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Supreme Court allows 'Remain in Mexico' to continue pending appeal request

The Supreme Court said Wednesday that the Trump administration could continue the so-called "Migrant Protection Protocols" and return asylum-seekers to Mexico while the legal fight over the policy winds through the court system.

Over the last several days, Trump administration officials have pushed the nation's highest court to keep MPP — also known as the 'Remain in Mexico" policy in place — after the 9th Circuit Court of Appeals concurred with a lower court's opinion that the policy likely violates a "plain reading" of U.S. law.

Meanwhile, the U.S. Solicitor General told the justices that MPP has been "an enormously effective and indispensable tool in the United States' efforts" to "address the migration crisis," and that the protocols allow the government to "process tens of thousands" of people seeking asylum without the "need" to detain them.

At least 25,000 people are currently in Mexico waiting for the U.S. to consider their application for asylum, often under brutal conditions in ad-hoc tent cities or temporary shelters, where they are vulnerable to kidnappings and violence in the country. Even as the Department of Homeland Security rapidly expanded the program to eight border cities—including Nogales, Sonora—the advocacy group Human Rights First said that there have been more than 1,000 violent attacks on asylum-seekers, and that migrants have been kidnapped, raped, beaten, robbed and tortured in Mexico.

Nonetheless, moments after the 2-1 decision by the 9th Circuit court, the government moved for the court to reconsider, and the court decided to keep MPP in effect until the Supreme Court agreed to hear the case, or issued its own order. The 9th Circuit gave the government until March 11 to convince the Supreme Court to act — telling the government that their injunction would come to bear on Thursday, March 12.

Wednesday's order by the high court pushes that deadline out further.

In an unsigned order, the Supreme Court said that it would stay the lower court's injunction "pending the timely filing and disposition," allowing time for the government to try to convince the nation's highest court that it should review the case, requesting what's known as a writ of certiorari. If the court agrees, the lower court's injunction will be blocked and DHS officials can continue to send asylum-seekers back to Mexico under MPP. However, if the court rejects the government's appeal — by refusing to hear it, or by ruling against it — the stay will end, and DHS will be blocked from operating under MPP, potentially allowing thousands of people in Mexico to seek protection under U.S. asylum laws.

Justice Sonia Sotomayor would have denied the government's request for more time to file an appeal, according to the order.

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MPP 'violates federal law'

On Feb. 28, 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 MPP. 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.

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 that Monday and Tuesday. On March 4, 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.

Over the last several days, the Trump administration has suffered a brace of legal losses as courts have wrestled with the administration's strategy to stymie asylum-seekers at the Southwest border.

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 on Feb. 28, 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.

But, 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.

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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 has repeatedly said that the program covers 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..

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.

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Paul Ingram/TucsonSentinel.com

Migrants, including asylum seekers returned to Mexico under the Trump administration's 'Remain in Mexico' policy, also known as the Migrant Protection Protocols, wait for breakfast at the Kino Border Initiative's comedor in Nogales, Sonora, in January.

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