A closely divided Supreme Court on Friday rejected President Trump’s plan to immediately bar asylum claims by immigrants who cross the border illegally.

By a 5-4 vote, but without additional comment, the court said it had denied the president’s request to set aside the rulings of a federal judge in San Francisco. The judge had blocked Trump’s order on asylum from taking effect, prompting the president to denounce him as an “Obama judge.”

Chief Justice John G. Roberts Jr. voted with the court’s four liberals to deny the emergency appeal filed by Solicitor Gen. Noel Francisco.

For apparently the first time, new Justice Brett M. Kavanaugh cast a dissenting vote. Along with conservative Justices Clarence Thomas, Samuel A. Alito and Neil M. Gorsuch, he voted to grant the appeal, lift the judge’s order and allow Trump’s new policy to be enforced.


The court is out of session for the holiday recess and did not have a regular conference meeting on Friday. But faced with the emergency appeals, the justices may cast the votes from afar and over several days. Justice Ruth Bader Ginsburg underwent surgery in New York on Friday, but she could have cast her vote to deny the appeal on the asylum issue earlier this week.

Lawyers for the ACLU who sued to stop Trump’s order argued they had the law on their side.

In the Refugee Act of 1980, Congress opened the door wide for asylum claims from those who can credibly claim they are fleeing persecution.

“Any alien who is physically present in the United States or who arrives in the United States, whether or not at a designated port of entry … irrespective of such alien’s status, may apply for asylum,” the law says.


But early last month, with the approach of both the midterm election and a caravan of Central Americans, Trump issued a proclamation to sharply limit asylum claims, essentially barring them for most people who do not present themselves at a designated port of entry. The president’s lawyers said the “crisis at the Southern border” justified the change in policy.

Immigrant rights advocates said the president did not have the legal authority to change the law on his own. The American Civil Liberties Union sued on behalf of several humanitarian groups based in California, and U.S. District Judge Jon Tigar in San Francisco ruled Trump’s order conflicted with federal law and could not take effect. The 9th Circuit Court of Appeals agreed in a 2-1 decision and said Trump’s order should remain on hold pending further proceedings.

“Just as we may not, as we are often reminded, ‘legislate from the bench,’ neither may the executive legislate from the Oval Office,” Judge Jay Bybee, a conservative appointee of President George W. Bush, wrote for the appeals court majority.

Francisco, the administration’s top courtroom lawyer, who has repeatedly gone to the Supreme Court seeking immediate relief from lower court rulings, appealed again to the high court, saying that “the nationwide injunction is deeply flawed and should be stayed pending appeal.”


But the justices rejected that appeal, keeping Trump’s order on hold. The case is far from over, however, and could well return to the high court after the 9th Circuit issues a final ruling.

ACLU attorney Lee Gelernt praised the decision.

“The Supreme Court’s decision to leave the asylum ban blocked will save lives and keep vulnerable families and children from persecution,” he said. “We are pleased the court refused to allow the administration to short-circuit the usual appellate process.”

Trump’s order was one of three moves the administration has made in recent months to limit asylum claims. Under former Atty. Gen. Jeff Sessions, the Justice Department decreed in June that most immigrants fleeing gang violence or domestic violence would not be eligible for asylum.


The Refugee Act shields those fleeing “persecution” based on race, religion or political beliefs, Session said, not those fleeing violence or poverty. The issue had divided immigration judges.

Earlier this week, U.S. District Judge Emmet G. Sullivan rejected that policy, saying there was “no legal basis for an effective categorical ban” on asylum for those who flee gangs or domestic violence. He put Sessions’ order on hold pending further court action.

And on Thursday, the administration and Mexico’s government announced a new policy, referred to as “remain in Mexico,” which provides that migrants who claim asylum will have to remain in Mexico while their petitions work their way through the immigration system, a process that can often take well over a year.

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