The Justice Department is asking the Supreme Court to block an appeals court ruling that threatens to prevent the Trump administration from carrying out its remain-in-Mexico asylum policy along much of the southern border starting next week.
The 9th Circuit Court of Appeals issued an order Wednesday that would halt the policy in California and Arizona starting on March 12.
Under the policy put into effect in January 2019, most non-Mexicans who seek asylum at U.S. border checkpoints or while crossing the border illegally are sent back to Mexico to await further hearings on their claims. Critics say the policy violates U.S. immigration laws and puts asylum seekers at grave risk, particularly due to violence in certain regions of Mexico.
Last month, a three-judge panel of the 9th Circuitsidedwith a lower-court judge who said the policy appeared to be illegal.
Trump administration officials saythat decisioncaused a “rush on the border” by thousands of asylum applicants whose lawyers told them to return to the U.S. to take advantage of the new ruling.
The 9th Circuit quickly lifted its own ruling temporarily at the Justice Department’s request, but inan order Wednesdaysaid the decision would take effect in California and Arizona starting next Thursday unless the Supreme Court steps in.
The appeals court said it was “very clear” that the Trump administration’s policy violates the law and that it was causing “extreme and irreversible harm to” asylum applicants.
However, Solicitor General Noel Francisco said in the emergency stay filing with the high court Friday that the greater danger is of chaos at the border.
“Absent a stay, the injunction is virtually guaranteed to impose irreparable harm by prompting a rush on the border and potentially requiring the government to allow into the United States and detain thousands of aliens who lack any entitlement to enter this country, or else to release them into the interior where many will simply disappear,” Francisco wrote.
The 9th Circuit narrowed the effect of its ruling because of an ongoing debate about the power of courts to issue nationwide injunctions. California and Arizona are in the within the 9th Circuit’s jurisdiction, while New Mexico and Texas are in other circuits.
But Francisco said the geographic distinction the judges sought to draw — and which the Justice Department has sought in other cases — would have little impact because asylum seekers would simply move to the west.
“Many of the thousands of aliens in Mexico across the border from States in other circuits would likely make their way to the border with Arizona or California,” he wrote.
The Justice Department’s request Friday was directed to Justice Elena Kagan, who oversees the 9th Circuit, but she is likely to refer the matter to the full court for action.