SCOTUS Stays Preliminary Injunction of 'Remain in Mexico'

Thou shalt not punt to the Supreme Court — but Congress ultimately needs to act

By Andrew R. Arthur on March 12, 2020
  • On March 11, the Supreme Court issued a stay of a preliminary injunction of the Migrant Protection Protocols (MPP or "Remain in Mexico") until the government files, and the Court rules on, a petition for review of that preliminary injunction. That stay will remain in effect thereafter, if the Court decides to consider that injunction on the merits, until it issues a decision.
  • The government had offered evidence to the Ninth Circuit that chaos would ensue if that preliminary injunction — which was originally issued in April 2019 — were allowed to take effect. The Ninth Circuit essentially put the Supreme Court on the hook for that pandemonium by issuing a one-week stay of its opinion affirming the preliminary injunction, for the Court to act.
  • Preliminary injunctions of this sort have mushroomed in response to administrative actions taken by the Trump administration, and in particular immigration actions.
  • Ultimately, Congress will have to act to plug the loopholes in our immigration system, or else the Supreme Court will continue to be inundated by cases like this.

On March 11, the Supreme Court issued a brief order staying a preliminary injunction, which had been issued on April 8, 2019, by Judge Richard Seeborg of the U.S. District Court for the Northern District of California, of the Migrant Protection Protocols ("MPP", also known as "Remain in Mexico"). That injunction had been affirmed by the Ninth Circuit in a February 28 opinion, and then stayed (in part) for one week by that court in an order issued March 4 to allow the government to seek Supreme Court review. Did I mention the May 7, 2019, precedent opinion by a different panel of the Ninth Circuit that had granted the government a stay pending appeal of that injunction to the circuit court (which I wrote about in a May 9, 2019, post)? If there are lessons to be learned from all of this, it is that inferior court judges should not tempt the Justices of the Supreme Court, and are likely getting on their nerves. But ultimately, Congress needs to act.

I wrote about the Ninth Circuit's February 28 opinion in a post on March 2, and its March 4 order in a post on March 6, but I have been writing about this injunction since the Ninth Circuit issued its original temporary stay of the district court's order in an April 16, 2019, post.

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

Basically, Judge Seeborg enjoined MPP on two grounds: First, he held that the return clause does not apply to aliens who are subject to expedited removal (under section 235(b)(1)(A)(i) of the INA), and therefore such aliens could not be returned to Mexico under that provision. Second, even if the return clause 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 MPP did not comply with the Administrative Procedures Act (APA).

The Ninth Circuit's April 12, 2019, order was 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.

As I explained in my May 9, 2019, post, the May 7 order was more robust:

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 [the return clause] 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.


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", ... a significant recognition by the Ninth Circuit.

That order was a little unusual (and not just because the Ninth Circuit ruled in favor of the government). Despite the fact that it was a "per curiam" order (that is, issued in the name of the court rather than by a specific judge), there were also concurrences by two separate judges.

The first criticized how the Department of Homeland Security (DHS) was implementing MPP, and in particular the fact that DHS does not ask aliens if they will be subjected to persecution or torture in Mexico before returning them there.

In the second, the judge stated: "The Government is wrong. Not just arguably wrong, but clearly and flagrantly wrong. [The return clause] does not provide authority for the MPP." He concurred in the order anyway.

Despite all of this, the May 7, 2019, order was published by the court, meaning that it is precedent in the Ninth Circuit.

Fast forward to February 28, 2020, when, as noted, a separate panel of the Ninth Circuit affirmed Judge Seeborg's grant of a preliminary injunction of MPP. As I explained in my March 2 post:

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.


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.

In that post, I explained the various errors in the Ninth Circuit's logic, not least of which was the fact that it contradicts its May 7, 2019, precedent decision (leading one judge on that three-judge panel to dissent).

In the March 4 order, things got even stranger, as I explained in my March 6 post:

The circuit court granted a temporary administrative stay [later on February 28], 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 circuit court's brief extension of its administrative stay as it applied to California and Arizona likely reflected its recognition of the chaos that allowing its February 28 opinion to take effect immediately would wreak on conditions at the border. Notably, the government offered evidence on this point in its motion for stay and reply brief, as well as evidence concerning the effect that opinion (and the underlying injunction) would have on our relations with Mexico.

As an aside, in its March 4 order, the Ninth Circuit also offered a post-hoc rationalization for its February 28 opinion:

It is easy to understand why [section 235(b)(1) of the INA] applicants [who are amenable to expedited removal] and [section 235(b)(2) of the INA] applicants [who are not subject to expedited removal] 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.

In my March 6 post, I explained that this rationalization is not only flawed, but demonstrably wrong, given the fact that aliens who had attempted and/or carried out terrorist attacks would have been subject to expedited removal, had it been in effect at the time that they entered the United States.

Back to the point, however, in essence, the circuit court punted these issues to the Supreme Court, basically putting them on the hook for the inevitable chaos that would follow if it failed to act. With that in mind, it is no wonder that the Court on Wednesday stayed the April 8, 2019, district-court preliminary injunction.

One brief word to clarify the Supreme Court's March 11 order. It only stays the preliminary injunction pending the government's filing of a petition for the Supreme Court to review that injunction, and the Court's decision on that petition. If the Court denies that petition, its stay automatically terminates, but if it grants that petition, the stay will remain in effect until the Court rules on the merits of the parties' arguments with respect to that injunction.

Remember, however, that all of this relates not to the underlying legality of MPP, but to the merits of a preliminary injunction of MPP. While the two issues are intertwined to some degree, this case demonstrates the problems and confusion that inevitably flow from the issuance of such nationwide injunctions — a much more common occurrence under the Trump administration than in the past, as my colleague John Miano noted in January. This is especially true with respect to Trump administrative actions on immigration, a fact my colleague Dan Cadman alluded to in May 2019.

To some degree, I have to conclude that this represents an activist bent against this administration on the part of certain judges — a conclusion that I, as a former judge (on a much, much lower level) both hesitate and am saddened to reach. By issuing a nationwide injunction, district court judges can stymie the administration's initiatives, especially as they relate to immigration, for years.

But it also represents an abdication by Congress of its responsibilities to respond to the realities of immigration in the United States today. Last fiscal year saw a spike in migrants seeking illegal entry at the border: 851,508 Border Patrol apprehensions at the Southwest border in FY 2019 alone, up from 396,579 the year before.

The loopholes in the law that those migrants and their smugglers have exploited are clear to any honest observer, but still representatives and senators — of both parties — have failed to plug them. The administration has had to act to stem that flood — and the danger to those migrants themselves, the strain on DHS resources, and the criminality that has ensured — through executive action, which opens those policies up to court challenges.

Unfortunately, I don't expect Congress to act anytime soon. In the interim, the Supreme Court's docket will just continue to grow.