SAN FRANCISCO (CN) – Foreshadowing a potential injunction against another Trump administration immigration policy, a federal judge suggested Friday that sending asylum seekers to wait in Mexico while their legal claims are pending could be illegal.
“The law says, ‘Don’t send someone to a place where they can establish they have a legitimate fear of persecution, torture and the like,'” U.S. District Judge Richard Seeborg said at Friday’s hearing. “Why does it matter if it’s the country they initially decided to leave?”
The two-hour hearing concerned a motion for a preliminary injunction to block the new Migrant Protection Protocols enacted by the Department of Homeland Security on Jan. 24. The new protocols authorize federal authorities to send asylum seekers to Mexico while their removal proceedings are pending, even if those migrants claim to fear harm or persecution in Mexico.
A Department of Justice lawyer told Seeborg the policy was enacted to “deter baseless asylum claims” that have led to overcrowded detention centers, an overtaxed asylum system and an 855,000-case backlog in U.S. immigration court.
“The executive branch is trying to deal with a very difficult problem,” Department of Justice lawyer Scott Stewart told the judge.
But a lawyer for the American Civil Liberties Union, representing six immigrant advocacy groups, said the government relied on faulty data and failed to fully consider if the policy would actually achieve its goal of curtailing asylum fraud.
“They at least have an obligation to consider is it going to have that effect, or are they just imposing misery on people when it won’t have that effect,” ACLU lawyer Judy Rabinovitz argued in court.
Though Seeborg appeared to accept that asylum seekers could face harm in Mexico, he seemed less open to arguments that the directive violates laws governing how immigrants can be classified for removal.
An immigration law known as the “contiguous territory provision” allows the U.S. to return border crossers to Mexico if they are being processed under regular removal proceedings. Those who cross the border without proper documentation, including asylum seekers, are automatically subject to expedited removal, as opposed to regular removal. Because they are on a different removal track, the plaintiffs argue the asylum seekers are exempt from the “contiguous territory provision” and cannot be returned to Mexico.
Seeborg voiced skepticism toward that line of reasoning.
“This idea that they for all time have the mark of [expedited removal] even when they are moved into regular removal is a tall order,” Seeborg said.
Debate also focused on whether the scope of a potential injunction should be nationwide or limited to the six organizations that sued and their asylum-seeking clients.
Stewart cautioned against granting a national injunction, arguing that because the new policy has only taken effect at two ports of entry, a far-reaching injunction would be unnecessary.
When asked if the policy was being implemented uniformly across the country, Stewart replied that it might be tweaked or tailored in the future to address specific circumstances at different ports of entry.
But the plaintiffs insisted that without a nationwide injunction, their clients would face irreparable harm.
“We’ve got organizational plaintiffs here whose missions are being affected and have a lot at stake because of this new policy,” Rabinovitz said. “I don’t know how you would craft a limited injunction that would protect them.”
In his final plea to the judge, Stewart asked that Seeborg stay any potential block on the Trump administration policy pending appeal.
Rabinovitz urged the judge not to acquiesce.
“If it’s illegal and it’s hurting people then there’s no reason for a stay,” Rabinovitz insisted. “A stay would defeat the purpose.”
Rabinovitz’s clients include immigrant advocacy groups Innovation Law Lab, Central American Resource Center of Northern California, Centro Legal de la Raza, University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado and Tahirih Justice Center.
The government expanded the policy of sending asylum seekers to Mexico earlier this month to include the Calexico port of entry, about 120 miles east of the San Ysidro port in San Diego, where the program started in late January.
The Department of Homeland Security on Friday did not provide requested data on the number of asylum seekers sent to Mexico under the new policy. On March 12, the Associated Press reported that 240 asylum seekers had been returned to Mexico and that Mexico agreed to accept up to 20 migrants per day after they were screened for felony convictions.
Federal judges in San Diego and San Francisco have previously enjoined other Trump administration immigration policies, including a “zero tolerance” policy that separated asylum-seeking families and an asylum ban for those who enter the U.S. outside official ports of entry. Both rulings are under appeal.