LOS ANGELES — While insisting that a policy that has forced 60,000 asylum seekers to wait in Mexico violates United States law, a federal appeals court on Wednesday granted the Trump administration’s request to keep the “Remain in Mexico” restrictions in effect until March 11 for review by the Supreme Court.
The United States Court of Appeals for the Ninth Circuit reaffirmed its decision last week that the policy violates both United States and international law, stating that the policy is causing “extreme and irreversible harm.”
However, the court temporarily stayed its injunction against enforcing the so-called Migrant Protection Protocols after the government warned that the order could prompt thousands of migrants to try to enter the country and overwhelm the southwestern border.
If the Supreme Court does not grant the government’s request to take up its appeal of the Ninth Circuit’s injunction, the appeals court’s original decision will take effect on March 12, although only in the border states within its jurisdiction, California and Arizona.
If the high court agrees to hear the case and grant another emergency stay, the policy, which has been in effect since January 2019, could remain in place for the foreseeable future.
“It is very likely that the Supreme Court will grant the administration’s request to halt the Ninth Circuit’s original decision to suspend the policy,” said Stephen Yale-Loehr, an immigration professor at Cornell Law School.
Justice Department lawyers sought the extended stay of the appeals court’s ruling, arguing that there would most likely be a “rush on the southern border” by migrants waiting in Mexico under the program. Such an influx would create “massive and irreparable national security and public safety concerns,” they said, because border authorities lacked enough detention space to house thousands of new migrants.
In response to the government’s request for a stay, lawyers challenging the policy had said that the original decision did not require the government to immediately allow the re-entry of all asylum seekers subjected to the policy. The injunction contemplates an “orderly unwinding” of the program, they wrote in court filings.
On Wednesday, the plaintiffs’ lawyers said they would continue to seek the policy’s termination.
“This illegal policy has been in place for more than a year,” said Judy Rabinovitz, senior staff counsel at the American Civil Liberties Union’s Immigrants’ Rights Project, who litigated the case. “Every day people are put in danger. We are going to keep fighting until it is permanently stopped.”
Karen Musalo, a professor at the University of California Hastings College of the Law who is also on the legal team, said, “On behalf of the desperate asylum seekers returned to Mexico, we welcome the court’s unequivocal finding that M.P.P. is unlawful, and that it is causing extreme suffering and harm to those subjected to it.”
Since the “Remain in Mexico” policy was rolled out in January 2019, many of the estimated 60,000 migrants required to wait in Mexican border towns for their immigration hearings have been victimized by sexual assault, kidnap and torture. On the Mexican side of the border, thousands of families are crammed into tent encampments, where unsanitary conditions and exposure to the elements have caused illness.
Trump administration officials have deemed the policy a success and credited it with curbing “uncontrolled flows” of migrants, who had been arriving in large numbers last year, mainly from Central America.
The Supreme Court has recently reversed many temporary injunctions issued by lower courts against the administration’s tough new immigration policies.
In January, the high court allowed the administration to move forward with a rule denying legal permanent residency to immigrants considered likely to require government assistance in the future.
In late 2019, the administration won another important victory when the Supreme Court allowed it to temporarily continue enforcing a policy that bars most migrants from applying for asylum if they had transited through another country, such as Mexico, unless they had already been denied asylum in that country. The Supreme Court acted after a decision ordering a halt to the policy by a federal judge in California.