The Department of Justice, seeking to have the asylum ban put into effect, has asked the Supreme Court to lift the injunction blocking it from going into force, a Tuesday filing shows.
The development represents the latest move by the solicitor general to bypass the lower courts by appealing directly to the conservative Supreme Court.
Last month, President Donald Trump signed a presidential proclamation that bans all migrants who cross the U.S. border illegally from seeking asylum outside of official ports of entry. His ban was temporarily blocked by a federal judge who argued that it “irreconcilably conflicts” with immigration law and the “expressed intent of Congress.”
The judge’s decision was upheld by a panel of judges on the 9th U.S. Circuit Court of Appeals who said Friday that the injunction should not be lifted.
“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 S. Bybee.
“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,” Solicitor General Noel Francisco wrote in Tuesday’s filing to Supreme Court Justice Elena Kagan, who has jurisdiction over the appeals court.
His request was criticized by American Civil Liberties Union attorney Lee Gelernt, who said that restoring the ban would “short-circuit the normal judicial process and would reinstate a blatantly unlawful policy,” and added that they would “vigorously oppose this latest stay request, as we did in the Ninth Circuit.”
Justice Kagan is asking the challengers for a response by next Monday.