Issues

Supreme Court Saves Trump’s ‘Wait in Mexico’ Policy as Government Warns of Border Surge

US Border Agents Patrol Rio Grande Valley As Migrant Crossings Drop
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The Supreme Court revived the Trump administration's "Remain in Mexico" policy for asylum seekers Wednesday after the Ninth U.S. Circuit Court of Appeals put the program on hold.

Some 60,000 migrants have been returned to Mexico under the Migrant Protection Protocols (MPP), and approximately 25,000 are currently seeking entry. The Trump administration said the Ninth Circuit's injunction could prompt chaos at the border, warning that thousands of migrants would immediately seek entry if the protocols are suspended.

The vote count for Wednesday's order was not disclosed, as is typical of such orders, though Justice Sonia Sotomayor noted her dissent. The stay will remain in effect while the administration readies its formal appeal to the Supreme Court. The justices will likely agree to hear the case.

Wednesday's order relieves the government of the politically fraught challenge of processing and detaining thousands of asylum-seekers now on the Mexican side of the border in the midst of a pandemic. The decision is the latest in a series of administration victories on immigration issues before the Supreme Court. The justices have also stepped in to block court orders barring President Donald Trump's travel sanctions and the use of Pentagon funds for the border wall.

The Trump administration leaned heavily on the injunction's consequences in its emergency appeal to the High Court. A senior official at U.S. Customs and Border Protection (CBP) wrote in a sworn statement that the Ninth Circuit's decision had disrupted border security operations. For example, authorities closed the Paso Del Norte port of entry in El Paso in late February after several hundred foreign nationals subject to MPP congregated near the border.

"Within hours of the issuance of the Ninth Circuit's decision, mass gatherings on the Mexican side of the border were determined to be a safety risk to the traveling public and CBP personnel, and operational decisions were made to temporarily suspend port operations in certain locations," the official wrote.

U.S. ambassador to Mexico Christopher Landau similarly warned of adverse consequences in his own sworn statement, writing that the panel's decision would have a "severely prejudicial impact" on U.S.-Mexico relations if left in place.

A spokeswoman for the Department of Justice said the protocols "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," following Wednesday's decision.

The American Civil Liberties Union represented migrant rights groups and asylum seekers before the Supreme Court. ACLU lawyers wrote in court documents that the government's concerns are overstated since any disorder following the suspension of MPP would be short-lived.

The ACLU also said the government itself has acknowledged the danger asylum seekers face in Mexico. The Department of State "has recognized the victimization of migrants in Mexico, including kidnappings, extortion, and sexual violence," one ACLU filing reads. "The Court of Appeals unequivocally declared this policy to be illegal. The Supreme Court should as well," ACLU lawyer Judy Rabinovitz said following Wednesday's order. "Asylum seekers face grave danger and irreversible harm every day this depraved policy remains in effect."

A three-judge panel of the Ninth Circuit put the protocols on hold Feb. 28 by a two-to-one vote. The court acknowledged concerns that returning asylum applicants to dangerous settings violates U.S. treaty obligations. The decision cites a number of sworn statements from migrants describing targeted kidnapping and gang violence from criminal elements like MS-13 and Mara 18.

"Several declarants described violence and threats of violence in Mexico," the decision reads. "Much of the violence was directed at the declarants because they were non-Mexican—that is, because of their nationality, a protected ground under asylum law."

The administration argued that asylum applicants are subject to an immigration law provision that allows the attorney general to return migrants to a "contiguous territory" before appearing in immigration court. The panel, however, said that section applies to criminals or those infected with communicable diseases, not asylum seekers generally.

The United States and Mexico finalized MPP in 2018, as successive waves of Central American migrants journeyed through Mexico to submit asylum claims at the U.S. border.

Authorities encountered approximately 2,000 illegal aliens per day at the southern border in the waning months of 2018, according to the Department of Homeland Security. While those figures are not all-time highs, authorities saw significant increases in the number of families arriving at the border. DHS says the detention and removal of migrant families is a leading cause of a growing case backlog in the immigration courts.

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