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9th Circuit denies Trump admin: 'Remain in Mexico' policy 'clearly violates' U.S. asylum law

Block on MPP will last until March 12, unless Supreme Court intervenes; Lawsuit over asylum 'metering' gets win

The Trump administration once again suffered a pair of defeats in court this week, as the 9th Circuit Court of Appeals rejected the government's attempt to push asylum-seekers back to Mexico through a pair of programs that have been challenged by advocates.

In a pair of opinions, the judges denied the government's request to stay injunctions issued in lawsuits over the so-called "Migrant Protection Protocols" and blocked claims of asylum. Those court orders are blocking enforcement of the policies.

The two separate cases involve different aspects of administration’s strategy to stymie asylum-seekers at the Southwest border. The first case involves a policy that sends asylum-seekers back to Mexico while their claims wind through the immigration court system — sometimes called "Remain in Mexico." The second involves asylum seekers who were attempting to enter the U.S., but were sometimes physically blocked by officials, and therefore were included in a new rule that denies asylum to people who did not request asylum from the first country they passed through after leaving their homes, including Mexico known as the "Third Transit Rule." 

These two policies are part of a range of restrictions employed by Trump administration officials that have been challenged repeatedly by civil rights organizations over the last year. This includes an attempt to categorically bar people from being eligible for asylum protections if they entered the U.S. without going through a port of entry, which was challenged at the 9th Circuit and has been blocked since last Friday, when the appellate court ruled that the federal government's argument "borders on absurdity."

On Friday, Circuit Court 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 in the U.S. back to Mexico while their cases are reviewed violates a "plain reading" of U.S. law.

MPP 'violates federal law'

Federal attorneys filed an immediate appeal, and the court granted an administrative stay that evening, setting up an "accelerated schedule for briefs" for a longer-lasting stay that would delay enforcement of the court injunction. Attorneys for both sides filed briefs on Monday and Tuesday. On Wednesday, the judges wrote that they received briefs from both sides, and ruled in a 12-page opinion that MPP "violates federal law," and rejected the government's request to stay their ruling until the U.S. Supreme Court could intervene. 

"It is clear from the text of the MPP, as well as from extensive and uncontradicted evidence in the record, that the MPP violates" laws that obligate the U.S. government to protect people under "non-refoulement," or the principle established as part of international agreements that countries cannot forcible return refugees or asylum seekers to a country where they may be persecuted. "The MPP requires that all asylum seekers arriving at our southern border to wait in Mexico while their asylum applications are adjudicated," and that policy "clearly violates" two parts of federal law, wrote Fletcher and Paez.

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.

Judges Thomas and Paez also appeared to question a claim that suspension of MPP would undermine "'almost two years’ worth of diplomatic engagement" between the U.S. and Mexico, noting that Mexico's former ambassador to the U.S. told the court that the government of Mexico has "consistently stated that MPP is a policy unilaterally imposed by the U.S. government." 

"If the law were less clear," they wrote, "we would stay the district court’s injunction in its entirety pending disposition of the Government’s petition" to the Supreme Court. "However, it is very clear that the MPP violates" U.S. law, and "it is equally clear that the MPP is causing extreme and irreversible harm to plaintiffs," they wrote. 

In their ruling Friday, the judges issued a nationwide injunction, noting that the government continued to expand MPP after the district court's decision, expanding it to the four states along the southwestern border. "Two of those states, California and Arizona, are in the Ninth Circuit. New Mexico is in the Tenth Circuit. Texas is in the Fifth Circuit," they wrote. While this would normally require a nationwide injunction, the judges hesitated in halting MPP from California to Texas. Owing to what the judges called an "intense and active controversy," over nationwide injunctions they limited their ruling to Arizona and California, which are covered by "geographical boundaries" of the 9th Circuit. 

And, they granted the government's request to keep MPP in effect for another week. 

"If the Supreme Court has not in the meantime acted to reverse or otherwise modify our decision, our partial grant and partial denial of the Government’s request for a stay of the district court’s injunction, as described above, will take effect on Thursday, March 12," they wrote. 

The third member of the panel, Judge Ferdinand F. Fernandez dissented from his colleagues on Friday. And, on Wednesday, he did not "independently reach the question whether MPP violates" the law, but rather "dissented from the panel’s decision based on a point of appellate procedure." Fernandez said that he would "grant in full the government’s emergency motion for a stay" until the Supreme Court could consider the decision.

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, according to the Transactional Records Access Clearinghouse, a non-partisan project based at Syracuse University. At its peak, around 12,500 people were sent back in August, and the program has continued to expand along the southwestern border. 

In their filings, the government said that the program covered only 25,000 people and it remains unclear why there's such a large difference between figures that the government has given to TRAC and figures given to the court. 

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." 

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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, the 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. 

In their ruling Wednesday, Fletcher and Paez criticized MPP, writing that the policy keeps asylum officers from asylum seekers whether they fear returning to Mexico. 

"Under the MPP, an asylum officer screening asylum seekers is not allowed to ask whether they fear that their 'life or freedom would be threatened' upon being returned to Mexico. The MPP requires asylum seekers—untutored in asylum law—to volunteer that they fear being returned to Mexico, even though they are not told that the existence of such fear could protect them from being returned," they wrote. 

"Uncontradicted evidence in the record shows not only that asylum officers implementing the MPP do not ask whether asylum seekers fear returning to Mexico," the judges wrote. "It also shows that officers actively prevent or discourage applicants from expressing such a fear, and that they ignore applicants who succeed in doing so." 

In their decision, the judges referenced the sworn testimony from at least six men, including one man, referenced as "Frank Doe" who said that an asylum officer "never asked me if I was afraid of returning to Mexico." 

"At one point, I had to interrupt him to explain that I didn’t feel safe in Mexico. He told me that it was too bad. He said that Honduras wasn’t safe, Mexico wasn’t safe, and the U.S. isn’t safe either," said Doe. 

"It is clear from the text of the MPP, as well as from extensive and uncontradicted evidence in the record, that the MPP violates the anti-refoulement obligation embodied" in U.S. law, the judges wrote. 

Asylum seekers blocked by 'metering' can apply for protection despite 'transit rule'

In the second case, a separate panel of judges at the 9th Circuit ruled Thursday that certain asylum seekers — part of a class-action lawsuit filed in California — can seek asylum in the U.S. despite a DHS-imposed rule that requires people to request asylum in the first country they come to after leaving home.

In 2017, the Los Angeles-based legal advocacy group Al Otro Lado filed a lawsuit on behalf of more than a dozen asylum seekers, alleging that asylum seekers at the port of entry near San Diego were "turned back to deter and discourage individuals from seeking access to the asylum process, and not, as the government maintains, because each port of entry lacks capacity to process additional asylum seekers." 

As the lawsuit moved forward, DHS officials announced the "Third Country Transit Rule," which requires that anyone who applied for asylum on or after July 16, 2019 is not eligible for asylum in the U.S. unless they applied for asylum in the first country they came to after leaving home, including Mexico. However, Al Otro Lado, represented by the American Immigration Council, the Southern Poverty Law Center, the Center for Constitutional Rights, and Mayer Brown LLP, argued that the policy of metering kept some people from being able to apply before the deadline. 

U.S. District Judge Cynthia Bashant agreed, and blocked the federal government from using the ban on people who were "metered" before the cut-off date while the case moved forward. 

In a 2-1 decision, Senior Judge Sidney R. Thomas and Judge Marsha S. Berzon agreed with Bashant, rejecting the government's claims that trying to identify those who were "metered" would burden the efficiency of the asylum process. Writing that they are "dubious" of the government's claims, the judges ruled that government's struggles are "avoidable" and "self-inflicted." 

In their 31-page opinion, Thomas and Berzon wrote that the government understood the "practical need" to identify who applied for asylum from the "amassed crowds," but "the government chose to implement the metering policy in a way that, it maintains, could now cause administrative burdens, because the government did not itself create or administer the waitlists and so cannot rely on them definitively to identify class members."

"Any harm suffered is largely the result of the government’s own failure to keep records of asylum seekers who have been metered or to provide the asylum seekers with documentation of their attempt to seek asylum. That the government’s asserted harm is largely self-inflicted 'severely undermines' its claim for equitable relief," they wrote. 

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Judge Daniel A. Bress dissented from his colleagues, and argued in a that the injunction should be blocked allowing federal officials to continue keeping asylum seekers who did not arrive in the U.S. before the July 2019 cut-off. 

In his own 69-page dissent, Bress argued that "when the Supreme Court allows an immigration rule to go into effect nationwide pending appeal, it is not for litigants or lower courts to find creative and legally unjustified ways to circumvent that ruling." 

"We originally granted a temporary stay of the district court’s injunction, but my fine colleagues in the majority now unfortunately reverse course and deny a stay pending appeal," Bress wrote. 

"The majority’s refusal to grant a stay is wrong on many levels and forces immigration officials to undertake an effectively impossible mission at our already overwhelmed border with Mexico," he wrote. "Particularly where the Supreme Court has recently stayed an injunction of the very same asylum Rule, one would expect the district court’s subsequent injunction of that Rule to be airtight. Instead, and regrettably, both the district court’s injunction and today’s decision reflect cascading legal error, wreaking further havoc on a southern border already in crisis." 

Bress argued that the district court had "greatly exceeded its powers" and that courts "cannot go around enjoining immigration rules in cases that do not challenge them, particularly where the Supreme Court has just allowed the rule to go into effect." He also said that the "immense" problems of administration that will be created by the injunction are "entirely predictable" and that the decision "will unfortunately cause only greater difficulty and confusion at a border that desperately needs neither." 

The case will move forward with an appeal of Bashant's decision blocking the rule, which is waiting for oral arguments at the 9th Circuit. 

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Paul Ingram/TucsonSentinel.com

A woman waits with her daughter at the Instituto Nacional de Migración office in Nogales, Sonora after she was sent back to wait for her asylum case to move forward as part of the Trump administration's 'Migrant Protection Policy.

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