Immigration Law

9th Circuit allows remain-in-Mexico policy for asylum-seekers to continue pending appeal

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On Tuesday, a federal appeals court agreed to allow the Trump administration to continue enforcing its remain-in-Mexico policy for asylum-seekers while a lower court injunction is appealed.

The 9th U.S. Circuit Court of Appeals at San Francisco said the United States was likely to succeed on its claim that a statute allowing return of immigrants to a “contiguous territory” applied to the Central Americans challenging the policy. The New York Times, the Wall Street Journal and Politico have coverage of the May 7 decision.

Under the policy, asylum-seekers who can show a credible fear of persecution upon return to their countries are sent to Mexico to await asylum proceedings. Previously, those who passed the credible fear interviews were allowed to remain in the United States.

The new policy was challenged by 11 Central Americans who were returned to Mexico and six organizations that provide asylum-related legal services.

The 9th Circuit’s per curiam decision said the plaintiffs also were unlikely to prevail on a second claim that the policy should not have been implemented before going through a notice and comment process.

The appeals court cited another factor favoring the Trump administration—the Mexican government has agreed “to honor its international-law obligations and to grant humanitarian status and work permits to individuals” returned to Mexico.

The 9th Circuit panel consisted of Judges Diarmuid O’Scannlain, Paul Watford and William Fletcher.

In a separate concurring opinion, Watford said the Trump administration apparently had statutory authority to implement the policy. But he questioned whether the policy is being implemented in a manner consistent with U.S. treaty obligations that bar return of immigrants to a country where they would be tortured or persecuted.

To live up to those obligations, the Department of Homeland Security could ask asylum-seekers whether they fear persecution or torture in Mexico, Watford said.

In another concurring opinion, Fletcher said he strongly disagreed with his colleagues, and the government is wrong about its statutory authority. “Not just arguably wrong, but clearly and flagrantly wrong,” he wrote.

Fletcher nonetheless concurred in the decision to stay the trial judge’s injunction.

Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, reacted to the appeals court order in a press release.

“Asylum-seekers are being put at serious risk of harm every day that the forced return policy continues,” he said. “Notably, two of the three judges that heard this request found that there are serious legal problems with what the government is doing, so there is good reason to believe that ultimately this policy will be put to a halt.”

The suit is Innovation Law Lab v. McAleenan.

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