Asylum Update: Trump’s ‘Remain in Mexico’ Policy Can Continue, the Ninth Circuit Rules
Thursday, May 9, 2019, 11:44 AM
On May 7, the Ninth Circuit stayed an injunction against the Trump administration’s “Remain in Mexico” policy. That policy, officially called the Migrant Protection Protocols (MPP), requires the return of certain migrants to Mexico pending a full immigration court hearing. The Ninth Circuit panel’s majority, which included conservative judge Diarmuid O’Scannlain and liberal judge Paul Watford (Judge William Fletcher dissented), found that the Immigration and Nationality Act (INA) granted immigration officials discretion to either keep foreign nationals in the United States under the “expedited removal” process or require them to wait in Mexico for a hearing.
The Trump administration has opted for the latter course for prospective immigrants at certain border crossing points, in hopes of reducing the escalating number of entries of Central American migrants. The Ninth Circuit’s decision allows the administration to continue with this policy. The result, as Judge Watford’s concurrence recognized, may be greater risk for bona fide asylum seekers.
The statutory question turns on whether the expedited removal process, which Congress added to the INA in 1996, is the exclusive means for processing prospective immigrants who are inadmissible because they either lack a visa or have fraudulent documents. Under expedited removal, immigration officials can summarily remove foreign nationals at the border unless they express a fear of persecution in their country of origin. If an entrant does so, a trained asylum officer interviews the subject to determine whether he or she has a “credible fear” of persecution. If so, that person gets a full hearing before an immigration judge. If the asylum officer finds no credible fear, the subject gets a truncated hearing before an immigration judge, often without counsel.
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