Lawyers for the Trump administration late Wednesday urged a federal appeals court to uphold its policy of forcing migrants back into Mexico to await their U.S. asylum hearings, arguing that “speculative” claims of potential harm there should not derail a critical element of the government’s efforts to control the massive influx of Central Americans at the southern border.
The brief, filed with the U.S. Court of Appeals for the 9th Circuit in California, took direct aim at advocates who have argued that migrants have been robbed, raped and kidnapped while stranded in Mexico, making it an unsafe option for keeping asylum seekers out of U.S. territory. Government lawyers wrote in court papers that advocates should not be allowed to “second-guess” the Department of Homeland Security’s “policy choices and rational judgments” for dealing with the humanitarian crisis at the border, which has included hundreds of thousands of migrants seeking refuge in the United States in recent months.
The Justice Department lawyers wrote that the policy is “part of ongoing, sensitive negotiations” with Mexico regarding immigration enforcement. Their filing came one day after the Trump administration expanded its Migrant Protection Protocols (MPP) program — also known as the “Remain in Mexico” policy — to Tamaulipas, one of Mexico’s most dangerous states.
“There is nothing unfair about the Secretary’s decision to exercise the discretion conferred by statute to temporarily return aliens to Mexico who do not even express a fear of persecution or torture in that country, or who fail to satisfy the requisite standard,” Justice Department lawyers wrote. “An injunction would thwart those efforts, seriously intruding on the Executive Branch’s ability to conduct foreign policy.”
The MPP program has intense importance to the administration, which considers it “one of the few congressionally authorized measures available” to reduce record numbers of families crossing the southern U.S. border. Apprehensions dropped 28 percent in June after Mexico stepped up enforcement and agreed to host more migrants — a move that followed President Trump’s threats to impose tariffs on their exports, a potentially crippling economic move that he has said is still on the table should Mexico’s efforts lag.
Lawyers for migrants who sued to stop the program say the Trump administration is violating federal and international laws by dumping migrants in crime-infested Mexican cities, where they do not have access to lawyers or receive proper screenings to determine whether they fear harm there. Some have received death threats.
The American Civil Liberties Union and other groups on Monday urged the appeals court to schedule an urgent hearing to decide the program’s future. A federal judge in San Francisco initially halted the program, but in May a three-judge appeals court panel allowed it to resume while it weighs its legality, noting that returned migrants could seek protection and work permits in Mexico.
“Defendants continue to force asylum seekers into limbo in Mexico, where they struggle to meet basic needs and face widespread danger,” the ACLU and other groups wrote Monday, citing reports from Amnesty International, Doctors Without Borders and other organizations.
Among the accounts: One asylum seeker was separated from his pregnant common-law wife and forced to return to Mexico, even though they had been kidnapped by the Zetas cartel while traveling through Mexico and held for ransom. He is in Ciudad Juarez, a sprawling city across the border from El Paso, and is afraid to leave the house.
A Honduran woman said federal police kidnapped her and forced her into a black car, covering her eyes with gray tape. “Her kidnappers raped her repeatedly and then ransomed her,” advocates wrote in federal court papers.
MPP began at the San Ysidro port of entry in California but is rapidly expanding to cities in Texas and Arizona. U.S. authorities said more than 15,000 migrants have been returned to Mexico to await court hearings.
Michael Breen, the president of Human Rights First who as a military officer led soldiers in combat in Iraq and Afghanistan, told a House Oversight and Reform subcommittee that MPP is endangering families and reflects “deliberate cruelty against children.”
“This is no longer just about the integrity of our borders, this is about the integrity of our nation,” Breen said. “This is not the America it was the honor of my life to serve.”
The United Nations High Commissioner for Refugees — which did not take a position in the case — filed a friend-of-the-court brief detailing the importance of adhering to the internationally agreed upon principle of non-refoulement, which states that nations will not expel refugees to a place where they could face harm.
Sending migrants to Mexico — a third country — introduces the possibility of “chain refoulement,” the commissioner wrote, because Mexican officials could then deport migrants to the homelands they initially fled.
The United States has been in negotiations with countries across the region about a safe third-country approach to asylum, a plan that could allow the United States to deport migrants to the first safe country in which they step foot after fleeing their homelands. Guatemalans, for example, could be deported to Mexico. U.S. authorities said they are continuing to pursue that option, which could supplement MPP — or replace it, should the court block the policy.
In the brief, the Justice Department called the claims of harm facing migrants in Mexico “speculative assertions” and said they “are insufficient to outweigh the damage the injunction would cause to the government’s efforts to combat a massive and growing crisis at our southern border.”
Trump has accused migrants of filing sham asylum claims to gain quick entry to the United States, and his administration created MPP to prevent them from working and living in the United States while they await a hearing in the clogged immigration courts, which can take months or years. Many do not show up for their hearings, officials said.
Advocates say migrants are fleeing violence, hunger and poverty in Central America, and thousands are showing up for their hearings and are eager to tell their stories.
Asylum officers, human rights groups and former federal employees have raised concerns about MPP, alleging it was hastily assembled without adding basic safeguards to prevent sending migrants to places that might endanger them. Asylum officers specifically argued to the court that the policy challenges basic American ideals and turns away people who are seeking freedom from persecution.
The U.S. Court of Appeals for the 9th Circuit has halted a number of the Trump administration’s initiatives, including its attempt to ban asylum for all immigrants who enter the country illegally. Although a three-judge panel allowed MPP to continue in May, two of the three judges expressed concern about the program.
One judge said it seemed “irrational” to send migrants to Mexico without asking them whether they feared being there. Another said the government is “clearly and flagrantly wrong.”