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Judge blocks Trump plan to send asylum-seekers back to Mexico during case review

A federal judge blocked the Trump administration from implementing a plan to send asylum-seekers back to Mexico while their cases wind through the U.S. immigration system. 

In a 27-page ruling Monday, U.S. District Judge Richard Seeborg granted a preliminary injunction as part of a lawsuit launched in February by the ACLU, the Southern Poverty Law Center, and the Center for Gender and Refugee Studies on behalf of 11 individual asylum-seekers from Honduras and El Salvador who said they are "living in fear in Mexico because they were returned under the new policy." A half-dozen civil rights groups joined the suit, saying that said they are "thwarted" from helping clients who have been returned to Mexico.

U.S. Customs and Border Protection, along with the Department of Homeland Security, now has two days to allow individual plaintiffs named in the suit to re-enter the U.S., for admission and, the judge said, "pursuant to this order may be detained or paroled, pending adjudication of his or her admission application." 

Seeborg's order came just a day after Homeland Security Secretary Kirstjen Nielsen, who announced the plan last December, was sacked by the White House following meetings in March that considered closing the El Paso port of entry, reported CNN. 

Nielsen reportedly told the president that closing the port was a bad idea, and presented an alternative plan to slow down entries at legal ports, arguing that closing ports would harm legal trade, while migrants would just go between the ports. 

In Arizona, migrants have entered the U.S. in large numbers along the U.S.-Mexico border near Lukeville, Arizona and have waded across the Colorado River near Yuma, Ariz. 

The president responded to Nielsen's warning, "I don't care," CNN reported.

Originally called Remain in Mexico, or "Return to Territory," the Trump administration's plan would send asylum seekers back to Mexico in an attempt to "reduce illegal migration by removing one of the key incentives that encourages people from taking the dangerous journey to the United States in the first place," Nielsen said in December. "'Catch and release’ will be replaced with ‘catch and return,'" she claimed. 

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The people who enter at the port will likely not be screened for asylum, but instead will be given a notice to appear before a U.S. immigration judge in 45 days. 

However, despite the slow rollout of the program, there were immediate signs that the disparate agencies in charge of the cases, which includes the Department of Justice, did not have a framework in place to deal with cases, ensure that people were delivered to their hearings, and signs that people under the program did not have access to legal council. 

The case represents one of a series of losses in federal courts, as DHS officials have attempted to implement harsh, aggressive policies only to be rebuffed by federal judges who have installed one injunction after another. 

"The court strongly rejected the Trump administration’s unprecedented and illegal policy of forcing asylum seekers to return to Mexico without hearing their claims," said Judy Rabinovitz, deputy director of the ACLU’s Immigrants’ Rights Project. "Try as it may, the Trump administration cannot simply ignore our laws in order to accomplish its goal of preventing people from seeking asylum in the United States," she said. 

"We are pleased that today’s preliminary injunction will offer relief to the men, women, and children who come to the United States simply to seek protection and are turned away at our border, and we will continue to fight on behalf of the more than one thousand refugees already suffering in dangerous conditions in Mexico as a result of this policy," said Robyn Barnard, a lawyer for Human Rights First, who represents two refugees who were returned to Mexico under the policy. Barnard said her client, identified under pseudonyms as Ariel and Alec, "have been forced to wait in a very precarious situation in Tijuana since being returned after their initial immigration court hearings." 

Barnard said that her clients have been sick without access to medical care, and are reliant on the charity of others "because they have no right to work to ensure they have a roof over their heads," she said. 

"As President Trump rids the Department of Homeland Security of top officials in search of even more extreme immigration hardliners, today’s ruling is a reminder that the policies already put in place to dismantle the asylum system are—in many cases—illegal, and will not hold up in court," Barnard said. 

DHS took nearly a day to provide a statement on the ruling to TucsonSentinel.com, with a spokeswoman saying that the department is "disappointed" in the ruling.

"The court's decision ignores the secretary's clear statutory authority to return aliens arriving on land from Mexico pending removal proceedings, as well as the secretary's broad discretionary authority over whether to bring removal proceedings against inadmissible and unlawfully present aliens, and what type of proceeding to bring," said the spokeswoman, who declined to be named.

"It additionally ignores the result of MPP: expedited access to asylum claims for applicants returned to Mexico instead of waiting years for a hearing," the DHS spokeswoman said in an emailed statement.

In his ruling, Seeborg said that the plaintiffs "present[ed] uncontested evidence that they fled their homes in El Salvador, Guatemala, and Honduras to escape extreme violence, including rape and death threats." 

"One plaintiff alleges she was forced to flee Honduras after her life was threatened for being a lesbian. Another contends he suffered beatings and death threats by a 'death squad' in Guatemala that targeted him for his indigenous identity. Plaintiffs contend they have continued to experience physical and verbal assaults, and live in fear of future violence, in Mexico," he said. 

In the complaint, the groups argued that under the administration's new Migrant Protection Protocols, "immigration authorities are forcing asylum seekers at the southern border of the United States to return to Mexico—to regions experiencing record levels of violence—where they must remain for the duration of their asylum proceedings."

"By placing them in such danger, and under conditions that make if difficult if not impossible for them to prepare their cases, Defendants are depriving them of a meaningful opportunity to seek asylum," they wrote.

Additionally, the groups said that the procedure used by immigration officials is "wholly inadequate for ensuring that those who face persecution, torture, or death in Mexico will not be erroneously returned."

"Indeed, the procedure is unlike any that Defendants have previously used to adjudicate such claims for protection. Yet Defendants’ policy memoranda contain no explanation for such a departure," the complaint read.

The plan was implemented as a pilot program at the San Ysidro, Calif., border crossing and has been expanded across the U.S.-Mexico border, but has not been implemented in Arizona, yet. 

As Seeborg wrote: "While the provision theoretically could be applied with respect to aliens arriving from either Mexico or Canada, the focus of the MPP is aliens transiting through Mexico, who originated from other countries. When this suit was filed, the MPP had been implemented only at the San Ysidro port of entry on the California-Mexico border. Defendants have since advised that it has now been extended to the Calexico port of entry, also on the California-Mexico border, and to El Paso, Texas. Indications are that it will be further extended unless enjoined." 

Almost as soon as the agency announced the policy, a confidential memo was distributed asking CBP staffers to sign a "litigation hold" to preserve documents, in anticipation of a lawsuit over the new process. That document, provided by an internal source who requested anonymity, includes a requirement that all agency employees keep the existence of the document itself confidential.

"Today’s victory is especially important amidst reports that the Trump administration is planning to move toward even more extreme immigration policies. The decision will prevent incredibly vulnerable individuals from being trapped in dangerous conditions in Mexico, but it’s only a step in a much larger fight," said Melissa Crow, senior supervising attorney of the Southern Poverty Law Center.

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Paul Ingram/TucsonSentinel.com

People wait at the Morley pedestrian entrance in Nogales, Son., to enter the United States.

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