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Ninth Circuit Rules Migrants Can Be Returned to Mexico While Awaiting Asylum Decision

Central American migrants being held by U.S. Customs and Border Protection in El Paso, Texas, March 27, 2019 (Jose Luis Gonzalez/Reuters)

A federal appeals court ruled Tuesday that the Trump administration can continue returning Central American migrants to Mexico while their asylum claims are being adjudicated in U.S. immigration courts.

A three-judge panel of the Ninth Circuit Court of Appeals reversed a federal trial judge’s April ruling, which blocked the administration’s so-called “Remain in Mexico” policy on the grounds that it endangers asylum seekers by forcing them to return to Mexico where they may face violence or suffer from lack of humanitarian resources.

The policy, announced in a December 2018 memo by then-Secretary of Homeland Security Kierstjen Nielsen, was designed to curtail the so-called catch-and-release system, in which migrants make fraudulent asylum claims with the knowledge that they will be released into the U.S. for months or even years before their court date, which they may or may not appear for.

“Aliens trying to game the system to get into our country illegally will no longer be able to disappear into the United States, where many skip their court dates. Instead, they will wait for an immigration court decision while they are in Mexico,” Nielsen wrote in the memo.

The administration can continue implementing the policy for now but a lower court must still rule on its merits, and, depending on that ruling, the case may end up before the Supreme Court.

In the order filed Tuesday, the appellate court acknowledged the strain placed on the Department of Homeland Security by the massive number of Central American asylum seekers arriving at the border each day, which rose to a 13-year high in March.

If the policy were blocked, the judges wrote, DHS would suffer irreparable harm “because the preliminary injunction takes off the table one of the few congressionally authorized measures available to process the approximately 2,000 migrants who are currently arriving at the Nation’s southern border on a daily basis.”

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