Today the Supreme Court granted the Trump administration’s application for permission to enforce the Migrant Protection Protocols, colloquially known as the “remain in Mexico” policy, while it appeals to the Supreme Court. Announced in December 2018, the policy allows the Department of Homeland Security to return immigrants seeking asylum to Mexico while they wait for deportation proceedings. Justice Sonia Sotomayor was the only justice to note publicly that she would have denied the government’s request.
The Trump administration came to the Supreme Court last week, after a federal district court in California blocked the government from enforcing the policy anywhere in the United States. The policy, the district court ruled, is likely inconsistent with both federal immigration law and the doctrine of international law barring the return of asylum seekers to countries where they may be in danger. The U.S. Court of Appeals for the 9th Circuit upheld the district court’s decision and barred the government from enforcing the policy in California and Arizona; the 9th Circuit’s order was scheduled to go into effect tomorrow.
In last week’s filing, U.S. Solicitor General Noel Francisco told the justices that the remain in Mexico policy has “dramatically” reduced the number of migrants attempting to cross the U.S.-Mexico border. But if the 9th Circuit’s order were allowed to go into effect and the policy were lifted, Francisco wrote, tens of thousands of migrants might try to enter the United States, creating an “immediate and unmanageable strain” on the U.S. immigration system.
The challengers, a group of Central Americans who were returned to Mexico and several organizations that provide services to migrants, pushed back, urging the Supreme Court to keep the policy on hold while the government appeals. Describing the policy as “unprecedented,” the challengers emphasized that the potential problems about which the government complained are largely of its own making, because the government “aggressively expanded” the remain in Mexico policy during the last 10 months, while the district court’s order was on hold. And even if the government were correct that asylum seekers will flood the border if the policy is lifted, the challengers added, that prospect does not justify keeping the policy in place. Returning asylum seekers to Mexico, the challengers asserted, sends them to “some of the most violent areas of the world,” where they are exposed to dangers that include kidnapping, assault and rape. Moreover, the challengers continued, the lower court’s order would not require the government to allow everyone at the border to enter the United States – only the named plaintiffs in the case.
In a brief written order this afternoon, the Supreme Court gave the federal government the go-ahead to continue to enforce the policy while it appeals to the Supreme Court and, if the justices grant review, until the justices can hear oral argument and issue their decision on the merits. A spokesperson for the Department of Justice praised the ruling, writing that today’s stay “prevents a district court injunction from impairing the security of our borders and the integrity of our immigration system. The Migrant Protection Protocols, implemented pursuant to express authority granted by Congress decades ago, have been critical to restoring the government’s ability to manage the Southwest border and to work cooperatively with the Mexican government to address illegal immigration.”
This post is also published on SCOTUSblog.