Ninth Circuit Doubles Down and Dithers on MPP

But it accedes to the facts on the ground — for a week

By Andrew R. Arthur on March 6, 2020
  • The Ninth Circuit stayed its injunction on MPP in Texas and New Mexico pending disposition of the injunction.
  • The court stayed the injunction in California and Arizona until March 11 to allow the Supreme Court to act.
  • The Ninth Circuit's decision accedes to practical, political, and legal realities, but is in error as a matter of law and, as its recent decision underscores, fact.
  • Contrary to the circuit court's post-hoc justifications, aliens who have attempted to enter the United States through fraud or without documents have posed a significant threat to the national security.

The U.S. Court of Appeals for the Ninth Circuit issued its latest order late Wednesday on the Migrant Protection Protocols ("MPP", also known as "Remain in Mexico"), relating to an opinion from the court I explained (and disagreed with) at length in a March 2, 2020, post affirming a district-court injunction of the MPP. The circuit court both doubles down on its bad reasoning in that case, and also dithers as it relates to enjoining MPP — recognizing reality: practical, political, and legal.

As I explained in my previous post, the Ninth Circuit had reasoned in an opinion issued last week that MPP could not be applied to aliens who were subject to expedited removal, because aliens who are subject to expedited removal are exempted by statute from the provision in the Immigration and Nationality Act (INA) that the administration relied upon to return migrants seeking asylum to Mexico, specifically section 235(b)(2)(C) of the INA.

It also held that MPP violates the anti-refoulement provisions in section 241(b)(3) of the INA, which provide that an alien may not be removed to a country where it is more likely than not that the alien will be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion.

In my post, I explained the flaws in the three-judge panel's opinion, not least of which was the fact that it improperly ignored its own precedent in issuing that opinion. Not surprisingly, given the fact that there are about 25,000 migrants currently in Mexico under MPP, the government requested a stay of the court's order pending the government's filing and the disposition of a petition for writ of certiorari to the Supreme Court, or in the alternative an immediate administrative stay.

The circuit court granted a temporary administrative stay, setting a short time-frame for the filing of briefs by the government (until March 2) and the plaintiffs in that case (March 3). In its March 4 order, it granted in part and denied in part that stay.

Specifically, the court did not stay its opinion pending disposition, but it did stay the scope of its injunction for a week to give the Supreme Court the opportunity to intervene, or not, as follows.

The circuit court granted that stay indefinitely pending review by the Supreme Court as it relates to the application of MPP outside of the Ninth Circuit, in particular in Texas (in the Fifth Circuit) and New Mexico (in the Tenth Circuit). It denied that stay as MPP is in effect in the states within its jurisdiction — California and Arizona, but it extended the administrative stay it had issued on February 28 with respect to those states until March 11, for the Supreme Court to have the opportunity to review the circuit court's decision and order.

The limited scope of its injunction is premised on the legal fact, as the panel (in a somewhat understated manner) recognized, that "the proper scope of injunctions against agency action is a matter of intense and active controversy", citing recent concurrences by Justices Gorsuch and Thomas, as well as a dissent by Justice Sotomayor.

The concurrences by Justices Gorsuch and Thomas reflect concerns (particularly from those two justices) concerning "universal injunctions", under which a single district-court judge, or a single circuit panel, can block the administration's initiatives (and in particular, immigration initiatives) on a nationwide basis. As I wrote in November 2018, "End Universal Injunctions in Immigration Cases, Mr. President, Listen to Justice Thomas", and I was hardly alone in this plea. Judges are supposed to be apolitical, but concerns have been raised that, in the immigration arena at least, they have been anything but. The Ninth Circuit is plainly attempting to preserve the injunctive power in the, shall we say, "active" courts within its jurisdiction.

That reflects the political reality from which even judges are not immune. It may or may not be true, as Finley Peter Dunne's character Mr. Dooley remarked, "No matter whether th' Constitution follows th' flag or not, 'th Supreme Coort follows th' iliction returns,″ but the Ninth Circuit can plainly read the tea leaves in the Supreme Court's cup. It stated: "While we regard the merits of our decision ... as clearly correct, we do not have the same level of confidence with respect to the scope of the injunction entered by the district court." I disagree with the correctness of the underlying decision (as I have previously explained, and underscore below), but I admire their restraint.

Finally, there are the practical realities. The government offered evidence (from the U.S. ambassador to Mexico, no less) to the effect that: "The panel's decision, unless stayed, will have an immediate and severely prejudicial impact on the bilateral relationship between the United States and Mexico."

Of course, the plaintiffs offered a statement from the Mexican ambassador to the United States that: "The government of Mexico has consistently stated that MPP is a policy unilaterally imposed by the U.S. government. To the extent Mexico agreed to the policy, it was upon threat of heavy and unprecedented tariffs." The president could use that statement in his campaign ads — Mexico has its own asylum obligations, and should be forced to live up to them, tariffs or no tariffs.

The government also offered a statement from the deputy director of U.S. Customs and Border Protection, who explained that "enforcement of the district court's injunction will cause substantial disruption at our ports of entry and will cost substantial amounts of money." Not surprisingly, he also indicated that on February 28 (when the Ninth Circuit's decision was issued), "large groups of aliens sought admission to the United States at various points along the border."

One, this is hardly a surprise, or one that the Ninth Circuit panel should not have anticipated.

Two, it undermines that court's contentions in its February 28 order about migrants' lack of awareness of U.S. immigration law when they arrive at the border, and in particular its statement: "[T]he 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." Again, the Supreme Court may not follow the election returns, but those migrants plainly follow the decisions of the Ninth Circuit, and are not likely as "untutored" in the relief available to them as that court contends.

Then there is this:

The Executive Associate Director of Enforcement and Removal Operations for U.S. Immigration and Customs Enforcement writes, "[I]f MPP is discontinued, approximately 25,000 individuals enrolled in MPP who remain in Mexico may soon arrive in the United States seeking admission. ... [I]f [Customs and Border Protection] is required to process approximately 25,000 inadmissible aliens in an extremely short timeframe and then transfer those aliens to [Immigration and Customs Enforcement] custody, it would overload [Enforcement and Removal Operations'] already burdened resources and create significant adverse implications for public safety and the integrity of the United States immigration system.

Hardly an unforeseen circumstance of the court's poorly reasoned decision.

And, if the Ninth Circuit's limited injunction is allowed to take effect on March 11, those migrants, and their smugglers, will simply shift their travels away from Texas and New Mexico and over to California and Arizona, in much the same way that savvy air travelers avoid connections through Chicago and Minneapolis and opt for the warmer climes of Dallas from December through February. Plus, those migrants will be joined by tens of thousands of additional migrants who have thus far been dissuaded by MPP from making the trip north, but who would now see an entry to live and work in the United States.

One final point: To support its contentions that Congress meant to treat the aliens subject to expedited removal under section 235(b)(1) of the INA differently from all other aliens (who are subject under section 235(b)(2) of the INA to removal under section 240 of the INA before an immigration judge) with respect to return across the land border they crossed (as stated, under section 235(b)(2)(C) of the INA), the court stated: "It is easy to understand why § (b)(1) and § (b)(2) applicants are treated differently. Section (b)(1) applicants pose little threat to the security of the United States. By contrast, § (b)(2) applicants potentially pose a severe threat."

This post-hoc rationalization is demonstrably wrong, to the point of being nonsensical, but more importantly to the point of undermining the court's earlier order.

The only aliens who are subject to expedited removal are those inadmissible for not having documents to enter under section 212(a)(7) of the INA, and for engaging in fraud when seeking admission under section 212(a)(6)(C) of the INA.

Most of the aliens who are subject to MPP for having no documents to enter are logically aliens who were apprehended entering illegally; if you had a valid visa and a passport, you would go through the port of entry. Those aliens, as I noted in my earlier post, are also subject to inadmissibility under section 212(a)(6)(A)(i) of the INA, for illegal entry. Had Congress concluded that those aliens did not pose a risk, it would have included that aliens subject to that ground of inadmissibility should be subject to expedited removal, too. There was no factual reason for them to do so.

Smugglers of aliens and contraband (whom we can all assume pose a danger to the security of the United States) enter in that manner, and it is reasonable to assume that if you were a terrorist or a spy who did not want to be on the U.S. government's radar, you would consider entering illegally, too. In fact, Ibrahim Abu Mezer, who plotted to blow up New York's subways in the "Bombs in Brooklyn" plot, attempted to enter the United States illegally three times, eventually applying for asylum.

As for aliens who have engaged in fraud seeking entry, the record is actually even more robust. As my colleague Marguerite Telford has explained, two of the plotters of the 1993 World Trade Center bombing, Ramzi Yousef and Ahmed Ajaj, sought entry using fraudulent documents. For good measure, Yousef (the mastermind of the 1993 attack) also "plott[ed] to blow up a dozen U.S. airliners in 24 hours of terror over the Pacific", for which he was also convicted. Both had applied for asylum after they were caught.

And the judges of the Ninth Circuit should be familiar with Ahmed Ressam, who sought admission into the United States on a fraudulent Canadian passport in the name of "Benni Norys" to blow up Los Angeles International Airport on the millennium.

My colleague Steven Camarota's report, "The Open Door, How Militant Islamic Terrorists Entered and Remained in the United States, 1993-2001", details these and many more instances of terrorists engaging in fraud. I would commend it to the judges of the Ninth Circuit, so that their pronouncements can at least be informed ones.

In any event, the government has until March 11 to convince the Supreme Court to stay, or vacate, the Ninth Circuit's injunction. If it fails to do so, expect chaos at the border — at least in California and Arizona.