The Ninth Circuit Court of Appeals on Tuesday ruled that the Trump administration can continue to send Central American migrants back to Mexico while their requests for asylum in the U.S. are adjudicated. The three-judge panel struck down a lower court’s preliminary injunction blocking the policy, allowing it to continue on a temporary basis while the court considers broader issues in the case.
Ninth Circuit Appelate Court Ruling – Return to Mexico Upheld https://t.co/rNjJ9vlK8F
— TheLastRefuge (@TheLastRefuge2) May 8, 2019
The decision from the San Francisco-based appeals court was a surprise victory for the White House, as the administration has lost in several other immigration-related rulings from the left-leaning court in the past.
According to Politico:
Judge Diarmuid O’Scannlain, an appointee of former President Ronald Reagan, authored the 11-page opinion and wrote that the administration was likely to succeed on legal challenges to the policy under federal immigration and regulatory law.
O’Scannlain also said the Homeland Security Department could face harm if a federal court order freezes one of its enforcement tools.
“DHS is likely to suffer irreparable harm absent a stay because the preliminary injunction takes off the table one of the few congressionally authorized measures available to process the approximately 2,000 migrants who are currently arriving at the nation’s southern border on a daily basis,” he wrote.
The two liberal judges — Obama and Clinton appointees — also backed the decision to allow the policy to stay in effect, but criticized DHS’s implementation of it in individual opinions.
“The government is wrong,” Judge William Fletcher wrote, arguing that existing federal statute prevented DHS from sending the asylum seekers back to Mexico. “Not just arguably wrong, but clearly and flagrantly wrong.”
Judge Paul Watford, an Obama nominee, wrote in his opinion that he believes the administration’s treatment of asylum-seekers is in violation of the U.S.’s obligation to not return those migrants to countries where they could face persecution.
He pointed to DHS guidelines that state that immigration officers ask applicants who are being returned to Mexico if they fear persecution or torture in the nation only if the migrants say so themselves first.
The judges did agree that migrants would not be facing certain injury if returned to Mexico.
“The plaintiffs fear substantial injury upon return to Mexico, but the likelihood of harm is reduced somewhat by the Mexican government’s commitment to honor its international-law obligations and to grant humanitarian status and work permits to individuals returned,” the judges concluded.
Former Homeland Security Secretary Kirstjen Nielsen, who departed from the Trump administration last month, first announced the policy in late December.
“Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States,” Nielsen said when she introduced the policy.