Ninth Circuit Temporarily Allows DHS's 'Remain in Mexico' Plan to Proceed

Had been enjoined by a district-court judge

By Andrew R. Arthur on April 16, 2019

The Court of Appeals for the Ninth Circuit on Friday stayed a nationwide injunction issued by Judge Richard Seeborg of the U.S. District Court for the Northern District of California of the Migrant Protection Protocols ("MPP", better known as "Remain in Mexico") in Innovation Law Lab v. Nielsen.

By way of background, on December 20, 2018, then-Secretary of Homeland Security Kirstjen Nielsen announced that the Department of Homeland Security (DHS) would begin implementing the MPP, issuing policy guidance for that plan on January 25, 2019. The department explains 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). These sections of the INA allow DHS to return an alien deemed inadmissible back across the border pending removal proceedings, generally to 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."

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 Seeborg enjoined the 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 had shown with sufficient certainty to satisfy the standard for a temporary injunction that the MPP did not comply with the Administrative Procedures Act (APA).

The judge's decision reflected the fact that this second conclusion was premised on a variety of arguments offered by the plaintiffs in seeking an injunction that had to do with the government's compliance with the non-refoulement protections under the 1951 United Nations Convention relating to the Status of Refugees and the 1967 Protocol thereto.

Non-refoulement is similar to asylum, but the likelihood of harm required for the former is higher than it is for asylum. And, as the Board of Immigration Appeals (BIA) explained in Matter of Q-T-M-T-:

In passing the Refugee Act of 1980, Congress incorporated into the Immigration and Nationality Act the nondiscretionary withholding of deportation provisions of section 243(h). These provisions, set forth above, closely parallel the mandatory nonrefoulement obligations of Article 33 of the Convention.

"Withholding of deportation" was the predecessor to withholding of removal in section 241(b)(3) of the INA, described above. As noted, an alien who meets the standard for withholding of removal to Mexico would not be returned to that country under the MPP.

Judge Seeborg's order noted that it would take effect at 5:00 p.m. PST on April 12, 2019.

On April 11, 2019, the government filed a 111-page emergency motion for stay of that order. It argued therein that Judge Seeborg's "injunction rests on serious errors of law and harms the public by thwarting enforcement of a policy initiative implementing the Secretary of Homeland Security's express statutory authority to return certain aliens to Mexico while their removal proceedings are pending." It noted that the MPP was "designed to address the dramatically escalating burdens of unauthorized migration, which is causing irreparable harm to the [government] and the public."

Interestingly, the government made the following point in support of that motion:

The [district] court's interpretation ... produces implausible results: Given the broad scope of the expedited removal provision, the court's view would mean that the contiguous-territory-return provision applies only to those few aliens who do possess valid documents and do not engage in fraud. It makes little sense that Congress would authorize return only for aliens who follow our laws but would preclude return for those lacking documents or engaging in fraud at the border.

The Ninth Circuit's order is short, temporarily staying Judge Seeborg's order pending resolution of the government's motion for an emergency stay, and setting a relatively short filing schedule.

It is significant, however, that the circuit court stayed that order at all: As the New York Times noted on April 12, 2019, "the administration's track record in the circuit has been poor." The court's stay in this instance likely reflects the strength of the government's arguments in support of the MPP, and its recognition of the deteriorating conditions at the border.

A final decision from the Ninth Circuit on the government's motion is expected shortly.