On Friday the Ninth Circuit issued an opinion permitting the government to partially resume the Remain in Mexico policy while the court considers the government’s appeal of a nationwide stay that had halted the policy’s reimplementation. Meanwhile, the court limited the scope of a lower court ruling, holding that only current and future clients of Immigrant Defenders Law Center (ImmDef), an organizational plaintiff in the lawsuit, could be exempted from Remain in Mexico while the case is pending.
Introduced by the first Trump administration in 2019, the Remain in Mexico policy forces people seeking asylum to await their U.S. immigration court hearings in Mexico, where they face grave threats to their lives and violations of their rights. In its ruling on Friday, the Ninth Circuit affirmed that the government’s planned reimplementation of the Remain in Mexico policy likely violates our immigration laws, which require that people fleeing persecution have a meaningful opportunity to seek asylum. The court also found that the resumption of Remain in Mexico would cause “imminent irreparable harm” to ImmDef by upending the organization’s operations and finances and jeopardizing the safety of its staff, who would be forced to travel to some of the most dangerous parts of Mexico to assist clients subject to the policy.
By subverting the efforts of organizations like ImmDef to provide legal assistance to asylum seekers, the Ninth Circuit found that the policy would impose “burdens” so “severe” as to bar many people from “exercising their statutory right to apply for asylum” altogether. This was certainly the impact of the first iteration of Remain in Mexico – as the government has previously acknowledged – under which 90 percent of asylum seekers were unable to access counsel, and a mere 1.1 percent were ultimately granted relief. Conditions in Mexico were so dire that many people forced to await their hearings there were unable to safely return to the border; some individuals seeking asylum were abducted by cartels en route to their hearings and issued deportation orders in absentia.
“As the federal government previously found, the Remain in Mexico program is riddled with ‘endemic flaws’ and imposed ‘unjustifiable human costs,’ without addressing the root causes of irregular migration,” said Alvaro M. Huerta, Director of Litigation and Advocacy at ImmDef. “ImmDef is grateful that the Ninth Circuit Court of Appeals recognized that Remain in Mexico will inevitably harm our organization and our staff as we attempt to represent vulnerable asylum seekers trapped in Mexico. But we know that the disastrous effects of the program will extend more widely. Remain in Mexico plays into the hands of criminal cartels and will only make our border less secure and our asylum policies less fair, and calls into question the United States’ commitment to upholding human rights.”
ImmDef is represented in this case by the Center for Gender & Refugee Studies (CGRS), Innovation Law Lab, and the National Immigration Project of the National Lawyers Guild.
“The Remain in Mexico policy was a humanitarian and due process disaster, as the courts and the government itself have acknowledged for years,” Melissa Crow, Director of Litigation at the Center for Gender & Refugee Studies (CGRS), said today. “On Friday the Ninth Circuit rightly recognized the policy’s dire consequences for people seeking safety and for organizations like ImmDef, which offer a crucial lifeline to those our government has stranded in perilous conditions. The Trump administration’s attempt to revive a program that is so blatantly illegal and that has fueled such profound human suffering is depraved.”
“The Remain in Mexico policy is an abhorrent and unlawful policy that subjected thousands of people to cruelty and harm and prevented ImmDef from being able to defend their clients in immigration court,” said Stephanie Alvarez-Jones, Southeast Regional Attorney at the National Immigration Project. “While we are glad the court affirmed the validity of the stay and recognized the harms inherent in reimplementing the Remain in Mexico policy, we are disappointed that the court narrowed the stay to ImmDef’s current and future clients. We will continue this fight against this policy until it is held unlawful once and for all.”
“We are relieved that the court's decision will protect ImmDef’s current and future clients from the inhumane Remain in Mexico program,” said Rosa Saavedra Vanacore, Senior Staff Attorney at Innovation Law Lab. “It is, however, disappointing that only ImmDef’s clients are protected from this unlawful program. We will continue to advocate so that everyone has meaningful access to the right to apply for asylum.”