A U.S. federal appeals court on Friday temporarily halted a Trump administration policy to make asylum seekers wait in Mexico while their cases wind through U.S. immigration courts.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled on the two policies that are central to President Donald Trump’s asylum crackdown, dealing the administration a major setback, even if it proves temporary.
The question before the judges was whether to let the policy take effect during legal challenges.
The Migrant Protection Protocols (MPP) program is one of the most dramatic immigration policy changes enacted by the Trump administration, which has made asylum an increasingly remote possibility. The “Remain in Mexico” measure, as it has been colloquially referred to, took effect in January 2019 and nearly 60,000 people have been sent back to wait for hearings.
The panel concluded that plaintiffs in the case, which included 11 asylum seekers and several immigration advocacy groups, “had shown a likelihood of success on their claim that the MPP does not comply with the United States’ treaty-based non-refoulement obligations.”
Non-refoulement is a principle in international law which says asylum seekers should not be returned to places where they face danger. The administration had argued migrants could tell officials at any point in the process they had a fear of returning to Mexico.
The ruling only applies only to California and Arizona, the border states in the appeals court’s jurisdiction. New Mexico and Texas also share borders with Mexico.
Justice Department lawyers asserted that Trump was within his rights to impose the policies without Congress’s approval and that they would help deter asylum claims that lack merit.
Opponents, including the American Civil Liberties Union, argued that the administration violated U.S. law and obligations to international treaties by turning back people who will likely be persecuted because of their race, religion, nationality or political beliefs.
Reports of harm to asylum seekers
Supporters of the “Remain in Mexico” policy note it has prevented asylum seekers from being released in the United States with notices to appear in court, which they consider a major incentive for people to come.
The Homeland Security Department called it “an indispensable tool” in an Oct. 28 report. U.S. Customs and Border Protection arrests reached a 13-year high in May, officials said, before dropping in great numbers.
Trump has argued the surge during his term qualifies as a national emergency, and the Pentagon has diverted some funds in its budget to construct a border wall. However, the number of apprehensions in Trump’s term is still considerably less than what was seen in the 1990s and the first few years of this century.
Opponents say MPP has exposed asylum seekers to extreme danger in violent Mexican border cities while they wait for U.S. court hearings. Human Rights First, an advocacy group that has criticized the policy, said in January that there were more than 800 public reports of rape, kidnapping, torture, and other violent crimes against asylum seekers who have been sent back to Mexico.
The policy was introduced at the border crossing in San Diego in January and initially focused on asylum seekers from Guatemala, Honduras and El Salvador.
It expanded to crossings in Calexico, Calif., and the Texas cities of El Paso, Eagle Pass, Laredo and Brownsville, and included more people from Spanish-speaking countries.
The administration on Nov. 22 began busing asylum seekers who crossed the border in Arizona from Tucson to El Paso, to be returned from Mexico from there, extending the policy across every major corridor for illegal border crossings.
In Laredo and Brownsville, asylum seekers appear for hearings in tents on U.S. Customs and Border Protection property, connected by video to judges in other locations.
Mexicans are exempt, as are unaccompanied children.
Northern Triangle plans also challenged
In a separate ruling on Friday, the 9th Circuit left in place a lower court’s block on a Trump administration regulation that barred migrants who cross the U.S.-Mexico border between ports of entry from seeking asylum.
It also had drawn pointed questions from the judges during arguments. They asked whether the policy violated U.S. law that says it doesn’t matter how people enter the country.
The U.S. Supreme Court declined to lift a ruling blocking the ban.
Immigration and refugee advocates have also cried foul over a program that started in November and through mid-February had seen 683 asylum seekers shipped to Guatemala, more than double the number of asylum seekers processed by Guatemala in all of 2018.
Washington has made similar agreements with Honduras and El Salvador, and the U.S. plans to begin transfers of asylum seekers to those countries as well.
Guatemala, Honduras and El Salvador constitute Central America’s so-called Northern Triangle countries that have been responsible for most of the migrants arriving at the United States’ southwest border in recent years.
Last month, a coalition of groups led by the American Civil Liberties Union sued the U.S. government over the agreements. They argue that Guatemala, Honduras and El Salvador do not have the capacity to properly assess asylum cases and lack the resources to protect and support those who do seek asylum there.
Refugee advocates also say they do not qualify as safe third countries, given their crime rates.