The 9th Circuit Court of Appeals on Tuesday ruled that the Trump administration can continue to enforce a policy requiring some asylum-seekers to remain in Mexico while their cases are processed. The ruling from the San Francisco-based appeals court places a stay on a preliminary injunction on the asylum policy issued by a lower court. The panel of judges wrote in the opinion that the Department of Homeland Security (DHS) had shown that it was likely to suffer irreparable harm if the policy was halted because it “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.” ADVERTISEMENT The judges also found that the policy was not implemented in violation of the Administrative Procedure Act because it is not one of the policies covered by the act and therefore does not require certain processes to take place ahead of its implementation. Several immigration groups had sued DHS over the policy on behalf of migrants affected by the policy, arguing that the practice was improperly implemented and put the migrants in harm’s way. However, some of the judges were highly critical of DHS’s implementation of the policy in individual opinions authored on the decision, signaling that they could oppose the policy in a later ruling. Judge Paul Watford, an Obama nominee, wrote in his opinion that he believes the administration’s treatment of asylum-seekers is in violation of the U.S.’s obligation to not return those migrants to countries where they could face persecution. He pointed to DHS guidelines that state that immigration officers ask applicants who are being returned to Mexico if they fear persecution or torture in the nation only if the migrants say so themselves first. “It seems fair to assume that at least some asylum seekers subjected to the [policy] will have a legitimate fear of persecution in Mexico,” Watford wrote. And he said it was “equally fair to assume” that many migrants would not know they wouldn’t be returned to Mexico if they faced persecution there and that it could result in the return of some asylum-seekers to Mexico who should have been allowed to stay in the U.S. Watford wrote that he is “at a loss to understand” how the federal agency wasn’t already asking migrants if they could face harm if they were returned to Mexico. “DHS has not, thus far, offered any rational explanation for this glaring deficiency in its procedures. (One suspects the agency is not asking an important question during the interview process simply because it would prefer not to hear the answer),” Watford wrote in his opinion, adding that he believes the immigration groups could win their argument against the policy as a result. And Judge William Fletcher wrote that he believes current federal law does not allow for the policy to take place, calling DHS's stance in the case "clearly and flagrantly wrong." The Clinton nominee rejected DHS’s argument that its interpretation of federal law allows for a category of migrants generally allowed to stay in the U.S. during asylum proceedings to be considered as a different category allowed to be returned to other countries during their cases. And he pointed to recent writings from the Supreme Court and Attorney General William Barr Bill BarrWatchdog group suing for Trump obstruction memo blasts DOJ for trying to block release Biden DOJ to appeal court order to release Trump obstruction memo CNN reporter's phone and email records secretly obtained by Trump administration: report MORE defining the two separate categories of migrants to further criticize DHS’s argument. “I regret that my colleagues on the motions panel have uncritically accepted the Government’s arguments,” Fletcher wrote. “I am 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.” Omar Jadwat, the director of the American Civil Liberties Union's Immigrants' Rights Project, said in a statement that the asylum policy is putting the affected migrants "at serious risk of harm every day" it continues. However, he pointed to the judges who raised legal concerns about the policy as "good reason to believe that ultimately this policy will be put to a halt."<doc-sep>The Ninth Circuit Court of Appeals late Tuesday granted the Trump administration's request to send asylum seekers back to Mexico to wait out court proceedings temporarily. The court order reversed a decision by a San Francisco judge that would have blocked the policy — giving President Trump a temporary victory on immigration. TRUMP ORDERS ASYLUM OVERHAUL, INCLUDING NEW FEE FOR APPLICATIONS AND FASTER ADJUDICATIONS, AMID 'SEVERE' BORDER CRISIS The case must still be considered on its merits at a lower court in San Francisco and could end up at the Supreme Court. U.S. District Judge Richard Seeborg ruled April 8 that the policy should be halted while a lawsuit, filed on behalf of 11 asylum applicants and several other organizations, proceeds. The American Civil Liberties Union, which brought the suit along with the Southern Poverty Law Center, and Center for Gender & Refugee Studies, said that despite the ruling, "there is good reason to believe that ultimately this policy will be put to a halt." “Asylum seekers are being put at serious risk of harm every day that the forced return policy continues," Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, 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." The lawsuit on behalf of 11 asylum seekers from Central America and legal advocacy groups says the Trump administration is violating U.S. law by failing to adequately evaluate the dangers that migrants face in Mexico. It also accuses Homeland Security and immigration officials of depriving migrants of their right to apply for asylum by making it difficult or impossible for them to do so. The Trump administration says the policy responds to a crisis at the southern border that has overwhelmed the ability of immigration officials to detain migrants. Growing numbers of families are fleeing poverty and gang violence in Guatemala, Honduras and El Salvador. Last year, the Justice Department eliminated gang violence and domestic abuse as a possible justification for seeking asylum. The so-called "Remain in Mexico" policy was one of the primary innovations of former Homeland Security Secretary Kirstjen Nielsen, who left her role with the Trump administration last month. CLICK HERE TO GET THE FOX NEWS APP Asylum law, conservatives point out, is intended to shield individuals from near-certain death or persecution on account of limited factors like religious or political affiliation — not poor living conditions and economic despair. Most asylum applicants are ultimately rejected for having an insufficient or unfounded personalized fear of persecution, following a full hearing of their case before an asylum officer or an immigration judge. Fox News' Raymond Bogan, Gregg Re and The Associated Press contributed to this report.<doc-sep>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. Kudos to Chris Cuomo for revealing that what's driving illegal immigration from Central America are job opportunities in U.S. and asylum loopholes. Very few have legitimate credible fear claims. This is how reporting is done. Congress continues to allow this crisis to build. pic.twitter.com/iqaIjzuVTR — NumbersUSA (@NumbersUSA) April 3, 2019 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. … 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. This ‘Remain in Mexico’ policy could be more effective in blocking job-seeking ‘asylum’ migrants than the border well – if it survives progressives’ legal attacks, congressional caveats, and does not cause too many problems for Mexican officials. https://t.co/POJ9S8sfy4 — Neil Munro (@NeilMunroDC) January 25, 2019 Pro-immigration activists denounced the decision. This is an absolute disaster. This decision by a Judge puts countless lives in further danger. We've seen what this policy does to our community. Recently ICE sent two pregnant women and a 4-year-old with a neurological disorder back to Ciudad Juarez under this policy. https://t.co/dIl7pTL0v6 — RAICES (@RAICESTEXAS) May 8, 2019 “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.” Beyond disastrous. People will die, vulnerable individuals will suffer, and the damage to the rule of law is incalculable. https://t.co/8S0GCuSlUR — Aaron Reichlin-Melnick (@ReichlinMelnick) May 8, 2019 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.<doc-sep>This is what's really going on at the border (CNN) — A federal appeals court is allowing the Trump administration to continue returning some asylum seekers to Mexico for the duration of their immigration hearings, for now. The 9th US Circuit Court of Appeals ruled that the administration can enforce the policy informally known as “Remain in Mexico” pending appeal. The judges, though split on some issues, list a number of factors that went into the decision, including risk of injury in Mexico and negotiations between the US and Mexico. “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” under the policy, the opinion reads. “We are hesitant to disturb this compromise amid ongoing diplomatic negotiations between the United States and Mexico because, as we have explained, the preliminary injunction (at least in its present form) is unlikely to be sustained on appeal.” During oral arguments in late April, the three-judge panel – made up of two judges appointed by Democratic presidents and one appointed by a Republican – grappled with whether the policy should be allowed to continue, diving into technical matters and raising concerns about the process itself without providing much indication about where they stood on the policy overall. Judge Paul J. Watford, who had expressed skepticism about the process, relayed those concerns again in his concurring opinion. “In my view, DHS has adopted procedures so ill-suited to achieving that stated goal as to render them arbitrary and capricious under the Administrative Procedure Act,” he writes, citing the fact that asylum seekers are not asked whether they fear returning to Mexico unless they bring it up themselves. Judge William A. Fletcher, on the other hand, took issue with the interpretation of the statutes. “I strongly disagree with my colleagues,” he begins, later adding: “The Government today argues for an entirely new understanding of the statute, based on arguments never before made or even suggested.” Judge Richard Seeborg of the Northern District of California had blocked the policy earlier this year. His reasoning was that the provision on which the government was relying was never intended to permit the return of asylum seekers to Mexico, and even if it did, the current screening procedures were not adequate, said Melissa Crow, senior supervising attorney at the Southern Poverty Law Center. The 9th US Circuit Court of Appeals, however, put the order on hold in April, allowing the policy to temporarily continue. The so-called Migrant Protection Protocols program was initially rolled out at the San Ysidro port of entry in January. It’s since expanded to include Calexico port of entry, San Diego sector, Paso del Norte port of entry, El Paso sector and El Centro sector, according to the Department of Homeland Security. The US has returned more than 1,600 migrants to Mexico to await immigration hearings, according to the department. “Asylum seekers are being put at serious risk of harm every day that the forced return policy continues,” said Omar Jadwat, director of the American Civil Liberties Union’s Immigrants’ Rights Project, 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.” The challenge stems from a coalition of immigrant advocacy groups who asked a federal judge for a restraining order that would block the policy. Eleven migrants who are seeking asylum in the United States and were returned to Mexico under the policy are also plaintiffs in the case.<doc-sep>
The 9th Circuit allowed the administration to continue its controversial policy while the case makes its way through the appeals process. Mario Tama / Getty Images A federal appeals court ruled Tuesday that the Trump administration can, for now, continue to require some Central American migrants to wait in Mexico while their asylum claims proceed in US immigration court. In April a federal judge issued a preliminary injunction blocking the policy, but before that could happen, the 9th US Circuit Court of Appeals panel instituted a temporary stay. The San Francisco–based panel — Judges Paul J. Watford, Diarmuid F. O'Scannlain, and William A. Fletcher — on Tuesday granted the government's stay of the preliminary injunction, pending its appeal to the court, meaning the administration can continue to enforce the controversial policy while the case is decided. Though the ruling is not the final word on the policy, it is a rare court victory for the Trump administration, whose had past attempts to curb immigration blocked by the federal courts. Under the Migrant Protection Protocols (MPP) policy, commonly known as "Remain in Mexico," 3,267 Central American asylum-seekers have been forced to return to Mexico since January, according to Mexican government officials. The policy was first launched at the San Diego–Tijuana port of entry and has since expanded across the San Diego sector and to ports of entry in Calexico, California, and El Paso, Texas. Joe Raedle / Getty Images Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said asylum-seekers were being put in harm's way after being forced to return to Mexico. Still, he remained hopeful that the policy would be stopped down the line. "Notably, two of the three judges that heard this request found that there are serious legal problems with what the government is doing," said Jadwat in a statement. "So there is good reason to believe that ultimately this policy will be put to a halt." In his concurring opinion, Judge Fletcher said the administration is wrong in stating it has the authority to send back asylum-seekers based on a statute that certain immigrants can be returned to the contiguous country they had arrived from. "The government is wrong. Not just arguably wrong, but clearly and flagrantly wrong," Fletcher said. Fletcher said he hoped that a full hearing would result in the panel seeing "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." At an April 24 hearing, attorneys for the US government and ACLU attorneys argued over whether Central Americans being returned to Mexico were exempt from the statute. The government said they were not exempt, and the ACLU said they were. In making its decision, the liberal-leaning 9th Circuit said attorneys for the Department of Homeland Security are likely to prevail on the argument that asylum-seekers are not exempt. The judges also said that DHS is likely to prevail on the claim that the administration didn't go through the regulatory process and deliberative system that allows for public comment before instituting the sweeping changes. Mario Tama / Getty Images People walk at the El Chapparal port of entry on their way to enter the United States in Tijuana, Mexico. The panel noted that despite the fear expressed by the plaintiffs, they believed that the likelihood of asylum-seekers being harmed is somewhat reduced by the Mexican government's commitment to giving the migrants work permits and humanitarian status. In his concurring opinion, Judge Watford said that while it appears DHS is authorized to send back these asylum-seekers under the statute the attorneys argued over, congressional authorization alone doesn't mean the policy is being implemented in a legal manner. DHS said it was rolling out the policy in compliance with domestic and international legal obligations, noting that no one would be forced to return to Mexico under the policy if they would more likely than not be persecuted on account of their race, religion, nationality, membership in a particular social group, or political opinion or would face torture. "In my view, DHS has adopted procedures so ill-suited to achieving that stated goal as to render them arbitrary and capricious," Watford said. "Under DHS’s current procedures, immigration officers do not ask applicants being returned to Mexico whether they fear persecution or torture in that country." Immigration officers only inquire about these fears if the asylum-seeker first brings it up.