A federal appeals court grappled with two of the Trump administration’s controversial asylum policies Tuesday, appearing to take issue with some of the same aspects that immigrant advocacy groups have challenged.
One of the policies before a three-judge panel of the 9th US Circuit Court of Appeals on Tuesday was the Migrant Protection Protocols program, which requires some migrants to wait in Mexico for the duration of their immigration proceedings. When the 9th Circuit first heard oral arguments in April, Judge Paul J. Watford expressed skepticism over not asking asylum seekers, who are predominantly from Central American countries, whether they fear returning to Mexico as they wait for their hearing dates.
On Tuesday, Judge William A. Fletcher piggybacked off those concerns. “I think you’re in real trouble at least insofar as Judge Watford has told you. You don’t even ask whether they have any kind of fear,” Fletcher told Justice Department lawyer Scott Stewart.
Stewart suggested that migrants would volunteer that information if they were afraid of returning to Mexico. Fletcher appeared unconvinced.
The panel also considered the challenge to a Trump policy to temporarily bar migrants who illegally cross into the US from the southern border from seeking asylum outside of official ports of entry.
The policies are part of a concerted effort by the administration to tighten asylum and curb migration to the US-Mexico border. Administration officials have argued that the nation’s immigration court system has bogged down amid an uptick in asylum claims and that asylum restrictions are intended to provide a reprieve. Immigrant advocacy groups say the policies put migrants in harm’s way.
The arguments came on the heels of two rulings Friday that halted moves by the administration to hold families in detention indefinitely and to expand a procedure to speed up deportations for some undocumented immigrants.
At issue Tuesday was the Migrant Protection Protocols program, informally known as “remain in Mexico,” as well as a policy barring migrants who illegally crossed the border from seeking asylum. Of the two, the former has been allowed to proceed.
In February, a coalition of immigrant advocacy groups 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 plaintiffs in the case. Three plaintiffs have been granted asylum, according to Lisa Knox, an immigration attorney who represented two of the plaintiffs.
While the policy was initially blocked by a federal judge in California, the 9th Circuit in May granted the administration’s request to implement the policy pending appeal.
The judges, though split on some issues, listed 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 read.
“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.”
Since then, the program has gradually expanded. Around 42,000 migrants have been sent back to Mexico under the Migrant Protection Protocols program, and additional locations along the southern border have implemented the policy. Most recently, tent courts were erected in Laredo and Brownsville, Texas, to hear these cases.
Late last year, a federal judge in California blocked Trump’s asylum ban and the Supreme Court later upheld the judge’s order. Chief Justice John Roberts sided with the four liberal justices in the ruling.
The Supreme Court also recently weighed in on a separate asylum policy that dramatically limits the ability of Central American migrants to claim asylum. The court cleared the way for the rule to take effect.
This story has been updated with events from the hearing.