The 9th Circuit Court of Appeals, long the target of President Trump’s attacks on Twitter and elsewhere, delivered a victory Friday for his administration by temporarily allowing a policy of forcing migrants to stay in Mexico while their asylum claims are processed to continue.
The order comes after a week of upheaval at the Department of Homeland Security, where officials have drawn the ire of Trump for not doing more to stem the flow of migrants at the border. In some cases, those attempts were blocked by federal courts, such as a policy to deny asylum for those who crossed the border without authorization.
"Finally, great news at the border!" Trump said in a tweet Friday night reacting to the court decision.
It appeared the administration’s next attempt, known as the Migration Protection Protocols, was heading for a similar fate after US District Judge Richard Seeborg in San Francisco ordered a preliminary injunction on the policy, blocking it as of 5 p.m. PT Friday. However, the administration appealed for an emergency stay with the 9th Circuit Court of Appeals pending its appeal of the injunction.
On Friday, circuit judges Paul J. Watford, Diarmuid F. O'Scannlain, and William A. Fletcher ordered a temporary stay of Seeborg’s injunction pending resolution of the request filed by the government. Briefing on the matter is due on Tuesday.
“I think it’s surprising given it’s the 9th Circuit and that the injunction returned border policy to the status quo prior to the Trump change,” said Pratheepan Gulasekaram, a professor and immigration expert at Santa Clara University School of Law. “But of course, this isn’t necessarily an indication of what they will do after the emergency motion and hearing. But given the political maneuvering around this ruling — including the threat to release migrants in sanctuary cities — perhaps the 9th Circuit wants to help settle the law on the issue.”
Attorneys who helped bring the lawsuit said the ruling was discouraging.
“We are disappointed in today’s ruling and we hope the stay will be short-lived,” said Melissa Crow, an attorney with the Southern Poverty Law Center, one of the groups that helped bring the lawsuit. “We will continue our fight to ensure that vulnerable migrants seeking asylum have access to a fair immigration system.”
Judy Rabinovitz, deputy director of the ACLU’s Immigrants Rights’ Project, said that decision was “an interim step while the court considers the government’s stay request.”
The Department of Justice did not immediately respond to a request for comment.
The ACLU’s lawsuit was focused Migrant Protection Protocols, the most recent attempt by the Trump administration to discourage migrants, including asylum-seekers, from trying to enter the US. The policy went into effect Jan. 28 and initially was focused on single adults at the port of entry in Tijuana.
Since January, the policy has been expanded to the entire San Diego sector, including those who cross the border without authorization, along with the Calexico Port of Entry, and the El Paso Port of Entry.
Before handing in her resignation, then-Homeland Security Secretary Kirstjen Nielsen announced that the policy would also be expanded to other locations along the border. Under the policy, certain migrants at the border receive a “notice to appear” in US immigration court and are returned to Mexico until their hearing date.
The group also argued that the administration avoided the regulatory process to institute sweeping changes and did not go through the normally deliberative system that allows for public comment before a new rule is implemented.
Seeborg wrote that "the statute that vests DHS with authority in some circumstances to return certain aliens to a 'contiguous territory' cannot be read to apply to the individual plaintiffs or others similarly situated. Second, even assuming the statute could or should be applied to the individual plaintiffs, they have met their burden to enjoin the MPP on grounds that it lacks sufficient protections against aliens being returned to places where they face undue risk to their lives or freedom."