SAN DIEGO — A federal appeals court ruled Tuesday that the Trump administration can force asylum seekers to wait in Mexico for immigration court hearings while the policy is challenged in court, handing the president a major victory, even if it proves temporary.
The order by the 9th U.S. Circuit Court of Appeals reverses a decision by a San Francisco judge that would have prevented asylum seekers from being returned to Mexico during the legal challenge.
The case must still be considered on its merits at a lower court in San Francisco and could end up at the Supreme Court.
Allowing the policy to remain in effect in the meantime lets the administration carry out an unprecedented change to U.S. asylum practices.
The policy was challenged by 11 Central Americans and legal advocacy groups that argued it jeopardized asylum seekers by forcing them to stay in Mexico, where crime and drug violence are prevalent.
U.S. District Court Judge Richard Seeborg agreed April 8 and said the policy should be halted because it failed to evaluate the dangers migrants faced in Mexico.
The administration introduced its “Migrant Protection Protocols” policy on Jan. 29 in San Diego and later expanded it to Calexico and El Paso, Texas. Homeland Security officials have said they planned to sharply expand enforcement along the entire border with Mexico.
The policy was introduced to deal with a growing number of asylum-seeking families from Guatemala, Honduras and El Salvador arriving at the U.S. border with Mexico. Under a court order, children generally cannot be detained more than 20 days, which has led to widespread releases of families almost immediately after they are stopped by authorities.
The January launch followed months of delicate talks between senior U.S. and Mexican officials that culminated in dual announcements of broad outlines of the policy after a meeting in November in Houston. Both sides characterized it as a unilateral move by the Trump administration and Mexican officials have made clear that they do not endorse the policy.
The three-judge appeals court panel cited Mexico’s position to reject the argument that asylum seekers were at risk in Mexico. The judges said the “likelihood of harm is reduced somewhat by the Mexican government’s commitment to honour its international law obligations and to grant humanitarian status and work permits to individuals returned under the (Migrant Protection Protocols).”
The American Civil Liberties Union, Southern Poverty Law Center, and Center for Gender & Refugee Studies sued over the policy.
Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, said comments by two of the judges give reason to believe that the policy will eventually be halted.
“Asylum seekers are being put at serious risk of harm every day that the forced return policy continues,” he said.