The right to asylum was supposed to be for everyone, but if the Supreme Court allowed the Migration Protection Protocols to stand, the US will have one asylum system for people arriving in the US by airplane and a totally different system for people arriving across the border.
***Update: The 9th Circuit agrees that MPP likely violates US law and international obligations.
For many years now, asylum cases in the United States have been roughly split between “affirmative” asylum claims, usually people crossing the border without a visa, and “defensive” asylum claims, usually people arriving by airplane with a visa, then claiming asylum once the visa expires. The numbers go up and down, but the US receives a healthy mix of both types of claims. In fact, asylum-by-airplane is an oft overlooked, but very large, class of asylum seekers worldwide.
Rich Asylum-Seekers Only Need Apply
Yet in Europe, the US and Australia, asylum-seekers arriving by plane get very little attention, though this has lately changed in Australia. But the vitriol of anti-refugee sentiment is usually reserved for persons arriving by foot or boat. Why? Probably because being able to afford a plane ticket and a visa means you likely already come from a certain class of persons in your home country.
Just a few days ago (has it really only been a few days?) the US Supreme Court overturned an injunction on the Trump Administration’s MPP “Remain in Mexico” policy, allowing the policy to go forward while the courts adjudicate the merits. I took this as an ominous sign the newly conservative court would uphold the MPP, which clearly, to my mind, violates the statutory intent and overall scheme of the package of laws that make up US asylum policy. A helpful Lawfare blog post informs me that the SC may have overturned the injunction because the plaintiffs lack standing. Let us hope so. I am not an expert on Constitutional law, so I defer to them.
One Asylum System for the Rich, None for the Poor
But if the MPP are allowed to stand, they will have another disturbing consequence beyond their very serious constitutional ramifications, with the SC now “making the law”. In short, we will end up with one asylum system for persons arriving by air and overstaying their visas, who will continue to be able to apply for asylum within the US, and another system for persons arriving by land via Mexico, who will have to apply through “Remain in Mexico,” going to a “tent court” for their hearings and waiting in dangerous conditions for long periods of time while their cases are heard.
This is no less than one system for the rich and another system for the poor. Which could be the motto for the entire Trump Administration. They should put that on our money.
