the American government since the initial years of its founding, and it is the greatest line of defense to the Constitution. In a political landscape which looks increasingly more like a cult of personality than a functioning administration, judges, like Judge Tigar, who are willing to uphold the law in the spirit of the people it is meant to protect are precious.
Judge Tigar’s block didn’t last long. On Wednesday, two days after he passed the injunction, the Supreme Court ruled 7-2 to delay Tigar’s ruling. In the meantime, the Court decided, the ban will once again be enforceable. Sonia Sotomayor, one of the two dissenters, was dismayed by the decision. Criticizing what she called a “precipitous action,” Sotomayor said the Court’s ruling “topples several decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere.”
It’s a big setback. But the ACLU and its allies are still fighting. “This is just a temporary step,” Gelernt said, “and we’re hopeful we’ll prevail at the end of the day. The lives of thousands of families are at stake.”