This afternoon, in response to the Supreme Court’s decisions on Mullin v. Al Otro Lado and Mullin v. Doe, JRS/USA Vice President of Advocacy and Policy Thea Lay gave the following statement:

“The Supreme Court of the United States issued two decisions today that are confounding and potentially lethal for millions – people whose inherent dignity and value are no different from our own.

“The asylum decision eviscerates the rights of those attempting to follow the law by presenting themselves at the border, allowing the administration to preclude them from even asking for protection from persecution or torture. It risks violating U.S. obligations under international law to not return people to these kinds of dangers.

“Under the TPS ruling, no court can even consider whether the decision to end protections complies with congressional mandates to review and consider if the conditions that created the need for TPS have improved.

“Both decisions are inhumane and undermine the ‘checks and balances’ that are so central to our American form of government. They make legislative action even more urgent.”

In Mullin v. Al Otro Lado, the legal question was when someone who seeks to enter the United States “arrives in the United States”: when at the border or only once they have crossed into U.S. territory. The Majority ruled that because asylum-seekers are not in the U.S. when they are turned away at the border, they are not “arriving in” the country, and therefore the right to seek asylum and related protections has not kicked in. The ruling revives the Customs and Border Patrol “metering” policy allowing border officials to physically prevent asylum-seekers from stepping onto U.S. soil and thereby deny them the right to even the minimal protection screenings in the expedited removal process for “arriving aliens.” 

In Mullin v. Doe, the Court effectively ruled that the Department of Homeland Security Secretary’s decision to end Temporary Protected Status (TPS) need not even pretend to meet statutory requirements. Under those requirements, set by Congress, the administration must find that the conditions that prompted the TPS designation no longer exist. This decision greenlights TPS terminations based on summary, pretextual findings. There are 1.3 million people in the U.S. with TPS because of wars, natural disasters, or other extraordinary conditions. 

In the case of Haiti, the original trigger was the 2010 earthquake that affected an estimated three million people and killed between 100,000 and 160,000. Political and gang-driven violence, further natural disasters, economic collapse, and government instability continue to prevail there and preclude any credible determination that termination is justified. Haitians, as well as Syrians and people from 15 other countries, are now at risk of losing their work authorizations and of being arrested and removed; the administration has already taken steps to rescind TPS for 13 countries.

Both decisions cripple judicial oversight as a check on executive branch actions. 

Proposed legislation that could begin to address this includes H.R. 1689, passed by the House in April, to extend TPS for Haiti for another three years.