The Supreme Court said Wednesday that the Trump administration may continue its “remain in Mexico” policy for asylum seekers while lower-court challenges continue, after the federal government warned that tens of thousands of immigrants massed at the southern border could overwhelm the immigration system.
The justices reversed a decision of a panel of the U.S. Court of Appeals for the 9th Circuit, which ordered the policy be suspended Thursday on parts of the border. Justice Sonia Sotomayor was the only noted dissenter.
The Trump administration had warned the justices of a dire situation without their intervention.
“Substantial numbers of up to 25,000 returned aliens who are awaiting proceedings in Mexico will rush immediately to enter the United States,” Solicitor General Noel Francisco wrote in a brief. “A surge of that magnitude would impose extraordinary burdens on the United States and damage our diplomatic relations with the government of Mexico.”
The program — officially known as the Migrant Protection Protocols, or MPP — is among the tools the Trump administration has used to curb mass migration from Central America and elsewhere across the southern U.S. border.
The government said in the 13 months it has been in place, 60,000 migrants have been sent back into Mexico to await their U.S. asylum hearings, part of an effort to limit access to United States and to deter people from attempting the journey north. The administration implemented the program last year, after more than 470,000 migrants — including parents and children — crossed into the United States illegally, with most quickly freed amid a massive immigration court backlog.
But the American Civil Liberties Union, representing immigration groups and individuals, called it an “unprecedented policy that fundamentally changed the nation’s asylum system, contrary to Congress’s design and the United States’ treaty obligations.”
A panel of the U.S. Court of Appeals for the 9th Circuit last month issued an injunction against the policy along the border with California and Arizona, states within the court’s authority.
Judges William A. Fletcher and Richard A. Paez, both appointed by President Bill Clinton, agreed with a lower-court judge in California that MPP probably violated federal immigration law by ousting undocumented asylum seekers who should be allowed to apply for protection in the United States.
The judges also said the program likely violated the administration’s “non-refoulement” obligations under international and domestic law, which prohibit the government from sending people to countries where they face danger. The 57-page ruling cited asylum seekers who feared kidnapping, threats and violence in Mexico.
“There is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined,” Fletcher wrote in the opinion. “Uncontested 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.”
Judge Ferdinand F. Fernandez, a President George H.W. Bush appointee, dissented, arguing that the panel should have adhered to a prior appeals court decision that allowed MPP to take effect.
The Supreme Court’s action marks another case in which the Trump administration has asked the high court to immediately intervene after an adverse ruling from a regional appeals court.
On a 5-to-4 vote in January, the court allowed the administration to begin implementing new “wealth test” rules making it easier to deny immigrants residency or admission to the United States because they have used or might use public-assistance programs.