The court further found, “At least for purposes of this motion, there is no dispute that the individual plaintiffs are asylum seekers who lack valid admission documents, and who therefore ordinarily would be subject to expedited removal proceedings . . . . Applying the plain language of the statute, they simply are not subject to the contiguous territory return provision [allowing their immediate return to Mexico].”
The court also found that the government under federal law cannot return an asylum seeker to contiguous territory if that would risk persecution (“refoulement”). The policy DHS tried to propound only protected the asylum seeker from refoulement if he raised the issue on his own, something virtually none of these migrants would know to do.
Had President Trump not already forced out Nielsen, he probably would have upon learning his illegal policy was thwarted by the courts.
The American Civil Liberties Union touted the win in a written statement: "The court strongly rejected the Trump administration’s unprecedented and illegal policy of forcing asylum seekers to return to Mexico without hearing their claims. Try as it may, the Trump administration cannot simply ignore our laws in order to accomplish its goal of preventing people from seeking asylum in the United States.” The statement continued, “Today’s victory is especially important amidst reports that the Trump administration is planning to move toward even more extreme immigration policies. The decision will prevent incredibly vulnerable individuals from being trapped in dangerous conditions in Mexico——, but it’s only a step in a much larger fight. We are a nation of laws, and we cannot and will not allow elected officials to undermine those laws in an effort to implement an anti-immigrant agenda.”
Trump’s beef is not really with Nielsen. It’s with immigration law, the Constitution and reality. Instead of recognizing the problems currently at the border won’t be solved by a wall or by extra-legal steps to keep migrants out of the United States, Trump should be increasing (not cutting) aid to the Central American countries from which these people come, working cooperatively with these countries and the Mexican government, and ramping up the number of immigration judges to handle the caseload. And he might stop fear-mongering about “closing” the border, a move more likely to provoke migrants to come before the border “closes” than dissuade them from coming.