A federal appeals court is allowing the Trump administration to continue returning some asylum seekers to Mexico for the duration of their immigration hearings, for now.
The 9th US Circuit Court of Appeals ruled that the administration can enforce the policy informally known as “Remain in Mexico” pending appeal. The judges, though split on some issues, list a number of factors that went into the decision, including risk of injury in Mexico and negotiations between the US and Mexico.
“The plaintiffs fear substantial injury upon return to Mexico, but the likelihood of harm is reduced somewhat by the Mexican government’s commitment to honor its international law obligations and to grant humanitarian status and work permits to individuals returned” under the policy, the opinion reads.
“We are hesitant to disturb this compromise amid ongoing diplomatic negotiations between the United States and Mexico because, as we have explained, the preliminary injunction (at least in its present form) is unlikely to be sustained on appeal.”
During oral arguments in late April, the three-judge panel – made up of two judges appointed by Democratic presidents and one appointed by a Republican – grappled with whether the policy should be allowed to continue, diving into technical matters and raising concerns about the process itself without providing much indication about where they stood on the policy overall.
Judge Paul J. Watford, who had expressed skepticism about the process, relayed those concerns again in his concurring opinion. “In my view, DHS has adopted procedures so ill-suited to achieving that stated goal as to render them arbitrary and capricious under the Administrative Procedure Act,” he writes, citing the fact that asylum seekers are not asked whether they fear returning to Mexico unless they bring it up themselves.
Judge William A. Fletcher, on the other hand, took issue with the interpretation of the statutes.
“I strongly disagree with my colleagues,” he begins, later adding: “The Government today argues for an entirely new understanding of the statute, based on arguments never before made or even suggested.”
Judge Richard Seeborg of the Northern District of California had blocked the policy earlier this year. His reasoning was that the provision on which the government was relying was never intended to permit the return of asylum seekers to Mexico, and even if it did, the current screening procedures were not adequate, said Melissa Crow, senior supervising attorney at the Southern Poverty Law Center.
The 9th US Circuit Court of Appeals, however, put the order on hold in April, allowing the policy to temporarily continue.
The so-called Migrant Protection Protocols program was initially rolled out at the San Ysidro port of entry in January. It’s since expanded to include Calexico port of entry, San Diego sector, Paso del Norte port of entry, El Paso sector and El Centro sector, according to the Department of Homeland Security.
The US has returned more than 1,600 migrants to Mexico to await immigration hearings, according to the department.
“Asylum seekers are being put at serious risk of harm every day that the forced return policy continues,” said Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, in a statement. “Notably, two of the three judges that heard this request found that there are serious legal problems with what the government is doing, so there is good reason to believe that ultimately this policy will be put to a halt.”
The challenge stems from a coalition of immigrant advocacy groups who asked a federal judge for a restraining order that would block the policy. Eleven migrants who are seeking asylum in the United States and were returned to Mexico under the policy are also plaintiffs in the case.