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Supreme Court will hear challenges on Trump's border wall, 'Remain in Mexico' policy

The Supreme Court said Monday it will hear arguments in two challenges to the Trump administration's immigration and border policies, including the siphoning of $2.5 billion from military pay and pension funds to pay border wall construction, and a policy that requires thousands of asylum seekers to remain in Mexico while their claims for protection in the U.S. are processed. 

The Trump administration asked the justices to intervene in both cases after the 9th Circuit Court of Appeals ruled against the president's plans, and on Monday, the court published a list of cases granted for the October 2020 term. The Supreme Court has already rejected nationwide injunctions in both cases, removing stays put in place by lower courts and allowing the administration to continue implementing its policies, even as the issues were litigated in court. 

In the first case, the court agreed to hear a challenge launched by the Sierra Club and the Southern Border Communities Coalition, and backed by the ACLU, over the use of $2.5 billion in Defense Department funds to build the president's long-promised border wall without congressional approval. 

On June 26, the 9th Circuit ruled that the administration unlawfully transferred the money. However, the government has continued issuing contracts and allowing construction to go forward, and the ACLU has said that by the time the court hears the case, the money will have been spent. 

In a 2-1 ruling, Chief Judge Sidney R. Thomas and Judge Kim McLane Wardlaw wrote that the administration "lacked independent constitutional authority to authorize the transfer of funds" and violated the Appropriations Clause of the Constitution when it moved billions from the Defense Department's budget to wall construction projects in Arizona, California, and New Mexico — including projects in protected lands along Arizona's border. 

Daniel P. Collins, appointed to the bench by Trump in May 2019, dissented from his colleagues, writing that while he agreed that the Sierra Club had established standing, in his view the organizations lacked any cause of action to challenge the transfers, and concluded that the transfers were lawful. 

Even as the coronavirus pandemic has shaken the nation's economy and social structures, Trump has pursued the border wall, spending as much as $100 million per mile in one section to complete what Customs and Border Protection calls a "border wall system." That includes not only 30-foot high panels of "bollard" walls topped with steel "anti-climbing plates," but also lights and sensors, and a network of roads to make it easier for Border Patrol vehicles to quickly pursue people who get past the new barriers. 

Border Patrol officials have backed the wall construction, arguing that the wall makes it easier for agents to patrol larger areas of the border, acting as a "force multiplier," however, environmental groups have challenged the wall's construction because they argue it will chop up migration pathways for hundreds of species, and damage the land itself. 

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In recent weeks, construction firms under contract with the U.S. Army Corps of Engineers have pushed hard to complete as many miles of wall as possible before December, churning through dozens of miles of desert in wildlife refuges, national forests, and conservation areas. 

On September 18, U.S. Customs and Border Protection said that since January 2017, the agency has planned to build 738 miles of walls—including 663 miles of "primary"  and 64 miles of "secondary" barriers—along the U.S.-Mexico border at a total cost of nearly $15 billion. 

This includes $6.3 billion from money from funding earmarked for counter-narcotics operations, and another $3.6 billion in military construction funding that was shifted under Section 2808 of federal law, which allows the president to use the National Emergency Act to authorize military construction projects that aid the U.S. military.

On October 10, the 9th Circuit ruled against the Trump administration in a parallel case, and issued an injunction, halting four construction projects in Arizona. 

"Everyone knows that Trump failed to get Congress to fund his xenophobic wall obsession, and every lower court that has considered the case has found that the President has no authority to waste billions of taxpayer dollars on construction," said Dror Ladin, senior staff attorney with the ACLU’s National Security Project. "We look forward to making the same case before the Supreme Court and finally putting a stop to the administration’s unconstitutional power grab." 

The Trump administration has argued that no injured party—including the ACLU’s clients, the states of California and New Mexico, and not even Congress — can go to court to challenge the administration’s actions, the ACLU noted. However, the 9th Circuit "forcefully rejected that argument" in June, the ACLU wrote, warning that "this is a rare case in which the judiciary may have to intervene in determining where the authority lies as between the democratic forces in our scheme of government." 

The court concluded that Congress "declined to provide additional funding for projects in other areas, and it declined to provide the full $5.7 billion sought by the President: it is for the courts to enforce Congress’ priorities, and we do so here." 

Gloria Smith, managing attorney at the Sierra Club said her organization was looking forward to making their case. 

"The Trump administration has misused military funds for the construction of a wall that has caused lasting harm to the ecosystems and communities of the borderlands, damaged sacred Indigenous lands beyond repair, and destroyed wildlife and habitats along the border. Stopping this wasteful and irreversible damage is long overdue, and we look forward to making our case before the Supreme Court," she said. 

"We’re confident in the strong merits of our case. Trump’s attempts to sidestep Congress is a direct assault on the checks and balances that represent the bedrock of our democracy," said Vicki B. Gaubeca, director of the Southern Border Communities Coalition. "We will continue to push against the further militarization of our communities and for a new border vision that expands public safety, protects human rights, and welcomes all people to our region."

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'Remain in Mexico' policy also faces review

The Supreme Court also agreed to review a 9th Circuit decision from March that the Trump administration's policy of pushing asylum-seekers back to Mexico under a program known formally as the Migrant Protection Protocols violates U.S. asylum law. 

The case was launched on behalf of 11 asylum seekers forcibly returned to Mexico, and led by Innovation Law Lab, along with the Center for Gender & Refugee Studies, and Southern Poverty Law Center. Like the border wall case, the ACLU is legal the legal challenge. 

In March, 9th Circuit Judges William A. Fletcher, and Richard A. Paez 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. 

In a 2-1 decision, 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. The 9th Circuit blocked the Trump administration from continuing the Remain in Mexico policy, but just days later, the Supreme Court undid the injunction, allowing the policy to continue. 

"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.

Fletcher and Paez held off on implementing an injunction until the Supreme Court could rule, and on March 11, the justices removed the injunction in an unsigned order, but did not rule on the case. 

Now, seven months later, the court has agreed to hear the case, and may decide on the central legal question of whether the administration, led by Acting Homeland Security Secretary Chad Wolf, can enforce MPP. 

Even as the legal battle over MPP continues, U.S. Customs and Border Protection has been expelling people from the U.S. under Title 42, a policy put in place on March 21 by the CDC that allows the agency to immediately expel people who "potentially pose a health risk, either subject to previously announced travel restrictions or because they unlawfully entered the country to bypass health screening measures." 

From March to August, CBP expelled 147,866 people under Title 42. 

"Asylum seekers face grave danger every day this illegal and depraved policy is in effect. The courts have repeatedly ruled against it, and the Supreme Court should as well," said Judy Rabinovitz, ACLU attorney and lead counsel in this lawsuit. 

"It has been over a year since a federal district court struck down the administration's illegal policy of forcing asylum seekers to wait in Mexico," said Blaine Bookey, the legal director for the Center for Gender and Refugee Studies. "Yet thousands of families remain stranded in increasingly perilous conditions, where many have faced brutal violence and homelessness. We will continue the fight to stop this cruelty once and for all." 

"This only prolongs an immoral, unlawful policy that forces individuals to languish under dangerous conditions in Mexico in order to seek asylum in the United States," said Melissa Crow, senior supervising attorney with SPLC’s Immigrant Justice Project. "If there is a new administration come next year, ending this policy and the myriad of others the Trump administration has implemented to eviscerate the rights of people seeking asylum must be a top priority."

About 62,000 people were 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 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..

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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.

"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

Border wall construction along the Organ Pipe Cactus National Monument in mid-September.

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