NOI 14: Why is the Supreme Court Allowing Trump’s Asylum Restrictions?

Yesterday the Supreme Court issued a decision allowing a Trump Administration policy to take effect which would limit the ability of Central American immigrants to apply for asylum at the U.S.-Mexico border.

Jacob Tingen: Today I’m going to talk about a decision that came out of the Supreme Court yesterday that I saw in the evening, and I wanted to address its impact on asylum and what may be we can expect moving forward and what might happen. So let’s get started with today’s episode of Nation of Immigrants.

Announcer: You’re listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: A podcast about US immigration law, with your host, Jacob Tingen.

Jacob Tingen: But that was a bit more of a somber opening than I normally give to this, and I recognize that. The news that came out is not great news for us immigrant advocates, but it’s also not the end of the road either. It’s not terrible news. So just to talk a little bit about it, over the summer, there were a number of actions taken by the Trump administration to try to limit who can apply for asylum. The Trump administration has done everything they possibly can and continues to do things to try to limit who is even eligible to apply for asylum. Much of which has been ruled illegal, unconstitutional, are held up in courts in one way or another.

Jacob Tingen: So one of those executive actions or policies that was being rolled out was this claim that Mexico is a safe third country, and so if you’re fleeing from Guatemala, Honduras, El Salvador, and you pass through Mexico on your way to the US, then you’re not eligible to apply for asylum at the US because you should have applied for asylum in Mexico. Now, when this policy was initially announced and that that would be the position of the US government, a judge in the Ninth Circuit in California ruled that it was not allowed to take effect and he ruled that his injunction on it going into effect, would be nationwide.

Jacob Tingen: Now, the scope of the injunction was appealed to the Ninth Circuit Court of Appeals, and in a two to one decision, it’s typically a three-board panel of judges, in a two to one decision, the Ninth Circuit Court of Appeals sent it back and said, “This could go effect nationwide if you’d analyze these issues but you didn’t.” So this injunction only applies in the Ninth Circuit. It doesn’t apply in states that aren’t part of the Ninth Circuit. So the judge, the lower judge, took a look at it and then quickly issued another opinion stating, “Hey, okay. Now I’ve analyzed that like you told me I could, and guess what, it’s nationwide again.” So of course the Trump administration and its lawyers appealed quickly on that specific issue to the Supreme Court and the Supreme Court handily and quickly issued, basically, they just pulled the injunction while the rest of the legal issue works it way through the lower court.

Jacob Tingen: So the case isn’t 100% closed, but the temporary injunction against it going into effect has been removed. So that’s what’s happened. But of course, it’s some of the commentary and some of the reasoning that goes into these decisions that I like to talk about and see if they hold any real weight in a world where people travel North, risking life and limb, abandoning homes, and then going through what is arguably known to be a dangerous travel process through Mexico, and not exactly a safe place for many central Americans. I like to dig into the reasons or the motivations behind the policies. And so some of the comments that have been made in the news by different parties to this litigation reveal the real motivation. So this is from Solicitor General, Noel Francisco from the Trump administration.

Jacob Tingen: He says, “The rule screens out asylum seekers who declined to request protection at their first opportunity, claiming that Mexico is their first opportunity.” But then he says, “Immigration courts face a huge backlog, which we’ve talked about, but given how few are actually granted, it’s reasonable to ask whether those applicants genuinely fear persecution or torture, or are simply economic migrants.” So that’s what I want to focus on. First of all, yesterday we talked, not at length, but briefly how Mexico isn’t exactly a safe third country for many asylum seekers. So I guess maybe the Supreme Court didn’t catch yesterday’s episode of Nation of Immigrants, but if they had, they might have been more inclined to say, “No, no, no, let’s keep this injunction in place because Mexico isn’t exactly a safe third country.”

Jacob Tingen: But until I get some Supreme Court viewers, we’ll just have to take things where we’re at. So where are we actually? So Mexico, not a safe third country, however it’s going to be deemed that way for now, but then this other issue, another of the issues we talked about is, why are people fleeing? Why are Central American migrants coming to our Southern border? And this again suggests this idea coming out of the Trump administration that many people express, that are these people just coming for economic gains? Are they coming to take advantage of an economic backlog? And then one of the other things that I felt was a side jab towards many of these immigrants is given how few of their asylum claims are actually granted, these are frivolous claims. So I want to address this issue.

Jacob Tingen: First of all, the claims aren’t frivolous. Frivolous has a very specific definition under our asylum laws, and asylum claim is not frivolous unless it’s just made up. Unless people are just straight up lying, it’s not a frivolous claim. So, none of these asylum claims are frivolous. And nobody’s even claiming that these people are lying. In fact, most people acknowledge that these immigrants are fleeing domestic violence, gang violence, and that they’re fleeing violent conditions generally. But the bigger argument that people tend to make, people who know about this topic but who are still opposed to immigration, is that, well, they don’t fit neatly within one of those protected grounds that we’ve talked about, race, religion, nationality, political opinion, and if you don’t fit into one of those four, well then you have to invent your own social group and you have to make the legal arguments that, “Hey, the group I belong to is being persecuted for a specific reason.”

Jacob Tingen: So what’s interesting is this, and this will probably start a broader conversation about immigration courts and how things are interpreted in the immigration courts and why we need an article one in immigration court. But currently you need to understand that the immigration courts are controlled by the Trump administration. They’re controlled by the executive branch of the government, the immigration courts are part of the executive branch of the government. And in a very real way, the executive branch, the Trump administration can control how asylum laws are interpreted. So to me, it seems a little odd that a government official would say that, “Well, given how few asylum applications are granted, we can tell that these people aren’t actually afraid. They’re just coming for economic reasons.”

Jacob Tingen: Well, that’s only the case because you’re limiting who qualifies for asylum. Because unfortunately, the executive branch has been given so much control over who qualifies, that they’ve limited it so drastically that that’s what’s happening. I’ll have you know also that it really depends what judge you get, which court you get assigned to. One of the sad facts about asylum in our immigration court system is that some courts have extremely low asylum approval ratings. We’re talking zero to 10%, and other courts have extremely high asylum approval ratings. We’re talking, 80%, 90% or higher. So there’s no real explanation for that disparity except for individual biases or prejudices or how things… how different laws are being applied, and this is a topic that I’ve been planning to get to, with the control that the Trump administration has exerted over how asylum decisions are determined and adjudicated through this Attorney General certification power, that limits even more who can qualify for asylum.

Jacob Tingen: So look, to say that all of these people are coming for economic reasons and that they’re taking advantage of some kind of backlog, doesn’t face the reality of what’s actually happening. Even with all of these negative factors, and even with the administration fighting asylum, and even with all the things that immigrants have to overcome that, in my view, violate their opportunity for procedural fairness in immigration proceedings, even though they have this giant uphill battle that they face, something like 37% of of El Salvadoran or Honduran migrants actually when they’re silent climbs, so that’s not an insignificant chunk.

Jacob Tingen: And it’s my opinion that if asylum laws were interpreted a little more broadly, again, that particular social group issue that we plan to talk about and how that’s interpreted, that has been construed narrowly and narrowly and more narrowly, and then the administration through Attorney General certification power, which is a whole other topic for a whole other episode, we’ll get to it soon, but continues to narrow how asylum is interpreted. So of course it’s easy for the administration to say, “Oh, well, these people don’t really qualify anyway.” Everybody gets through the credible fear review, but nobody wins asylum. That’s not realistic. That’s not true.

Jacob Tingen: So yeah, again, just reading, “Given how few are actually granted, it’s reasonable to ask whether those applicants genuinely fear persecution or torture or are simply economic migrants.” I disagree with that. We know that they fear persecution and torture, but they just may not fit within a narrow definition of asylum where they have to prove four different factors. And then additionally, someone can absolutely prove persecution but not proof that they belong to protected ground. And so that doesn’t mean they’re not afraid, it just means that, again, they don’t fit within some narrow legal definition. So that’s what I’m going to be talking about is our immigration court system. How this decision might affect the opportunity for many Central American immigrants and it does severely limit them.

Jacob Tingen: While this injunction has been removed and this policy goes into place, it will severely limit who is allowed across the border and who is allowed to get a credible fear interview and apply for asylum in our country. Many of these people might be delayed in Mexico, and it may have the effect that Trump has been looking for, which is to limit people coming to the US if they know they can’t get in. I get the strategy implications behind the administration’s push, but I just feel that it does violate our laws and frankly, our values as a nation of immigrants who welcomes people and protects them from harm. So, hey, more to talk about, more to come, but we will be talking about how asylum cases are processed in the immigration courts and how fair that process is. So look forward to that in the next couple of weeks. Nation of Immigrants. Thanks again for listening.

Jacob Tingen: You can subscribe here on YouTube, you can follow us on Facebook and Twitter, and then also you can find me on Feel free to subscribe to the podcast on iTunes, donate and support. And like I said, we’re still in the process of setting up a nonprofit, but the donations that are given to the podcasts, we plan to direct towards immigrants legal bills. So, thanks so much for listening and have a good one.

Announcer: Thank you for listening to Nation of Immigrants.

President Obama: America is a nation of immigrants.

Announcer: Subscribe to the podcast on iTunes. Watch the live stream on YouTube and Facebook, or visit to learn more.

Share This Post

Related Articles

NOI 28: U.S. Immigration and the Politics of Fear

Today in Nation of Immigrants we tackle recent headlines about six-figures fines against immigrants from ICE, a lack of coordination in government agencies, and an allegation of rape against an ICE officer from an undocumented immigrant.

Fill out the form below and we’ll be in touch within 1 business day!

Are you ready for a superior client experience?

We’re a Richmond, Virginia law firm with clients from around the world. Schedule your consultation today and let’s talk about what we can do for you!