The “Remain in Mexico” measure took effect in January 2019 and nearly 60,000 people have been sent back to wait for hearings. The court declared the policy invalid, but acknowledged the ruling only applied to California and Arizona, the only border states in their jurisdiction.
The other measure with far-reaching consequences denies asylum to anyone who passes through another country on the way to the U.S. border with Mexico without seeking protection there first. That policy took effect in September and is being challenged in a separate lawsuit.
Justice Department lawyers asserted that Trump was within his rights to impose the policies without Congress’ approval and that they would help deter asylum claims that lack merit.
Opponents, including the American Civil Liberties Union, argued that the administration violated U.S. law and obligations to international treaties by turning back people who will likely be persecuted because of their race, religion, nationality or political beliefs.
Judges William Fletcher and Richard Paez, who were both appointed by President Bill Clinton, sharply questioned government attorneys on “Remain in Mexico” during arguments Oct. 1. They voted to block it.
Judge Ferdinand Fernandez, an appointee of President Ronald Reagan, dissented.
Supporters of the "Remain in Mexico" policy note 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.
Its expansion coincided with a sharp drop in Border Patrol arrests from a 13-year high in May, suggesting it may have had its intended effect. The Homeland Security Department called it “an indispensable tool” in an Oct. 28 report.
Opponents say it has exposed asylum-seekers to extreme danger in violent Mexican border cities while they wait for U.S. court hearings. Human Rights First, an advocacy group that has criticized the policy, said in January that there were more than 800 public reports of rape, kidnapping, torture and other violent crimes against asylum-seekers who have been sent back to Mexico.
The policy was introduced at the border crossing in San Diego in January and initially focused on asylum-seekers from Guatemala, Honduras and El Salvador.
It expanded to crossings in Calexico, California, and the Texas cities of El Paso, Eagle Pass, Laredo, Brownsville, and included more people from Spanish-speaking countries.