By Miriam Jordan
LOS ANGELES — A federal appeals court on Tuesday ruled that the Trump administration can continue to enforce a policy that returns asylum seekers to Mexico while they wait for an immigration court to decide their cases.
The ruling by the United States Court of Appeals for the Ninth Circuit allows the government to continue enforcing the policy, formally called the Migration Protection Protocols, while the legal issues of the case are being decided. It was an unusual victory for the Trump administration in the liberal-leaning court, though the judges did not rule on the merits of the case.
The Trump administration unveiled the “Remain in Mexico” program in December for migrants entering the country in San Diego and has since expanded it to El Paso.
It is intended to crack down on asylum claims, which have soared as Central American migrants have crossed the United States’ southwestern border in ever-larger numbers over the past year.
But forcing asylum applicants to remain in possibly dangerous conditions in Mexico represents a major break from longstanding practice that permitted most migrants who requested asylum to live in the United States while they awaited the outcome of their cases.
The former homeland security secretary who introduced the policy, Kirstjen Nielsen, has said that many asylum applicants have skipped their court dates and disappeared into the country.
Legal advocates for migrants have denounced the policy, saying a spike in violence and overwhelmed shelters in Mexican border towns put the migrants at risk.
Being forced to remain in Mexico while their asylum cases are being prepared also limits the migrants’ access to legal counsel because they cannot reach the help that is available on the American side of the border, immigration lawyers said.
“The Ninth Circuit court’s decision is devastating. Subjecting vulnerable families to this program is inexcusable,” said Taylor Levy, an immigration lawyer in El Paso who has escorted several migrants to court in recent weeks.
She said that families are being dropped off on the streets of Ciudad Juárez, across the border, where they cannot find space in shelters that are at capacity. Many, she said, are being targeted by robbers and kidnappers. “We have had multiple families kidnapped for extortion,” she said.
But a majority of the three-judge panel concluded that allowing the policy to remain in place for now was not unreasonable.
“The plaintiffs fear substantial injury upon return to Mexico, but the likelihood of harm is reduced somewhat by the Mexican government’s commitment to honor its international-law obligations and to grant humanitarian status and work permits to individuals returned,” the appeals court judges said.
A federal district judge in San Francisco, Richard Seeborg, first ruled on April 8 to block the policy from taking effect, saying that the law did not authorize the Department of Homeland Security to enact it. He also found that the program lacked safeguards to ensure migrants were not returned to a place where they faced risks.
The Trump administration appealed the case to the Ninth Circuit, which is based in San Francisco, and on April 12 the court allowed the policy to be enforced while it is being reviewed. The same three judges extended that stay on Tuesday.
Judge Diarmuid O’Scannlain, an appointee of President Ronald Reagan who wrote the 11-page appeals court ruling from a motions panel, said the government was likely to succeed on the merits under federal immigration and regulatory laws.
While agreeing to keep the policy in place, the other two judges, appointees of Democratic presidents, raised concerns about it.
Judge William A. Fletcher, who was appointed by President Bill Clinton, agreed on granting a stay to allow enforcement of the policy for now but wrote separately that the law did not allow the government to return migrants to Mexico.
“The government is wrong. Not just arguably wrong, but clearly and flagrantly wrong,” Judge Fletcher wrote.
Judge Paul J. Watford, an appointee of President Barack Obama, strongly condemned the government’s failure to ask migrants whether they fear being in Mexico before returning them to that country.
“D.H.S. can ask asylum seekers whether they fear persecution or torture in Mexico,” he said of the Department of Homeland Security. “I’m at a loss to understand how an agency whose professed goal is to comply with non-refoulement principles could rationally decide not to ask that question,” he wrote.
The lawsuit was brought by the American Civil Liberties Union, the Southern Poverty Law Center and the Center for Gender & Refugee Studies.
Omar Jadwat, director of the A.C.L.U.’s Immigrants’ Rights Project, said the plaintiffs had hoped the earlier injunction would be allowed to stay in place.
“Asylum seekers are being put at serious risk of harm every day that the forced return policy continues,” he said in a statement. “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.”
More than 1,500 people have been returned to Mexico under the program in the El Paso area, according to immigrant advocates, including pregnant women, a transgender woman and children with health issues. They said that in recent days migrants have been receiving court dates for October and later.
Mexican officials have said that while they disagree with the policy, which they have described as a unilateral decision by the Trump administration, they would accept the asylum seekers, protect their rights and allow them to lawfully remain in Mexico while their cases wind through the American courts.
The returned asylum seekers are granted multiple-entry visas, enabling them to travel to the United States to attend court and then return to Mexico. Asylum cases can take years to be completed.
For more information, go to: http://www.beverlyhillsimmigrationlaw.com/
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