The administration engages in Orwellian doublespeak by calling its challenged policy "Migrant Protection Protocols." In truth, the 60,000 non-Mexican migrants returned to Mexico under the policy over the past 15 months have faced the grave threat of victimization from criminals, police, or immigration officials in communities unprepared to house, shelter, or care for them.
Consider: These are dark-skinned Central American refugees who have fled their home countries because of fears of persecution by repressive governments or retaliation from powerful Central American gangs. Some of the would-be refugees presented testimony that they feared their home country governments or gangs would identify them from news coverage of the controversy.
In upholding the district court judge's injunction against the policy [Feb. 28], the two-judge majority on the Ninth Circuit Court of Appeals recognized "the hardship and danger to individuals returned to Mexico under the MPP." Writing for the two Democratic appointees on the panel, Judge William Fletcher found that the individual plaintiffs had "presented evidence that they [and others] face targeted discrimination, physical violence, sexual assault, overwhelmed and corrupt law enforcement, lack of food and shelter, and practical obstacles to participation in court proceedings in the United States."
Fletcher was equally blunt in dismissing the administration's legal defense of the policy. "[T]here is no serious possibility that the MPP is consistent with [federal law]," Fletcher wrote in the 52-page opinion joined by his fellow Clinton appointee, Richard Paez. The Republican appointee on the panel, Judge Ferdinand Fernandez, dissented on the narrow ground that a previous appeals court panel had effectively upheld the policy by granting the administration's request to stay Judge Richard Seeborg's injunction.
Apart from humanitarian concerns, the policy fails on two legal grounds, as Fletcher explained: federal law and international treaties, designed to protect asylum applicants rather than turn them away at the border. Specifically, the asylum procedures enacted by Congress include a provision, codified at 8 U.S.C. § 1225(b)(2), that exempts asylum applicants from the expedited removal procedures prescribed for "other aliens" found to be inadmissible.
Instead, the law requires that an immigrant who indicates an intention to apply for asylum or a fear of persecution "shall" be referred by the immigration officer to an “asylum officer” for an interview and detained in the United States for further consideration. The applicable law does not "state[ ] or even suggest[ ]" that the asylum applicant is subject to the return procedure specified for other migrants, Fletcher adds. In addition, international treaties prohibit under a so-called "non-refoulment" principle from returning an asylum applicant to a country where the refugee would face the risk of persecution.
The decision to stay the injunction followed by seven weeks the Court's 5-4 decision to allow the Trump administration to implement another initiative to deter immigration after two federal courts prevented it from being put into effect. The Court's decision in Department of Homeland Security v. New York [Jan. 27] allowing the administration to institute a new, stricter "public charge" rule to bar would-be immigrants came on a 5-4 vote, with the four liberal justices dissenting. Two of the conservatives in the majority, Neil Gorsuch and Clarence Thomas, wrote a concurring opinion to criticize in particular the district court judge's decision to issue a nationwide injunction against the policy.
Significantly, a stay of a lower court decision pending appeals is an "extraordinary" remedy, not routine. The Trump administration has made a habit of asking the Supreme Court to stay adverse decisions from lower courts pending appeals and the justices have obliged in many instances, often with the liberal bloc in dissent. Three weeks after the action in the New York case, Sotomayor complained in a similar case from Illinois of what she called the administration's "now familiar pattern" of asking the Court for stays. The Court, she added, has been "all too quick to grant the Government’s reflexiv[e] requests."
In the asylum case, the Ninth Circuit steered clear of the "nationwide injunctions" debate by narrowing Judge Seeborg's injunction to the two Ninth Circuit states that border Mexico: California and Arizona. In the opposing briefs, the American Civil Liberties Union, representing the migrants and the immigrant rights groups, argued that the policy effectively prevents migrants from pursuing their asylum claims. Border Patrol officers fail, the ACLU lawyers charged, to inform the migrants of their right to express fear of persecution if returned to Mexico. The government insisted in response that the policy included "adequate safeguards to ensure that aliens who legitimately fear persecution on account of a protected ground or torture in Mexico are not returned to Mexico."
The Court gave no explanation for issuing the stay in the asylum case, nor did Sotomayor explain her dissent. The other liberal justices' decision to concur or at least to remain silent seems a puzzle. But the action illustrates, yet again, that when the Trump administration says jump, the Roberts Court is quite willing to answer, "How high?"
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