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East County News Service

Photo: migrants at border in Arizona, via Congressional representative Ann Kirkpatrick

March 17, 2023 (San Diego) – On Wednesday, March 15, a federal court largely denied the Biden administration’s motion to dismiss a lawsuit, Immigrant Defenders Law Center et al. v. Mayorkas, brought on behalf of people seeking asylum who were stranded outside the United States as a result of the Trump administration’s  “Remain in Mexico” policy.

In its decision the court declared that, if true, the Plaintiffs’ allegations would amount to “acute and sweeping violations” of their “bedrock rights.” The court also granted the Plaintiffs’ motion for class certification, meaning they will be permitted to represent a larger class of individuals in similar situations who had their cases terminated or received final removal orders under the original version of the policy during the Trump administration.

Plaintiffs in the case are Immigrant Defenders Law Center and Jewish Family Service of San Diego — organizations providing representation to asylum seekers — along with 11 people seeking asylum who were subject to Remain in Mexico.

Counsel for the plaintiffs are the Center for Gender & Refugee Studies, Innovation Law Lab, National Immigration Project of the National Lawyers Guild, and the Southern Poverty Law Center, along with pro bono partner Arnold & Porter.

Introduced in 2019, the Remain in Mexico policy forced tens of thousands of asylum seekers to await their U.S. immigration court dates just south of the border, in some of the most dangerous cities in the world. Trapped in Mexico, few had access to U.S. legal services, and many fell victim to grave violence.

Conditions were so perilous that many asylum seekers subject to the policy, including some of the plaintiffs in the Immigrant Defenders Law Center case, were unable to return to the border for their court hearings and subsequently denied protection, as acknowledged in the government's own memorandum terminating the policy.

Less than two percent of asylum seekers subject to Remain in Mexico were ultimately granted asylum.

The Biden administration denounced Remain in Mexico and suspended the policy immediately upon assuming office. Though the administration’s initial attempts to terminate the policy were challenged by anti-immigrant state politicians, last summer the U.S. Supreme Court sided with the government and advocates, holding that the government had authority to end the policy.

Yet thousands of asylum seekers who were subjected to the policy continue to languish outside the United States, with no end in sight.

Luis Gonzalez, an attorney for Jewish Family Service of San Diego had this reaction to the court’s action this week.

“We commend the Hon. Judge Jesus G. Bernal for certifying the classes in our lawsuit and denying the federal government’s motion to dismiss the plaintiffs’ claims regarding their right to apply for asylum, access counsel, and obtain a full and fair hearing,” he said, adding, “it is long past time that the individuals placed in ‘Remain in Mexico’ receive the justice and safety in the U.S. that they deserve.  Asylum seekers should have access to protection in the U.S. instead of being left in perilous situations across the border when they are already fleeing violence and persecution in their home countries. We must get back to centering humanity.” 

Melissa Crow, Director of Litigation at the Center for Gender & Refugee Studies said the court “got it right,” adding, “It is baffling that the government would even attempt to defend the grievous harms inflicted by a policy that the administration itself has condemned, citing its ‘unjustifiable human costs.”  She says,” “The court rightly noted that Congress did not authorize the government to implement the policy in a way that would undermine the right to apply for asylum. We will continue to fight vigorously to ensure that all asylum seekers who remain in legal limbo as a result of the Remain in Mexico policy have a meaningful opportunity to present their claims.”

Stephanie Alvarez-Jones, staff attorney with the Southern Poverty Law Center's Immigrant Justice Project. Called the Remain in Mexico policy a “human rights travesty” and suggested the police was racist. She called the court’s action to address harm caused by the Trump-era Remain in Mexico policy and a first step in remedying those harms and achieving justice for thousands of families.”


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