Supreme Court Allows Dangerous 'Remain in Mexico' Immigration Policy to Continue

The U.S. Supreme Court delivered asylum seekers a devastating blow on March 11, when it allowed the Trump administration to continue its harmful “Remain in Mexico” policy. Officially dubbed the Migrant Protection Protocols, the policy forces asylum seekers to wait in Mexico while their cases are heard.

The Supreme Court’s order comes after an appeals court in San Francisco blocked the program in February on the grounds that it was inconsistent with federal law and international treaties. That ruling, which only applied to California and Arizona, was scheduled to take effect on March 12.

The order was brief and did not reveal why the high court had issued a stay to the appeals court’s ruling. The Supreme Court also did not reveal how many justices supported the stay but Justice Sonia Sotomayor did publicly note her objection to the stay.

“The Court of Appeals unequivocally declared this policy to be illegal. The Supreme Court should as well,” Judy Rabinovitz, special counsel in the American Civil Liberty Union’s (ACLU) Immigrants’ Rights Project, said in a statement provided to The North Star. “Asylum seekers face grave danger and irreversible harm every day this depraved policy remains in effect.”

In a statement to The New York Times, the Justice Department said the Supreme Court’s decision was welcomed. A spokeswoman said the decision “prevents a district court injunction from impairing the security of our borders and the integrity of our immigration system.”

The White House also applauded the Supreme Court’s action, with press secretary Stephanie Grisham calling it “a major victory.”

“By allowing the Migrant Protection Protocols (MPP) to remain in effect, the Court has prevented dangerous chaos at the southern border, avoided a significant escalation in public health threats, and mitigated damage to foreign relations,” Grisham said in a statement cited by Politico.

Opponents to the policy note that forcing asylum seekers to return to Mexico puts them at risk, especially to cartel violence. The U.S. government does not dispute that. In fact, the State Department released a human rights report on March 11 that warned of “arbitrary killings, forced disappearance and torture” conducted by armed groups in Mexico.

“There were numerous instances of armed groups limiting the movements of migrants, including by kidnappings and homicides,” the report stated. It acknowledged that civil society groups reported migrants at some detentions face abuse when they are held with MS-13 gang members and that some migration officials actively discourage migrants from applying for asylum.

Innovation Law Lab v. Wolf: A Timeline

The Trump administration began implementing the program in January 2019. The policy required asylum seekers intercepted at the U.S.-Mexico border or who present themselves at checkpoints to return to Mexico to await their hearings.

In February 2019, the ACLU, Southern Poverty Law Center and Center for Gender & Refugee Studies sued the Trump administration for the harmful policy. Innovation Law Lab v. Wolf, which was filed in a federal court in San Francisco, was on behalf of 11 asylum seekers as well as several organizations.

A federal court temporarily blocked the policy in April 2019. U.S. District Judge Richard Seeborg ruled that the Trump administration could not continue implementing or expanding the policy.

However, a month later, a panel of 9th Circuit judges allowed the Trump administration to temporarily continue sending asylum seekers to Mexico. The decision led to 60,000 asylum seekers being returned to Mexico to await a decision in their cases.

On February 28, another three-judge panel at the 9th Circuit blocked the Trump policy on grounds that it violated federal “non-refoulement” obligations under domestic and international law. “Non-refoulement” obligations prohibit the U.S. government from returning asylum seekers to a country where they could face persecution or torture, NPR explained.

According to Politico, the panel’s ruling initially applied to the entirety of the southern border but the 9th Circuit agreed to limit the decision to just Arizona and California after the Trump administration asked for a stay.

The ruling in February led to a surge of migrants towards the U.S.-Mexico border. The Justice Department alleged that the ruling could lead many of the 25,000 asylum applicants waiting for hearings to rush to the border.

What Does This Decision Mean?

The Supreme Court’s order for a stay in the federal appeals court’s ruling does not mean it has officially considered the case. Politico reported that the stay will remain in place until the Supreme Court decides whether it will add Innovation Law Lab v. Wolf to its docket. While the review is likely, the wait will essentially allow the Trump administration to continue the policy through the presidential elections.

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