The Supreme Court on Wednesday said the Trump administration may continue its “Remain in Mexico” policy for asylum seekers while lower-court challenges continue, after the federal government warned that tens of thousands of immigrants amassed at the southern border could overwhelm the immigration system.
The Trump administration had warned the justices of a dire situation without their intervention.
“Substantial numbers of up to 25,000 returned aliens who are awaiting proceedings in Mexico will rush immediately to enter the United States,” Solicitor General Noel Francisco wrote in a brief. “A surge of that magnitude would impose extraordinary burdens on the United States and damage our diplomatic relations with the government of Mexico.”
The program — officially known as the Migrant Protection Protocols, or MPP — is among the tools the Trump administration has used to curb mass migration from Central America and elsewhere across the southern U.S. border.
In the 13 months it has been in place, the government said, 60,000 migrants have been sent back into Mexico to await their U.S. asylum hearings, part of an effort to limit access to the United States and deter people from attempting the journey north.
After more than 470,000 parents and children crossed into the United States last fiscal year, with most quickly freed into the United States amid a massive immigration court backlog, the administration implemented MPP to stop that practice.
The American Civil Liberties Union, representing immigration groups and individuals, called it an “unprecedented policy that fundamentally changed the nation’s asylum system, contrary to Congress’s design and the United States’ treaty obligations.”
After the ruling, ACLU lawyer Judy Rabinovitz said in a statement: “The Court of Appeals unequivocally declared this policy to be illegal. The Supreme Court should as well. Asylum seekers face grave danger and irreversible harm every day this depraved policy remains in effect.”
A spokeswoman for the Justice Department said the administration was “gratified” by the court’s action.
“The Migrant Protection Protocols, implemented pursuant to express authority granted by Congress decades ago, 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,” the department’s statement said.
The 9th Circuit panel last month said implementation of the policy should be halted in California and Arizona, states within the court’s authority. The order would not have affected the other border states, New Mexico and Texas.
Judges William A. Fletcher and Richard A. Paez, both appointed by President Bill Clinton, agreed with a lower-court judge in California that MPP probably violated federal immigration law by ousting undocumented asylum seekers who should be allowed to apply for protection in the United States.
The judges also said the program probably violated the administration’s “non-refoulement” obligations under international and domestic law, which prohibit the government from sending people to countries where they face danger. The 57-page ruling cited asylum seekers who feared kidnapping, threats and violence in Mexico.
“There is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined,” Fletcher wrote in the opinion. “Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum.”
Judge Ferdinand F. Fernandez, a President George H.W. Bush appointee, dissented, arguing that the panel should have adhered to a prior appeals court decision that allowed MPP to take effect.
The MPP issue could return to the Supreme Court for a decision on whether it violates federal statutes.
The court’s action marks another case in which the Trump administration has asked the high court to immediately intervene after an adverse ruling from a regional appeals court.
The court on a 5-to-4 vote in January allowed the administration to begin implementing new “wealth test” rules making it easier to deny immigrants residency or admission to the United States because they have used or might use public-assistance programs.
In a follow-up case, Sotomayor showed her impatience with the administration’s practice of bypassing usual judicial procedure to get the issue quickly to the high court.
“Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited court resources in each” she wrote in a solo opinion. “And with each successive application, of course, its cries of urgency ring increasingly hollow.”
Maria Sacchetti contributed to this report.