(Español) A panel of three judges in the Ninth Circuit Court has ruled that the Trump administration can continue requiring asylum seekers to remain in Mexico while their case is adjudicated. What is formally known as the Migration Protection Protocols but more widely known as the “Remain in Mexico” policy gained new life on Tuesday, May 7, 2019, when the judges voted 2-to-3 in favor of allowing the policy to remain in place. They cited the “irreparable harm” that would be cause to the Department of Homeland Security (DHS) without the policy because of the strain of having to process the approximately 2,000 migrants arriving at the southern border on an almost daily basis. Additionally, the judges noted the Mexican government’s recent commitment to provide safety to the migrants also reduced the danger they faced in waiting in the country. This includes Mexico’s move to grant any asylum-seekers returned to their nation with humanitarian status and employment authorization.
At the outset, this seems like a major victory for the president and his administration but it could be proven to be short-lived. A full hearing on the merits of the case must still be held in a lower court in San Francisco, a circuit which has often proven to be a thorn in the side of many of the administration’s proposals. The case could even reach the Supreme Court. Additionally, two judges were critical of the Trump administration’s policies, to the point the American Civil Liberties Union (ACLU), one of the groups challenging the policy, noted “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.”
Judge William Fletcher was the lone judge voting in the negative of allowing the policy to continue. In his opinion, he wrote that he is “hopeful that the regular argument panel that will ultimately hear the appeal, with the benefit of full briefing and regularly scheduled argument, will be able to see the Government’s arguments for what they are—baseless arguments in support of an illegal policy that will, if sustained, require bona fide asylum applicants to wait in Mexico for years while their applications are adjudicated.”