Trump administration’s ‘Remain in Mexico’ policy will remain in force while a lawsuit challenging it plays out in the courts

The US supreme court has allowed the Trump administration to continue enforcing a policy that makes asylum seekers wait in Mexico for US court hearings, despite lower court rulings that the policy is probably illegal.

The justices’ order, over a dissenting vote by Justice Sonia Sotomayor, overturns a lower court order that would have blocked the policy, at least for people arriving at the border crossings in Arizona and California. The lower court order was to have taken effect on Thursday.

Instead, the “Remain in Mexico” policy will remain in force while a lawsuit challenging it plays out in the courts, probably at least through the end of Donald Trump’s term in January.

The next step for the administration is to file a formal appeal with the supreme court. But the justices may not even consider the appeal until the fall and, if the case is granted full review, arguments would not be held until early 2021.

The supreme court action is the latest instance of the justices siding with the administration to allow Trump’s immigration policies to continue after lower courts had moved to halt them. Other cases include the travel ban on visitors from some largely Muslim countries, construction of the border wall, and the “wealth test” for people seeking green cards.

The ninth US circuit court of appeals in San Francisco has ruled that the asylum policy, known officially as “Migrant Protection Protocols”, is probably illegal under US law to prevent sending people to countries where their lives or freedom would be threatened because of their race, religion, nationality, political beliefs or membership in a particular social group.

The policy has forced more than 60,000 migrants to wait in some of Mexico’s most dangerous cities as their cases wind through clogged US immigration courts since the policy was introduced in January 2019.

“The court of appeals unequivocally declared this policy to be illegal. The supreme court should as well,” said Judy Rabinovitz, an American Civil Liberties Union lawyer who represents asylum-seekers and immigrant advocacy groups in the case. “Asylum seekers face grave danger and irreversible harm every day this depraved policy remains in effect.”

The justice department said the high court’s order restores “the government’s ability to manage the Southwest border and to work cooperatively with the Mexican government to address illegal immigration”.

But human rights groups say that the policy leaves migrants at the mercy of criminal groups who target them for kidnapping, rape, torture, assault and other violent attack.

Human Rights First said it found more than 1,000 public reports of kidnappings, torture, rape and assaults of asylum seekers returned to Mexico.

In one month last year, three-quarters of asylum seekers seen by physicians working for Doctors Without Borders in the city of Nuevo Laredo reported having been kidnapped for ransom.

Trump's 'shameful' migrant stance condemns thousands to violent limbo in Mexico Read more

The administration said in court papers that more than 36,000 of the 60,000 cases had been resolved in immigration courts. Asylum has been granted in less than 1% of the cases that have been decided. Only 5% are represented by attorneys, many of whom are reluctant to visit clients in Mexico.

The administration had argued that thousands of immigrants would rush the border if the supreme court did not step in.