There have been many things happening since I wrote on Wednesday, but I think the two topics I will discuss are right at the top.
The Ninth Circuit today ruled that the Trump administration acted unlawfully when it transferred $2.5 billion in military construction projects to build parts of the much heralded wall. This was a lawsuit brought by a coalition of border states including California and various environmental groups. In a 2-1 decision the Court Panel affirmed that the administration illegally went around Congress in re-appropriating the funds.
Clearly, this is a blow to the Administration. President Trump has been touting the wall and in fact was present few days ago in Yuma, Arizona for a photo-op and to inspect the progress of the wall. In an election year, this decision is a big setback.
Nonetheless, I am sure President Trump will put some “liberal conspiracy” spin on the decision and will try to find another way of getting the funds. One things is for sure: Mexico will not be paying for the wall.
The second news item was more favorable to President Trump. That was the Supreme Court decision issued few days ago in DEPARTMENT OF HOMELAND SECURITY ET AL. v.
This is case that dealt with individuals who are attempting to seek asylum at the borders. To simplify, ordinarily when an individual arrives at a border, let’s say Tijuana/San Diego area, he/she must present valid entry document (usually a Visa) to enter. If the individual does not have such a document, he/she can be deported. If the individual claims fears of returning, the individual is detained at a local detention facility and given a credible fear interview. If the individual passes the interview (there is credible fear of returning), the case is forwarded to the immigration court, and the individual has the right to pursue asylum before the judge. If the individual does not pass the interview (no credible fear of returning), there is a cursory review by an immigration judge who usually affirms a lack of credible fear, and the individual is deported.
The question the Supreme Court addressed was whether an individual who has been determined NOT to have a credible fear can apply to Federal Courts for review of this determination. The Ninth Circuit had decided that such determination can be reviewed by a federal court. The Supreme Court disagreed. It is a long decision addressing Due Process and the Suspension Clause but ultimately the conclusion is that there is NO legal provision for a federal court to review whether an individual did or did not have a credible fear of persecution.
This decision limits the applicant’s rights to seek asylum. I believe it will also embolden asylum officers to issue more decisions finding lack of credible fear since it is now clear that there would be NO judicial review of that decision. This case gives the Trump Administration one more tool to limit and deny border cases.