SAN FRANCISCO — A federal judge has blocked the Trump administration's policy of returning Central American migrants to Mexico while they wait for their asylum cases to be processed in the US.
The ruling issued by Judge Richard Seeborg in San Francisco states that the preliminary injunction blocking the policy will take effect on Friday at 5 p.m. PT.
"Defendants are hereby enjoined and restrained from continuing to implement or expand the 'Migrant Protection Protocols' as announced in the January 25, 2018 DHS policy memorandum and as explicated in further agency memoranda," Seeborg wrote.
His decision represents the latest in a string of federal court rulings blocking sweeping immigration changes instituted by the Trump administration, including the travel ban, a ban on asylum for those who crossed the border without authorization, and the repeal of DACA, among others.
The latest challenge was focused on a policy titled “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 place on Jan. 28 and initially was focused on single adults at the port of entry in Tijuana.
"Perhaps what is most stunning about the end of 'Remain in Mexico' is the record of harsh, start-stop border policies that it joins, including family separation and the asylum ban. It’s both the chaotic implementation of these policies and this administration’s relentlessly hardline rhetoric that seem to be driving the urgency behind the current migration crisis," said Sarah Pierce, an analyst at the Migration Policy Institute.
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, Homeland Security Secretary Kirstjen Nielsen announced that the policy would 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 ACLU lawsuit was filed on behalf of 11 individuals seeking asylum who were taken back to Mexico. In January, the Trump administration informed the Mexican government that it was going to be enacting the policy based on a statute stating that certain individuals can be sent back to the contiguous country they had arrived from.
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.
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."
The judge added that the ACLU was "likely to show" that the policy did not comply with the Administrative Procedures Act "because the statute DHS contends the MPP is designed to enforce does not apply to these circumstances, and even if it did, further procedural protections would be required to conform to the government’s acknowledged obligation to ensure aliens are not returned to unduly dangerous circumstances."
Judy Rabinovitz, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case, said that the decision was just one more example of a rejection of the administration’s attempts to shut down asylum for migrants coming to the border.
“It’s another court saying ‘you can’t just carry out these policies in violation of the law. We are a country of law. And the laws say certain things you can do and can’t do,” she said.
One of the plaintiffs, named “Howard Doe,” was kidnapped and held by a Mexican drug cartel for two weeks on his way to the southwestern border, according to the suit. He escaped but fears that the cartel will track him down as he waits in Mexico for his immigration case to proceed. Almost none of the plaintiffs, the ACLU said, were asked about their fear of being returned to Mexico.
In Howard Doe’s case, he was referred to an asylum officer because of his stated fears of returning to Mexico but was still returned to the country without any explanation. Many of the plaintiffs have fears they will be unable to adequately communicate with legal representation in their cases, let alone have a place to sleep at night.
“Plaintiff Frank Doe does not know where he will stay while he prepares his asylum claim,” the suit read. “After being forced to return to Mexico, he attempted to return to the shelter where he resided previously, but officials turned him away because it was full. He was able to find a different shelter to stay for a couple of nights, but he does not have a more permanent residence. Plaintiff Ian Doe was also unable to return to the shelter where he stayed previously.”