9th Circuit Court of Appeals affirms two nationwide injunctions against Trump asylum policies (updated)

Lawfare Blog reports, Appeals Court Affirms Two Injunctions Against Trump Administration Asylum Policies:

On Friday, the U.S. Court of Appeals for the Ninth Circuit issues two rulings affirming nationwide injunctions against two Trump administration immigration policy. One ruling (Innovation Law Lab et al v. Chad Wolf et al) affirmed the injuction against the “Remain in Mexico” and the other (East Bay Sanctuary Covenant v. Trump et al) affirmed the injuction against the ban on seeking asylum at the Southern border between ports of entry.

The Washington Post explains, Federal appeals court blocks President Trump’s ‘Remain in Mexico’ policy but stays its own ruling:

A federal appeals court in California halted the Trump administration’s “Remain in Mexico” asylum policy on Friday, removing one of the key tools the president has used to curb mass migration across the southern U.S. border.

The ruling was in effect for only a few hours, however, as the judges later granted a Trump administration request for an emergency stay “pending further order of this court.” Justice Department lawyers said in court filings that 25,000 migrants have been ­waiting in Mexico and argued that they feared the ruling would lead to an influx on the southern ­border.

The program — officially known as the Migrant Protection Protocols, or MPP — has required tens of thousands of migrants to cross back into Mexico to await their U.S. asylum hearings, part of an effort to limit access to U.S. soil and to deter people from attempting the journey north to the United States. After more than 470,000 parents and children crossed into the United States last fiscal year, with most quickly freed into the United States amid a massive immigration court backlog, the administration implemented MPP to stop that practice.

The MPP program stranded migrants in Mexican border towns without the promise of entry into the United States, and it evolved into one of the administration’s most heavily used policies. It played a central role in stemming the record flow of border crossings, and Trump administration officials warned Friday that blocking the program risked another influx, citing concerns that smugglers and Central American migrants would continue to exploit legal loopholes to gain entry.

In its initial ruling Friday, the panel of the U.S. Court of Appeals for the 9th Circuit ruled 2 to 1 to reinstate a district court judge’s preliminary injunction that stopped MPP, saying that the policy violates federal law and “should be enjoined in its entirety.” The two judges in the majority agreed with immigration advocates who argued that pushing Central Americans back into Mexico could put asylum seekers in grave danger, as they were forced to wait in Mexican cities where they could continue to face persecution, in contravention of the long-held American ideal of offering sanctuary to the oppressed.

* * *

Judges Richard A. Paez and William A. Fletcher, both appointed by President Bill Clinton, agreed with a lower-court judge in California that MPP probably violated federal immigration law by ousting undocumented asylum seekers who should be allowed to apply for protection in the United States. The judges also said the program probably vio­lated the administration’s “non-refoulement” obligations under international and domestic law, which prohibit the government from sending people to countries where they face danger. The 57-page ruling cited asylum seekers who feared kidnapping, threats and violence in Mexico.

“There is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined,” Fletcher wrote in the opinion. “Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum.”

Judge Ferdinand F. Fernandez, a President George H.W. Bush appointee, dissented, arguing that the panel should have adhered to a prior appeals court decision that allowed MPP to take effect.

The Trump administration had been declaring near-victory in stemming irregular migration just weeks ago, in part because of MPP’s success, and the 9th Circuit’s decision stops the policy along the southern border.

* * *

The Department of Homeland Security instructed asylum officers to “immediately cease all MPP processing,” according to a federal official with direct knowledge of an email message sent to the officers. The asylum officers’ labor union had filed a brief in the MPP case arguing that the policy threatened migrants’ lives and is “fundamentally contrary to the moral fabric of our Nation.”

Judy Rabinovitz, special counsel in the American Civil Liberties Union’s Immigrants’ Rights Project, who argued the case in court, hailed the initial decision and called the court’s stay later Friday “a temporary step” that “does not change the fact that courts have ruled multiple times against this illegal policy.”

“We will continue working to permanently end this unspeakably cruel policy,” she said in a statement.

Mark Morgan, the acting commissioner of Customs and Border Protection, said in a tweet after the court stayed its ruling Friday night that the agency immediately reinstated the MPP.

* * *

Immigration lawyers said they fear that the Justice Department will swiftly appeal to the U.S. Supreme Court, as it did to lift a similar injunction in January and to implement a “public charge” rule that bars low-income foreigners from immigrating to the United States.

Last Friday, Justice Sonia Sotomayor issued a scathing dissent in Supreme Court order that could reshape legal immigration:

Justice Sonia Sotomayor wrote a scathing dissent late Friday night, castigating the government for repeatedly asking the Supreme Court on an emergency basis to allow controversial policies to go into effect and charging her conservative colleagues on the court with being too eager to side with the Trump administration on such requests.

The justice wrote that granting emergency applications often upends “the normal appellate process” while “putting a thumb on the scale in favor of the party that won.” Targeting her conservative colleagues, she said “most troublingly, the Court’s recent behavior” has benefited “one litigant over all others.”

Sotomayor’s dissent was in response to the court’s 5-4 order granting the government’s request to allow its controversial “public charge” rule to go into effect in every state.

“Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases,” Sotomayor said. “It is hard to say what is more troubling,” she said, pointing to the case at hand, “that the Government would seek this extraordinary relief seemingly as a matter of course, or that the Court would grant it.” She noted that in the case at hand, the lower court order that the Supreme Court lifted was narrow and only impacted one state.

Karla Vargas, a lawyer with the Texas Civil Rights Project, said that for now the group is advising migrants to “stay calm while we figure out the best way to proceed.”

Vargas said the ruling clearly establishes that MPP is illegal and that those sent to Mexico under the program have a right to enter the United States to pursue their asylum proceedings. But she said it is unclear when the ruling will take effect and what window migrants will have to exercise the rights she says they have.

* * *

It is unclear whether the court’s decision could spur another surge in U.S.-bound migration by Central Americans. It is possible that many people waiting in Mexico for U.S. court hearings could try to reenter the United States in coming days.

“I wouldn’t say that access to the asylum system in the United States is assured because of this injunction, because they’ve already put all these other programs in place to restrict that,” said Erika Pinheiro, the litigation and policy director at Al Otro Lado, a nonprofit organization and one of the plaintiffs in the MPP lawsuit. “All that said, MPP is a horror show of human rights violations. The less people subject to it the better.”

* * *

The same three-judge panel issued a separate 3-to-0 ruling Friday blocking Trump’s first asylum restriction, which aimed to bar migrants who crossed the border illegally from seeking asylum. The policy was temporarily halted in 2018. Trump blasted the lower-court jurist in the case as an “Obama judge,” prompting a public rebuke from U.S. Chief Justice John G. Roberts Jr., who voted with the Supreme Court’s four liberal justices months later to let the injunction stand.

Roberts and other conservative justices have since allowed other Trump policies to unfold despite pending lawsuits against them.

After MPP officially began in January 2019, it became a central aspect of the Trump administration’s bulwark against irregular migration. A federal judge in California initially halted the program, but in May, a three-judge panel on the 9th Circuit allowed it to resume until another set of judges could hear arguments on its legality.

Approximately 60,000 migrants from countries including Cuba, Honduras, Guatemala, El Salvador and Venezuela have been sent back to Mexico to wait until their asylum cases can be heard in the United States. Mexican officials said many of those sent back ultimately gave up and went home.

Advocates reported after the ruling that migrants were beginning to line up at border checkpoints to try to reenter the United States.

The Post added a little fear-mongering of its own:

The ruling came on the same day Mexico announced its first coronavirus case — a traveler returning from Italy — raising potential fears about what a run on the U.S. border could mean. Sanitary conditions are abysmal in the squalid border camps where thousands of would-be asylum seekers are waiting.

One former DHS official said the court decision could prompt the White House to invoke emergency executive powers to impose even tighter restrictions on asylum seekers at the border by citing a public health emergency involving the coronavirus. One legal provision, known as “Return to Territory,” gives U.S. border officials broad powers to compel a foreign national to go back to Mexico or Canada if that person is deemed inadmissible to the United States.

Just so we’re clear: Right-Wing Media Says Virus Fears Were Whipped Up To Hurt Trump, Rush Limbaugh and Fox News pundits accused Democrats and journalists of “politicizing and actually weaponizing” an infectious disease, and Trump Accuses Media and Democrats of Exaggerating Coronavirus Threat, but we are about to see this turned on its head. Right-wing media and Trump are going to quickly return to their tried and true anti-immigrant fear-mongering of “they are bringing diseases with them.” Fox News says the migrant caravan will bring disease outbreaks. That’s xenophobic nonsense (2018).

I fully anticipate the White House invoking emergency executive powers to impose tighter restrictions on asylum seekers at the border by citing a public health emergency involving the coronavirus. Trump previewed this last night at a MAGA cult rally in South Carolina. ‘Border Security Is Also Health Security,’ Trump Says at Rally as Coronavirus Fears Grow. We all know what is coming.

UPDATE: Axios reports, Federal judge rules Ken Cuccinelli unlawfully ran immigration agency:

A federal district judge in D.C. ruled on Sunday that Ken Cuccinelli’s placement as the acting top official at U.S. Citizenship and Immigration Services (USCIS) violated the Federal Vacancies Reform Act.

Why it matters: Policies that were put in place under Cuccinelli are now void, including a directive that gave asylum-seekers less time to consult with legal counsel before their initial “credible fear” interview with a USCIS officer.

“Today’s ruling is a big win that confirms Ken Cuccinelli’s installation and service as acting director of USCIS was unlawful. This is both a victory for the rule of law and a significant blow to the Trump administration’s xenophobic agenda,” Democracy Forward Executive Director Anne Harkavy said in a statement.