(CN) - The Trump administration asked a Ninth Circuit Court of Appeals panel on Tuesday to let it restart "Remain in Mexico," a policy requiring migrants to stay in Mexico until their immigration court date.

The policy, formally named the Migrant Protection Protocols, was first adopted in 2019 during President Donald Trump's first term. It applied to all foreigners without proper documents coming into the U.S. by land from Mexico. Whereas previously, those would-be immigrants were allowed to stay in the U.S. while awaiting their hearing to determine their status, the new policy had them temporarily deported to Mexico.

For the last six years, the policy has been batted back and forth by different courts and different presidents. In 2020, a number of plaintiffs and the Immigration Law Center filed a class action challenging the policy. In 2021, President Joe Biden announced he was terminating "Remain in Mexico," but several states sued and won an injunction, keeping the policy in place - until the U.S. Supreme Court stepped in, a year later, and overrode that injunction, though the case remains active.

In 2025, shortly after Trump's inauguration, the Department of Homeland Security announced it was reinstating the controversial migrant protocols. A similar group of plaintiffs sued again and a federal court granted an injunction, temporarily barring the federal government from instituting "Remain in Mexico."

On Tuesday, Trump lawyers asked a three-judge panel to stay that order - that is, to allow it deport migrants awaiting their hearing to Mexico.

Since the issue on appeal was whether or not a temporary injunction should be an allowed to remain, much of the debate during Tuesday's oral arguments centered on which side would face irreparable harm. Counsel to the Assistant Attorney General Sarah Welch argued that the Migration Protection Protocols "should be on the table as an authority that the government can use to secure the border."

"The government has to make choices every day about which authorities to exercise with respect to individuals arriving at ports of entry or otherwise," Welch told the panel. "Recent Supreme Court rulings have recognized that the inability of the government to put its immigration policies into effect on the ground is a form of irreparable harm."

But plaintiff attorney Allyson Myers of Arnold & Porter said "the mere inability of the government to enforce its own laws is insufficient to satisfy a demand of irreparable harm." She added that the government has already admitted it has other tools it can use to secure the border, and that the "Remain in Mexico Policy" isn't necessary.

"What about the foreign policy implications?" asked U.S. Circuit Judge Gabriel Sanchez, a Biden appointee. "There's substantial discretion for an administration to chart its own path on foreign policy. Does this stay have the potential of intruding on a president's prerogatives?"

Myers said the stay would "not intrude on the president's ability to engage in foreign policy, because it only affects what the U.S government does on this side of our border."

According to the plaintiffs in court documents, in the roughly two years that "Remain in Mexico" was in place, in 2019 and 2020, nearly 70,000 asylum seekers were stranded "under perilous conditions that obstructed their ability to access the U.S. asylum system and obtain legal representation. Noncitizens were returned to areas notorious for high rates of kidnappings, rapes, murders, and other violence, and were forced to live under conditions that were 'crowded, unsanitary, and beset by violence.'"

They added: "While 80% of asylum seekers appearing in immigration court had legal representation, only 10% of individuals subjected to [the policy] were able to obtain representation due to the constraints the policy placed on them and on immigration counsel."

Her co-counsel, Hannah Coleman, also of Arnold & Porter, took up the issue of the affects the policy was having on migrants and asylum seekers.

"This is an attempt by the defendants to make the rights to seek asylum and to seek counsel, rights that were granted by Congressional statutes and the First Amendment, a hollow hope," Coleman began. She was then abruptly interrupted by a seemingly agitated U.S. Circuit Judge Ryan Nelson, a Trump appointee, appearing over Zoom.

"That's a broad statement to start out," Nelson told the lawyer. "There's nothing in the statute that says that."

Coleman tried to argue that those were inevitable consequences of the policy, that asylum seekers had trouble finding lawyers and sometimes couldn't be reached to be reminded of hearing dates. Nelson said that those were merely "incidental" effects of the policy.

"That's far different from the argument that you started out with," Nelson said. "I just think we need to be careful about casting aspersions on what the government does. The government is taking an action that is expressly permitted in the INA," referring to the Immigration and Nationality Act.

"Your Honor, we do not believe it's an incidental effect," Coleman responded. "But putting that aside, just because the government is allowed ... to return non-citizens to non-U.S. territories, it does not mean that they can violate other provisions of the INA, including the right to counsel and the right to seek asylum."

The panel was rounded out by Chief U.S. Circuit Judge Mary Murguia, a Barack Obama appointee. The judges took the matter under submission.

Source: Courthouse News Service