Federal court temporarily halts Trump’s ‘Remain in Mexico’ policy — then reverses itself

Rafael Carranza and Rick Jervis, USA TODAY

TUCSON, Ariz. – A federal appeals court has blocked the Trump administration’s policy of returning asylum-seekers to Mexico to await court hearings, a practice immigrant advocates have denounced as inhumane and deadly.

The decision on Friday by the 9th U.S. Circuit Court of Appeals in San Francisco deals a blow to the Trump administration. The process — called the Migrant Protection Protocols, or MPP, also known as "Remain in Mexico" — had been seen as another tool in President Donald Trump’s asylum crackdown.

Throngs of migrants in the program began gathering at international crossings in Ciudad Juarez and Matamoros, hoping to be let into the U.S. But the decision — and migrants' hopes — lasted only a few hours. Later on Friday, the 9th Circuit judges granted an emergency stay on the injunction, as requested by the Trump administration, effectively keeping MPP in place while further arguments are heard. The case appears to be headed to the U.S. Supreme Court.  

"This evening, with support of DOJ attorneys and CBP’s declaration, the 9th Circuit granted a stay of its earlier order enjoining MPP," Acting CBP Commissioner Mark Morgan tweeted Late Friday. "@CBP will immediately reinstate MPP!"

Since the U.S. Department of Homeland Security rolled out the program in January 2019, the U.S. government has sent back more than 60,000 people to seven Mexican border cities from Tijuana to Matamoros. Those included some of those most dangerous areas of the border, exposing migrants to assaults, kidnappings, murders and extortion.

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U.S. authorities have argued that the policy keeps migrants from slipping into the U.S. and deters other migrants considering crossing from the U.S. southern border.

“This is really a tremendous decision recognizing the illegality of the Remain in Mexico program,” said Elissa Steglich, co-director of the Immigration Clinic at the University of Texas School of Law in Austin, who makes regular trips to Texas border towns to interview MPP migrants and monitor their legal proceedings. “It means that asylum-seekers can now have access to the U.S. asylum system in a humane way.”

A key question remains: What happens to the thousands of migrants currently in Mexico in the MPP program and will they be allowed to enter the U.S. to wait out their court dates?

Women with their children from Guatemala and Honduras rent an apartment in Nogales, Sonora, for their safety and wait for their turn for MPP. The Migrant Protection Protocols expanded to Nogales, Sonora, in early January. One month later, it remains tough to gauge its full impact on this border city as apprehensions continue dropping, but asylum seekers continue arriving.

“There should be immediate relief for those currently in the MPP program,” Steglich said. “Right now, it’s unclear what will happen.”

The 9th Circuit issued a separate ruling on Friday morning that reinstated a lower court's injunction blocking the Trump administration from enforcing a rule that made migrants ineligible for asylum if they crossed the U.S.-Mexico border in between the ports of entry.

The lawsuit

Eleven migrants sent back to Mexico under the program, and a collection of six civil rights advocates including Innovation Law Lab, Al Otro Lado and Tahirih Justice Center, filed a lawsuit last year, arguing that the policy violated U.S. immigration law.

A federal district court in California had issued a ruling blocking the policy during the case, but MPP continued while the U.S. government appealed. 

In an 81-page opinion published on Friday morning, a three-judge panel with the 9th U.S. Circuit Court of Appeals in California found that the program "is inconsistent" with U.S. federal law and should be blocked entirely. Judges split 2-1 on the decision.

With an injunction in place, the case now likely returns to the district court to consider the suit itself. 

During the time of the appeal, Homeland Security had expanded the program along the U.S.-Mexico border.

The U.S. government rolled out the Migrant Protection Protocols in San Diego-Tijuana in January 2019. It later began sending asylum-seekers to Mexico in Calexico-Mexicali at the California border; El Paso-Ciudad Juárez, Brownsville-Matamoros, Laredo-Nuevo Laredo and Eagle Pass-Piedras Negras along the Texas border; and Nogales-Nogales, Sonora, at the Arizona border. 

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"The panel concluded that there is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined; 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," the court's opinion read. 

Judges William Fletcher and Richard Paez, who were both appointed by President Bill Clinton, voted to block MPP. Judge Ferdinand Fernandez, an appointee of President Ronald Reagan, dissented.

Homeland Security Secretary Chad Wolf issued a statement calling the nationwide injunction "grave and reckless," while also accusing the judges of bypassing Congress and undermining the Constitution. 

He referred to the Migrant Protection Protocols as a "gamechanger" that has allowed the U.S. government to process "meritorious" claims more quickly and to reduce fraudulent claims. 

"By implementing MPP we have also effectively reduced the incentive for smugglers and traffickers to use children in their illicit cross-border activity," Wolf said. "Should this ruling stand, the safety and security of our border communities, international relationships and regional stability is at risk." 

He confirmed they're working with the Justice Department to "expeditiously" appeal the court's "inexplicable" decision. 

A spokesman for the Justice Department, which litigated on behalf of the government, criticized the 9th Circuit's decision, as well as the "impropriety" of nationwide injunctions to halt some of the administration's immigration and border enforcement policies.

"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 department said in a statement.

The American Civil Liberties Union litigated the appeal before the 9th Circuit in October, along with the Southern Poverty Law Center and Center for Gender and Refugee Studies.

Judy Rabinovitz, an attorney with the ACLU’s Immigrants’ Rights Project, argued the case before the judges.

“The court forcefully rejected the Trump administration’s assertion that it could strand asylum seekers in Mexico and subject them to grave danger,” she said in a statement Friday. “It’s time for the administration to follow the law and stop putting asylum seekers in harm’s way.”

Michael Tan, the deputy director for the Immigrants' Rights Project, said it is almost certain the Trump administration will appeal.

The Justice Department has the option to ask a full panel of the 9th Circuit to review the case, a process known as en banc. Or, it can file an appeal directly to the Supreme Court, as it has done in other high-profile immigration cases, such as the administration's travel ban. 

Regardless of which route it takes, Tan said, the Justice Department could once again ask the courts to stay Friday's decision, pending an appeal. 

"We're under no illusion that the administration is going to take this one lying down," he said. 

Al Otro Lado, a binational legal aid group based in California that has provided assistance to asylum-seekers returned under MPP to Tijuana and Mexicali, claimed victory following the court’s decision. 

 "A HUGE WIN! 9th circuit has sided with us in our lawsuit and reinstated the block on the ILLEGAL and inhumane Remain in Mexico Policy,” the group wrote on Twitter. “We suspect the government will appeal, but for now we are celebrating!”

Returned to violence

Human Rights First has counted 1,001 cases of attacks on MPP migrants, including kidnappings, rape, torture, murder and at least 228 kidnappings or attempted kidnappings of children. 

In a recent report, Doctors Without Borders also reported that, in October alone, 75% of the migrants in the MPP program they spoke to in Nuevo Laredo had been recently kidnapped. 

The labor union for federal asylum officers, the American Federation of Government Employees Local 1924, condemned the policy in an amicus briefing filed in June to go along with the lawsuit. “MPP abandons our tradition of providing a safe haven to the persecuted and violates our international and domestic legal obligations,” the union wrote. 

Scott Weaver, an Austin attorney representing more than 50 MPP clients in Matamoros and Nuevo Laredo, said he was encouraged to hear of the court’s decision but didn’t know what it meant for his clients.

He feared ICE would now detain MPP migrants in U.S. immigration detention facilities as their asylum process played out, which would be better than the Mexican border towns they’re currently in but still not ideal, he said. He would like to see them paroled during their court process, he said.

“I’m concerned about what happens next,” Weaver said. “I’m sure they’ll be more hurdles for my clients.”

Across the border, José Ascención Moreno Mena expressed his satisfaction with the court's ruling given the "unnecessary risks" the policy exposed returned migrants to.

He leads the Coalición Pro Defense del Migrante, a collective of shelters and aid groups for migrants in Tijuana and Mexicali, the two cities where U.S. officials first implemented "Remain in Mexico."

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Despite a vast network of shelters in cities all along Mexican side of the border, many of them are continuously full, forcing migrants returned under MPP to find other accommodations.

"All these people are forced to go to places that are inhospitable, places where they run lots of risks. And since they don't know the city well, many times they end up in places that are not very safe," he said.

He said it was hard to track how many migrants sent back had suffered violence or extortion because no one is tracking that, and because migrants are afraid to report it.

Pastor Lorenzo Ortiz was driving a group of migrants from Nuevo Laredo to Monterrey when he got the news that the "Remain in Mexico" policy had been temporarily halted. 

Then calls began pouring in to his cellphone from returned migrants stranded in Nuevo Laredo, asking if they should rush the international bridge to the U.S. 

“There was a little bit of a panic,” said Ortiz, who runs two shelters filled with MPP migrants in Nuevo Laredo.

The ruling "created some conflict and confusion," he said. "I’m telling people to just wait, don’t do anything wrong that could impact your case.”

Ortiz said he hopes the U.S. government now takes the steps they did when throngs of Cuban migrants piled up at the foot of the bridge in Nuevo Laredo after the government abolished the "wet foot/dry foot" rule, which eased the way for Cubans reaching U.S. soil to stay in the U.S.

After that measure ended in 2017 under President Obama, Customs and Border Protection officers took around 20 to 30 Cubans a day until they were all processed into the U.S. within about nine months, he said. 

Ortiz said he doubts he will see the same orderly reaction this time around. 

“It sounds like good news, but I don’t think it’ll really be good news,” he said. “Trump will find a way to stop this.”

Rafael Carranza covers the border and is based in Tucson, Ariz. Jervis is based in Austin for the USA TODAY Network. Follow Rafael Carranza and Rick Jervis on Twitter: @RafaelCarranza and @MrRJervis.

This article originally appeared on USA TODAY: Court blocks Trump's ‘Remain in Mexico’ policy — then reverses itself