Court halts ruling to block asylum policy
Emergency stay granted after earlier decision dealt blow to Trump’s ‘Remain in Mexico’ plan
A federal court late Friday temporarily halted a significant legal decision earlier in the day that would have blocked one of President Donald Trump’s signature 2019 border policies, in which a panel had found that asylumseekers must be allowed into the United States while their immigration cases take months to wind through the backlogged American courts.
The Justice Department requested late Friday that the appeals court temporarily put on hold its decision to halt the initiative. The government said it plans to ask the Supreme Court to reinstate the policy, arguing that the sudden pause of the program could “prompt a rush on the southern border by some of the 25,000 or more individuals who are in Mexico under (the Migrant Protection Protocols) and may now seek immediate entry into this country,” the government said in a court filing.
The government must file written arguments by the end of Monday with the plaintiffs responding by Tuesday. It is the latest development in a chaotic turn of events over the White House’s most significant border policy last year.
Earlier Friday, a three-judge panel in the U.S. Court of Appeals for the 9th Circuit in San Francisco had halted the 2019 program that forced more than 60,000 migrants requesting asylum at the border to wait in often dangerous Mexican cities until their cases are decided.
Since that ruling, one attorney representing migrants asked U.S. border authorities to “admit 1,000 individuals over a bridge at
a port of entry on the southern border,” according to Justice Department filings.
The program — officially named the Migrant Protection Protocols but known widely as “Remain in Mexico” — went into effect in January 2019, giving rise to squalid tent camps of asylumseekers across Mexican border cities, including in Matamoros on the other side of Brownsville. More than a thousand migrants have been assaulted, kidnapped or killed, according to a report from the advocacy group Human Rights First. Many have been exploited by drug cartels that control swaths of the border.
After the initial federal decision to halt the program, Judy Rabinovitz, an attorney with the American Civil Liberties Union who argued the appeal, said the court “forcefully rejected the Trump administration’s assertion that it could strand asylum seekers in Mexico and subject them to grave danger.”
The earlier Friday decision briefly blocked a policy that has been crucial to reducing a record surge of migrant families that overwhelmed the federal government in 2019, prompting Trump to threaten shuttering the border. Along with a set of other initiatives that together curtailed most access to asylum in the United States, the Remain in Mexico program slashed the number of migrants allowed to cross the southern border to about 36,700 in January after peaking at more than 144,100 in May.
Acting Homeland Security Secretary
Chad Wolf earlier Friday called the judges’ injunction “grave and reckless” and said the initiative had been a “gamechanger in the U.S. government’s efforts to address the ongoing crisis at the southwest border.” He said in a statement that his department would work with the Justice Department to quickly appeal the decision, which they later did, while “continuing to apply a range of other effective tools” at the border.
Justice Department spokesman Alexei Woltornist also characterized the court’s original ruling in a statement as liberal judges overstepping their bounds, a complaint the president has made often after justices blocked his immigration policies.
The opinion “once again highlights the consequences and impropriety of nationwide injunctions,” Woltornist said. “The Ninth 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.”
Jessica Vaughan, director of policy for the Center for Immigration Studies, a Washington, D.C., group advocating for reduced immigration whose platform the Trump administration has often adopted, said the ruling would encourage a new surge of migrants at the border by “re-incentivizing people to pay smugglers and put their lives in danger attempting to come here illegally.”
A key argument before the judicial panel was whether an obscure provision of the 1996 federal immigration law allows the U.S. government to return some migrants to neighboring countries while their requests to stay here are being processed.
The Trump administration contended that it could apply to asylum-seekers and that the United States was fulfilling its legal obligation to protect people fleeing persecution by screening for possible fears before returning them to Mexico.
Lawyers for the plaintiffs said that few asylum-seekers, regardless of the veracity of their claims of danger, were allowed to stay in the United States and most were sent to peril in Mexico.
In the initial 57-page ruling, two judges appointed by President Bill Clinton — Richard A. Paez and William A. Fletcher — found the policy “invalid in its entirety due to its inconsistency with” federal law. They said it should be halted, in part because it likely violated legal obligations preventing the United States from sending people back to countries where they could face persecution. Judge Ferdinand F. Fernandez, who was appointed by President George H.W. Bush, disagreed.
Richard Caldarone, litigation counsel at the Tahirih Justice Center, a nonprofit representing women and girls fleeing violence and a plaintiff to the lawsuit, hailed the earlier decision as a “victory for all asylum-seekers fleeing persecution.”
“More than 60,000 asylumseekers have been sent to wait in Mexico, including vulnerable groups like pregnant women, children, and LGBTQ individuals,” Caldarone said in a statement . “The right to seek asylum is enshrined in international law and we are glad to see justice served.”
Legal scholars and immigrant advocates said the initial ruling was significant even though they expected it would be quickly appealed.
“From a legal perspective, it reestablishes the U.S. commitment to international law and principles that we cannot return someone to a place where they can be persecuted,” said Stephen YaleLoehr, an immigration law professor at Cornell University Law School.
The initial decision would have meant that other asylum-seekers would no longer have been forced to wait in Mexico and that the approximately 24,000 people who have already been sent back there and still have pending cases may have been able to return to the United States and wait here, YaleLoehr said.
Jodi Goodwin, a Brownsville immigration lawyer who represents some of the thousands of asylum-seekers camped across the border in Matamoros, said she was meeting with advocates and trying to plan a response before the federal government took other actions to stop their entrance.
“We are reeling from the news and trying to decide what’s going to be the best reaction to take,” she said.
Sue Kenney-Pfalzer, director of the border and asylum network at HIAS, a Jewish nonprofit refugee assistance group, said she and her colleagues distributed copies of the injunction to Customs and Border Protection agents at ports of entry and were speaking with their clients in Mexico to devise a plan for their return to the U.S.
CBP did not respond to questions.
Before the appeals court stay late Friday, Sarah Pierce, a policy analyst at the Migration Policy Institute, a think tank in Washington, D.C., said she thought those returned to Mexico with pending cases would be able to come back to the U.S. and would not be subject to the other blocks the White House has enacted.
Whatever the outcome of this case, the uncertainty likely means the government will ramp up its other border policies, including programs flying asylumseekers to Guatemala and expediting their deportation hearings before returning them to their country of origin. The Supreme Court has also approved a policy requiring most applicants from Central America to first seek protection in at least one other country along their route of travel.
Still, Pierce said, sending migrants across the border to Mexico to wait out their U.S. court cases was far easier and cheaper than the other initiatives.
“That was the least resource intensive and very effective as well,” she said. “More than 60,000 people were subject to it.”
About 4,000 migrants have undergone the fast-tracked deportation process and returned to their countries of origin in Central America and Mexico under the Prompt Asylum Case Review and the Humanitarian Asylum Review programs. About 700 have been sent to Guatemala under a “safe third-country” agreement with that nation.
“Now it’s going to be a mad scramble to fully roll out those programs,” Pierce said.