SAN DIEGO (AP) — Dealing a blow to a Trump administration immigration policy, a federal appeals court ruled Friday that the government can no longer keep asylum seekers in Mexico waiting while their cases were subject to US immigration courts.
A three-judge panel at the 9th US Circuit Court of Appeals in San Francisco also ruled to suspend another major policy, one that denies asylum to anyone illegally entering the United States from Mexico.
The Trump administration’s double setback could prove temporary if it appeals to the U.S. Supreme Court, which has consistently sided with President Donald Trump on immigration and border security policies.
The “Remain in Mexico” policy, officially known as the “Migrant Protection Protocols”, came into effect in January 2019 in San Diego and gradually extended to the southern border. Nearly 60,000 people have been turned away to await hearings, and officials believe this is a key reason illegal border crossings have fallen about 80% from a 13-year high in May.
Reaction to the ruling has been swift among lawyers and immigration advocates who have spent months battling the administration over a program they see as a humanitarian disaster, subjugating hundreds of migrants to violence, kidnappings and extortion in dangerous Mexican border towns. Hundreds more live in squalid encampments just across the border, awaiting their next court appearance.
Advocates planned to immediately smuggle immigrants across the border and present the court’s decision to authorities on Friday, with the group Human Rights First hand-delivering a copy to U.S. Customs and Border Protection officers at a bridge between Laredo, in Texas, and Nuevo Laredo, Mexico. The attorneys hoped to have their clients appear before judges in US immigration courts.
The ruling halted some court cases. Immigration Judge Philip Law in San Diego postponed a final hearing in a Honduran’s asylum case until April 17 after a government lawyer could not answer his questions about the effect of the ruling, which temporarily halts the policy pending legal challenges. The government lawyer said she asked her supervisor how to handle the decision and he was also unsure what to do.
In El Paso, an administrator came to tell a judge about the decision as he heard the case of a Central American mother and her partner. The couple cried when they learned they could enter the United States with restrictions. The couple and their two young children will be placed in government custody to wait and they will not have to return to Ciudad Juarez, Mexico.
“Do you understand that?” Herbert asked through an interpreter. “There was a pretty big change in the law in the middle of your testimony.”
The Justice Department strongly criticized the ruling, saying the decision “not only ignores the constitutional authority of Congress and the administration for a policy that has been in effect for more than a year, but also extends the remedy beyond of the parties before the tribunal”.
Justice William Fletcher, writing the majority, sided with the American Civil Liberties Union and other advocacy groups who argued the policy violates international treaty obligations against returning people to a country where they risk being persecuted or tortured for reasons of race, religion, ethnicity, political beliefs or membership of a particular social group.
Fletcher agreed the government had set the bar too high for asylum seekers to persuade officers they should be exempt from the policy and hadn’t given them enough time to prepare for interviews or consult lawyers. The judges said the government also erred in requiring asylum seekers to express their fear of returning to Mexico to be considered for an exemption, instead of asking them spontaneously.
Fletcher quoted at length from asylum seekers who said they had been assaulted and victimized in Mexico, saying it was “enough — in fact, far more than enough” to undermine the government’s case.
Fletcher was joined by Judge Richard Paez, both of whom were appointed to the bench by President Bill Clinton. Judge Ferdinand Fernandez, appointed by President George HW Bush, dissented.
“The court strongly rejected the Trump administration’s claim that it could tie up asylum seekers in Mexico and put them in grave danger,” ACLU attorney Judy Rabinovitz said. “It is time for the administration to respect the law and stop putting asylum seekers at risk.
The U.S. Supreme Court, however, allowed Trump to siphon off Department of Defense money for building border walls, backed rules disqualifying more people from green cards if they use government benefits, and upheld a travel ban affecting several Muslim-majority countries.
The decision’s impact will be at least partially mitigated by other policies introduced in response to the unprecedented influx of asylum-seeking families that peaked last year, many of them from Guatemala, Honduras and El Salvador.
In November, the administration began sending asylum seekers from Honduras and El Salvador to Guatemala, denying them the chance to seek refuge in the United States and inviting them instead to apply in the American country. center torn by conflict. Similar agreements with Honduras and El Salvador are expected to enter into force soon.
Another policy leads Mexicans and Central Americans who fail an initial exam to be quickly deported without leaving border patrol posts. The screening interview is designed to take place within one day and any appeal to an immigration judge within 10 days. Asylum seekers have up to 90 minutes to contact a lawyer.
The other measure, with considerable consequences, denies asylum to anyone who crosses another country to reach the US-Mexico border without seeking protection there first. It came into effect in September and is being challenged in a separate lawsuit.
Proponents of the “Remain in Mexico” policy note that it has prevented asylum seekers from being released in the United States with court appearance notices, which they see as a major incentive to come.
Mexicans and unaccompanied children are exempt.
Asylum was granted in less than 1% of the approximately 35,000 cases of stay in Mexico that were decided. Only 5% are represented by lawyers, many of whom are reluctant to visit clients in Mexico.