A federal appeals court on Friday stayed its initial order blocking the Trump administration's policy of forcing asylum-seekers to wait in Mexico while their cases are processed in the US, a move that will allow border officials to continue enforcing the policy just hours after it was suspended.
The back-and-forth decisions centered on the so-called Remain in Mexico Policy —officially called the Migration Protection Protocols — has sent roughly 60,000 asylum-seekers to Mexico as they await the outcome of their immigration proceedings in the US. The policy, which took effect in early 2019, has been a pillar of the Trump administration’s approach to not only restrict asylum access but deter those seeking protection from coming to the border. In the meantime, immigrant advocates have reported cases of kidnapping, rape, torture, and other violent attacks against those forced to wait in Mexico.
US 9th Circuit Court of Appeals judges William Fletcher and Richard Paez in California ruled early Friday to affirm a 2019 preliminary injunction blocking the policy.
“The MPP has had serious adverse consequences for the individual plaintiffs. Plaintiffs presented evidence in the district court that they, as well as others returned to Mexico under the MPP, face targeted discrimination, physical violence, sexual assault, overwhelmed and corrupt law enforcement, lack of food and shelter, and practical obstacles to participation in court proceedings in the United States,” the panel wrote.
Judge Ferdinand F. Fernandez dissented.
Then, late Friday, the judges decided to stay the order as government went to the Supreme Court for a request to accept to hear the case. The stay was also pending a further ruling in the 9th Circuit. The judges ordered both sides to deliver briefs in the case next week.
The initial ruling Friday had been met with celebration by immigrant advocates and others within the Department of Homeland Security who had long had serious concerns with MPP. Many asylum officers, housed within the US Citizenship and Immigration Services, have criticized the policy as they have been forced to implement it. The union representing the group even wrote an amicus brief imploring the 9th Circuit judges to immediately block the policy, a filing the panel cited in its decision Friday.
But by late Friday night, the celebration had turned to disappointment and confusion.
“An emergency stay at 10 p.m. on a Friday is unnecessarily adding to confusion and chaos,” said one asylum officer, who spoke on the condition of anonymity. “This is bullshit.”
Judy Rabinovitz, special counsel in the ACLU’s Immigrants Rights Project, said the stay was a "temporary step" that did not change the fact that courts have ruled multiple times "against this illegal policy."
"We will continue working to permanently end this unspeakably cruel policy," she added.
The decision to implement the Migration Protection Protocols in early 2019 came amid a surge of families crossing the border and claiming asylum. In the early days of the policy, the administration was seeing upwards of 100,000 border crossers a month. In recent months, those numbers have dropped precipitously.
Late last year, BuzzFeed News obtained a draft report from a team of senior Department of Homeland Security officials who examined the policy and found that US border officials apparently pressured USCIS officials to deny immigrants entry into the US.
The “Red Team” recommendations call on agencies within DHS, including Customs and Border Protection, to provide immigration court hearing notices in multiple languages, improve language access for immigrants, and ensure that they understand the “questions asked and can make informed decisions.”They also recommended that procedures for screening vulnerable populations like children and people with disabilities are standardized, and that the role of CBP officers in the process are clarified.
The Department of Homeland Security did not respond to requests for comment on the stay. Earlier Friday, senior officials slammed the initial 9th Circuit order.
“This nationwide injunction is grave and reckless, rewrites the laws passed by Congress, and undermines the US Constitution," Acting DHS Secretary Chad Wolf said. "MPP has been a game-changer in the US government’s efforts to address the ongoing crisis at the southwest border."
Immigrations officials on Friday had sent guidance to asylum officers nationwide on the ruling, telling them it was effective immediately. “Please immediately cease all MPP processing," the memo states.
The decision from the appellate panel had come nearly a year after a separate 9th Circuit panel instituted a temporary stay of the injunction, which had been issued by Judge Richard Seeborg. In the months since the stay, the administration grew the program exponentially as an attempt to persuade those seeking protection from Central America and elsewhere to avoid coming to the southern border.
In its lawsuit, the ACLU claimed that the statute could not be used against asylum-seekers, and that it violates legal protections that prohibit the removal of individuals to a country where they would face persecution.
In September, US Customs and Border Protection acting commissioner Mark Morgan told reporters that one of the most significant thing MPP was doing is “telling the cartels and this vulnerable population the game has changed.”
“If you come here, even with a kid — it used to be, you come here with a kid, that was your passport into the United States,” he said. “MPP is saying, ‘That’s done. That’s a lie now.’ So don’t mortgage your home. Don’t pay the cartels. Don’t risk your life. Don’t risk the life of your family.”