The Supreme Court’s Asylum Ruling Is Incomprehensible

What follows is a conversation between Americas Program of the Center for International Policy in Mexico City Director Laura Carlesen, attorney Matt Cameron and Greg Wilpert of The Real News Network. Read a transcript of their conversation below or watch the video at the bottom of the post.

GREG WILPERT: Welcome to The Real News Network. I’m Greg Wilpert.

In a 7-2 ruling, the U.S. Supreme Court allowed the Trump administration to prevent most Central American migrants from seeking asylum in the United States. This is actually a temporary ruling. The Supreme Court was responding to an emergency appeal from the Trump administration to set aside decisions that California judges had made which blocked the President’s new asylum rule. This new asylum rule, which Trump issued last July, would allow asylum applications only from immigrants who have been denied asylum in other countries or have been victims of “severe human trafficking.”

Immediately following the Supreme Court’s announcement, Trump Tweeted: “BIG United States Supreme Court WIN for the Border on Asylum!” Supreme Court Justices Sonia Sotomayor and Ruth Bader Ginsburg were the only two dissenters. Sotomayor stated that the new asylum rule “topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere—without affording the public a chance to weigh in.”

Joining me now to discuss the implications of this court decision are Laura Carlsen and Matt Cameron. Laura is the director of the Americas Program of the Center for International Policy in Mexico City and a frequent contributor to The Real News Network. And Matt is an immigration attorney specializing in asylum and deportation defense and is the managing partner of Cameron Micheroni and Silva. Laura joins us from Mexico City and Matt from Boston. Thanks for being here today.

LAURA CARLSEN: Thanks.

MATT CAMERON: Thank you, Greg.

GREG WILPERT: Matt, I want to start with you. What’s at stake here? A final court decision has not been made, as I mentioned, but there are many who are saying that the right to asylum is in danger. What do you say? And where’s this right to asylum enshrined in the U.S. Constitution anyway?

MATT CAMERON: What is at stake is the future of asylum itself. As you said, this is a temporary decision. But politically, this could be permanent; legally, this could be permanent. Certainly the court is letting us know where they’re going. That’s what they do when they grant a stay. Even with this current composition, I think the court may very well uphold the ban and it may be very difficult to reverse at that point. Asylum itself is not in the Constitution, but it’s enshrined in international treaty and it’s enshrined in our own domestic law. And we have an obligation to offer it, most especially–I’d say–in this case, where we have a strong moral obligation to Central America.

GREG WILPERT: Just say a little bit more about that. Why is that particularly the case with Central America?

MATT CAMERON: Greg, I think if I burned your house down, I’d have an obligation to help you rebuild your house or at least give you a place to stay in the meantime. And that’s what we’re looking at. After more than a century of meddling, and most especially in the last few decades– foreign, military, economic, social policy, all of it–we have brought these countries to where they are today in many real ways. I think if this were Iraq or Afghanistan instead of Central America, Americans might understand a little better. But we have such short memories.

GREG WILPERT: I think that’s a very good point. Laura, you recently visited Tijuana for us, where you spoke to people who are trying to apply for asylum in the United States. I just wanted to run a clip briefly of what Trump said about the asylum applicants and refugees. And he said this at rally a few months ago.

DONALD TRUMP: You have people coming out. You know, they’re all met by the lawyers. And they come out, and they’re met by the lawyers. And they say, “Say the following phrase: I am very afraid for my life. I am afraid for my life.” OK. And then I look at the guy. He looks like he just got out of the ring. He’s a heavyweight champion of the world and he’s afraid for his life. It’s a big fat con job, folks. It’s a big fat con job.

GREG WILPERT: So Laura, what did you see in Tijuana? And what is your response to Trump’s comments?

LAURA CARLSEN: I… It almost brings me to tears because of the distance between the disdain, the hatred, the racism that’s behind it, that you can hear in his voice when he talks about people he’s never even met, whose stories he doesn’t know. I have talked to those people and I know that they are among the most desperate on Earth. They’re families, they’re men, they’re women, they’re children, and they’ve just left situations that are indeed life-threatening. Sometimes they’ve had 24 hours to leave everything in their homes because of threats from gangs or from repressive governments. They’ve set out on a journey that goes through Mexico, obviously, to the United States because they don’t have the funds and they can’t get the visas to take any other route. That’s very, very dangerous. That implies a huge degree of uncertainty and a lot of sacrifices; a lot of crimes committed against them on the journey.

You have cases like in El Salvador, an army soldier who was threatened by the gangs; a woman who rescued her brother from a safe house and the gangs gave her 24 hours to get out of town with her whole family; a taxi driver who’s being extorted by five different gangs, and if he ceases to pay even one of them, he’ll be dead the next day. These are the situations that they’re facing. The international law of asylum is protection. What it says is that human beings on this earth have a right to be safe no matter what the national borders are. If they’re fleeing persecution and they can make their case for fleeing persecution, they have an international right for a country to accept them. It says nothing about where they have to seek that. They have the right to seek asylum in the country where they feel safest.

This rule that says that they cannot even request asylum in the United States–where many of them have families, by the way–and says that they have to request asylum in the first country considered by the Trump administration safe. And of course it’s ridiculous because you have Hondurans coming through Guatemala, and yet Guatemala is one of the primary sending countries because of the conditions there. There’s no sense to it and it’s extremely inhumane. It’s a cruel policy and it’s very, very disappointing that the court has made this decision which effectively makes this the policy on the border even as hundreds of thousands of people–or at least thousands, because we don’t want to exaggerate the numbers either–are coming up from these countries that, as Matt said, are in a state of almost total collapse.

GREG WILPERT: As I mentioned in the introduction, the case is not over. But it will take a few months now until it winds its way through the courts again and presumably ends up again at the Supreme Court for a final decision. Matt, can you reconstruct a little bit for us what the arguments on the two sides are? particularly, what is the Trump administration saying in order to justify this denial of asylum, essentially? What is the response that you, as a lawyer, or other lawyers for the asylum seekers have?

MATT CAMERON: First of all, to get a stay like this before any court on appeal, you have to show imminent harm. You have to show that there’s something that’s really going to happen if this isn’t granted. And honestly, it’s very hard for me. Usually, I can see the other side, but I do not see imminent harm to the U.S. government. I see imminent harm to thousands and thousands of people who will die. People will die during this period and possibly going forward permanently.

That, to me, is where I see it. But essentially, the Trump administration says it has a right to impose this rule. On the other side, those of us who are more familiar with asylum law–I’m sorry to say–I think generally think that they don’t have that right because they’re essentially making this up. That’s what Justice Sotomayor said in her dissent, is that this is not really asylum law at all. This is just a completely new thing that they’ve made up. The lower court actually found this was arbitrary and capricious, and to get to that standard is not easy. That’s a difficult thing for a court to find. Sotomayor suggested that she agreed with that, and I think very, very rightly. I really don’t understand and I’m still in a state of shock, honestly, that the Supreme Court has allowed this to go.

GREG WILPERT: How do you think it will play out once it returns, basically, to the Supreme Court? What’s surprising is that the two other liberal judges–or presumably liberal judges, that is, Breyer and Kagan–voted in favor along with the majority on this case. Is that an indication that that will happen again? What do you think?

MATT CAMERON: It certainly is when you look at a stay. Obviously, they haven’t heard the full argument. We haven’t seen full oral argument briefing before them. Certainly their opinions could change. But what really concerns me is we didn’t actually get a decision in this case, which is a little unusual with a stay of this import. I think, honestly, we’re owed one. I’d really like to know where they were coming from and we never will, at least not until this gets a little further.

GREG WILPERT: Laura, the people that you saw there… I mean, what do you think about how they are going to deal with this situation? You saw people who clearly were very frustrated that they had spent already many weeks at the border, weren’t allowed to enter the United States, and presumably were forced to return, perhaps even, to Central America or stay in Mexico. What does that mean for them?

LAURA CARLSEN: As Matt said, we’re talking about deaths. We’re talking about deaths through deportation, through people who are forced to stay in dangerous situations in their countries. I also just got back from Honduras, and there’s demonstrations in the streets. The repression is killing people as well and the general rate of crime and collusion with a corrupt Narco government is making it impossible for people to live in their own neighborhoods.

The people who get returned are at risk of death. The people who stay in the border cities in Mexico are at risk of death. Some of them are the most dangerous cities in the country. What it means for them, we have to sort it out a little bit because there’s one group that’s the group that’s already gone into the United States and been sent back to await their asylum hearings. Presumably, they can’t throw those people out of asylum hearings that they’re already a part of. They could eventually go through the hearing and deny them asylum, which is what they’ll probably do, but they can’t just cut off–according to this rule–cut off their process. Those are the remaining Mexico people.

And then you have these safe third country people. And there’s something that should be said about this agreement, which is not an agreement, this rule that Trump made. Safe third country agreements exist in other parts of the world. We did a report on them. They’ve been challenged legally and repeatedly and, generally speaking, don’t hold up very well. But they’re different from what’s happening here in the sense that they are agreements. A developed country that for racist reasons or whatever reasons doesn’t want to take in its fair share of the world’s migrants–despite having contributed to the causes, which is very true–can say, “Okay, you, other country that they’re going through first, take these people. But we will contribute because we recognize the need for international protection and their right to international protection. We will contribute, usually financially, to the efforts to receive these people.”

Here, we don’t even have that. We have nothing. We have, once again, a ruling by Donald Trump, who’s been chiseling away at asylum, who’s been using immigration as an electoral issue to mobilize a racist base with a white supremacist agenda. And Mexico, because of its economic dependence, is just saying, “Well, okay, can you do something maybe about stopping arms at the border?” That’s their big stand for national sovereignty on these issues.

Who’s going to stand up for the migrants? That’s the big question now. The shelters are overwhelmed, the lawyers are overwhelmed. Every time they try to stop an illegal ruling like this, they get hit with another. And so it’s being tied up in the court and now this will be tied up again in the court. But in the meantime, by granting them the right–when we still don’t know the legality of the ruling, and it’s very likely not legal according to international law–by granting them the right to continue to do it, they’re killing people in the meantime.

GREG WILPERT: Matt, finally, I just want to know… Part of the problem, of course, that many people who are watching this probably will face, is that the Supreme Court seems very far removed from people in terms of being able to influence, that you don’t elect any high court judges. What would you say can people do who are concerned about this issue? Is there anything that can be done that is from an ordinary citizen perspective?

MATT CAMERON: Certainly. There are amazing organizations working on this right now. You can help them out; they’re pretty easy to find. And just continue to tell people this is catastrophic. This is really something that we as Americans, if we accept this now, there’s a very good chance that politically and legally, this will become the status quo. We just need to continue to tell each other that this is not normal, that this is not how it should be.

I just very quickly want to look back to your question because I’m having a little trouble actually articulating the government’s argument. I think I just want to mention that the government’s argument really is that migrants should be seeking asylum in the first country that they reach, which in the case of Central America… Really, if you’re coming from another Central American country, what you’re saying is that the fire is safer than the frying pan. Because that’s what you’re doing if you’re going from somewhere like El Salvador to Guatemala or the other way around.

There are right now 10, as I understand it, asylum officers in Guatemala, and that’s where they want to send these people. It’s a travesty. I think the safe third country agreement that Laura mentioned is illegal on both sides. I’m convinced of that, but this is even far and above beyond that. This is just another level of the war on asylum, just kicked up to another gear. It’s just been a really hard day, I think, for all of us who do this work.

LAURA CARLSEN: Yeah. And I want to mention that if we… In terms of what people can do, look what happened when Trump imposed the Muslim ban. The airports filled up with people protesting. This is essentially a ban on all asylum refugee seekers from Central America; in fact, from all of Latin America, because almost everyone has to come up by land. They can’t get a plane ticket to the United States without first going through their hearing and getting a legal status there. It’s essentially a ban on all Latin American refugees, on all African refugees who are coming through Latin America–which is a considerable proportion–and on all Caribbean refugees, practically. It’s very, very major and people should be reacting much more strongly than what we’ve seen so far.

GREG WILPERT: One last point that I also saw. Actually, I think it is quite interesting that the spokesperson for the union that represents asylum officers also came out very strongly against this ruling, saying that it’s clearly incompatible with the law. Even they are saying that this doesn’t make any sense. Unfortunately, we’re going to have to leave it there for now, but we’ll continue to cover the story as it develops. Thank you again, Laura Carlsen and Matt Cameron, for having joined us today.

LAURA CARLSEN: Thank you, Greg.

MATT CAMERON: Thank you, Greg.

GREG WILPERT: And thank you for joining The Real News Network.