By Nicholas Iovino
SAN FRANCISCO – A Ninth Circuit judge on Wednesday demanded the Trump administration explain how its policy of returning asylum seekers to Mexico squares with its duty not to send immigrants to places where they fear persecution.
“How can you want to comply with your obligation if you’re not going to at least ask the person, ‘Hey, before you return to Mexico, do you have a fear of going there,” U.S. Circuit Judge Paul Watford asked during a hearing on the government’s motion to stay a lower court’s injunction against the policy.
The Ninth Circuit temporarily revived the policy on April 12 as it considers the government’s motion to stay the injunction.
U.S. Justice Department lawyer Scott Stewart argued the Migrant Protection Protocols, enacted by the Department of Homeland Security on Jan. 24, were a “reasonable and rational” policy decision designed to address an “immigration crisis” at the border.
Asylum seekers sent to Mexico under the new policy mostly come from the three “Northern Triangle” nations of Guatemala, Honduras and El Salvador. Because those immigrants claim a fear of returning to their home countries, Stewart said the law allows the government to send them back to a different country, Mexico, which they traversed before arriving in the United States.
Stewart insisted the asylum seekers have ample opportunities to claim a fear of returning to Mexico.
But that argument didn’t sit well with Watford, who demanded to know how the government can get around directly asking if asylum seekers fear persecution in Mexico.
Stewart requested the judges simply order the government to start asking that question, instead of blocking the whole policy, if that is the only flaw they found in the system.
But that was not the only flaw picked out by the appeals court Wednesday.
U.S. Circuit Judge William Fletcher questioned how the government can move immigrants subject to expedited removal into a different track that conveniently allows the government to send them to Mexico.
An immigration law known as the “contiguous territory provision” allows the U.S. to return border crossers to Mexico if they are being processed under regular removal proceedings. Those who cross the border without proper documentation, including asylum seekers, are automatically subject to expedited removal. Opponents argue those subjected to expedited removal are exempt from the “contiguous territory provision” and cannot be returned to Mexico.
Stewart insisted immigration officers have the power to decide if a particular immigrant should be placed in expedited or regular removal proceedings.
But Fletcher suggested placing immigrants into categories that don’t match their circumstances appears to defy logic and the law.
“They either are arriving with fraudulent or no documents, or they’re not,” Fletcher said. “What I say doesn’t change how they’re arriving.”
Not all the judges on the panel were as unsympathetic to the Trump administration’s position. U.S. Circuit Judge Diarmuid O’Scannlain appeared more willing to accept the Justice Department’s interpretation of the law.
“It seems logical that the determination of the immigration officer is what sets the trajectory,” O’Scannlain said.
Scrutinizing arguments against the policy, O’Scannlain asked an immigrant rights lawyer why it is more dangerous for asylum seekers to return to Mexico than their home countries.
Judy Rabinovitz, a lawyer with the American Civil Liberties Union, answered: “It may not be more dangerous, but it’s still very dangerous.”
In their opposition brief, attorneys for 11 asylum seekers and six immigrant advocacy groups say their clients will face “grave harm” if the policy stays in place, especially given reports or migrants being kidnapped, raped and murdered in Mexico.
But the government claims it, too, will face imminent harm in the form of an overtaxed asylum system, overcrowded detention centers, and a growing 869,000-case backlog in U.S. immigration court.
U.S. District Judge Richard Seeborg decided the balance of harms weighed in favor of blocking the policy when he issued his injunction on April 8. That injunction stayed in place four days before the appeals court put it on hold.
The panel did not indicate when they will decide to lift or maintain the stay.
Watford was appointed by Barrack Obama. Fletcher was appointed by Bill Clinton, and O’Scannlain was appointed by Ronald Reagan.