The U.S. Court of Appeals for the Ninth Circuit is allowing President Donald Trump’s ‘Remain in Mexico’ enforcement plan to continue, despite a negative decision from a lower-court judge.
The 2:1 courtroom win allows border officials to send more migrants back into Mexico until officials are ready to hear their courtroom pleas for asylum.
The courtroom win may allow the administration to continue and expand the policy for the next several years as the lawsuit is appealed to an “en banc” hearing of the judges in the appeals court, and then likely up to the Supreme Court.
The decision could have a large impact on migration because it prevents many migrants from using low-wage U.S. jobs to pay their smuggling debt to the cartels. Few migrants will borrow funds to travel up to the border if they know they cannot get U.S. jobs to pay their smuggling costs. The labor-trafficking business earned the cartels roughly $2.3 billion in 2017, according to a 2019 study by RAND Corp.
The policy was recently renamed the “Migrant Protection Protocols.”
So far, the program has sent more than 1,000 migrants back to Mexico, with the cautious approval of the Mexican government. Officials hope that Mexico’s government will allow the program to expand.
In April, roughly 100,000 adults and children crossed the border, and nearly all were released into U.S. workplaces, neighborhoods and schools — partly because the 9th Circuit created the Flores loophole which bars detention of migrants with children for more than 20 days.
The 2:1 decision was written by Judge Diarmuid O’Scannlain, who was nominated by former President Ronald Reagan. He wrote:
DHS is likely to suffer irreparable harm absent a stay because the preliminary injunction takes off the table one of the few congressionally authorized measures available to process the approximately 2,000 migrants who are currently arriving at the nation’s southern border on a daily basis.
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Finally, the public interest favors the “efficient administration of the immigration laws at the border.”
“The government is wrong,” wrote Judge William Fletcher, who was nominated by former President Bill Clinton. “Not just arguably wrong, but clearly and flagrantly wrong.“
Judge Paul Watford, who was nominated by former President Barack Obama, conditionally supported the program and said the lower court judges will likely require changes:
it seems likely that the [pro-migration] plaintiffs will succeed in establishing that DHS’s procedures for implementing the MPP are arbitrary and capricious ……The precise scope of such relief would need to be fashioned after further proceedings in the district court. In the meantime, the government is entitled to have the much broader preliminary injunction currently in place stayed pending appeal.
Pro-immigration activists denounced the decision.
“The decision to allow this cruel and irresponsible policy to continue will put many more people seeking protection in harm’s way,” said Charanya Krishnaswami, advocacy director for the Americas at Amnesty International USA. “This policy puts asylum-seekers at grave risk of discrimination, exploitation, sexual violence, kidnapping, and death and prevents them from accessing attorneys … It is an outrageous violation of domestic and international law for the United States to shut its doors to people fleeing desperate situations.”
The case is Innovation Law Lab v. McAleenan, No. 19-15716, in the U.S. Court of Appeals for the Ninth Circuit. The case was supported by the American Immigration Lawyers Association. The decision can be read here.
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