Settlement Provides Fair Chance for Some Asylum Seekers Post-Remain in Mexico

The parties in Innovation Law Lab v. Mayorkas recently reached a settlement agreement, bringing the lawsuit against the Remain in Mexico policy to a close.

Under the terms of the settlement, named individual plaintiffs in the case, people seeking asylum who were forcibly returned to Mexico and denied meaningful access to the U.S. asylum system, will finally have the opportunity to pursue their legal claims safely in the United States.

Launched in January 2019, the Remain in Mexico policy forced asylum seekers to await their immigration court dates just south of the U.S.-Mexico border. Stranded in some of the most dangerous cities in Mexico, people subject to the policy routinely fell prey to grave violence. Few were able to access essential legal services, and conditions were so perilous that many were unable to safely return to the United States for their hearings and ordered deported in absentia. Less than two percent of those placed in Remain in Mexico were ultimately granted asylum.

The Innovation Law Lab lawsuit was filed in February 2019 on behalf of 11 asylum-seeking plaintiffs, as well as organizational plaintiffs Innovation Law Lab, Central American Resource Center of Northern California, Centro Legal de la Raza, the University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado, and the Tahirih Justice Center. These plaintiffs were represented by the American Civil Liberties Union (ACLU), ACLU of Northern California, Center for Gender & Refugee Studies (CGRS), and Southern Poverty Law Center. 

At every step, federal courts considering the merits of the Innovation Law Lab case found Remain in Mexico to be unlawful. In 2019, a federal district court concluded that the policy would inevitably result in asylum seekers being returned to Mexico to face danger and persecution.

In 2020, the Ninth Circuit Court of Appeals also ruled unequivocally that the policy violated both U.S. and international law, which prohibit the return of asylum seekers to countries where they face persecution or torture. The Ninth Circuit made it clear that the U.S. government simply does not have the legal authority to implement such a policy.

The Biden administration suspended Remain in Mexico immediately upon assuming office, leading the courts to find the previous decisions in the case moot. The administration then fended off multiple lawsuits brought by anti-immigrant politicians seeking to preserve the policy. However, many asylum seekers denied their fair day in court as a result of Remain in Mexico have continued to languish in precarious circumstances, with no recourse.

The settlement agreement in Innovation Law Lab does not preclude the organizational plaintiffs from bringing further litigation to challenge the continued adverse impacts of the policy or any future attempts by the government to resurrect it.

"Innovation Law Lab is grateful for and humbled by the bravery shown by plaintiffs in standing up against the monstrous inhumanity of the Remain in Mexico policy, and encouraged that they will have a chance to continue their pursuit of safety in the United States,” said Ian Philabaum, director of legal organizing at Innovation Law Lab. “The Remain in Mexico policy was a disastrous policy that subjected thousands and thousands of asylum seeking individuals to harm and will forever be a stain on the moral compass of our country. As the U.S. government continues to explore novel and rebranded deterrence policies, we will continue to be at the ready to challenge such policies and welcome with dignity any people seeking safety in the U.S."

“The end of the Remain in Mexico policy represents a critical step towards a more just immigration system for those seeking safety at our borders,” said Casey Carter Swegman, director of public policy for the Tahirih Justice Center. “Deterrence based policies like Remain in Mexico deny asylum seekers their fair day in court and force them to remain in extremely dangerous conditions that put some of the most vulnerable at risk of revictimization. While waiting in Mexico, survivors of gender-based violence are at extremely high risk of revictimization and the lack of a more trauma-informed asylum process harms and disadvantages survivors. As ever, we can and must ensure that asylum seekers are treated with respect and dignity and have meaningful access to justice.”

“The Remain in Mexico policy was a humanitarian and due process catastrophe,” Anne Peterson, Senior Staff Attorney at the Center for Gender & Refugee Studies (CGRS) said today. “This settlement offers long overdue redress to our plaintiffs, who were punished for seeking protection and trapped in horrific conditions. We are relieved that they will finally have a fair chance to pursue their legal claims safely, with the support of their communities.”

“The Remain in Mexico policy was cruel, depraved and illegal, and deprived people who were seeking asylum a meaningful chance to pursue their claims for protection,” said Judy Rabinovitz, ACLU special counsel and lead attorney in the Remain in Mexico challenge. “This settlement restores that opportunity to our courageous plaintiffs, and we are thrilled for them. Should the government choose to resurrect this horrific policy in the future, we will be back in court challenging it.”