SAN DIEGO -- A 9th U.S. Circuit Court of Appeals panel voted unanimously Friday to suspend an order it issued earlier in the day to block a central pillar of the Trump administration's policy requiring asylum-seekers to wait in Mexico while their cases wind through U.S. courts.
The three-judge panel told the government to file written arguments by the end of Monday and for the plaintiffs to respond by the end of Tuesday.
The Justice Department said at least 25,000 asylum-seekers subject to the policy are currently waiting in Mexico and expressed "massive and irreparable national-security of public-safety concerns."
Government attorneys said immigration lawyers had begun demanding that asylum-seekers be allowed in the United States, with one insisting that 1,000 people be allowed to enter at one location.
"The Court's reinstatement of the injunction causes the United States public and the government significant and irreparable harms -- to border security, public safety, public health, and diplomatic relations," Justice Department attorneys wrote.
The Customs and Border Protection agency had already begun to stop processing people under the policy.
The government's setback earlier Friday from the appeals panel may prove temporary if President Donald Trump's administration appeals to the U.S. Supreme Court, which has consistently sided with Trump on immigration and border-security policies. Chad Wolf, the acting Homeland Security secretary, said he was working with the Justice Department to "expeditiously appeal this inexplicable decision."
The "Remain in Mexico" policy, known officially as "Migrant Protection Protocols," took effect in January 2019 in San Diego and gradually spread across the southern border. Nearly 60,000 people have been sent back to wait for hearings, and officials believe it is a big reason why illegal border crossings plummeted about 80% from a 13-year high in May.
The Trump administration has claimed that the migrant families have been exploiting loopholes in U.S. law to secure their release, knowing of the court-mandated 20-day limit for detaining children. The program was designed to prevent families from entering the United States and later skipping their court hearings to avoid deportation; instead, families have been sitting on the Mexico side of the border.
In its earlier decision Friday, the 9th U.S. Circuit Court of Appeals ruled 2-1 to uphold a lower court's injunction on the program, saying that the policy "is invalid in its entirety due to its inconsistency with" federal law, and "should be enjoined in its entirety."
Judges Richard Paez and William Fletcher, both appointed by President Bill Clinton, voted to uphold the injunction, while Ferdinand Fernandez, a President George H.W. Bush appointee, disagreed.
Advocates planned to have migrants immediately cross the border and present the court decision to authorities Friday, with the group Human Rights First hand-delivering a copy to U.S. Customs and Border Protection officers at a bridge connecting Laredo, Texas, and Nuevo Laredo, Mexico. Lawyers were hoping to get their clients before U.S. immigration judges.
The administration has been working to cut down on its use of the "Remain in Mexico" program in recent months by fast-tracking deportation hearings and sending migrants from Central America by airplane to Guatemala as part of an agreement that allows them to seek asylum there instead.
The same three-judge panel issued a separate 3-0 ruling blocking Trump's first so-called asylum ban, which aimed to bar people who crossed the border illegally from seeking asylum. The policy was temporarily halted in 2018. Trump criticized the lower-court judge in the case for being an "Obama judge," prompting a rebuke from Chief Justice John Roberts, who sided with the court's four liberal justices months later to let the injunction stand.
Roberts and other conservative justices have since allowed other Trump policies to unfold despite pending lawsuits against them, including one policy that decrees migrants ineligible for asylum if they passed through another country where they could have sought refuge on their way to the United States.
59,000 RETURNS
The American Civil Liberties Union had cheered the decisions Friday.
"The two cases combined are an important step to restoring the United States' long-standing commitment to protecting vulnerable people fleeing persecution," said ACLU lawyer Lee Gelernt.
The Justice Department criticized the ruling, saying it "not only ignores the constitutional authority of Congress and the administration for a policy in effect for over a year, but also extends relief beyond the parties before the court."
Judge William Fletcher, writing for the majority, sided with the ACLU and other advocacy groups who argued the policy violates international treaty obligations against sending people back to a country where they are likely to be persecuted or tortured on the grounds of race, religion, ethnicity, political beliefs or membership in a particular social group.
Approximately 59,000 people from countries including Cuba, Honduras, Guatemala, El Salvador and Venezuela have been sent back to Mexico to wait until their asylum cases could be heard in the United States. U.S. officials said the program had a powerful deterrent effect at the border.
Supporters of the "Remain in Mexico" policy note that it has prevented asylum-seekers from being released in the United States with notices to appear in court, which they consider a major incentive for people to come.
Mexicans and unaccompanied children are exempt.
Asylum has been granted in less than 1% of the roughly 35,000 remain-in-Mexico cases that have been decided. Only 5% are represented by attorneys, many of whom are reluctant to visit clients in Mexico.
Federal officials had blamed the surge of migrant families on smugglers who were exploiting U.S. law and were persuading Central Americans to sell their houses, take out loans, and travel with a child to the United States with promises that families could speed through the immigration bureaucracy.
Ken Cuccinelli, acting deputy secretary of the Department of Homeland Security, said last month that attempting to cross into the United States is "essentially futile at this point" and that "illegal migrants are going to be promptly returned."
"We are not unmindful of the possibility that while the flows have gone down for seven months, they can go back up, and we're preparing to handle that as well," Cuccinelli said at a briefing.
Advocates for migrants say the policy and other enforcement measures forced families with young children to await their hearings in crime-ridden Mexican border cities where their lives are in danger.
Human Rights First, an advocacy group, said it has documented more than 800 reports of rape, kidnapping, and other violent attacks against asylum-seekers forced to return to Mexico.
Justice Department lawyers have called those claims "speculative" and have said the program is "one of the few congressionally authorized measures available" to control the border.
FEE INCREASE PROPOSED
Meanwhile, U.S. immigration courts on Friday proposed raising fees on filings and appeals by hundreds of dollars in a move that migrant advocates said would block their clients' ability to access justice.
The Executive Office for Immigration Review wants to increase the fee for appealing an immigration judge's ruling from $110 to $975, arguing the cost of handling the applications far exceeds the price tag.
"Though the proposed fees may seem high as compared to the current fees, the agency has not increased its fees since 1986," the agency wrote in a notice published in the Federal Register.
The immigration courts are facing an overwhelming backlog of cases and people often wait months or years for a hearing, let alone a decision, on whether they will be allowed to remain legally in the United States.
With a soaring caseload that has surpassed 1 million pending cases, the immigration courts are covering more of the costs. The agency said it cost $31 million to process applications for appeals in fiscal 2018, but it charged only $4 million in fees for those applications.
The agency also is proposing to increase fees for people who are seeking to stay in the country legally after living here more than a decade and who want to reopen cases.
The public can comment on the proposal through March 30.
Information for this article was contributed by Maria Sacchetti of The Washington Post; and by Elliot Spagat of The Associated Press.
A Section on 02/29/2020