Ninth Circuit Hands Trump a Win on 'Remain in Mexico'

The court still misses a major point

By Andrew R. Arthur on May 9, 2019

I reported last month that the Court of Appeals for the Ninth Circuit had "Temporarily Allow[ed] DHS's 'Remain in Mexico' Plan to Proceed". In an opinion this week the circuit court removed the "temporary" portion of that earlier decision, granting the government's motion to stay a district court's order enjoining the Department of Homeland Security (DHS) from continuing to implement or expand that plan on a nationwide basis, pending appeal. While this is a win for the Trump administration, there are some significant legal considerations that were overlooked by that three-judge circuit panel.

By way of background, on December 20, 2018, then-Secretary of Homeland Security Kirstjen Nielsen announced that DHS would begin implementing what it called the "Migrant Protection Protocols" (MPP, better known as "Remain in Mexico"), issuing policy guidance for that plan on January 25, 2019. The department explained that under 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.

MPP was enacted in accordance with sections 235(c)(2)(A) and (C) of the Immigration and Nationality Act (INA). The latter section of the INA allows DHS to return an alien deemed inadmissible back across the border pending removal proceedings to the country they sought admission from, generally Mexico.

As the DHS policy-guidance memorandum for MPP explained, the government of Mexico stated on December 20, 2018, that it would agree to allow the "temporary entrance ... for humanitarian reasons" of third-country nationals (that is, nationals of any country other than Mexico or the United States) "who entered ... at a port of entry or who were detained between ports of entry" and placed into removal proceedings in the United States. The Mexican government promised that such third-country nationals "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." This latter determination is crucial to the circuit court's decision.

The policy-guidance memorandum also made clear that a third-country national should not be "involuntarily returned" to Mexico "if the alien would more likely than not be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion." This is equivalent to the burden of proof that applies to applications for withholding of removal under section 241(b)(3) of the INA.

Judge Richard Seeborg of the U.S. District Court for the Northern District of California in Innovation Law Lab v. Nielsen enjoined MPP on two grounds: First, section 235(c)(2)(C) of the INA does not apply to aliens who are subject to expedited removal, and therefore such aliens could not be returned to Mexico under that provision. Second, even if that provision of the INA did apply to aliens subject to expedited removal, the plaintiffs in that case showed with sufficient certainty to satisfy the standard for a temporary injunction that MPP did not comply with the Administrative Procedures Act (APA).

The circuit court held in its latest decision that the main question in the case was fairly basic: whether the expedited-removal process in section 235(b)(1) of the INA applies to every alien who is "eligible for expedited removal", or whether it only applies to those aliens who were "actually processed for expedited removal". The circuit court's use of the word "eligible" shows how far through the looking glass the disaster at the border has actually gone. "Expedited removal" under section 235(b)(1) of the INA is actually supposed to be a process that makes it easier for DHS to remove aliens from the United States. As I have noted previously, that provision contains a "credible fear" exception for those who may have an asylum and/or Convention Against Torture (CAT) claim if they were to be returned to their home countries.

Unfortunately, the exception has swallowed the rule, to such an extent that commentators have referred to the "right" to enter the United States illegally to apply for asylum, a point George Washington University Law School professor Jonathan Turley rebutted in a July 12, 2018, opinion piece in The Hill. Respectfully, this is tantamount to saying that you are "eligible" to be convicted of a crime so that you can apply for parole without appearing before a judge, but there you have it.

In any event, the circuit court explained that the difficulty in interpreting the interplay of these statutes occurs because sections 235(b)(1) (expedited removal) and (b)(2) (where inadmissibility is determined in removal proceedings under section 240 of the INA) overlap. As the three-judge panel read these provisions, any alien "who is 'not clearly and beyond a doubt entitled to be admitted'" can be placed directly into removal proceedings under section 235(b)(2)(A) of the INA, even if that alien is amenable to expedited removal under section 235(b)(1) of the INA.

The circuit court noted that the Board of Immigration Appeals (BIA) reached the same conclusion in Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 522–24 (BIA 2011), a case involving two Cuban nationals apprehended seeking admission at a land border crossing. The immigration judge terminated those cases, finding that the aliens should have been placed in expedited removal proceedings. After considering a series of criminal-law cases in which the government was given latitude to determine which charges to file against criminal defendants who had violated more than one law, the BIA found "no reason to suppose that the broad discretion given to the Executive Branch regarding charging decisions in the criminal context does not also apply to charging decisions by the Executive Branch, that is, the DHS, in the immigration context."

In addition, the BIA determined that the exception in section 235(b)(2)(B) of the INA meant that the three categories of aliens identified therein (crewmen, stowaways, and aliens identified in the expedited-removal provisions in section 235(b)(1) of the INA) "are not entitled to a section 240 proceeding, not that these classes of aliens may not be placed in such proceedings." (Emphasis in original.) Note that the BIA properly identified the "entitlement" in that instance as the more expansive removal proceedings under section 240 of the INA (in which an alien can apply for any form of relief, not just asylum, withholding of removal, and CAT), not the purely administrative expedited removal procedures in section 235(b)(1) of the INA. A lot has changed in just under eight years.

The circuit court found that the plaintiffs in their case had not been processed under the expedited-removal provisions (even though they could have been), that the court was "doubtful" that those provisions applied to them even if they "could have been applied" to them, and that contiguous-country return under section 235(b)(2)(C) of the INA following placement in "regular" removal proceedings under section 240 of the INA was not dependent on the ground of inadmissibility.

Logically, the court found: "Indeed, Congress likely believed that the contiguous-territory provision would be altogether unnecessary if an applicant had already been processed for expedited removal." I note that but for the loopholes that are being exploited by migrants and smugglers along the Southwest border, Congress would have been correct.

The court held that three other factors also supported its decision. The first major one was the fact that:

DHS is likely to suffer irreparable harm absent a stay because the preliminary injunction takes off the table one of the few congressionally authorized measures available to process the approximately 2,000 migrants who are currently arriving at the Nation's southern border on a daily basis.

This is significant because it reflects a recognition by the nation's largest circuit court of the disaster that is unfolding at the Southwest border. Most of the prior court decisions that have gone against the Trump administration, on the other hand, have simply maintained the status quo in the face of the administration's efforts to tighten the immigration laws the United States.

MPP, on the other hand, is a stopgap to mitigate the law-enforcement and humanitarian effects of the overwhelming flow of migrants pouring over the border, a fact recognized by the Homeland Security Advisory Council's CBP Families and Children Care Panel in its April 16, 2019, "Final Emergency Interim Report", which I discussed in an earlier post.

The other two factors supporting the order were the fact that any likelihood of harm faced by aliens who are returned to Mexico would be mitigated "somewhat" by the commitment of the Mexican government "to honor its international law obligations and to grant humanitarian status and work permits to individuals returned under the MPP", as well as the fact that the public interest favors the "efficient administration of the immigration laws at the border", again, a significant recognition by the Ninth Circuit.

One point that the court failed to consider (possibly because it was not argued by the government) is that many aliens (including almost every alien who has entered illegally) is removable on more than one ground. Therefore, the binary choice presented by the plaintiffs (that is, if you are removable because you don't have an entry document or because you attempted entry by fraud, you go to expedited removal proceedings; if not you go to section 240 removal proceedings and face the possibility of contiguous-country return) is incorrect.

With respect to aliens who have entered illegally, they are removable under sections 212(a)(6)(A)(i) (alien present without being admitted or paroled) and (likely) 212(a)(7)(A)(i) (immigrant without a valid immigrant document) of the INA. "Likely", because if an alien had a valid entry document, that alien would not logically enter illegally.

Section 212(a)(6)(A)(i) of the INA is not explicitly a ground of removability for purposes of expedited removal under section 235(b) of the INA, and so, logically, DHS could implement MPP by serving aliens who entered illegally with Notices to Appear for section 240 removal proceedings under that ground of inadmissibility, and return them to Mexico pending their removal hearings under section 235(b)(2)(C) of the INA. This would have the beneficial effect of encouraging all aliens seeking to access credible fear to go to the ports of entry, where section 212(a)(7)(A)(i) of the INA would be the primary (if not sole) charge.

In addition, an alien who is apprehended entering illegally with drugs could be charged with inadmissibility under section 212(a)(2)(C) of the INA (known controlled substance trafficker). In the past, DHS has placed many of those aliens into expedited-removal proceedings if the decision was made not to prosecute the alien. Those aliens, however, are amenable to contiguous-country return.

If the argument is made that expedited removal applies to any alien who seeks admission without proper documents or through fraud, regardless of whether they are also removable based on another ground, does that mean that a drug trafficker or terrorist who is also removable on those grounds is, as the court says, "eligible" for expedited removal? There are strong reasons to hope not.

There are two other points: The first is that despite the fact that this was a per curiam decision (that is, issued in the name of the court rather than by a specific judge), there are two concurrences.

In the first, Judge Watford finds that DHS has recognized that MPP must "comply with 'applicable domestic and international legal obligations'", including the obligations not to return an alien if that alien will be persecuted or tortured (refoulement). He notes, however, that DHS does not ask aliens if they will be subjected to persecution or torture in Mexico. Rather: "Immigration officers make inquiries into the risk of refoulement only if an applicant affirmatively states that he or she fears being returned to Mexico." Therefore, he concludes, under DHS's current implementation of MPP, some aliens who are sent to Mexico (those who face persecution or torture in that country despite the fact that they are not Mexican nationals) are being returned in violation of our international obligations.

He contends that DHS can avoid this issue simply by asking aliens who are being sent to Mexico whether they fear persecution or torture in that country. He states:

I'm at a loss to understand how an agency whose professed goal is to comply with non-refoulement principles could rationally decide not to ask that question, particularly when immigration officers are already conducting one-on-one interviews with each applicant.

But then he offers an explanation for DHS's failure to do so, in a parenthetical: "One suspects the agency is not asking an important question during the interview process simply because it would prefer not to hear the answer." I would argue that there is no reason why DHS should be under an obligation to do so: Foreign nationals leaving the United States through a port of entry are not asked this question before they leave generally, and this situation is no different. That is why we have an affirmative asylum process, where an alien can assert a fear of harm in lieu of being removed from the United States. That is a proactive, not reactive, process, however — the alien has to claim the fear.

The concurrence of Judge Fletcher, on the other hand, is more confusing. He states:

The question of law in this case can be stated simply: The Government relies on [section 235(b)(2)(C) of the INA] for authority to promulgate its new Migrant Protection Protocols ("MPP"). If [section 235(b)(2)(C) of the INA] provides such authority, the MPP is valid. If it does not, the MPP is invalid. The question is thus whether [section 235(b)(2)(C) of the INA] provides authority for promulgation of the MPP. The answer can also be stated simply: The Government is wrong. Not just arguably wrong, but clearly and flagrantly wrong. Section [235(b)(2)(C) of the INA] does not provide authority for the MPP.

Nonetheless, he concurs in the stay of the district court's injunction without explanation.

As Judge Fletcher notes, a regular argument panel will likely eventually hear this matter. He states:

I am hopeful that the regular argument panel that will ultimately hear the appeal, with the benefit of full briefing and regularly scheduled argument, will be able to see the Government's arguments for what they are — baseless arguments in support of an illegal policy that will, if sustained, require bona fide asylum applicants to wait in Mexico for years while their applications are adjudicated.

Well, maybe not.