9th Circuit blocks Trump admin on 'Remain in Mexico' and 'absurd' asylum refusals

The Trump administration suffered a pair of defeats in court Friday, as the 9th Circuit Court of Appeals halted the Migrant Protection Protocols/"Remain in Mexico" policy, and blocked a rule that would bar people who illegally crossed the U.S.-Mexico border from receiving asylum.

The two separate cases involve different aspects of administration’s attempt to stymie asylum-seekers at the Southwest border: first by sending asylum-seekers to wait in Mexico while their claims wind through the immigration court system, and second, attempting to refuse their applications outright if they entered the U.S. without going through a border crossing "port of entry."

In the first case, Circuit Judges William A. Fletcher, and Richard A. Paez ruled in favor of a lower court's injunction, which blocked the administration from not allowing asylum-seekers to stay in the United States, under the Migrant Protection Protocols — also known as the "Remain in Mexico" policy.

The judges found that the practice of sending people who file asylum claims to Mexico while their cases are reviewed violates a "plain reading" of U.S. law.

The judges issued a temporary stay of their ruling, as the administration is prepared to ask the Supreme Court to take up the case. The court asked the government to submit a brief supporting their request to halt the injunction by Monday evening. A response from the plaintiffs is due Tuesday.

The judges, joined by Circuit Judge Ferdinand F. Fernandez — who dissented in the MPP case — also ruled against the government's attempt to deny asylum claims by those who have arrived in the U.S. by a route other than through a port of crossing, writing that the "magnitude of the rule’s effect is staggering."

The Trump administration's argument "is unconvincing. We avoid absurd results when interpreting statutes," the judges said, writing that the government's claim "borders on absurdity."

That ruling was not affected by the stay.

Court: MPP contrary to law

About 62,000 people have been sent back to Mexico to wait for their asylum claims under MPP since it was implemented in February 2019, many of them from Honduras and Guatemala, though this also includes people from Cuba, El Salvador, and Venezuela. At its peak, around 12,500 people were sent back in August, and the program has continued to expand along the southwestern border. 

In early January, DHS announced that it was expanding MPP to Arizona, and would begin sending asylum seekers back to Nogales. By January 22, at least 1,453 people, including around 985 adults and 468 children, had been returned to Nogales, according to data obtained by TucsonSentinel.com from the Instituto Nacional de Migración, Mexico's National Institute for Migration. 

DHS operates MPP at eight border-crossing ports, including around San Diego and Calexico, Calif., and El Paso, Laredo, Brownsville and Eagle Pass in Texas, and here in Nogales. DHS officials have called the program a "cornerstone" of the department's efforts to relieve what it called a "crushing backlog of pending asylum cases," and said that migrants with "meritorious asylum claims can receive protection in months, rather than waiting in limbo for years." 

MPP has been widely criticized by humanitarian aid groups, including the Kino Border Initiative in Nogales, the bishop of Tucson, as well as by U.S. Reps. Raúl Grijalva and Ann Kirkpatrick. Despite multiple legal challenges, as well as protests and sharp criticism, the program has been implemented across the southwestern border.

After the program was implemented in January 2019, the American Civil Liberties Union filed a lawsuit on behalf of 11 asylum seekers, and Innovation Law Lab, the Central American Resource Center of Northern California, Centro Legal de la Raza, the University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado, and the Tahirih Justice Center.

The groups won a preliminary injunction in April, when U.S. District Judge Richard Seeborg granted a preliminary injunction, but a month later, the 9th Circuit ruled that the policy could go forward as the government appealed.

However, on Friday, a panel of judges ruled against the Trump administration, saying in the 2-1 decision that MPP likely violates federal immigration law because a "plain reading" of the law, "as well as the government’s longstanding and consistent practice" means an asylum applicant may not be returned to contiguous territory under the law. 

Fernandez dissented from his colleagues.

The judges also said that the program likely violates the United States' "non-refoulement" obligations—or the rule as part of international agreements that blocks countries from from forcibly returning refugees or asylum seekers to a country where they may be persecuted. 

In their 57-page ruling, Fletcher and Paez, rejected the government's claim that a section of immigration law does not include a "general" obligation to avoiding sending people back and that MPP satisfies these rules. 

Instead, the judges agreed with the plaintiffs that MPP provides "insufficient protection against refoulement" because under MPP, to stay in the U.S. an asylum-seeker must meet standards that are higher the normal standards for asylum. 

In their decision, Fletcher and Paez wrote that the government had failed to show that MPP satisfies rules created to protect asylum-seekers, and they noted that Trump administration lawyers "pointed to no evidence supporting its speculations either that aliens will volunteer that they fear returning to Mexico, or that there is little danger to non-Mexican aliens in Mexico."

"The panel also noted that the government provided no evidence to support its claim that any violence that returned aliens face in Mexico is unlikely to be violence on account of a protected grounds," they said. And, they went further quoting "numerous sworn declarations to the district court that directly contradicted the unsupported speculations of the government." 

Advocates have worried since August that asylum seekers returned to Mexico would be vulnerable to kidnappings and other violence in the country, a claim backed by a report from Human Rights First in December, which said that there were at least 636 violent attacks on asylum and that migrants have been kidnapped, raped, beaten, robbed, and tortured. 

Fletcher and Paez wrote that "there is a significant likelihood" that asylum seekers "will suffer irreparable harm if the MPP is not enjoined," and there is "uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum."

The judges also explained how the balance of the case fails towards blocking the rule as the case moves forward. While Trump administration officials have "an interest in continuing to follow the directives of the MPP, the strength of that interest is diminished by the likelihood that the MPP is inconsistent," with immigration law. 

They also concluded that the public interest similarly favors the plaintiffs because "while the public has a weighty interest in efficient administration of the immigration laws, the public also has an interest in ensuring that statutes enacted by their representatives are not imperiled by executive fiat."

"The court forcefully rejected the Trump administration’s assertion that it could strand asylum seekers in Mexico and subject them to grave danger," said Judy Rabinovitz, an ACLU attorney who argued for the 9th Circuit to again block MPP. "It’s time for the administration to follow the law and stop putting asylum seekers in harm’s way." 

Beth Werlin, executive director of the American Immigration Council, praised the ruling. 

"The decision vindicates what we have been saying for over a year—Mexico is not a safe place for asylum seekers,' she said. "When the 'Remain in Mexico' program was first announced, we surveyed 500 asylum-seeking mothers about their experiences in Mexico. Our survey showed conclusively that forcing vulnerable families and children to wait in Mexico for months at a time put their lives at risk, while also making it nearly impossible for them to access the asylum process." 

"Unfortunately, in the year that the program has operated, we’ve been proven right. Thousands of people have been kidnapped, assaulted, and suffered the horrible consequences of this unlawful program. The Remain in Mexico program has also done grievous harm to our legal system, as the government set up secret tent courts and made it almost impossible for asylum seekers to find lawyers," Werlin said, noting that only about 5 percent of the nearly 62,000 people put through the program have found lawyers.

"Rather than turning away people fleeing harm, we should ensure that the United States lives up to its reputation as a haven for those who are seeking protection by providing people with a fair day in court," she said. 

Grijalva said that MPP has "helped create a humanitarian crisis at the border and subjected thousands of families and their children to violent crime in Mexican border towns. "Those with legitimate asylum claims deserve safety in the United States, not violence and uncertainty," he said. 

MPP or "Remain in Mexico" is at its core, a "cruel, heartless policy that exposes thousands to the rampant danger and crime that pushed them out of their home countries," Grijalva said. "The Trump Administration doesn’t want to reform asylum laws. They want to make it so unbearable that they stop people from coming. I’m pleased the court saw through this blatant attempt to effectively deny asylum to those who need it the most." 

Asylum bar also blocked

In the second case, four civil rights groups filed a lawsuit in November 2018 to block an interim rule, announced by former Homeland Security Secretary Kirstjen Nielsen and then-acting Attorney General Matthew G. Whitaker, that would categorically bar people from being eligible for asylum protections if they entered the U.S. without going through a port of entry. 

"The interim rule, if applied to a proclamation suspending the entry of aliens who cross the southern border unlawfully, would bar such aliens from eligibility for asylum and thereby channel inadmissible aliens to ports of entry, where they would be processed in a controlled, orderly, and lawful manner," they wrote. 

Four civil rights groups—East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and the Central American Resource Center in Los Angeles—immediately filed a lawsuit in San Francisco, and asked the court to block the administration from implementing the rule. 

In the lawsuit, the attorneys wrote: "Together, the rule and proclamation bar people from obtaining asylum if they enter the United States somewhere along the southern border other than a designated port of arrival—in direct violation of Congress’s clear command that manner of entry cannot constitute a categorical asylum bar." 

Nielsen and Whitaker—who were both subsequently replaced by Chad Wolf and William Barr respectively—wrote that the asylum system was "overwhelmed with too many meritless asylum claims," and that the agency needed to institute the interim rule. The rule was matched with a proclamation issued by President Donald Trump the following day, which argued that the "mass migration" of Central American families had "precipitated a crisis and undermines the integrity of our borders." 

Since the plan was announced, federal officials and immigration advocates have battled over the bar as the case has moved up through the court system, including the U.S. Supreme Court, which ruled in September that the rule could go forward. 

The same three-judge panel also ruled in this case, though in this case, the ruling was unanimous as Fernandez joined with his colleagues, though he wrote his own concurring opinion. 

In the 70-page opinion, the judges agreed with U.S. District Court Judge Jon S. Tigar, and blocked the asylum bar concluding that the new rule, along with the president's proclamation, conflicts with the text and congressional purpose of federal immigration law. 

"Individually, the rule and proclamation have little effect," they wrote. "The proclamation does not have the force of law, and the rule only effectuates proclamations. But together, the rule and proclamation make asylum entirely unavailable to migrants who enter the country between ports of entry."

Under federal law, to apply for asylum in the U.S., you must be physically present in the United States, and "may apply for asylum status regardless of how you arrived in the United States or your current immigration status," as the U.S. Citizenship and Immigration Services explains.

"The magnitude of the rule’s effect is staggering," the judges said, noting that around the new rule would fall on more than 70,000 people who entered the U.S. between the ports of entry, and then claimed that they feared returning to their home county, under a rule known as "credible fear" essentially a measure that an individual asylum seeker is believable in their fear that they may be persecuted if they are sent back. 

"These migrants would typically proceed to an asylum hearing before an immigration judge but will now be unable to do so because they have entered the country at a place other than a port of entry," the judges wrote. 

The government argued that federal law splits asylum application and eligibility into two "different subsections" and that Congress "intended to allow" Justice Department officials to "promulgate limitations on asylum eligibility without regard to the procedures and authorizations governing asylum applications." 

The judges blasted this argument, calling it "unconvincing." 

"This argument is unconvincing. We avoid absurd results when interpreting statutes," the judges wrote. "Explicitly authorizing a refugee to file an asylum application because he arrived between ports of entry and then summarily denying the application for the same reason borders on absurdity. The consequences of denial at the application or eligibility stage are, to a refugee, the same." 

"Had Congress intended to allow," Justice Department and DHS officials "to override this provision, it could have said so in its delegation of authority to the Attorney General or in the statutory provisions governing asylum applications," they wrote.