SAN
DIEGO (AP) — A 9th U.S. Circuit Court of Appeals panel voted
unanimously Friday to suspend an order it issued earlier in the day to
block a central pillar of the Trump administration’s policy requiring
asylum seekers to wait in Mexico while their cases wind through U.S.
courts.
The
three-judge panel told the government to file written arguments by the
end of Monday and for the plaintiffs to respond by the end of Tuesday.
The
Justice Department said at least 25,000 asylum seekers subject to the
policy are currently waiting in Mexico and expressed “massive and
irreparable national-security of public-safety concerns.”
Government
attorneys said immigration lawyers had begun demanding that asylum
seekers be allowed in the United States, with one insisting that 1,000
people be allowed to enter at one location.
“The
Court’s reinstatement of the injunction causes the United States public
and the government significant and irreparable harms — to border
security, public safety, public health, and diplomatic relations,”
Justice Department attorneys wrote.
Customs and Border Protection had already begun to stop processing people under the policy.
ACLU attorney Judy Rabinovitz called the suspension of Friday’s order “a temporary step.”
“We will continue working to permanently end this unspeakably cruel policy,” she said.
The
government’s setback earlier Friday from the three-judge panel of the
9th U.S. Circuit Court of Appeals may prove temporary if President
Donald Trump’s administration appeals to the U.S. Supreme Court, which
has consistently sided with Trump on immigration and border security
policies. Chad Wolf, the acting Homeland Security secretary, said he was
working with the Justice Department to “expeditiously appeal this
inexplicable decision.”
The
“Remain in Mexico” policy, known officially as “Migrant Protection
Protocols,” took effect in January 2019 in San Diego and gradually
spread across the southern border. About 60,000 people have been sent
back to wait for hearings, and officials believe it is a big reason why
illegal border crossings plummeted about 80% from a 13-year high in May.
Christopher
Landau, the U.S. ambassador to Mexico, said in a court filing that
halting the policy creates “substantial risk of immediate chaos on the
border.”
The
ambassador said the policy is critical to deterring “uncontrolled of
third-country migrants through Mexico to the United States” and that
halting it would encourage more asylum-seekers to come and “obliterate
the substantial progress that both countries have made over the last
year.”
Reaction to the decision
blocking the policy was swift among immigration lawyers and advocates
who have spent months fighting with the administration over a program
they see as a humanitarian disaster, subjecting hundreds of migrants to
violence, kidnapping and extortion in dangerous Mexican border cities.
Hundreds more have been living in squalid encampments just across the border, as they wait for their next court date.
Advocates
planned to have immigrants immediately cross the border and present the
court decision to authorities Friday, with group Human Rights First
hand-delivering a copy to U.S. Customs and Border Protection officers at
a bridge connecting Laredo, Texas, and Nuevo Laredo, Mexico. Lawyers
were hoping to get their clients before U.S. immigration court judges.
The
decision interrupted some court cases. Immigration Judge Philip Law in
San Diego delayed a final hearing on a Honduran man’s asylum case to
April 17 after a government attorney couldn’t answer his questions about
the effect of ruling, which temporarily halts the policy during legal
challenges. The government attorney said she asked her supervisor how to
address the ruling and that he didn’t know what to do either.
In
El Paso, an administrator came to tell a judge of the ruling as he
heard the case of a Central American mother and her partner. The couple
cried when they learned they could get into the U.S. with restrictions.
The couple and their two young children will be put into government
detention to wait and they won’t have to return to Ciudad Juarez,
Mexico.
“Do
you guys understand that?” Herbert asked through an interpreter. “There
was a pretty significant change in the law in the middle of your
testimony.”
The
Justice Department sharply criticized the ruling, saying it “not only
ignores the constitutional authority of Congress and the administration
for a policy in effect for over a year, but also extends relief beyond
the parties before the court.” Wolf, the acting Homeland Security
secretary, called the decision “grave and reckless.”
Judge
William Fletcher, writing the majority, sided with the American Civil
Liberties Union and other advocacy groups who argued the policy violates
international treaty obligations against sending people back to a
country where they are likely to be persecuted or tortured on the
grounds of race, religion, ethnicity, political beliefs or membership in
a particular social group.
Fletcher
agreed the government set the bar too high for asylum-seekers to
persuade officers that they should be exempt from the policy and didn’t
provide enough time for them to prepare for interviews or consult
lawyers. The judges said the government also erred by requiring
asylum-seekers to express fear of returning to Mexico to be considered
for an exemption, instead of asking them unprompted.
Fletcher
quoted at length asylum-seekers who reported being assaulted and
victimized in Mexico, saying it was “enough — indeed, far more than
enough” to undercut the government’s arguments.
Fletcher
was joined by Judge Richard Paez, who were both appointed to the bench
by President Bill Clinton. Judge Ferdinand Fernandez, an appointee of
President George H.W. Bush, dissented.
“The
court forcefully rejected the Trump administration’s assertion that it
could strand asylum-seekers in Mexico and subject them to grave
danger,“Rabinovitz, the ACLU attorney, said. “It’s time for the
administration to follow the law and stop putting asylum-seekers in
harm’s way.”
Rabinovitz
said Justice Department officials informed the ACLU that they will ask
the Supreme Court to reinstate the policy and that the nation’s highest
court could step in “very soon.” Until then, she said, no one can be
returned to Mexico under the policy. It was unclear when those in Mexico
with pending cases may return to the U.S. but it may be when they cross
for their next hearings.
The appeals court in San Francisco also decided to keep another major Trump policy on hold, one that denies asylum to anyone who enters the U.S. illegally from Mexico.
The Supreme Court, however, has allowed Trump to divert Defense Department money to border wall construction, backed rules disqualifying more people from green cards if they use government benefits and upheld a travel ban affecting several Muslim-majority countries.
The
ruling’s impact will also be at least partially blunted by other
policies introduced in response to unprecedented surge of asylum-seeking
families that peaked last year, many of them from Guatemala, Honduras
and El Salvador.
In November, the administration began sending asylum-seekers from Honduras and El Salvador to Guatemala,
denying them a chance to seek refuge in the U.S. and instead inviting
them to apply in the strife-torn Central American nation. Similar
agreements with Honduras and El Salvador are set to take effect soon.
Another
policy leads Mexicans and Central Americans who fail an initial
screening to be rapidly deported without leaving Border Patrol stations.
The screening interview is designed to take place in one day and any
appeals to an immigration judge within 10 days. Asylum-seekers are given
up to 90 minutes to contact a lawyer.
The
other measure with far-reaching consequences denies asylum to anyone
who passes through another country on the way to the U.S.-Mexico border
without seeking protection there first. It took effect in September and
is being challenged in a separate lawsuit.
Supporters
of the “Remain in Mexico” policy note it has prevented asylum-seekers
from being released in the United States with notices to appear in
court, which they consider a major incentive for people to come.
Mexicans and unaccompanied children are exempt.
Asylum
has been granted in less than 1% of the roughly 35,000 Remain in Mexico
cases that have been decided. Only 5% are represented by attorneys,
many of whom are reluctant to visit clients in Mexico.
___
This
story has been corrected to show that Judge Ferdinand Fernandez was
appointed by President George H.W. Bush, not President Ronald Reagan.
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