Federal appeals court blocks, then stays, Trump’s ‘Remain in Mexico’ program

The program forces asylum-seeking migrants to stay in Mexico as they await U.S. court dates.

A Customs and Border Protection agent processes migrants crossing the border in the Rio Grande Valley Sector of Texas.  (Jinitzail Hernández/CQ Roll Call file photo)
A Customs and Border Protection agent processes migrants crossing the border in the Rio Grande Valley Sector of Texas. (Jinitzail Hernández/CQ Roll Call file photo)
Posted February 28, 2020 at 3:00pm

 ​​​​​​A federal appeals court on Friday reinstated an injunction against Trump administration’s “Remain in Mexico” program – but then hours later put the decision on hold to give the U.S. government time to appeal.  

The actions by the 9th Circuit Court of Appeals affect the program formally known as Migrant Protection Protocols, or MPP, which has forced nearly 60,000 migrants to wait in Mexico as their cases slowly wind through the U.S. immigration court system. The pair of decisions created uncertainty late Friday at U.S. ports of entries, where migrants, advocates and attorneys had lined up.

The California-based court initially ruled that MPP was “invalid in its entirety” because of its inconsistency with U.S. statutory law and “should be enjoined in its entirety.” The court also ruled the government was violating international legal obligations by sending migrants back to harm.

But the court hours later stayed that ruling, which effectively halted MPP.  The lawyers involved in the case now have until Monday to respond to the stay. 

Mark Morgan, the acting Customs and Border Protection commissioner, said in a late Friday night tweet that his agency would “immediately reinstate the policy.”

MPP was first implemented as a pilot in California in January 2019 at the San Ysidro port of entry at the San Diego-Tijuana border. In April, a district judge issued a preliminary injunction against the policy while its legality was hashed out in court — but the 9th Circuit lifted that injunction a month later. The administration then started placing more people in the program and expanded it following talks with Mexico in June. 

MPP was originally restricted to Central Americans coming to the border seeking asylum, but has recently come to include Brazilian nationals as well. On Thursday, Morgan called the program “extremely effective” during his testimony before the House Appropriations Subcommittee on Homeland Security. He said "the greatest positive effect" within the past eight months has been more than a 70 percent reduction in the flow of migrants at the southern border.

In congressional hearings in recent weeks, acting Secretary of Homeland Security Chad Wolf insisted MPP migrants have access to counsel and that the Trump administration was working with the government of Mexico and U.S. nonprofits to make sure basic needs of waiting migrants were being met, and safety improved.

Human rights advocates and immigration attorneys, however, have argued the policy puts migrants in harm’s way.

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Across the border from U.S. ports of entry, squalid tent cities have arisen in Mexican towns where migrants await court hearings for months at a time and are vulnerable to drug cartels and other criminal activity. Attorneys for migrants say their clients rarely have clean water, food and medical care to meet their basic needs, nor easy access to legal counsel. Advocates also have said that pregnant women, LGBT individuals, and migrants with physical and mental disabilities are not being exempted as the administration promised.

Human Rights First has documented 800 cases of kidnappings, assault and other types of harm to migrants in MPP but estimates the actual number may be much higher. The organization also found that families have been separated, with some members being placed in this program and others being allowed to go through court proceedings in the United States. In January, Doctors Without Borders also reported that 80 percent of the patients its members treated in the first nine months of 2019 suffered “at least one violent incident" while in the program. 

Last year, Rep. Veronica Escobar, a Democrat whose district includes El Paso, Texas, introduced a bill (HR 2662) that would prohibit the use of funds to implement or enforce MPP. She recently visited border conditions and, on Thursday, told reporters conditions on the ground remained dire.

“These are vulnerable families waiting for their day in court, waiting to access due process that is being denied to them by the American government and being denied to them by the Mexican government as well," she said.

An analysis of court data by the Transactional Access Records Clearing, at Syracuse University, found less than 2 percent of 1,155 MPP cases decided as of June 2019 had been represented.

The case, Innovation Law Lab v. Wolf, was brought on behalf of 11 asylum-seekers who are in the program and legal service providers groups, including the Innovation Law Lab, Al Otro Lado, and the Tahirih Justice Center. The American Civil Liberties Union lawyer Judy Rabinovitz argued the appeal in court.