A federal judge on Monday blocked an experimental Trump administration policy that requires asylum seekers to wait in Mexico while their cases make their way through the U.S. immigration court system, a major blow to President Trump’s efforts to stem the surge of crossings at the southern border.
U.S. District Court Judge Richard Seeborg in San Francisco enjoined the Migrant Protection Protocols (MPP) policy days after outgoing Homeland Security Secretary Kirstjen Nielsen pledged to expand the program. The policy began in January at the San Ysidro port of entry in California but has been extended to the Calexico entry and to the entry in El Paso, and Seeborg wrote that the approach would have been further extended if the court were not to step in.
This was not a close call. The relevant statute specifies that “aliens who indicate either an intention to apply for asylum or a fear of persecution are to be referred to an asylum officer for an interview . . . The alien in that scenario is entitled to review by an immigration judge of any adverse decision, including an opportunity for the alien to be heard and questioned by the immigration judge, either in person or by telephonic or video connection. . . . Additionally, aliens are expressly entitled to receive information concerning the asylum interview and to consult with a person or persons of the alien’s choosing prior to the interview and any review by an immigration judge." The court emphasized that asylum seekers still have "substantial procedural safeguards against being removed to a place where he or she may face persecution.”
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.