Trump Admin Asks Supreme Court to Allow ‘Remain in Mexico’ Policy to Continue

March 6, 2020 Updated: March 6, 2020
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The Trump administration asked the Supreme Court on Friday to allow the United States to continue to enforce a policy that would send illegal immigrants to Mexico while they wait for a court to process their claims.

The Justice Department (DOJ) filed a request to the top court to lift a preliminary injunction issued by a lower court against one of the administration’s key immigration policies, the Migrant Protection Protocols (MPP), pending a petition of a writ of certiorari. The Department also asked the court to allow the United States to enforce its policy while the court considers its request.

The filing came after the U.S. Court of Appeals of the 9th Circuit upheld a district court’s decision to grant the preliminary injunction that put a hold on the MPP. In the 2-1 ruling, 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 to the policy “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 judges also added that the policy is likely to cause “irreparable harm” to the challengers as well.

Hours later, the same court suspended its own ruling from earlier in the day by granting the administration’s motion for an emergency stay. The court also ordered the administration and the challengers to file written briefs arguing their case. The 9th Circuit then issued an order on March 4, saying that they had ruled correctly on their Feb. 28 ruling, but acknowledged that their judgment had caused “intense and active controversy.” As a result, the court said it would limit the operation of its ruling, for now, “insofar as it operates within the Ninth Circuit”—meaning the border states of California and Arizona. That ruling is scheduled to take effect on March 12.

“While we regard the merits of our decision … as clearly correct, we do not have the same level of confidence with respect to the scope of the injunction entered by the district court,” the judges said (pdf). “We, therefore, stay the injunction insofar as it operates outside the geographical boundaries of the Ninth Circuit.”

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 into the United States and prevent fraudulent or nonmeritorious cases. It sends illegal immigrants back to Mexico while they wait for the cases to be heard. The policy aims to end 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.

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 INA.

Solicitor General Noel Francisco wrote in his filing on Friday that “relief from this court is … urgently needed,” asking the top court to grant a stay to stop the injunction in its entirety. He also argued that, at a minimum, the injunction should be stayed to the extent that it applies beyond the named plaintiffs and the specified asylum seekers in the case.

Francisco said a stay is warranted because the district court injunction and the 9th circuit’s decision to uphold it “nullify an essential effort by the government to address the unprecedented number of migrants arriving at our Southwest border and seeking protection against removal, often without a legal basis.”

“[T]he decision below interferes with the U.S. government’s ongoing diplomatic engagement with the government of Mexico to address the crisis at the Southwest border, and it drastically curtails the government’s ability to use the contiguous-territory-return authority that Congress expressly provided in the INA,” he added.

The injunction is guaranteed to cause “irreparable harm” as it would prompt a “rush on the border and potentially requiring the government to allow into the United States and detain thousands of aliens who lack any entitlement to enter this country, or else to release them into the interior where many will simply disappear,” Francisco argued.

He said that immediately after the 9th Circuit Feb. 28 decision, hundreds of asylum seekers presented themselves at the border seeking to enter the United States. He said that if the 9th Circuit’s March 4 decision is allowed to take effect, immigrants waiting in Mexico will “simply travel to ports of entry and seek admission (or cross the border illegally) in Arizona or California.”

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.

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 United States’ southern border.

During a press conference on March 5, Acting Customs and Border Protection Commissioner Mark Morgan said the MPP is based and rooted in current immigration law and that it makes the immigration process more efficient in stemming the flow of illegal immigration.

“[The MPP] allows us to be more effectively administer our immigration laws, including assisting with legitimate asylum seekers, while also simultaneously ensuring aliens with nonmeritorious or even fraudulent claims no longer have the incentive to make their journey,” Morgan said.

Morgan said rulings like the one made in the 9th Circuit “threatens” the administration’s progress and “only serves to incentivize the smugglers to go right back to exploiting the same migrants that we took out of their hands.” He warned that the ruling could drive another surge of illegal immigration at the southern border, while overwhelming resources of border patrol agents.

“It’s just gonna re-energize the pull factors of illegal immigration putting everyone once again at risk. And the only winners, be clear on this, the only winners on this are going to be the [transnational criminal organizations] and smuggling organizations as they continue to get more money and more power put in their bank accounts on the backs of these migrants,” he said.

Additional reporting by Charlotte Cuthbertson.

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