Supreme Court keeps in place Trump’s ‘Remain in Mexico’ asylum constraints

Asylum seekers eat outside the El Chaparral border crossing in Mexico.
Asylum seekers have a meal outside the El Chaparral border crossing in Mexico.
(Guillermo Arias / AFP/Getty Images)

The Supreme Court on Wednesday granted another emergency appeal from the Trump administration and voted to keep in place the “Remain in Mexico” policy that has forced tens of thousands of asylum seekers to stay on the Mexican side of the border while they await a hearing in the United States.

The justices in a one-line order put on hold a ruling by the U.S. 9th Circuit Court of Appeals two weeks ago that declared the disputed policy illegal.

Only one member of the court registered a dissent. Justice Sonia Sotomayor said she voted to turn down the government’s appeal.

The high court’s action, while not a final ruling, is a significant victory for the Trump administration and its hard-line policies on immigration and asylum. It will maintain the “Remain in Mexico” policy for at least three months and probably through early next year. The justices are likely to grant review of the case when Trump’s lawyers submit an appeal petition in June.


The Justice Department in a statement said it was gratified by the court’s decision and said the policy has 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.”

Immigrant rights advocates called the policy cruel, inhumane and illegal. They said it has left thousands of people stranded along the border, without food, housing, healthcare or protection from criminals, where they wait weeks or even months for a hearing to present their asylum claim.

Judy Rabinovitz, special counsel in the ACLU’s Immigrants’ Rights Project, said the high court should rule the policy is illegal. “Asylum seekers face grave danger and irreversible harm every day this depraved policy remains in effect,” she said.

Over the past three years, Solicitor Gen. Noel Francisco has repeatedly sent emergency appeals on behalf of the Trump administration to the high court, confident its conservative majority will put on hold decisions by liberal judges in California who rule against the president’s policies.

On Friday, he asked the justices to intervene in the Remain in Mexico case and prevent what he said would be “a rush on the border” by the thousands of migrants reacting to the 9th Circuit’s decision.

The solicitor general said the policy officially known as Migrant Protection Protocols has proved to be an “enormously effective and indispensable tool” to cope with “the humanitarian and security crisis” at the southern border. He told the justices that prior to the policy, about 2,000 migrants had been arriving daily at the southern border seeking to enter the United States and to apply for asylum. Moreover, he said the “vast majority” of them did not have strong claims they were fleeing government-sponsored political persecution in their Central American homelands.

To stem the flow of migrants, administration lawyers seized on one provision in a 1996 immigration law that said the attorney general “may return the alien” to “a foreign territory contiguous to the United States” to await a hearing there. The legal dispute turned on whether this provision applies broadly to all arriving immigrants, as Trump’s lawyers maintain, or instead only to certain “extremely undesirable” immigrants, such as drug traffickers and smugglers, as the 9th Circuit held.

The Remain in Mexico policy was put into effect in January 2019. Since then, “it has enabled the temporary return of over 60,000 aliens to Mexico,” the solicitor general said. His appeal was called “Chad Wolf, acting secretary of Homeland Security vs. Innovation Law Lab.”

Immigrant rights lawyers filed suit in San Francisco, and in April of last year, U.S. District Judge Richard Seeborg handed down a nationwide preliminary injunction to block the policy.


But a month later, a 9th Circuit Court panel lifted that temporary order. Lawyers then went back to court arguing that the administration was exceeding its authority under the immigration laws.

A different panel of the 9th Circuit, by a 2-1 vote, agreed on Feb. 28. Judges William Fletcher and Richard Paez said the “return-to-a-contiguous-territory provision” in the immigration law had always been understood to apply to only a small category of “other aliens,” not to the thousands of immigrants who arrive at the borders. They also said the policy violated U.S. duties under international treaties because it sent asylum seekers back to areas where they would be subject to torture and persecution.

Just hours after handing down the broad opinion, the 9th Circuit panel agreed to put its own ruling on hold until March 12, so the administration could appeal to the Supreme Court.

On Monday, lawyers for the American Civil Liberties Union had urged the court to reject the appeal. They said the administration had adopted “an unprecedented policy that fundamentally changed the nation’s asylum system” and “returned more than 60,000 asylum seekers to Mexico, where they are exposed to kidnapping, assault, rape and other violent attacks.”