The United States Court of Appeals for the Ninth Circuit building in San Francisco. U.S. Court of Appeals for the Ninth Circuit. Photo: Jason Doiy/ ALM

Three judges from the U.S. Court of Appeals for the Ninth Circuit wrestled with the complexities of federal asylum law Wednesday as they considered whether to extend an emergency stay of a lower court ruling blocking a Trump Administration policy to force asylum seekers from Central America to wait in Mexico for their cases to be heard.

U.S. District Judge Richard Seeborg blocked the Trump administration’s “Migrant Protection Protocols” (MPP) on April 8, finding that policies were not authorized by Congress under the Immigration and Nationality Act and even had they been, they didn’t meet the government’s obligation to avoid returning any alien to a territory where his or her “life or freedom would be threatened.”

The Ninth Circuit panel that heard Wednesday’s arguments—Judges Diarmuid O’Scannlain, William Fletcher, and Paul Watford—previously granted the government’s April 12 request for an emergency stay of Seeborg’s ruling, just prior to when the injunction was set to go into effect. That grant of the emergency stay would seem to have been a good sign for the administration. But Justice Department lawyer Scott Stewart faced tough questions from the panel about how government officials makes determinations of who is eligible to be routed through MPP proceedings.

Lawyers for the plaintiffs, a group of 11 individual asylum seekers and a collection of legal groups who represent immigrants in asylum proceedings, have argued that Congress excluded aliens who arrive at the border without proper documents—often asylum seekers—from those who could be returned to contiguous territories while awaiting their full removal.

Early in his arguments, the DOJ’s Stewart said that the determination of whether to initiate full or expedited removal proceedings was one made by an individual immigration officer based on “an informed use of discretion.” But Fletcher said that the law had created two “separate and non-overlapping categories”—one eligible to be returned across the border and one not. “I’m not asking about procedures, I’m asking about categories,” Fletcher said. Fletcher noted that the text of the statute referred to two categories—one described as “other aliens.”

“Other’ suggest that they’re not the same,” Fletcher said.

Stewart responded that he accepted that there are two different categories, but who falls into what category isn’t certain until an immigration officer has made the determination.

Staking out potential middle ground, Watford said that even if the government’s procedures themselves were authorized, the fact that immigration officers do not affirmatively ask people who are subject to the new policy whether they fear a return to Mexico seems problematic—especially in light of the government’s obligation under international treaties to protect asylum-seekers.

“How can you want to comply with your obligation without asking, ‘Hey, by the way, before you return to Mexico do you have a fear of returning there?” Watford said.

“I don’t see how that’s not ‘arbitrary and capricious,’” said the judge, hinting that the panel could find the policy in violation of the Administrative Procedures Act even if it finds that it was authorized by Congress.

Stewart asked that if that were the only legal flaw the panel finds in the protocols that the government be allowed to move forward with implementing the policy under a court order requiring that the question be asked.

The third member of the panel, O’Scannlain, reserved his most pointed question for Judy Rabinovitz, deputy director of the ACLU’s Immigrants’ Rights Project who represents the plaintiffs in the case.

Why, O’Scannlain asked, would Rabinovitz’s clients “give up freedom in Mexico for mandatory detention in the U.S.?”

Rabinovitz responded that she and her colleagues had discussed the issue with all the individuals and told them that even if they were to win this case they still could be detained in the U.S. and potentially deported.

“They said we don’t want to be in Mexico,” Rabinovitz said.

O’Scannlain followed up asking why return to Mexico would be more dangerous than potential deportation to their home countries.

“It may not be more dangerous, but it’s still dangerous,” she said.