WASHINGTON — The Supreme Court on Wednesday temporarily revived a Trump administration program that has forced about 60,000 asylum seekers to wait in Mexico while their requests are heard. An appeals court had blocked the program, saying it was at odds with both federal law and international treaties and was causing “extreme and irreversible harm.”
The Supreme Court’s order was brief and unsigned, and it gave no reasons for staying the appeals court’s ruling while the case moved forward. Justice Sonia Sotomayor wrote that she would have denied the administration’s request for a stay.
The ruling, from the United States Court of Appeals for the Ninth Circuit, in San Francisco, applied to the two border states within its jurisdiction, California and Arizona, and was to take effect on Thursday.
In urging the Supreme Court to take prompt action, Solicitor General Noel J. Francisco said the appeals court’s ruling had already caused chaos at the border.
Without a stay from the Supreme Court, he wrote, the appeals court’s ruling was “virtually guaranteed to impose irreparable harm by prompting a rush on the border and potentially requiring the government to allow into the United States and detain thousands of aliens who lack any entitlement to enter this country, or else to release them into the interior where many will simply disappear.”
The challenged policy, which the administration calls Migrant Protection Protocols and others refer to as Remain in Mexico, applies to people who travel through Mexico to reach the United States border.
Since the policy was put in place at the beginning of last year, tens of thousands of people have waited for immigration hearings in unsanitary tent encampments exposed to the elements. There have been widespread reports of sexual assault, kidnap and torture.
The program “has put asylum seekers directly in harm’s way,” the American Civil Liberties Union, which represents people and groups challenging the program, told the justices in a brief urging them not to intervene. “Asylum seekers returned to Mexico are sent to some of the most violent areas in the world.”
“Indeed,” the brief said, “the U.S. State Department itself has recognized the ‘victimization of migrants’ in Mexico ‘by criminal groups and in some cases by police, immigration officers and customs officials,’ including kidnappings, extortion and sexual violence.”
Mr. Francisco wrote that the program had proved successful. “It has been an enormously effective and indispensable tool in the United States’ efforts, working cooperatively with Mexico, to address the migration crisis on our Southwest border,” he wrote.
The policy has important exceptions, Mr. Francisco wrote. It did not apply, he said, “to any alien who will more likely than not face state-sponsored violence” or “to Mexican nationals or certain especially vulnerable aliens such as unaccompanied children.”
As a general matter, though, he wrote that the United States was not obliged under the treaties it had signed to protect migrants from “routine criminal acts that do not amount to persecution or torture.”
Blocking the policy would have negative consequences, Mr. Francisco wrote.
“Processing a sudden influx of tens of thousands of migrants — each of whom would need to be screened, including for urgent medical issues — would impose an enormous burden on border authorities and undercut their ability to carry out other critical missions,” he wrote, “such as protecting against national-security threats, detecting and confiscating illicit materials, and ensuring efficient trade and travel.”
The Supreme Court has recently reversed several injunctions issued by lower courts blocking aspects of the administration’s tough new immigration policies. In a pair of recent decisions, for instance, the court lifted injunctions that had blocked the administration’s plans to deny green cards to immigrants who were thought to be likely to become “public charges” by even the occasional and minor use of public benefits like Medicaid, food stamps and housing vouchers.
The vote was 5 to 4 in both cases, with the court’s more conservative members in the majority. Dissenting from one such order last month, Justice Sotomayor wrote that the administration had become too quick to run to the Supreme Court after interim losses in the lower courts.
“Claiming one emergency after another, the government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited court resources in each,” she wrote. “And with each successive application, of course, its cries of urgency ring increasingly hollow.”
She continued: “It is hard to say what is more troubling: that the government would seek this extraordinary relief seemingly as a matter of course, or that the court would grant it.”
President Trump criticized Justice Sotomayor’s dissent, saying she should recuse herself from “all Trump, or Trump related, matters!”
Orignially published in NYT.