U.S. Supreme Court allows ‘remain in Mexico’ policy to continue pending appeal

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Protestors hold signs that read " Asylum is a Right" outside of the San Francisco Federal Courthouse on Wednesday, July 24, 2019 in San Francisco, Calif. A federal judge said Wednesday that the Trump administration can enforce its new restrictions on asylum for people crossing the U.S.-Mexico border while lawsuits challenging the policy play out. (AP Photo/Haven Daley)

Earlier this month, the 9th Circuit Court of Appeals affirms two nationwide injunctions against Trump asylum policies (updated):

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 program — officially known as the , 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.

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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.

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

Official Portrait of Justice Sonia Sotomayor

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.

Oops, they did it again!, making Justice Sotomayor’s point for her.

Today the U.S. Supreme Court granted the Trump administration’s application for permission to enforce the Migrant Protection Protocols, or MPP, colloquially known as the “remain in Mexico” policy, while it appeals to the Supreme Court.

Amy Howe at SCOTUSblog reports, Court grants government’s request to enforce “remain in Mexico” policy:

Announced in December 2018, the policy allows the Department of Homeland Security to return immigrants seeking asylum to Mexico while they wait for deportation proceedings. Justice Sonia Sotomayor was the only justice to note publicly that she would have denied the government’s request.

The Trump administration came to the Supreme Court last week, after a federal district court in California blocked the government from enforcing the policy anywhere in the United States. The policy, the district court ruled, is likely inconsistent with both federal immigration law and the doctrine of international law barring the return of asylum seekers to countries where they may be in danger.

The U.S. Court of Appeals for the 9th Circuit upheld the district court’s decision and barred the government from enforcing the policy in California and Arizona; the 9th Circuit’s order was scheduled to go into effect tomorrow.

In last week’s filing, U.S. Solicitor General Noel Francisco told the justices that the remain in Mexico policy has “dramatically” reduced the number of migrants attempting to cross the U.S.-Mexico border. But if the 9th Circuit’s order were allowed to go into effect and the policy were lifted, Francisco wrote, tens of thousands of migrants might try to enter the United States, creating an “immediate and unmanageable strain” on the U.S. immigration system.

The challengers, a group of Central Americans who were returned to Mexico and several organizations that provide services to migrants, pushed back, urging the Supreme Court to keep the policy on hold while the government appeals. Describing the policy as “unprecedented,” the challengers emphasized that the potential problems about which the government complained are largely of its own making, because the government “aggressively expanded” the remain in Mexico policy during the last 10 months, while the district court’s order was on hold. And even if the government were correct that asylum seekers will flood the border if the policy is lifted, the challengers added, that prospect does not justify keeping the policy in place. Returning asylum seekers to Mexico, the challengers asserted, sends them to “some of the most violent areas of the world,” where they are exposed to dangers that include kidnapping, assault and rape. Moreover, the challengers continued, the lower court’s order would not require the government to allow everyone at the border to enter the United States – only the named plaintiffs in the case.

In a brief written order this afternoon, the Supreme Court gave the federal government the go-ahead to continue to enforce the policy while it appeals to the Supreme Court and, if the justices grant review, until the justices can hear oral argument and issue their decision on the merits. A spokesperson for the Department of Justice praised the ruling, writing that today’s stay “prevents a district court injunction from impairing the security of our borders and the integrity of our immigration system. The Migrant Protection Protocols, implemented pursuant to express authority granted by Congress decades ago, have been critical to restoring the government’s ability to manage the Southwest border and to work cooperatively with the Mexican government to address illegal immigration.”

The conservative majority on the Supreme Court is a lap dog to Donald Trump’s white nationalist immigration policies which are contrary to longstanding U.S. immigration law on asylum.

This is not a good omen for how the court will rule on the DACA case later this year. The Dreamers should be prepared for the worst case scenario.