Trump asylum policy blocked temporarily by appeals court
9th Circuit panel’s ruling says ‘Remain in Mexico’ is shown to leave migrants in way of substantial harm.
A federal appeals court on Friday blocked a Trump administration policy that requires asylum seekers to stay in Mexico while their cases wind through U.S. immigration courts.
In a 2-1 decision, the panel of the U.S. 9th Circuit Court of Appeals upheld a preliminary injunction against the so-called Remain in Mexico policy, which has forced nearly 60,000 people to wait in Mexico for their applications to be processed and their cases to be heard.
That policy is one of several the administration has put in place to prevent migrants from coming into the country at the southern border.
In another case Friday, the same panel decided unanimously to uphold an injunction against a Trump rule that denied asylum eligibility for migrants who crossed the southern border between designated ports of entry.
“Today’s decisions make clear they can’t use two of the programs they laid out to try to gut the asylum system,” said Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project. “But there are still others out there.”
One is a policy in place that requires migrants to apply for asylum in one of the countries they pass through on the way to the U.S. border. The Supreme Court previously allowed this policy to be enforced.
Jadwat said new asylum seekers will no longer be blocked under the 2019 Remain in Mexico policy, which the government calls the Migrant Protection Protocols. Immigration lawyers Friday were still trying to understand the effect of the decision on migrants who already have applied and are now waiting in Mexico for their cases to be processed.
The U.S. Department of Justice denounced the decision on the migrant protocols but did not reply to questions about whether the government would appeal. Legal analysts expressed certainty that the government would quickly appeal.
“This issue is surely headed to the Supreme Court,” said Cornell Law School professor Stephen Yale-Loehr.
The high court has yet to consider the policy but has refused in the past to remove an injunction blocking asylum for migrants who do not apply at official border crossings.
In a statement late Friday, Chad Wolf, the acting secretary of Homeland Security, called the injunction “grave and reckless” and said the migrant protocols have “been a game-changer in the U.S. government’s efforts to address the ongoing crisis at the Southwest border.” If the ruling stands, he said, “the safety and security of our border communities, international relationships and regional stability is at risk.”
In the Remain in Mexico case, the two 9th Circuit judges in the majority, both appointed by Democrats, said uncontested evidence shows that migrants face substantial harm, even death, in Mexico while they wait for decisions by U.S. immigration authorities.
The migrants “face targeted discrimination, physical violence, sexual assault, overwhelmed and corrupt law enforcement, lack of food and shelter, and practical obstacles to participation in court proceedings in the United States,” Judge William A. Fletcher, appointed by President Clinton, wrote for the majority.
“The hardship and danger to individuals returned to Mexico … have been repeatedly confirmed by reliable news reports.”
Joining Fletcher was 9th Circuit Judge Richard A. Paez, another Clinton appointee. Judge Ferdinand F. Fernandez, appointed by President George H.W. Bush, dissented.
He said the panel could not revive the injunction because a separate 9th Circuit motions panel already had blocked it on an emergency motion by the government.
Friday’s decision, made after extensive written arguments and a hearing, found the Remain in Mexico program violated U.S. immigration law and a United Nations refugee convention, which bar the government from returning someone to a place where they would be persecuted.
The majority pointed to sworn declarations by people ordered to wait in Mexico that they had been subject to violence and threats because they were non-Mexican. Several swore that they had been ordered to Mexico after short, confusing interviews with immigration agents who failed to ask them about their fears.
The government, the majority said, failed to provide any evidence that the migrants would be safe in Mexico.
“We recognize that nationwide injunctions have become increasingly controversial, but we begin by noting that it is something of a misnomer to call the district court’s order in this case a ‘nationwide injunction’ ” because it affects only four states on the southern border, two of them, California and Arizona, within the 9th Circuit’s jurisdiction, the majority wrote.
“The 9th Circuit’s decision not only ignores the constitutional authority of Congress and the administration for a policy in effect for over a year, but also extends relief beyond the parties before the court.”
The Times reported last year that tens of thousands of migrants have been ordered to remain in Mexican cities that the State Department considers some of the most dangerous in the world. Migrants have been attacked, sexually assaulted and robbed, and some have died while waiting, The Times found.
A group called Human Rights First reported Friday that there have been more than 1,000 publicly reported cases of murder, rape, torture, kidnappings and other violent assaults against the migrants in Mexico.
While attorneys representing asylum seekers already in the Remain in Mexico pipeline celebrated the Friday ruling, they said it was unlikely to ultimately help their clients because the Trump administration is likely to appeal.
“No clue what it will mean, but no doubt the government will appeal,” said Jodi Goodwin, a Brownsville, Texas, immigration lawyer who represents some of the thousands of asylum seekers camped across the border in Matamoros, Mexico. She said she was meeting with other advocates Friday, planning a response to the ruling.
The ruling caused immediate confusion. Immigration law is complicated, and not all of President Trump’s policies affect the same groups of applicants.
The immigration court in San Diego, which has been inundated with migrant protocol cases, was business as usual Friday until Judge Rico Bartolomei, who was on the bench, was notified of the ruling.
As the last asylum seeker walked out of the courtroom, Bartolomei left for about two minutes and returned with a stack of papers. He read the conclusion of the 9th Circuit ruling out loud and asked a government lawyer to recommend action, given the new order, in cases of four people who hadn’t shown up for their court dates.
U.S. Immigration and Customs Enforcement attorney Julia Cline moved to dismiss the four cases, meaning that the cases would be closed but could be reopened. Bartolomei agreed. “I have a lot of reading to do,” he said, waving the papers as he walked out of the courtroom for lunch.