A federal appeals court on Friday blocked President Donald Trump’s policy of sending migrants back to Mexico while they await decisions on their asylum applications in the US, removing one of the major obstacles asylum seekers have faced when arriving at the southern border.
The policy will be blocked immediately and, based on the Ninth Circuit ruling, asylum seekers should now be able to present themselves at ports of entry and be admitted to the US to pursue their asylum claims, rather than being forced to stay in Mexico.
But at this point, it’s not clear how the ruling will play out in practice, Anwen Hughes and Kennji Kizuka, both attorneys at Human Rights First, told Vox. The Trump administration will have to provide new guidance to border officials, which could take time to implement.
Processing could also take a long time if asylum seekers decide to rush the ports and line up by the thousands, especially since the administration limits the number of migrants it screens each day. And those who are admitted to the US could potentially be detained in US facilities while they wait for their immigration court hearings.
The Ninth Circuit found that the government had no authority to send asylum applicants to a neighboring country under immigration statute, or even based on longstanding practice. The court also found that the program violated the US’s international obligations, codified in the Refugee Act, to not return asylum seekers to countries where they would likely face persecution.
The policy, known as the Migrant Protection Protocols (MPP) or the “Remain in Mexico” program, went into effect in January 2019. Since then, over 60,000 asylum seekers have been sent back to Mexico, where they’re under threat from drug cartels and kidnappers and are dependent on volunteers for basic supplies.
“[U]ncontested 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,” the opinion states.
The Ninth Circuit’s decision, which the Trump administration will almost certainly appeal, will likely set up a high-stakes battle over the policy at the US Supreme Court. The ruling is a major loss to the administration, which has credited MPP for the recent 75 percent drop in arrests at the southern border, as well as for helping to all but end the practice of detaining families — since most have instead been sent back to Mexico under the program.
In a separate ruling issued Friday, the Ninth Circuit decided to continue blocking the Trump administration from implementing a rule that would bar migrants who cross the border outside of ports of entry from obtaining asylum. Much to the relief of immigrant advocates, that rule never went into effect — but together with MPP, it could have all but cut off access to the asylum system for migrants arriving at the southern border.
“It’s time for the administration to follow the law and stop putting asylum seekers in harm’s way,” American Civil Liberties Union attorney Judy Rabinovitz, who argued the MPP case at the Ninth Circuit, said in a statement.
The humanitarian crisis MPP has created
Before MPP, both migrants who waited in line at the border and those who were apprehended between ports of entry would have been held at a US Customs and Border Protection processing facility until a border agent determined whether they should be released, transferred to immigration detention, or deported. But under MPP, they had mostly been sent back to Mexico and allowed to enter the US only to attend their immigration court hearings.
They have been waiting in Mexican border cities, where some migrants are lucky to find housing in shelters, hotels, or rooms for rent. But for more than 5,000 others, only colorful tents and tarps, some held up by sticks and stones, stand between them and the elements, even as temperatures drop below freezing. The encampments are clustered around bridges linked to US ports of entry along the Rio Grande, where they rely on volunteers for basic necessities like clean drinking water and warm clothes.
In the camps, migrants remain at risk for extortion, kidnapping, and rape at the hands of cartels and other criminal actors. The advocacy group Human Rights First has identified over 1,000 public reports of murder, torture, rape, kidnapping, and other violent attacks against migrants sent back to Mexico under MPP.
In Matamoros, a city of about 500,000 people across the border from Brownsville, Texas, about 2,000 migrants had moved into makeshift tent encampments along the Rio Grande — so close to the US border that they can show up at the port for processing whenever their names are called.
Matamoros is a dangerous place: The US State Department has issued a Level 4 “Do Not Travel” advisory for the region due to high rates of violent crime, kidnapping, and robbery.
The encampment has grown to house several thousand people. Some tents have been erected on land contaminated with feces due to a lack of public toilets, raising concerns about E. coli infections. Migrants have no access to running water, leading to poor hygiene and the spread of rashes and funguses. As flu season ramps up, there are concerns it will spread throughout the camps, too.
Basic health care services come from US-based nonprofits, including Global Response Management, which are stretched thin. Other volunteers cross the border daily, bringing supplies like bedding and food.
Sometimes, parents try to send their children to the port of entry alone so that US officials will be forced to process them, believing they will be safer in the US than in the camps, Yael Schacher, a senior US advocate at Refugees International, said. Their settlements are so close to the port that they can wave to their children as they cross the border.
Trump administration officials have dismissed media reports of the dangers facing migrants waiting in Mexico. The US has continued to send aid to Mexico — $139 million in 2018 — but otherwise, advocates haven’t seen any evidence of a US presence on the Mexican side of the border administering aid to migrants.