Usually, opponents of President Donald Trump’s immigration policy can rely on the federal courts — especially the Ninth Circuit Court of Appeals on the West Coast — to block new policies designed to crack down on asylum seekers trying to enter the United States and unauthorized immigrants currently living here.
But the Ninth Circuit has sided with the administration to allow the current phase of Trump’s border crackdown, the “Migrant Protection Protocols,” under which thousands of asylum seekers from Central America have been forced back to Mexico to wait for their asylum hearings. It will be able to stay in effect for the foreseeable future.
So a group of House Democrats are trying to step in and block the policy instead, introducing a bill on Friday afternoon to prevent any federal funds from being used to return asylum seekers to Mexico under the program.
The bill is written by Rep. Veronica Escobar (D-TX) — who represents El Paso, an epicenter for asylum seekers. Between Escobar and the bill’s 21 co-sponsors (all Democrats), five of the nine members of Congress representing US-Mexico border districts have signed on to end the policy.
“We were hoping, obviously, that there would be some relief from the courts,” Escobar told Vox, “and I was very disappointed by the Ninth Circuit decision” on Tuesday night to block a lower court’s injunction and thus allow the government to continue returning asylum seekers.
But that ruling accelerated the process of trying to find an alternative way to stop the administration from forcing migrants to wait — despite a Republican Senate and a president who has shut down swaths of the federal government when he doesn’t get exactly what he wants on immigration.
The Trump administration’s justification for the Migrant Protection Protocols is that returning asylum seekers to Mexico prevents them from disappearing into the US before their immigration court hearings, and alleviates the pressure felt by border communities like El Paso where the Department of Homeland Security is releasing as many as 1,000 asylum seekers a day.
But Escobar is more concerned about the well-being of the asylum seekers themselves — people who are “already very vulnerable, who are looking for due process, and are being sent to Juarez where the situation is very dangerous and threatening.” Of the 3,690 asylum seekers returned under MPP so far, according to DHS statistics, 1,546 have been returned to Juarez.
“It’s a consistent and chronic issue we’ve seen with every new policy,” said Escobar. “There’s a rollout of a policy that many of us consider harmful, draconian, in some cases cruel — and there’s no real plan or process. And there’s no time that’s been taken by the administration or by DHS to adequately assess what the consequences could be.”
The red flags raised by the rollout so far go beyond mere confusion. There are serious concerns about whether the government is honoring its promises about the program and its legal obligations.
DHS promised, for example, not to return especially “vulnerable populations” under MPP. But Escobar says her office has received “example after example after example of violations of that policy.” Returnees have included at least one trans woman, pregnant women, and children with medical issues.
Asylum seekers are supposed to be screened by an asylum officer if they express fear of returning to Mexico. But as several asylum seekers told Vox, the standard for allowing asylum seekers to stay in the US is almost impossibly high, and decisions to allow people to stay are sometimes overturned by higher-level officials. Those who are sent back to Mexico don’t always make it back to the US for their court hearings, or aren’t able to find lawyers while in Mexico.
Despite the problems, and the lack of capacity to house asylum seekers in Juarez — where thousands of migrants are waiting to enter the US for the first time (but are forced to wait for weeks under the Trump administration’s policy of “metering,” or limiting the number of asylum seekers allowed to enter legally at an official border crossing each day) — the government continues to expand MPP. About the capacity issues, Escobar says, “I don’t know that the federal government cares.”
Here’s how it normally goes: The Trump administration rolls out an unprecedented new immigration policy. Advocacy groups quickly file at least one lawsuit. Within days of the policy going into effect, or even before it’s implemented, a federal judge (usually on the West Coast) issues a preliminary ruling putting a hold on the new policy. That hold is appealed (usually to the Ninth Circuit) and upheld. Ultimately, the policy remains on hold pending a final ruling; the Trump administration might expect the Supreme Court to ultimately allow the policy to happen, but it will take months or, usually, years for the case to work through the courts.
The MPP program was different from the beginning. It was first rolled out in late January and was in effect for weeks even before advocates filed a lawsuit. The federal judge hearing that lawsuit did sign a preliminary injunction putting a hold on the policy, but not until early May.
Furthermore, the Ninth Circuit stopped the hold from going into effect — first temporarily and then, on Tuesday night, indefinitely. The Ninth Circuit judges found that the Trump administration was likely to win an appeal — and so allowed MPP to go forward in the meantime.
That means that the policy is likely to remain in effect — and, presumably, to continue to expand — for the foreseeable future. So if MPP is going to be stopped, it will have to be through Congress.
In theory, Congress could end MPP easily, by rewriting the federal statute the Trump administration is using to justify the returns — a confusingly worded law that may or may not apply to asylum seekers. Escobar says she’s looking into that.
But her primary concern is finding a way for an MPP-ending bill to pass not only the Democratic House but also the Senate — which she describes as a “legislative wasteland” — and the president’s desk. So she’s talking to appropriators and introducing a bill that can easily be appended as a policy rider to a must-pass budget bill.
In a sense, Escobar’s bill, like the radical anti-detention bill written by her colleague Rep. Pramila Jayapal (D-WA) and co-introduced by senator and presidential candidate Cory Booker, is a sign of congressional Democrats’ renewed interest in revamping the parts of immigration law that the executive branch has used to justify crackdowns.
In another way, though, it’s a reflection of how policy happens under Trump. Instead of the legislative branch writing the laws and the executive branch simply “enforcing” them, the Trump administration is writing new policies; the judicial branch chooses whether or not to greenlight them; and the legislative branch either funds or defunds them.