Supreme Court to review Trump’s ‘remain in Mexico’ asylum program

The Supreme Court on Monday agreed to decide whether the Trump administration could maintain a program that has forced at least 60,000 asylum-seekers to wait in Mexico while their requests are heard.

An appeals court blocked the program in February, saying it was at odds with both federal law and international treaties and was causing “extreme and irreversible harm.” But the Supreme Court stayed that ruling in March while it considered whether to hear an appeal, leaving the program in place.

The program applies to people who leave a third country and travel through Mexico to reach the U.S. 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, kidnapping and torture.

The coronavirus pandemic has also complicated matters. In its brief seeking Supreme Court review, filed in April, the administration acknowledged that “the public health emergency caused by the Covid-19 virus” prompted it to take additional measures making it even harder to seek asylum.

“The government’s response to the emergency is fluid,” the brief said, “and measures attributable to the emergency are not at issue in this case.”

The brief said the program, known formally as the Migrant Protection Protocols and administered by the Department of Homeland Security, has been successful.

“During the 14 months that MPP has been in operation, it has been enormously effective: It has enabled DHS to avoid detaining or releasing into the interior more than 60,000 migrants during removal proceedings, and has dramatically curtailed the number of aliens approaching or attempting to cross the Southwest border,” the brief said.

“The program has been an indispensable tool in the United States’ efforts, working cooperatively with the governments of Mexico and other countries, to address the migration crisis by diminishing incentives for illegal immigration, weakening cartels and human smugglers, and enabling DHS to better focus its resources on legitimate asylum claims.”

Asylum-seekers and legal groups, represented by the American Civil Liberties Union, responded in July that the dispute is, for now, academic, as the administration, citing the pandemic, has in effect closed the border to asylum-seekers. They urged the court to deny review in the case, Wolf v. Innovation Law Lab, No. 19-1212.

In a second brief, the administration said the pandemic did not make the case less urgent.

“The current suspension on introducing certain aliens is a temporary response to the pandemic,” the brief said. “The decisions below impose severe constraints” on the government, the brief said, “and those constraints will endure long past the present emergency.”