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WASHINGTON -- A divided Supreme Court on Friday refused to allow President Donald Trump's administration to immediately enforce a new policy of denying asylum to people who illegally cross the U.S.-Mexico border.

Chief Justice John Roberts, a conservative nominated by President George W. Bush, sided with the court's four liberals in denying the request, which lower courts had stopped after finding it likely violated federal law.

For the first time on a contested issue, new Justice Brett Kavanaugh, nominated by Trump and confirmed in October after a partisan battle, noted his agreement with the court's other conservatives.

He and Justices Clarence Thomas, Samuel Alito Jr. and Neil Gorsuch -- Trump's other nominee to the court -- would have granted the administration's request to let the order go into effect.

The decision was about whether to lift a lower court's stay of Trump's new asylum regulation, and not on the merits of his plan. The legal fight on that could return to the Supreme Court.

But the legal battle over the regulation had provoked a dispute between Roberts and Trump after the president complained that an "Obama judge" had initially stopped the regulation. The chief justice issued a statement defending the judiciary's independence.

As is often the case in such procedural matters, neither side on the 5-4 vote explained its reasoning.

A panel of the U.S. Court of Appeals for the 9th Circuit earlier this month kept in place a district judge's decision that stopped the policy's implementation, saying it was simply a way around specific language in federal law that allows all who enter the United States, regardless of where, to apply for asylum.

"Just as we may not, as we are often reminded, 'legislate from the bench,' neither may the Executive legislate from the Oval Office," wrote Circuit Judge Jay Bybee, a conservative nominated by President George W. Bush, in the 2-to-1 decision.

"We are acutely aware of the crisis in the enforcement of our immigration laws," Bybee wrote. "The burden of dealing with these issues has fallen disproportionately on the courts of our circuit. And as much as we might be tempted to revise the law as we think wise, revision of the laws is left with the branch that enacted the laws in the first place -- Congress."

In a proclamation issued on Nov. 9, Trump barred migrants from applying for asylum unless they made the request at a legal checkpoint. Only those applying at a port of entry would be eligible, Trump said, invoking what he said were his national-security powers to protect the nation's borders.

Trump said he was acting in response to caravans of migrants heading to the border.

Solicitor General Noel Francisco told the Supreme Court that the policy had important goals -- "channeling asylum seekers to ports of entry for orderly processing, discouraging dangerous and illegal entries between ports of entry, reducing the backlog of meritless asylum claims, and facilitating diplomatic negotiations."

"The United States has experienced a surge in the number of aliens who enter the country unlawfully from Mexico and, if apprehended, claim asylum and remain in the country while the claim is adjudicated, with little prospect of actually being granted that discretionary relief," Francisco told the justices.

"The president, finding that this development encourages dangerous and illegal border crossings and undermines the integrity of the nation's borders, determined that a temporary suspension of entry by aliens who fail to present themselves for inspection at a port of entry along the southern border is in the nation's interest," Francisco wrote.

The administration also had complained that the nationwide order preventing the policy from taking effect was too broad. But the court also rejected the administration's suggestion for narrowing it.

The American Civil Liberties Union, representing groups challenging the policy, said Congress had made a different determination, one that only Congress can alter.

"After World War II and the horrors experienced by refugees who were turned away by the United States and elsewhere, Congress joined the international community in adopting standards for the treatment of those fleeing persecution," lawyers with the ACLU. wrote. "A key safeguard is the assurance, explicitly and unambiguously codified, that one fleeing persecution can seek asylum regardless of where, or how, he or she enters the country."

Lower courts blocked the initiative, ruling that a federal law plainly allowed asylum applications from people who had entered the country unlawfully.

Those courts said federal law does not allow the president to make such changes. The statute says an asylum application must be accepted from anyone "physically present in the United States or who arrives in the United States whether or not at a designated port of arrival ... irrespective of such alien's status."

Judge Jon Tigar of the U.S. District Court in San Francisco issued a temporary restraining order Nov. 19 blocking the initiative nationwide. "Whatever the scope of the president's authority," Tigar wrote, "he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden."

Trump attacked Tigar, calling him an "Obama judge." That brought the rebuke from Roberts:

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Roberts said in a statement released by the court's public information office. "What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for."

The administration argued that those who cross into the country illegally could still apply for asylum but that their illegal passage would be a reason to deny it.

A group of Republican former Justice Department officials, including two former acting attorneys general and a former director of the FBI, told the Supreme Court that would be just a clever way around the law.

In their brief, the former officials said the regulation "is inconsistent with the plain text and meaning" of the federal law. Congress would not have "swung the door open for potential asylum for those who entered illegally, while simultaneously authorizing the [executive branch] to slam that door shut at any time for any reason."

Lee Gelernt of the ACLU praised the court's decision to keep the stay in place.

"The Supreme Court's decision to leave the asylum ban blocked will save lives and keep vulnerable families and children from persecution," Gelernt said in a statement. "We are pleased the court refused to allow the administration to short-circuit the usual appellate process."

The ACLU's brief has said the regulation was fundamentally unfair to those with legitimate asylum claims.

Evidence in the case, it said, showed that those "fleeing persecution are desperate and often unsophisticated, have no understanding of the option to apply for asylum at a port, are forced by gangs and others to enter away from designated ports of entry, or cannot realistically travel to such ports because of danger and distance."

The case is Trump v. East Bay Sanctuary.

Information for this article was contributed by Robert Barnes of The Washington Post; by Adam Liptak of The New York Times; and by Mark Sherman of The Associated Press.

A Section on 12/22/2018

Print Headline: Asylum directive to remain blocked; justices deny bid to apply new rule

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