One of the Trump administration's signature immigration plans scored a victory in court on Tuesday when three federal judges declared that the so-called "Remain in Mexico" plan could stay in place as the outcome of the lawsuit filed against the plan is decided. The determination will allow the administration to continue forcing asylum seekers back across the border into Mexico as their asylum claims make their way through immigration court.
The Ninth Circuit Court of Appeals' decision is the latest salvo in a whiplash-inducing legal back-and-forth regarding the Migrant Protection Protocols (the official name of the Remain in Mexico plan). A month ago, a different Ninth Circuit judge issued an injunction against the MPP, preventing the government from returning any more asylum seekers to Mexico as the lawsuit was decided. The administration appealed, and, a week after that decision, the appeals court lifted the injunction, allowing the administration to continue sending people back across the border. Yesterday, the appeals court decided that the plan could remain in place until the judicial system makes its final determination.
We've covered the Remain in Mexico plan from the day it first went into place in January to the day the American Civil Liberties Union and its partners filed a lawsuit against it, as well as all the subsequent legal decisions. Here are some key takeaways from the latest court decision.
Lawyers Have Trouble Advising Clients When the Law Keeps Changing
When the injunction blocking the MPP was originally struck down, I talked to lawyers working on the border about what it's like to practice asylum law at a time when the law itself changes from week to week.
"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," said Morgan Weibel, a long-term asylum attorney working in San Francisco.
Robyn Barnard, a staff attorney with Human Rights First in Los Angeles, described the difficulty she's had advising her clients who have been returned to Mexico. When the injunction against the plan was issued, Barnard said, she and her clients began making a plan for them to return to the U.S. They had just finalized their plan when the appeals court struck down the injunction—so she had to call back her clients, and tell them to un-pack their bags. "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 said.
When the appeals court announced its latest decision on Tuesday, Barnard tweeted that to describe her feelings as "disappointed" would be a "massive understatement."
The U.S. Might Be Knowingly Sending Migrants Back Into Danger in Mexico
The lawsuit against the MPP includes, as plaintiffs, 11 asylum seekers who were forced to return to Mexico. I wrote about some of these people in February, including a woman who fled anti-LGBT violence in Honduras. Many parts of Mexico are notoriously intolerant of queer people, and the woman, who the lawsuit calls Bianca Doe, says that she fears for her life there. Other asylum seekers had been kidnapped by organized crime syndicates in Mexico before arriving at the border, and feared that the gangs, which have a nationwide presence, could still be hunting them.
The administration claims it is not returning anyone who has a credible fear of remaining in Mexico. But a group of asylum officers, who make the ultimate decision regarding credible fear, told Vox's immigration reporter that they feel like "pawns" and are unable to argue that people should not be returned. According to Vox, many asylum officers believe that asylum seekers are being returned even though their lives could well be in danger in Mexico.
The Remain in Mexico Plan Might Still Be Struck Down
Though the three judges in the appeals court determined that the MPP could remain in place as they make their final decision, two of the judges made comments indicating they have strong doubts about the legality of the plan.
"The government is wrong. Not just arguably wrong, but clearly and flagrantly wrong," Judge William A. Fletcher wrote in the decision to extend the stay on the injunction.
In a statement, Omar Jadwat, director of the American Civil Liberties Union's Immigrants' Rights Project, expressed hope that the plan would eventually be struck down: With two judges identifying "serious legal problems with what the government is doing," Jadmwat wrote, "there is good reason to believe that ultimately this policy will be put to a halt."