In a decision that likely shocked even the White House, the Ninth Circuit Court of Appeals overturned a lower court ruling and temporarily approved a potential Trump administration policy that would see asylum seekers who arrive at the United States-Mexico border forced to remain in Mexico, rather than the U.S., while their claims are being processed.
A San Francisco judge denied the Trump administration the ability to institute the policy while the full policy is under litigation. On Tuesday, the Ninth Circuit, which had issued a stay on the policy back in April, continuing the San Francisco court’s response, lifted the stay, determining that the Trump administration could go forward with the policy while the full case matures, Fox News reports.
That means that the “case must still be considered on its merits at a lower court in San Francisco,” but that the Trump administration is not prohibited from instituting the policy while they wait.
Opponents of the “remain in Mexico” policy, including the American Civil Liberties Union and the recently disgraced Southern Poverty Law Center, contend that the policy should be temporarily halted because asylum seekers will suffer undue harm if they are not allowed to remain in the United States for the four to six months it now takes to process an asylum claim.
“The lawsuit on behalf of 11 asylum seekers from Central America and legal advocacy groups says the Trump administration is violating U.S. law by failing to adequately evaluate the dangers that migrants face in Mexico,” according to Fox News.
The ACLU and SPLC also claim that the “return to Mexico” policy is a deterrent to migrants seeking asylum in violation of their legal right to apply for safe refuge in the United States, because migrants seeking asylum want immediate assistance.
The Trump administration, through the Department of Homeland Security, formulated the policy in response to a sharp increase in the number of asylum seekers presenting themselves at official border crossings in the final quarter of 2018 and the first quarter of 2019. Knowing that U.S. Customs and Border Protection are overwhelmed, most asylum seekers now assume — or are told — that they will be given a court date for their asylum hearing and then released into the United States pending that hearing, a process known as “catch and release.”
The Trump administration discontinued the “catch and release” program, but then immediately ran into difficulty. Asylum seekers with minor children cannot be kept in CBP custody more than three weeks, and separating families (as a way around that policy), resulted in a nationwide backlash. CBP now tries to hold asylum seekers as long as possible, but border patrol facilities are made for several thousand detainees, not several hundred thousand.
The “remain in Mexico” policy isn’t popular with Mexican authorities, who say their border towns are now also overrun with asylum seekers and members of “migrant caravans” that have arrived at the U.S.-Mexico border from Guatemala, Honduras, and El Salvador. Many of those migrants also rebuff Mexican offers of asylum, temporary work permits, or a ride back to their home country, clearly preferring to declare asylum in the United States.
The full “remain in Mexico” case is expected to begin litigation this summer.