Calif. Federal Judge Blocks ‘Remain in Mexico’ Policy

‘The Trump administration cannot simply ignore our laws…to accomplish its goal of preventing people from seeking asylum…’

New Caravan Arrives in Northern Mexico; DHS Warns It Not to Cross Border

Central American migrants in Mexico/PHOTO: AFP

(Kate Morrissey, San Diego Union-Tribune) A Northern California federal judge Monday blocked another Trump administration immigration policy, one that required some asylum-seekers to wait in Mexico for immigration court hearings in the United States.

The program, officially called Migrant Protection Protocols and known widely as “Remain in Mexico,” began in late January and has returned hundreds of Central American asylum-seekers to Mexico. It was implemented as what Homeland Security Secretary Kirstjen Nielsen called a historic response to a crisis at the southwest border.

Implementation began with a pilot program at the San Ysidro Port of Entry in San Diego and expanded to include those caught crossing the border illegally in the San Diego area, as well as ports of entry in Calexico, Calif., and parts of Texas.

Nielsen recently directed Customs and Border Protection officials to ramp up returns through the program, “designed to help prevent fraud and ensure aliens are not able to disappear into the country to escape the law,” according to a Department of Homeland Security news release.

To date, more than 700 people, including families, have been returned to Tijuana, and nearly 200 more to Mexicali, according to a Mexican immigration official.

U.S. District Judge Richard Seeborg found it was probable that the plaintiffs — a group of 11 asylum-seekers and several advocacy organizations — would be able to prove their claims that the law used to implement the program does not apply to them and that even if it does, the program’s implementation does not offer enough protection to those selected for return.

Seeborg, who was nominated by former President Barack Obama, wrote that his order turned on whether the program as implemented complied with the Administrative Procedures Act, which governs agency regulations and their implementation.

“The conclusion of this order is only that plaintiffs are likely to show it does not,” Seeborg wrote.

He explained that his order does not decide the issue of whether Congress could authorize the Department of Homeland Security to create such a program, whether DHS could implement MPP if it had more safeguards or whether it is a “wise, intelligent or humane policy.”

Seeborg’s decision halting the program will go into effect Friday. The U.S. is also required to allow named plaintiffs of the lawsuit, who were returned to Tijuana, to enter the country within two days after the order goes into effect.

The 27-page order clarifies that federal immigration officials still have the power to decide whether to detain or release those asylum-seekers when they come back to the U.S.

It does not require federal immigration officials to allow entry to returnees who are not named in the lawsuit. It was not immediately clear what would happen to those asylum-seekers when they come back to the U.S. for their court dates.

The Department of Homeland Security and the Department of Justice did not respond to requests for comment.

When asked about the lawsuit when it was first filed, Nielsen called the MPP program a “vital response to the crisis at our southern border.”

“The Department of Homeland Security is exercising its statutory authority to help alleviate this humanitarian and security crisis and secure our nation,” Nielsen said. “We appreciate the Department of Justice’s support and partnership throughout this process.”

The judge’s decision left some of those already returned to Mexico with more questions than answers Monday. Those who were not part of the lawsuit wondered if they would be allowed back in if they approached the port of entry again.

One father whose family didn’t show up at the port of entry for a recent court date because he had lost faith in the U.S.’s willingness to protect them wondered if they would be punished in some way for trying again now.

Meanwhile, the organizations involved in the lawsuit celebrated news of the injunction.

“Today’s victory is especially important amidst reports that the Trump administration is planning to move toward even more extreme immigration policies,” said Southern Poverty Law Center attorney Melissa Crow, referencing much of the speculation about Nielsen’s resignation on Sunday.

“The court strongly rejected the Trump administration’s unprecedented and illegal policy of forcing asylum-seekers to return to Mexico without hearing their claims,” said Judy Rabinovitz, deputy director of the ACLU’s Immigrants’ Rights Project, who argued the case. “Try as it may, the Trump administration cannot simply ignore our laws in order to accomplish its goal of preventing people from seeking asylum in the United States.”

Robyn Barnard, an attorney with Human Rights First, said one of her clients affected by the policy is a plaintiff in the case and the other is not.

She said she would be helping her client who is part of the lawsuit come back to the port of entry once officially allowed to return. She is looking into what options her other client might have.

“We will continue to fight on behalf of the more than one thousand refugees already suffering in dangerous conditions in Mexico as a result of this policy,” Barnard said.

Some asylum-seekers affected by the program have told the immigration judge assigned to their cases how much more difficult being in Mexico has made navigating the court system.

“I don’t have an attorney,” one woman told Immigration Judge Scott Simpson last week. “I was told they would not be able to help me because I was on the Mexican side.”

The court cases themselves have been marred by technical issues. Some asylum-seekers have been given court notices that have one date but instructions to appear at the port of entry on a different date. In other cases, the government hasn’t filed the proper court documents, meaning that when the migrants show up in court, their cases don’t exist.

Simpson has also hinted at his discomfort with the program’s implementation and pushed back on the government’s requests to order people deported if they don’t make it to the port of entry on the mornings of their scheduled court dates.

©2019 The San Diego Union-Tribune. Distributed by Tribune Content Agency, LLC.