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Ramon Valdez, Director Strategic Initiatives
San Francisco, CA ー On Friday, February 28, 2020, the U.S. Court of Appeals for the Ninth Circuit blocked the Trump Administration’s cruel and unlawful policy that returns tens of thousands of asylum seekers back to Mexico and forces them to remain there while their cases are considered in U.S. immigration court. Since the “Remain in Mexico” policy, officially known as “Migrant Protection Protocols” (MPP), went into effect on January 2019, more than 59,000 asylum seekers have been returned to Mexico. The federal appeals court held that the policy violates both federal law and U.S. treaty obligations, holding that the authority on which the Trump Administration relied on to implement the policy “simply does not exist.”
In its decision, the Ninth Circuit rejected the government’s argument that its “Remain in Mexico” policy protects migrants who will face harm upon return to Mexico, even though the policy does not require asylum officers to ask whether the individual fears return to Mexico. The court noted that several features of the “Remain in Mexico” policy–including its higher standard for overcoming removal and its limitations on an individual’s right to an attorney–run counter to the government’s humanitarian obligations under international law.
“The United States has an international obligation and a longstanding tradition of providing refuge to those fleeing persecution in their home countries,” Tess Hellgren, attorney at Innovation Law Lab, explained. “The Remain in Mexico policy runs counter to those humanitarian obligations by forcing asylum seekers into dangerous conditions and obstructing their ability to advocate for their rights in U.S. immigration court.”
The decision also describes the extensive harm, including “violence, sexual assault, overwhelmed and corrupt law enforcement, lack of food and shelter,” and other barriers to participation in court proceedings, that individuals subject to “Remain Mexico” have suffered while forced to wait in Mexico. Human Rights First has confirmed at least 816 publicly reported cases of murder, rape, torture, kidnapping, and other violent acts committed against migrants subject to the program; this number is likely a significant undercount as advocates have documented many unreported cases of similar crimes and unlawful deportations.
“The Ninth Circuit has acknowledged what advocates have argued all along: the so-called ‘Migrant Protection Protocols’ are not only cruel, but also unlawful,” said Stephen Manning, Executive Director of Innovation Law Lab. “An end to this program will allow people fleeing persecution to access the asylum process as the statute, and international law, intends.”
“The Remain in Mexico policy has prevented asylum seekers of their rights to safety, dignity and due Process, said Lisa Knox, Immigration Managing Attorney at plaintiff organization Centro Legal de la Raza. “The program not only puts migrants in great danger, it also effectively prevents asylum seekers from accessing legal representation and basic information about their cases.”
Al Otro Lado’s Litigation and Policy Director Erika Pinheiro stated, “Today’s ruling is a huge victory, but there are still many left to go in this administration’s war against asylum. Those who benefit from this ruling may still be denied access to the U.S. asylum system through metering, the Asylum Cooperative Agreements (ACA), Prompt Asylum Claim Review (PACR) and other programs. It remains to be seen how this decision will play out on the border, including for the 59,000+ asylum seekers already stuck in Mexico under the MPP program and we will continue to fight for justice and make sure all parties are held accountable.”
A California federal court ruled last April that the Administration’s policy was unlawful and temporarily blocked its implementation, but the Ninth Circuit later lifted the lower court’s injunction pending further court proceedings. Multiple amicus briefs were filed in support of plaintiffs, including briefs by current U.S. Asylum Officers, former U.S. government officials in the Departments of State and Homeland Security, and the United Nations High Commissioner for Refugees.
Matthew Weisner, an attorney with plaintiff Central American Resource Center of Northern California said, “We welcome today’s decision from the 9th Circuit Court of Appeals to strike down the unlawful “Remain in Mexico” policy, which for too long has denied justice to asylum seekers. We look forward to the prompt implementation of this court order by the Department of Homeland Security.”
The lawsuit is brought by eleven individual plaintiffs, Innovation Law Lab, Central American Resource Center of Northern California, Centro Legal de la Raza, the University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado, and the Tahirih Justice Center. Plaintiffs are represented by the American Civil Liberties Union (ACLU), Southern Poverty Law Center (SPLC), and Center for Gender & Refugee Studies (CGRS).