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What Back-and-Forth Decisions on the 'Remain in Mexico' Plan Mean for Asylum Seekers and Their Lawyers

In the last 10 days, the Remain in Mexico plan was blocked by one judge, only for that judge's preliminary injunction to be stayed by another court.
People walk back to Tijuana from San Diego at San Ysidro crossing port in Tijuana, Mexico, on April 2nd, 2019.

People walk back to Tijuana from San Diego at San Ysidro crossing port in Tijuana, Baja California state, Mexico, on April 2nd, 2019.

This month, the Trump administration's so-called "Remain in Mexico" plan essentially became illegal and then legal again, all in the space of a few days. The centerpiece of President Donald Trump's current immigration policy, the plan allows the government to force non-Mexican asylum seekers back into Mexico to await the outcome of their refugee status court case.

Just over a week ago, I wrote about how a judge in San Francisco had placed a preliminary injunction on the Remain in Mexico plan, strongly implying that the policy, known officially as the "Migrant Protection Protocols," did not have sufficient safeguards in place to guarantee asylum seekers' safety. The judge ordered the government to stop sending asylum seekers back to Mexico starting that Friday, April 15th: The Remain in Mexico plan seemed to have been blocked.

But, that week, as I covered other immigration stories (including Trump's potential new plan to release detained immigrants in sanctuary cities), the administration was working behind the scenes to appeal the preliminary injunction. As the end-of-week deadline approached, the Ninth Circuit Court of Appeals took up the case, and, by Friday, in what felt like whiplash, the court had issued a stay on the judge's preliminary injunction.

It's hard enough to keep up with rapidly changing laws and policies as a journalist. But it might be even harder for immigration attorneys, whose job it is to use the law, as it exists, to argue for their clients. "It's so difficult to practice in this day and time: In a world in which policies and procedures are constantly changing, it's hard to anticipate what the government is going to do next, and how things are going to change in the future," Morgan Weibel, a long-term asylum attorney working in San Francisco, told me in February. "Nobody really knows what's happening next week, or tomorrow."

That hardest part for her, Weibel says, is not being able to help her clients predict what might happen. According to Weibel, while she has never been able to tell a client they have X percent chance of one outcome, now she can't even tell them if one outcome is more likely than not. It's just not clear what the law will be by the time the client's case is decided.

Wondering how the Remain in Mexico rollercoaster over the last two weeks might have affected asylum seekers and lawyers working on the border, I called Robyn Barnard, a staff attorney with Human Rights First in Los Angeles. Barnard works with volunteer asylum and immigration lawyers across Southern California, and she herself is currently representing two Central American clients whom the government forced to return to Mexico, in Tijuana.

"We read the preliminary injunction on Monday afternoon [on April 8th], and immediately we're thinking through, How's this going help, or how is this going to impact my two clients?" Barnard says. Both of Barnard's clients have expressed fear for their lives about remaining in Mexico, and both want to get back into the U.S., "even though they understand they'll be placed in detention," she says. Barnard and her team spent the week trying to understand if the judge blocking the policy would let her clients re-enter the U.S.

As she worked on other cases in Southern California, Barnard continually called her clients in Tijuana, keeping them updated as best she could about what might happen to them. "I told [one of my clients]: 'This directly impacts you, and hopefully it will let you come in [to the U.S.] on Sunday. But we have to wait. And I will tell you as soon as I have more information about whether this will happen or not,'" she says.

Even as she went about her normal work, Barnard knew that the government would likely appeal the injunction. Sure enough, by late Thursday afternoon, Barnard and her team learned that the Trump administration had requested a stay on both the injunction and the case as a whole.

The next day became a waiting game: The judge who had blocked the Remain in Mexico plan that Monday had set a deadline of 5p.m. Pacific Time on Friday for the injunction to go into effect. Would the appeal court issue a decision before then? "We were on tenterhooks all day, waiting to see, What does this mean?" Barnard says.

By 3 p.m, Barnard and her team decided enough time had passed, and they should start making plans. She called her clients and told them that they should begin to prepare to re-enter the country. Together, they made a plan for them to cross back on Sunday.

Barnard says she had "literally just gotten off the phone" with one of her clients when she received news that the appeals court had blocked the injunction—the Remain in Mexico plan was back in effect.

Barnard read the decision and tried to process what it meant. Then she called her clients back, and apologized: They wouldn't be able to come back into the U.S. yet, she told them. "You're going to have wait a while longer in Tijuana. I'm really sorry that we're going to have to wait again," she told them.

"They're very patient men. Much more patient than me. But I'm sure it was hard for them to process—we'd gone from one plan to another," Barnard says. "They had been preparing to re-enter, preparing to be in detention for a while. And then they had to say, OK, I'm going to have stay in Tijuana."