“Remain in Mexico” Policy Remains in Effect for Now

“I am afraid to stay in Mexico.”

These words came from John Doe, the pseudonym for a Guatemalan migrant seeking asylum in the United States. But when Doe presented himself at the U.S. border and told officials of his fear of remaining in Mexico, the U.S government sent him back to Mexico anyway to wait for his immigration hearing.

The government did so pursuant to new “migrant protection protocols” that the U.S. Department of Homeland Security (DHS) implemented in January. Under a policy known as “Remain in Mexico,” border officials now send certain migrants who cross into the United States from Mexico “without proper documentation” back to Mexico. There, migrants must wait until their U.S. immigration proceedings are ready to take place.

Recently, the DHS policy received an initial vote of confidence from a federal appeals court in California.

The appellate court held that the policy was likely to fall within DHS’s scope of policymaking authority under the Immigration and Nationality Act (INA). The decision allows DHS to continue enforcing the policy for the time being, as the appellate court rejected a lower court’s preliminary attempt to block it pending further litigation.

The appeals court ruled in response to an emergency motion from DHS asking to keep the policy in effect while the underlying legal issues are briefed and decided in full.

In large part, the case has focused on a passage in the INA known as the “contiguous-territory provision.” This provision allows the government to return migrants who enter the United States “from a foreign territory contiguous to the” United States to the territory from which they arrived until full proceedings can be completed. DHS cited this provision to claim authority to create its Remain in Mexico policy.

When a group of asylum seekers—including Doe—joined with several nonprofit organizations to challenge the DHS policy in court, the lower court concluded that it was unlikely that the INA provision authorized the DHS policy. That likely lack of authority would render the policy “contrary to law” in violation of the Administrative Procedure Act, the lower court said.

The judge in that lower court thus granted a preliminary order halting the implementation of the policy pending further judicial consideration. The judge reasoned that the INA contains two separate subsections that create “two mutually exclusive categories” of migrants: (1) individuals subject to “expedited removal” because they enter the country with false documents or without documents, like asylum seekers, and (2) “other” individuals subject to “regular removal proceedings.”

The lower court judge explained that the contiguous-territory provision comes under the section of the statute dealing with regular removal proceedings. According to the judge, DHS could not apply the policy to migrants subject to expedited removal because the provision for expedited removal is not located in the same section as the contiguous-territory provision.

But on review, the appeals court interpreted the INA differently.

Although the appellate court agreed that the policy cannot cover expedited removals, it said that the policy’s statutory authority depends not on migrants’ eligibility for a certain removal proceeding but rather how immigration officers apply the law.

Contrary to the lower court’s reasoning, migrants do not belong inherently in one removal category or the other, the appellate court explained. Instead, migrants can be subject to both types of proceedings, and an immigration officer chooses which proceeding to invoke. If the officer places a migrant in regular removal proceedings, then the contiguous-territory provision applies—even if the migrant had been technically subject to expedited removal.

The court reasoned that the standards that make migrants subject to expedited removal “overlap” with those for regular removal proceedings, such that the government could place an individual into either category.

Under the recent DHS policy, the asylum-seeking plaintiffs could have been removed through expedited proceedings but they were never actually placed in that kind of proceeding. Instead, they were put in regular removal proceedings. As a result, it is likely that they “are properly subject to the contiguous-territory provision,” according to the appeals court.

The appeals court also reasoned that DHS likely did not have to use normal notice-and-comment rulemaking procedures to adopt its new policy. The court explained that the protocols are “general statements of policy” because immigration officers have discretion over whom they can return.

But two concurring opinions in the appeals court decision indicate the existence of some contention over the policy—which could signal that the court might ultimately rule against DHS when it hears the case in full at a later stage in the litigation.

Although Judge William A. Fletcher agreed that DHS could continue to apply its policy pending litigation, he questioned DHS’s claim of statutory authority, calling it “clearly and flagrantly wrong.” He explained that the grounds for eligibility for expedited removal are different from the grounds for regular removal proceedings, so migrants do, in fact, “fall into two separate and non-overlapping categories.” Although the government can place a migrant eligible for expedited removal into regular removal proceedings, that decision would not alter the migrant’s “underlying category” under the INA.

Judge Fletcher said he hoped that the judges who hear the case in full “will be able to see” that the policy is “illegal.”

Judge Paul J. Watford, on the other hand, agreed with the court’s interpretation of the INA but argued that the policy likely violates the United States’ international treaty obligations.

Under these obligations, the United States may not send an individual back to a country where he would face harm. Although DHS purports to adhere to these obligations, Judge Watford disagreed. He noted, for example, that DHS’s procedures do not instruct immigration officers to ascertain whether migrants would face harm if they were returned to Mexico; instead, migrants must take it upon themselves to state their fear affirmatively.

Judge Watford said that the policy’s procedures are so “ill-suited” to the task of meeting international obligations that it should be deemed arbitrary and capricious under the Administrative Procedure Act. Still, Judge Watford, like Judge Fletcher, thought that DHS deserved to get its day in court before its policy could be blocked.

Although the appellate court’s ruling keeps the policy in effect for now, the case is not over. The lower court must determine the legality of the policy itself.

Each day the policy remains in effect, however, migrants’ lives remain at risk, according to Omar Jadwat of the American Civil Liberties Union.

The policy is “lethal” and “pushes vulnerable people into dangerous places,” said Stephen Manning of Innovation Law Lab, the organization leading the lawsuit against the policy.

In addition to facing danger, migrants returned to Mexico may not be able to make it to their U.S. hearings on time or communicate with their U.S. lawyers.

DHS, on the other hand, has touted its policy as a method to help “vulnerable populations” and “restore a safe and orderly immigration process” in the face of a border “crisis.” The appeals court said it did not want to hinder these efforts by blocking the policy pending litigation.

As of early May, the government has reportedly used the policy to return over 3,000 migrants to Mexico.