Ninth Circuit Blocks 'Remain in Mexico' — Sort Of

Misinterpreting the INA and ignoring contrary evidence, while the clock is ticking

By Andrew R. Arthur on March 2, 2020
  • A Ninth Circuit panel on February 28, 2020, affirmed a district court injunction that contradicts a May 7, 2019, precedent decision from the same circuit. That order was stayed shortly thereafter pending additional filings.
  • In that February 28 decision, the circuit court panel misinterpreted provisions of the Immigration and Nationality Act, and ignored other provisions of that act in reaching its conclusions.
  • The circuit court also ignored contrary evidence that undermined its determination that the MPP exposes migrants to persecution in Mexico.

The U.S. Court of Appeals for the Ninth Circuit issued an opinion on Friday affirming a district court's grant of a preliminary injunction of the Migrant Protection Protocols ("MPP", also known as "Remain in Mexico"), an order that it temporarily suspended shortly thereafter. That decision is riddled with statutory misinterpretations and factual errors, and shows a lack of understanding of how migrants seek asylum.

As the Department of Homeland Security (DHS) has explained MPP:

[C]ertain foreign individuals entering or seeking admission to the U.S. from Mexico — illegally or without proper documentation — may be returned to Mexico and wait outside of the U.S. for the duration of their immigration proceedings, where Mexico will provide them with all appropriate humanitarian protections for the duration of their stay.

In a 2019 post, I explained a May 7, 2019, Ninth Circuit order (from a different three-judge panel) that had granted a stay of the aforementioned district-court injunction pending an appeal of that injunction to the circuit court. The February opinion is the court's decision on that appeal.

Crucial to this analysis are two provisions of the Immigration and Nationality Act (INA). The first is section 235(b)(2) of the INA, which states, in part:

Inspection of other aliens

(A) In general

Subject to subparagraphs (B) and (C) [below], in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section [240 of the INA].

(B) Exception-- Subparagraph (A) shall not apply to an alien-

(i) who is a crewman,

(ii) to whom paragraph [235(b)(1) of the INA] applies, or

(iii) who is a stowaway.

(C) Treatment of aliens arriving from contiguous territory--In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section [240 of the INA]. [Emphasis added].

Subparagraph 235(b)(2)(C) of the INA above, which I will refer to as the "return clause", is the provision on which DHS relies for MPP. Paragraph 235(b)(1) of the INA, referenced above, is the "expedited removal" provision, under which DHS can (ideally) quickly remove aliens who are inadmissible under section 212(a)(6)(C) (alien seeking admission through fraud or willful misrepresentation) or section 212(a)(7) of the INA (alien seeking admission without proper documents), without placing those aliens in removal proceedings under section 240 of the INA before an immigration judge. (It does not always work out that way, as I have previously explained.)

The Ninth Circuit, in essence, determined that MPP does not apply to those aliens who are removable under the grounds of inadmissibility listed in the expedited removal provision, because the return clause does not apply to aliens to whom expedited removal applies. There are two flaws in this logic.

First is the fact that even aliens who are inadmissible under sections 212(a)(6)(C) and 212(a)(7) of the INA (and are therefore subject to expedited removal) can instead be placed into removal proceedings under section 240 of the INA by DHS in the exercise of its discretion (and therefore be subject to the return clause), as the Board of Immigration Appeals (BIA) held in Matter of E-R-M- and L-R-M-, as referenced in the published May 2019 Ninth Circuit opinion.

The court held there:

A subset of applicants for admission — those inadmissible due to fraud or misrepresentation, [section 212(a)(6)(C) of the INA], and those who do not possess a valid entry document, [section 212(a)(7) of the INA] — may be placed in expedited removal. [Section 235(b)(1)(A)(i) of the INA]. But as we read the statute, anyone who is "not clearly and beyond a doubt entitled to be admitted" can be processed under [section 235(b)(2)(A) of the INA]. Section [235(b)(2)(A) of the INA] is thus a "catchall" provision in the literal sense, and Congress' creation of expedited removal did not impliedly preclude the use of [section 240 of the INA] removal proceedings for those who could otherwise have been placed in the more streamlined expedited removal process.


The plaintiffs were not processed under [the expedited removal provisions of section 235(b)(1) of the INA]. We are doubtful that subsection (b)(1) "applies" to them merely because subsection (b)(1) could have been applied. And we think that Congress' purpose was to make return to a contiguous territory available during the pendency of [section 240] removal proceedings, as opposed to being contingent on any particular inadmissibility ground. Indeed, Congress likely believed that the contiguous-territory provision would be altogether unnecessary if an applicant had already been processed for expedited removal. [Emphasis added.]

It is no wonder that circuit-court Judge Ferdinand F. Fernandez dissented from the February 28, 2020, opinion, finding that the court was bound by this earlier published May 7, 2019 opinion (published decisions are precedent binding on the circuit).

The second provision crucial to this analysis is section 212(a)(6)(A)(i) of the INA, which states: "An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible." That provision, which is not even referenced by the circuit court in its February 28, 2020, opinion, renders inadmissible aliens who have entered illegally, as the foregoing quote shows.

Put another way, aliens who enter the United States illegally are inadmissible under two separate provisions in section 212 of the INA: 212(a)(6)(A)(i) (for illegal entry) and 212(a)(7) (for lacking proper documents to enter). The vast majority of the estimated 59,000 aliens who are in Mexico pursuant to the MPP logically entered illegally (that is, not through the ports of entry).

DHS can charge illegal entrants under either (or both) of the provisions, but aliens who are charged with inadmissibility under section 212(a)(6)(A)(i) of the INA are not subject to expedited removal under section 235(b)(1)(A)(1) of the INA, meaning that they plainly fall under section 235(b)(2) of the INA, and are therefore subject to the return clause in section 235(b)(2)(C) of the INA.

Separately, in its February 28 opinion, the Ninth Circuit concluded that the plaintiffs in that case had "shown a likelihood of success on the merits of their claim that the MPP does not comply with the United States' anti-refoulement obligations under" section 241(b)(3) of the INA.

By way of background, clause 241(b)(3)(A)(1) of the INA states:

Notwithstanding paragraphs (1) and (2) [which direct the country of removal for a removable alien], the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion. [Emphasis added.]

Notably, as the court framed the plaintiffs' argument on this point: "Plaintiffs claim that the MPP is invalid in part ... because it violates the United States' treaty-based antirefoulement obligations, codified at" section 241(b)(3)(A). Section 241 of the INA, however, only applies to aliens who have been ordered removed from the United States, not to aliens who are facing removal. In fact, that section is captioned "Detention and Removal of Aliens Ordered Removed" (emphasis added.)

Moreover, pursuant to regulation, only an immigration judge (or the BIA on appeal or the attorney general on review) — not DHS — can grant withholding of removal. In its February 28 opinion, however, the circuit court asserts that "Congress intended [former section 243(h)(1) of the INA (1996)], and [section 241(b)(3)(A) of the INA] as its recodified successor, to 'parallel'" the non-refoulement provisions in Article 33 of the 1951 United Nations Convention Relating to the Status of Refugees, meaning that even absent an order of removal, those provisions block the return of an alien until a withholding determination has been made. That is not, however, how Congress framed that protection in the INA.

The circuit court relies in this regard on the 1999 decision of the Supreme Court in INS v. Aguirre-Aguirre, which interpreted the predecessor provision to section 241(b)(3) of the INA, section 243(h)(1) of the INA (1996). As the circuit court noted, that prior provision stated, in relevant part:

The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership of a particular social group, or political opinion. [Emphasis added.]

That former provision was stricken and replaced by Congress with the current section 241(b)(3) of the INA in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (a fact that the Supreme Court noted in Aguirre-Aguirre, which found that the revised provision was not applicable in that case). Significantly, Congress added the return clause in section 235(b)(2)(C) to the INA in IIRIRA, as well. Had Congress intended that section 241(b)(3)(A) of the INA be applied before an alien could be returned to the contiguous territory from which that alien arrived in the United States, it could (and logically would) have done so in IIRIRA.

The rule of expressio unius est exclusio alterius, that is, "the express mention of one thing of a type may exclude[] others of that type" in legislation — which is to be utilized in interpreting otherwise vague statutes (as the Supreme Court has recognized) — supports (and in fact mandates) this conclusion.

Notably, Congress struck the phrase "return any alien" (and former section 243(h)(1) of the INA (1996) as a whole) in IIRIRA and replaced it with current section 241(b)(3), which specifically does not mention "return". It then utilized the word "return" in the return clause, which was part of the same legislation. The obvious conclusion is that the omission of this word in section 241(b)(3) of the INA and its inclusion in the return clause therein was intentional, and that section 241(b)(3) only applies to removals — not returns.

I note that the Supreme Court has cautioned that "the expression-exclusion rule will not apply where indications are that passage of statutory language was likely not meant to signal exclusion of others of the type," and that this rule does not apply "to an enumerated series characterized as illustrative, rather than exclusive."

Again, neither of those exceptions applies here — both the provisions in question (section 241(b)(3)(A) of the INA and the return clause) were, as noted, added to the INA by the same legislation — IIRIRA. And the return clause is plainly not illustrative, but specific. One would have to find that Congress had no idea what it was doing in IIRIRA to conclude otherwise, but I know of no statutory-interpretation provision that would allow a court to do that.

And, as the Department of Justice has previously explained, the 1951 United Nations Convention Relating to the Status of Refugees (and in particular Article 33, referenced by the circuit court in its February 28 opinion as noted above) is not "self-executing" and therefore "its provisions cannot be enforced by a private right of action in a United States court."

Thus, it is extremely doubtful that section 241(b)(3) of the INA (or Article 33) applies to returns by DHS under section 235(b)(2)(C) of the INA. Even if it were, however, the circuit court nonetheless erred in enjoining MPP on this ground.

The circuit court focused on the fact that "an asylum officer acting under the MPP does not ask an asylum seeker whether he or she fears returning to Mexico. Instead, asylum seekers must volunteer, without any prompting, that they fear returning." The government had argued:

[T]he MPP satisfies our anti-refoulement obligations by providing a sufficiently effective method of determining whether aliens fear, or have reason to fear, returning to Mexico. In its brief, the Government contends that asylum seekers who genuinely fear returning to Mexico have "every incentive" affirmatively to raise that fear during their interviews with asylum officers, and that Mexico is not a dangerous place for non-Mexican asylum seekers.

The court concluded, however, that "the Government points to no evidence supporting its speculations either that aliens, unprompted and untutored in the law of refoulement, will volunteer that they fear returning to Mexico, or that there is little danger to non-Mexican aliens in Mexico."

Respectfully, that finding ignores the only reason that aliens from countries other than Mexico ("OTMs") — the sole class of aliens to whom MPP applies — would legitimately be applying for asylum in the United States, rather than in Mexico (which also grants that protection, and in fact does so more broadly than the United States does, as the Center has explained), that is, that they also fear persecution in Mexico.

Before explaining further, I would note that asylum in Mexico is not purely theoretical protection: as my colleague Jason Peña explained in November, "62,299 people have applied for asylum in Mexico this year [as of October], nearly triple the 21,057 who applied during the same period last year. The number of applicants so far this year exceeds the previous six full years combined." And, of those 62,299 applicants, "23,475 have received permission to stay, either as refugees or with 'complementary protection'".

Therefore, there are only two classes of OTMs who would pass through Mexico to seek asylum in the United States: those who are forum-shopping for asylum; and those who are legitimately seeking asylum from their home countries, but who also have a fear of persecution or torture in Mexico.

Applying the logic of the Ninth Circuit to a more mundane situation, any migrants subject to the MPP who have a fear in Mexico but fail to affirmatively express that fear to DHS in the United States are like shoppers who go to the grocery store to buy eggs, but who don't look for the dairy section and fail to ask a store employee where the eggs are. They have "every incentive" to buy eggs, because that is why they went to the supermarket, but don't take the most basic steps to do so.

Again, in the MPP context, the very reason that those OTMs with a legitimate fear are coming to the United States seeking protection is because they also have a fear in Mexico. They should be expected to express that fear affirmatively, especially if they know (as they should by now) that they could be returned to that country under MPP.

The Ninth Circuit holds, however, that "the Government points to no evidence supporting its speculations either that aliens, unprompted and untutored in the law of refoulement, will volunteer that they fear returning to Mexico, or that there is little danger to non-Mexican aliens in Mexico."

The first point, respectfully, shows an ignorance of (or blind indifference to) how aliens cross borders illegally seeking asylum. I seriously doubt that many (if any) migrants study up on the "law of refoulement" before deciding to leave their homes and seek asylum in the United States. It is because (in the case of legitimate asylum seekers) they have a fear in their homes and have some vague idea that they can seek protection elsewhere, likely from their family and friends who have already made the trip.

If that fear extends not only to their home countries, but also to Mexico, they should be expected to express that fear when they are interviewed by DHS. They do not need to know the law of refoulement (which, as the foregoing shows, the Ninth Circuit panel itself is a little rusty on) to ask for needed protection in the United States.

With respect to the second point (there is little danger to non-Mexican aliens in Mexico), the circuit court in its February 28 order ignores the facts relating to MPP.

In her January 25, 2019, memorandum on MPP, then-Acting DHS Secretary Kirstjen Nielsen explained that the Mexican government had agreed that:

It will ensure that foreigners who have received their notice to appear have all the rights and freedoms recognized in the Constitution, the international treaties to which Mexico is a party, and its Migration Law. They will be entitled to equal treatment with no discrimination whatsoever and due respect will be paid to their human rights. They will also have the opportunity to apply for a work permit for paid employment, which will allow them to meet their basic needs.

Does the Ninth Circuit seriously believe that the government of Mexico is lying in this regard? That is a pretty big contention, and one for which it offers no proof.

And, as I noted in a February 18, 2020, post:

CBP Acting Director Mark Morgan defended [MPP], and the treatment of MPP migrants in Mexico, in testimony on November 13, 2019, before the Senate Homeland Security and Governmental Affairs Committee . ...

Specifically, Morgan described visits by the Department of State, the International Organization for Migration ("IOM", which he identified as the "International Office of Migration"), "other advocacy groups", and NGOs to shelters across the border. He stated that two shelters visited had "persistent law-enforcement presence", were "under capacity", and "had adequate food and medical attention".

In addition, noting that IOM interviews migrants to see if they want to return to their home countries, Morgan testified that organization was told that if the migrants remained "in the shelter environment", kidnappings, sexual violence, extortion, disappearance, and murder targeting them "were not happening". He stated that dangers for exploitation arose when migrants attempted to reenter the United States illegally with the help of smugglers (Morgan asserted there was "about a nine-percent recidivism rate"), or "went out in the economy themselves".

In any event, the acting director stated that if any MPP migrant had a concern or a fear in Mexico, that migrant could present him- or herself at a port of entry, and would be "given due process".

Does the Ninth Circuit believe that Director Morgan lied to Congress? That would be a crime, but one that, again, the circuit court offers no proof for.

Instead, the circuit court relies on a handful of "sworn declarations" that were submitted to the district court "directly contradicting the unsupported speculations of the Government".

One, keep in mind the fact that the declarants are self-interested, and that there is no proof that their claims (even if true) are indicative of the situation for OTMs in Mexico under MPP as a whole.

Two, as noted, 59,000 OTMs have been returned to Mexico under MPP. That there would be a handful of crimes or attacks on that population, while regrettable, is hardly unexpected or unavoidable, and does not support the Ninth Circuit's conclusions.

By way of comparison, the city of Baltimore, Md. (which has a population of 602,495), ended 2019 with 348 homicides — a rate of 57.75 homicides per 100,000 residents. If all of those 59,000 MPP migrants had been sent to Baltimore rather than Mexico, the odds are that 34 of them would have been killed over a one-year period.

Had the Ninth Circuit been presented with the fact that 34 MPP migrants had been killed in Mexico over a one-year period, it would have had stronger evidence that MPP migrants were not safe in that country than the evidence upon which it based its conclusions in its opinion. But no one would seriously conclude that DHS could not have sent those migrants to Baltimore instead of Mexico, or that sending migrants to Baltimore (or any place like it) violates U.S. non-refoulement obligations.

The Ninth Circuit identifies two MPP migrants who claim that they told DHS officials that they feared being returned to Mexico, but were returned anyway (identified as "Frank Doe" and "Howard Doe"). If true, the logical remedy would have been a directive that DHS not return OTMs who express a fear of return to Mexico — not an injunction of the successful MPP program.

In any event, the Ninth Circuit panel voted to suspend its own order pending additional arguments from DOJ on March 2, and the plaintiffs on March 3. I would expect that, absent a different decision thereafter, the Supreme Court will be ruling on the matter in short order.