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Court Allows Remain in Mexico Lawsuit to Move Forward

March 17, 2023 (4 min read)

CGRS, Mar. 16, 2023

"On Wednesday, 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 unlawful “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 similarly-situated individuals who had their cases terminated or received final removal orders under the original incarnation of the policy during the Trump administration.

“The court got it right. 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,’” said Melissa Crow, Director of Litigation at the Center for Gender & Refugee Studies (CGRS). “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.”

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.

“We applaud the federal court’s ruling denying the government’s request to dismiss the case and certifying a class. Remain in Mexico was a legal and human rights debacle that infringed on the rights of asylum seekers, leaving them stranded in perilous conditions with no way to pursue their asylum claims,” said Alvaro M. Huerta, Director of Litigation & Advocacy at Immigrant Defenders Law Center. “The court’s ruling is a welcome step in the ultimate vindication of our clients’ — and every asylum seeker’s — rights. Everyone subjected to the disastrous Remain in Mexico program deserves a fair opportunity to seek protection under our nation’s asylum laws.”

“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. 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,” said Jewish Family Service of San Diego Directing Attorney Luis Gonzalez. “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.”

“The Remain in Mexico policy was a human rights travesty that enshrined white nationalist ideals,” said Stephanie M. Alvarez-Jones, staff attorney with the Southern Poverty Law Center's Immigrant Justice Project. “Our brave individual plaintiffs and class members are still suffering the impacts of that cruel policy. The court’s decision to certify our class and deny the government's request to throw out this case will allow us to continue litigating the majority of our claims. This ruling is a recognition of the horrors caused by the Trump-era Remain in Mexico policy and a first step in remedying those harms and achieving justice for thousands of families.”

“The Remain in Mexico policy forced tens of thousands of people into precarious and life-threatening situations with no recourse,” said Victoria Neilson, Supervising Director at the National Immigration Project. “This decision is a victory for the many people who were denied their right to seek asylum and affirms that the government has a responsibility to address the inhumanity, suffering, and disaster that it manufactured through this callous policy.”

“While the Remain in Mexico policy has slipped out of the headlines and out of sight for many, its deadly and discriminatory effects continue to impact thousands of people who were denied a fair opportunity to apply for asylum in the United States,” said Kelsey Provo, Supervisory Senior Attorney with Innovation Law Lab. “Yesterday’s order is a victory for those who faced terrible violence and who were prevented from understanding their asylum proceedings and, in many cases, even attending their hearings. The order is also a victory for the uniform right to apply for asylum. No presidential administration has the authority to undermine or restrict this right in the discriminatory way that Remain in Mexico did.”

Plaintiffs in the case are Immigrant Defenders Law Center and Jewish Family Service of San Diego — organizations providing representation to asylum seekers — and 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."