RACHEL MARTIN, HOST:
The U.S. Supreme Court has handed the Trump administration a victory on immigration. The court has upheld a new federal rule change barring migrants at the U.S. southern border from seeking asylum. The only way to get asylum is if migrants apply for it in a third country and then are rejected.
The American Civil Liberties Union is representing migrants who've challenged the rule. Attorney Lee Gelernt is leading that challenge, and he joins us now. Thanks so much for being with us.
LEE GELERNT: Thanks for having me.
MARTIN: What are your prospects for reversing the court's ruling?
GELERNT: Well, we're going to keep fighting. There's too much at stake. This rule puts countless families and children in grave danger. We'll see what happens. I think the challenge for us is to show just how unrealistic the rule is. There's simply no way people can linger around in Guatemala or Mexico and apply for asylum. Those systems are not functioning, and it's just too dangerous for people to wait there. So to the extent people think, well, why not just try and apply for asylum in a third country? The reason is because those countries don't have serious asylum processes, and it's too dangerous there.
MARTIN: The president, though, does have broad authority to shape immigration policy, which includes rules about asylum, does he not?
GELERNT: What the president has is power to sometimes fill in gaps where Congress has not spoken. Our case is premised on the fact that Congress has spoken to this issue. Congress makes the asylum laws. And for the last 40 years, it's been clear that merely transiting through a third country was not a basis to deny asylum. Congress looked at this issue very carefully and decided one's relationship with a third country would only be a basis for denying asylum in two very narrow exceptions, one where the person was firmly, firmly resettled in that country, or where we have a formal agreement with that country to take our asylum-seekers and that country has agreed to provide a safe and fair process, like we have with Canada.
We - the administration was not able to get and implement an agreement with Mexico or Guatemala thus far and simply did an end run around what Congress required and decided they would unilaterally ban asylum.
MARTIN: I mean, that is the point, though. The administration - Ken Cuccinelli said on our program elsewhere that that is the point - to deter people from coming to the United States to seek asylum.
GELERNT: Right. And that's a completely illegal purpose. You know, Congress has made clear that people are entitled to apply for asylum. We have a long history in this country of providing refuge. A deterrence rationale is simply not permissible. And what I would urge people to do is think about this in some more historical perspective. Right now, it's Central Americans who need our help, but it's been different groups throughout history. I think it's very shortsighted of us to, all of a sudden, end asylum. There are ways to deal with backlogs, but it's not by ending asylum.
MARTIN: Where would you put the cap? I mean, presuming some limits have to be placed on the number of people who can come into the country for asylum, where would you put that?
GELERNT: Well, I think we're talking about two different things there. There - you know, there may be a cap for refugees who are overseas, but anybody who makes it to our border who is fleeing danger must be able to get process. We are not saying that everyone is entitled to asylum, but there must be process. Right now, what's happening is you come to the border, and because of this rule, you're automatically denied asylum. You're not even getting your asylum claim looked at. So what we are saying is there has to be an asylum process.
MARTIN: Lee Gelernt is an attorney with the American Civil Liberties Union, deputy director of the ACLU's National Immigrants' Rights Project. Thank you so much for your time.
GELERNT: Thank you, Rachel. Transcript provided by NPR, Copyright NPR.