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Government asks justices for permission to enforce “remain in Mexico” policy

The Trump administration returned today to the Supreme Court with a request for emergency relief. In a filing by U.S. Solicitor General Noel Francisco, the administration asked the justices to allow it to enforce the Migrant Protection Protocols, also known as the “remain in Mexico” policy, which allows the Department of Homeland Security to return immigrants to Mexico while they wait for deportation proceedings.

Since the “remain in Mexico” policy was announced in December 2018 to address what the government characterizes as a “dramatic spike in the number of Central American migrants attempting to cross Mexico to enter the United States,” DHS “has used MPP to process tens of thousands of aliens applying for asylum, or other forms of removal, without the need to detain the applicants in the United States during the weeks and months it takes to process their applications.”

Last year, in a lawsuit brought by a group of Central Americans who were returned to Mexico and several organizations who provide services to migrants, a federal court barred the Trump administration from enforcing the “remain in Mexico” policy anywhere in the United States. The district court ruled that the policy is likely inconsistent with both federal immigration law and the principle that asylum seekers should not be returned to places where they could be in danger. The U.S. Court of Appeals for the 9th Circuit upheld that ruling; its decision blocking the government from enforcing the policy in California and Arizona will go into effect on March 12 if the Supreme Court does not act before then.

In its 40-page filing today, the government urged the justices to allow it to enforce the “remain in Mexico” policy while it appeals to the Supreme Court. While the policy has been in place, the government stressed, it has “dramatically curtailed the number of aliens approaching or attempting to cross the border, and it has enabled the temporary return of over 60,000 aliens to Mexico.” If the policy is lifted, the government cautioned, tens of thousands of migrants could attempt to cross the border, which would “impose an enormous burden on border authorities and undercut their ability to carry out other critical missions,” as well as “produce an immediate and unmanageable strain on the Nation’s immigration detention system.” At the very least, the government pleaded, the court should only block enforcement of the policy with respect to the plaintiffs themselves, rather than more broadly.

Justice Elena Kagan, who handles emergency requests from the 9th Circuit, instructed the challengers to respond to the government’s request by Monday, March 9, at 4 p.m.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Government asks justices for permission to enforce “remain in Mexico” policy, SCOTUSblog (Mar. 6, 2020, 2:34 PM),