Riverside judge halts Trump's attempt to revive 'Remain in Mexico' policy

A federal judge in Riverside issued a nationwide injunction of the Trump administration's attempt to reinstate the Migrant Protection Protocols, commonly referred to as the "Remain in Mexico" policy that requires asylum seekers to stay in Mexico while they await decisions on their application to enter the United States.

"DHS neither has the discretionary authority nor legitimate reasons to enforce programs that violate the constitution or federal law," U.S. District Judge Jesus J. Bernal wrote in an opinion issued Wednesday. Immigration Defenders Law Center et al. v. Noem et al., 20-cv-09893 (C.D. Cal., filed Oct. 28, 2020).

A spokesperson for the U.S. Attorney's Office for the Central District of California, which defended the case, declined to comment. In its briefs, the Justice Department said that such an order would infringe on authority granted to the executive branch.

Nationwide injunctions have become increasingly controversial because it gives one judge the power to block federal policy for the entire country -- potentially overriding other courts or the executive branch. A bill is pending in Congress to outlaw them.

Lindsay Toczylowski, president and CEO of Immigrant Defenders Law Center, which challenged the policy, said in a statement Thursday that "Remain in Mexico has been and continues to be one of the most dangerous and cruel policies the Trump administration has ever pursued.

"It made a mockery of access to counsel while putting human lives at risk and denying people due process in their asylum proceedings," Toczylowski said. "We are grateful the court halted the reimplementation of the policy because as lawyers working at the border, we know this will save people's lives while we continue to fight for an end to this unlawful program."

The Remain in Mexico policy was first implemented in January 2019. The policy faced immediate legal challenges, and lower courts issued conflicting rulings -- some blocking the policy, others allowing it to proceed. In March 2020, the U.S. Supreme Court allowed the policy to continue while litigation was ongoing but did not rule on the merits of the case. Wolf v. Innovation Law Lab, 19A960 (S. Ct., filed March 6, 2020).

After President Joe Biden took office in January 2021, his administration began winding down the policy. As a result, in June 2021, the Supreme Court dismissed the case as moot. The Supreme Court did eventually rule 5-4 in 2022, in a different case, that the Biden administration could end the program. Biden v. Texas, 21-954 (S. Ct., filed Dec. 29, 2021).

The government argued that Bernal could not rule in the Riverside case because it would "invade a special province of the Executive" branch, and that it would cause irreparable injury to the government and the public.

"There is no harm to the Government when a court prevents the Government from engaging in unlawful practices," Bernal wrote in his ruling.

The judge added that the public interest is in the orderly application of the judicial process and enforcement of constitutional rights.

"Society's interest lies on the side of affording fair procedures to all persons, even though the expenditure of governmental funds is required," Bernal wrote.

The government also argued that Immigrant Defenders Law Center lacked organizational standing because it voluntarily chose to change its activities in response to the Remain in Mexico policy rather than being directly affected in its pre-existing work. They pointed to declarations that showed lawyers at the nonprofit discussing opening a San Diego office, establishing a cross-border initiative, and traveling to Mexico to serve clients affected by the policy.

"An organization cannot substantively change its business activities in response to a Government policy to establish standing and so its activities must be assessed as they existed prior to the challenged policy," the government wrote in its court papers.

Bernal rejected the argument, finding that Immigrant Defenders' core business activities had remained the same and that the new initiatives were necessary adaptations to continue their core work, not voluntary changes to their mission.