Appeals Court Temporarily Blocks Trump’s ‘Remain in Mexico’ Asylum Policy

February 28, 2020 Updated: March 6, 2020
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A federal appeals court has blocked the Trump administration from enforcing an immigration policy that requires asylum-seekers to wait in Mexico while they wait for a court to process their claims.

The U.S. Court of Appeals of the 9th Circuit ruled 2-1 on Friday to uphold a preliminary injunction issued by a lower court that puts a hold on one of the administration’s key immigration policies—the Migrant Protection Protocols (MPP)—aimed at ending loopholes in the current “catch and release” policy, under which asylum seekers are released into the interior of the country as they await a court hearing, often never to be seen again. The injunction would remain in place while the case plays out in the courts.

The MPP, more commonly known as the “Remain in Mexico” policy, was enacted in January 2019 as an attempt to curb the flow of illegal immigration and prevent fraudulent or nonmeritorious cases. The policy sends migrants “who are not clearly admissible and who are placed in removal proceedings” back to Mexico while they wait for a court to process their claims.

After the rule was announced, several organizations and individuals sued the Trump administration to halt enforcement of the policy, arguing that the MPP was inconsistent with the Immigration and Nationality Act.

The district court ruled in favor of the challengers of the policy, prompting the administration to appeal. The administration also requested an emergency stay on the injunction while the case goes through the appeals process. The 9th Circuit subsequently granted the administration’s emergency stay request that temporarily lifted the block on the MPP (pdf). The decision on Friday lifts the emergency stay that was granted last year.

The judges ruled that the MPP is “invalid in its entirety” because it was inconsistent with the Immigration and Nationality Act (INA), while adding that the challengers “have shown a likelihood of success on their claim that the MPP does not comply with our treaty-based” obligations to not force refugees or asylum seekers to return to a country where they are liable to be subjected to persecution.

The majority also ruled that the immigration policy is likely to cause “irreparable harm” to the challengers of the policy.

“Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum,” Judge William Fletcher, a Clinton appointee, wrote in the majority opinion (pdf). The case is cited as Innovation Law Lab, et al. v. Wolf.

A Justice Department spokesperson told The Epoch Times in a statement that Friday’s decision “once again highlights the consequences and impropriety of nationwide injunctions.”

“The Trump Administration has acted faithfully to implement a statutory authority provided by Congress over two decades ago and signed into law by President Clinton. 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,” the spokesperson said.

White House Press Secretary Stephanie Grisham said in a statement on Friday evening that the ruling “obstructs the Executive Branch from faithfully executing the immigration laws passed by Congress and from protecting American citizens and legal immigrants.”

“The Immigration and Nationality Act, in 8 U.S.C. 1225(b)(2) provides that, when an alien is arriving ‘from a foreign territory contiguous to the United States’ and is found by the Department of Homeland Security not to be ‘clearly and beyond a doubt entitled to be admitted,’ the Department ‘may return the alien to’ the contiguous territory of arrival pending a removal proceeding,” she said.

She continued, “using the express authority that Congress provided to the Secretary of Homeland Security in this statute, the Administration implemented the Migrant Protection Protocols (MPP), to return over 60,000 aliens to Mexico in the past 13 months, while preserving the ability for those aliens who wish to seek asylum in the United States to pursue their claims in front of an Immigration Judge.  By any measure, MPP has been hugely successful, including by reducing burdens on United States communities and easing the humanitarian crisis on the Southern border.”

“If today’s ruling is allowed to stand, these successes will be reversed, which threatens to flood the Nation’s immigration system, present unchecked coronavirus entry risk, deeply damage our positive relationship with the Government of Mexico and other regional partners, and reignite the humanitarian and security crisis at the border.  We remain committed to using every lawful means necessary to secure the border, and we are considering all available legal options to seek further review of this decision.  In the meantime, all lawful efforts will be undertaken to prevent the illegal entry of any foreign nationals,” she added.

Challenge to 2018 Asylum Rule

The same court also delivered another blow to the Trump administration, ruling 3-0 on Friday to uphold another preliminary injunction issued by a lower court against another immigration policy adopted in 2018. The policy, in that case, cited as East Bay Sanctuary Covenant v. Trump, “makes migrants who enter the United States in violation of a ‘a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico’ categorically ineligible for asylum.”

As the rule was adopted by federal agencies, President Donald Trump signed a proclamation that “suspends the entry of all migrants along the southern border of the United States for ninety days, except for any migrant who ‘enters the United States at a port of entry and properly presents for inspection.'”

The judges said the rule and proclamation separately have little effect but together they “make asylum entirely unavailable to migrants who enter the country between ports of entry.”

After the rule and proclamation were issued, four legal organizations that represent current and future asylum-seekers sued the Trump administration to prevent the rule’s enforcement. The district court ruled in favor of the challenges, granting a temporary restraining order, saying that the rule “irreconcilably conflicts with the INA and the expressed intent of Congress.” The government appealed and sought an emergency stay on the injunction. The 9th circuit denied the request for the emergency stay, prompting the administration to seek relief at the Supreme Court. The top court denied their request.

During that time, the plaintiffs sought a preliminary injunction on the rule in the district court, which was subsequently granted. This prompted the administration to appeal the decision.

In Friday’s decision, the three-judge panel agreed that the rule was inconsistent with the INA and upheld the preliminary injunction.

“Explicitly authorizing a refugee to file an asylum application because he arrived between ports of entry and then summarily denying the application for the same reason borders on absurdity,” the judges wrote (pdf).

The judges also found that the rule would cause irreparable harm to the asylum advocate group plaintiffs.

“We agree with the district court that the Organizations have established that they will suffer a significant change in their programs and a concomitant loss of funding absent a preliminary injunction enjoining enforcement of the Rule,” they wrote. “Both constitute irreparable injuries: the first is an intangible injury, and the second is economic harm for which the Organizations have no vehicle for recovery.”

Lee Gelernt, an ACLU attorney who represented the challenges, welcomed the decision.

“Once again the courts have recognized there is tremendous danger facing asylum seekers along the entire southern border, and that the administration cannot unilaterally rewrite the laws,” Gelernt said in a statement.

The Justice Department did not immediately respond to The Epoch Times’ request to comment on the East Bay Sanctuary Covenant case.

Migrant Protection Protocols

The MPP, which is overseen by the Department of Homeland Security (DHS), is an “unprecedented” move aimed at addressing the “humanitarian and security crisis at the southern border,” former DHS Secretary Kirstjen Nielsen said in January last year, when the policy first went into effect.

“This humanitarian approach will help to end the exploitation of our generous immigration laws,” she said at the time.

The policy was expanded in June last year after the United States and Mexico reached a deal to curb the influx of illegal immigration at the U.S. southern border.

A DHS assessment released in October last year found that a “significant proportion” of migrants without meritorious claims that were sent back to Mexico had chosen to abandon their asylum claim. Moreover, the report also found that the MPP had demonstrated operational effectiveness by reducing the number of illegal immigrant apprehensions and restoring integrity to the immigration system.

DHS said they were able to observe a connection between the MPP and the declining number of apprehensions at the southern border. Since May, where the number of apprehensions or found inadmissible hit its peak at 144,000, the number of detained or those found inadmissible at ports of entry decreased by 64 percent through to September.

“Although MPP is one among many tools that DHS has employed in response to the border crisis, DHS has observed a connection between MPP implementation and decreasing enforcement actions at the border—including a rapid and substantial decline in apprehensions in those areas where the most amenable aliens have been processed and returned to Mexico pursuant to MPP,” the department stated.

Charlotte Cuthbertson contributed to this report.

The article has been updated with a White House statement on Feb. 29.

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