Justice Department Warns of Border Rush as It Asks Supreme Court to Protect Asylum Policy

Trump administration asks Supreme Court to let it enforce 'wait in Mexico' asylum rule

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March 7, 2020

Fearing an unprecedented influx of asylum seekers on the southern border, the Trump administration is asking the Supreme Court to lift a court decision blocking implementation of the "Wait in Mexico" policy, which requires asylum seekers to remain in Mexico until their claims are heard.

The Ninth U.S. Circuit Court of Appeals upheld an injunction blocking the Migrant Protection Protocols (MPP) in February. The appeals court reined in the injunction Wednesday, saying the protocol would be blocked only in Arizona and California. The injunction's reduced reach will still foment chaos at ports of entry, the administration told the justices in a Friday legal filing.

"The injunction is virtually guaranteed to impose irreparable harm by prompting a rush on the border," Solicitor General Noel Francisco told the justices in a legal filing. "There is no need to speculate about the consequences. Immediately following the 9th Circuit's Feb. 28 decision, hundreds of migrants presented themselves at the border for admission."

The Ninth Circuit decision could prove damaging to President Donald Trump's reelection prospects. Unless the injunction is stayed, U.S. Customs and Border Protection (CBP) will be responsible for housing thousands of asylum seekers pending decisions on their applications. A CBP official wrote in a sworn statement that the agency does not have the capacity to accommodate those migrants and warned of overcrowding and threats to health and safety. Reports of poor conditions at migrant detention facilities beset the administration throughout 2019.

The same CBP official wrote that lawyers for Mexican-based asylum seekers contacted the agency within hours of the lower decision seeking admission for their clients. One lawyer asked to bring 1,000 individuals to a port of entry.

The Trump administration says the migrants now waiting in Mexico are subject to a provision of the Immigration and Nationality Act (INA) that authorizes the attorney general to require that asylum seekers wait outside U.S. borders. The Ninth Circuit rejected that argument, saying that provision applies to applicants who pose a threat to U.S. security. A different INA provision provides that asylum seekers with a credible fear of persecution are entitled to remain in the United States before their claims are heard, the court said.

The Ninth Circuit also said MPP leaves asylum seekers in Mexico at heightened risk of violence, in violation of U.S. treaty obligations. The panel noted one migrant-plaintiff currently waiting in Mexico expressed fear of violent retribution from the MS-13 gang. The plaintiff said he left Honduras to escape MS-13 violence, only to learn the gang's Mexican elements are vindictively targeting asylum seekers near the U.S. border.

U.S. ambassador to Mexico Christopher Landau submitted his own sworn statement warning that the Ninth Circuit's decision will damage the government's relationship with Mexico. Landau's intervention is significant because the courts are loathe to disturb diplomatic relations.

"It is my firm belief, as the United States ambassador to Mexico, that a stay of the panel decision pending further review is imperative to prevent a crisis on our country's southern border and in its critically important relationship with Mexico," Landau wrote.

The Supreme Court has become a major arbiter of U.S. immigration policy since 2017. The Trump administration has obtained emergency stays from the justices after interim lower court defeats in cases involving the travel ban and the use of Pentagon funds for border wall construction. The Court will also decide whether the government lawfully rescinded the Deferred Action for Childhood Arrivals program by June.

The MPP applies to asylum-seekers who pass through a third country on their way to the United States. Approximately 60,000 aliens were returned to Mexico under the protocol since January 2019.

The U.S. and Mexican governments finalized MPP in 2018, after successive waves of Central American migrants journeyed through Mexico to submit asylum claims at U.S. ports of entry. The protocol does not apply to Mexican nationals.

Friday's application was referred to Justice Elena Kagan, who hears emergency matters arising from the Ninth Circuit. Kagan ordered the immigrant plaintiffs to file a response on Monday. She will likely refer the matter to the full Court for disposition.

The case is No. 19A960 Chad Wolf v. Innovation Law Lab.

Published under: Supreme Court