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Trump’s ‘Remain in Mexico’ Policy Temporarily Saved as Court Battle Wages On

This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border.
This is a monument for those who have died attempting to cross the US-Mexican border. Each coffin represents a year and the number of dead. It is a protest against the effects of Operation Guardian. Taken at the Tijuana-San Diego border. (Photo: Tomas Castelazo)

A battle over the Trump administration’s “Remain in Mexico Policy” is being played out in the court system.

The Trump administration pushed an emergency stay motion through to the U.S. Court of Appeals 9th district Thursday night to save their “Remain in Mexico” policy which was challenged in court this week.

A San Francisco U.S. District Judge ordered the first injunction against the “Remain in Mexico” policy which returned hundreds of Central American migrants to Mexican border cities as they await their fate in U.S. immigration court.

This piece of the Trump administration’s immigration agenda was disputed by a group of migrants organized and represented by the American Civil Liberties Union (ACLU) and other migrant advocacy networks. They filed the complaint in February, arguing that the policy puts affected migrants at risk of violence in Mexico, specifically in the border cities of Tijuana and Ciudad Juarez.

Aspiring migrant from Mexico into the U.S. at the Tijuana-San Diego border. The crosses represent the deaths of failed attempts. © Tomas Castelazo, www.tomascastelazo.com / Wikimedia Commons / CC BY-SA 4.0

Judge Richard Seeborg ruled on Monday, April 8 that the plaintiffs could likely prove that the policy contradicted federal law, and issued a preliminary injunction to halt its practice, effective April 12.

Justice Seeborg found that by removing asylum-seekers from U.S. territory after they had resigned themselves to the authorities, the DHS may be stepping outside of its own abilities as outlined in the Administrative Procedures Act.

He encouraged the DHS to seek legislative allowance or provide additional safeguards.

“Further procedural protections would be required to conform to the government’s acknowledged obligation to ensure aliens are not returned to unduly dangerous circumstances,” Seeborg wrote.

The Policy in Practice

The Department of Homeland Security began to implement their Migrant Protection Protocols (MPP) this January, under Secretary Kirstjen Nielsen, who resigned from the position early this week.

In effect, non-Mexican migrants seeking asylum in the United States could be kept on the Mexican side of the southern U.S. border while their asylum cases were carried out in immigration court. In the overcrowded and overtaxed immigration courts of the U.S., the standard asylum case can take up to a year to reach a decision.

“This humanitarian approach will help to end the exploitation of our generous immigration laws,” Nielsen explained when launching the unprecedented policy. “The Migrant Protection Protocols represent a methodical commonsense approach, exercising long-standing statutory authority to help address the crisis at our Southern border.”

The policy was carried out with individuals at the San Ysidro port of entry beginning in January, with certain exceptions for unaccompanied migrants and others.

It expanded from the San Diego ports of entry to the El Paso ports at the end of March.

Over the course of just two weeks, 169 migrants had been impacted by the MPP and returned to Ciudad Juárez from immigration custody in Texas, according to Enrique Valenzuela, director of a migrant transition facility operated by the Chihuahua state government in Ciudad Juárez.

11 shelters are in operation by the Mexican state government, but according to Valenzuela, most are already at capacity.

Central American Migrants resting at a government-provided shelter in Mexico.

Justice Seeborg’s ruling does not clarify the fate of the Central American migrants who have already been returned to Mexican territory until their next asylum court date. It addressed only the 11 plaintiff’s who had brought the injunction to court, and ordered their admittance back into the United States.

Trump Administration Appeals

Thursday, just 24 hours before the injunction would go into effect, the Trump administration filed an emergency stay motion in the 9th District U.S. Circuit Court of Appeals to protect the continuation of the policy.

The government stated that the country faced a humanitarian and security crisis at the southern border, and requested that the court grant them a brief administrative stay, to block the injunction temporarily, and a longer stay which would engage the injunction ruling in an appeals process for several months.

However, it seems that the DHS had ceased their returns since the injunction was announced. 

Some who had been returned to Mexico at their first court appearance were permitted to remain in the U.S. this week at their second hearing.

Others who applied for asylum in California and Texas after the injunction announcement on April 8 were not returned to the shelter systems of Tijuana and Ciudad Hidalgo to await their court proceedings. 

Instead, they will remain in ICE detention and the overfilled border patrol stations to await notices for their removal or admittance proceedings. 

Humanitarian Crisis on Both Sides of the Border

Though not met with the same crime and violence rates as cities such as Ciudad Juárez and Tijuana, humanitarian concerns still shroud the housing and care of migrants on the northern side of the border.

With Border Patrol holding cells overflowing, ICE is releasing thousands of migrants into the states to be hosted by sponsors as they wait.

Shelters in California, Arizona and Texas take in migrants directly released from ICE custody and help them to reach their sponsors, but are also struggling to maintain resources with hundreds of individuals passing through their care each day.

One of the primary shelters in El Paso, Annunciation House, has taken in 50,000 migrants from the government since October 2018, according to executive director Ruben Garcia. The organization, which relies on volunteers and contributions made by private donors, has regularly filled their facilities as well as two dozen affiliated churches. 

Despite their recent strain past capacity, Garcia has remained in opposition of the Remain in Mexico policy and expressed approval of the injunction.

“We have been opposed to both the metering and then, of course … the [Migrant Protection protocols],” Garcia said. “We believe the law gives individuals the right to present and maker their claim of asylum and fear before a judge.”

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