Appeals Court Rules in Favor of Trump’s ‘Remain in Mexico’ Asylum Policy

The Ninth Circuit Court of Appeals in San Francisco, California, on on Sept. 22, 2003. On May 7, 2019, the court ruled in favor of the Trump administration's Remain in Mexico policy. Justin Sullivan/Getty Images

An appeals court has lifted a nationwide injunction preventing the Trump administration from moving forward with a policy requiring asylum-seekers at the southern border to wait in Mexico while their claims are processed.

President Donald Trump celebrated the ruling on Twitter, writing on May 8, “Big Court win at our Southern Border! We are getting there—and Wall is being built!”

The victory for Trump on the “Remain in Mexico” policy came after a group of 11 plaintiffs who attempted to enter the country at a California entry point as would-be asylees sued.

In response, San Francisco-based U.S. District Judge Richard Seeborg, who was appointed by former President Barack Obama, ordered a month ago that the Department of Homeland Security’s Migrant Protection Protocols (MPP) be suspended.

Ali Noorani, executive director of the National Immigration Forum, decried the lifting of the lower court’s stay.

The policy itself is “a practical and moral failure” and the Ninth Circuit’s decision “allows the Trump administration to force migrants to wait in what has become an increasingly unstable and dangerous region ... [and] vulnerable to drug cartels and other criminal elements,” he wrote in an opinion piece for Fox.

The protocols, unveiled by former Secretary of Homeland Security Kirstjen Nielsen in December 2018, were implemented in an attempt to curtail the so-called catch-and-release system, in which individuals make fraudulent asylum claims knowing they will be allowed into the United States and be able to stay for years before their court appearance, which many do not show up for.

“Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates. Instead, they will wait for an immigration court decision while they are in Mexico,” Nielsen said in a statement at the time.

Seeborg issued a nationwide injunction that reaches beyond the confines of the case before the court.

Critics say such sweeping restraining orders, sometimes called universal injunctions, allow unelected judges to function as lawmakers and, in effect, veto presidential directives.

In his ruling, Seeborg acknowledged there was “a growing uncertainty about the propriety of universal injunctions” but said in this case, such a nationwide injunction “was necessary to give plaintiffs a full expression of their rights.”

But a three-judge panel of the Ninth Circuit Court of Appeals ruled May 7 that Seeborg’s injunction barring enforcement of the policy couldn’t stand.

The three circuit judges were appointed by three different presidents: Diarmuid O'Scannlain by President Ronald Reagan; William A. Fletcher by President Bill Clinton; and Paul J. Watford by President Obama.

“We are hesitant to disturb this compromise amid ongoing diplomatic negotiations between the United States and Mexico because, as we have explained, the preliminary injunction (at least in its present form) is unlikely to be sustained on appeal,” the judges ruled in the case, cited as Innovation Law Lab v. McAleenan.

The judges deferred to the Trump administration on the grounds that the controversy is a political question best not second-guessed by the judicial branch.

They also determined the manner in which the policy was implemented did not run afoul of the Administrative Procedure Act, which in some situations requires certain steps to be taken prior to implementation.

The lower court’s stay on the policy “takes off the table one of the few congressionally authorized measures available to process the approximately 2,000 migrants who are currently arriving at the nation’s southern border on a daily basis,” the judges wrote.

But the litigation may yet receive a bumpy ride through the litigation process.

Fletcher and Watford filed separate opinions concurring with the result but expressing reservations about the administration’s policy, and in particular, questioning whether the government was fulfilling its non-refoulement obligations of not returning an asylum claimant to a place where he or she may be in jeopardy.

Watford cited a part of the 1951 Convention Relating to the Status of Refugees, which says that no nation that is a party to the treaty “shall expel or return (“refouler”) a refugee ... to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

But the court unanimously found that the likelihood of the plaintiffs facing substantial injury upon return to Mexico remains even though the chance of harm “is reduced somewhat by the Mexican government’s commitment to honor its international law obligations and to grant humanitarian status and work permits to individuals returned under the MPP [Migrant Protection Protocol].”