951 F.3d 986
9th Cir.2020Background:
- The Migrant Protection Protocols (MPP) require many noncitizen asylum seekers arriving on the southern border to wait in Mexico while their U.S. asylum claims are decided.
- The district court enjoined implementation and expansion of MPP and ordered named plaintiffs be permitted to enter the U.S.; that injunction was stayed pending appeal.
- The Ninth Circuit panel (two judges) held MPP violates 8 U.S.C. §§ 1225(b) and 1231(b) based on statutory text and record evidence that MPP (1) applies the §1225(b)(2)(C) return-to-Mexico authority to §1225(b)(1) applicants and (2) prevents adequate screening for fear of return/refoulement.
- The record contains uncontradicted declarations that asylum officers under MPP do not ask about fear of return and that returned migrants face credible, severe dangers in Mexico.
- The Government argued suspension of MPP would harm U.S.–Mexico relations and overwhelm border/ICE resources; the Ninth Circuit partially stayed the district court injunction outside the Ninth Circuit and extended an administrative stay until March 11, 2020.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MPP lawfully requires asylum seekers to remain in Mexico under 8 U.S.C. §1225(b) | MPP unlawfully applies §1225(b)(2)(C) return-to-Mexico authority to §1225(b)(1) applicants who have credible fear and thus must be admitted for processing | MPP is a lawful exercise of authority to manage inadmissible entrants and bi-national arrangements | Court: MPP violates §1225(b) as applied to §1225(b)(1) applicants (two judges agreed) |
| Whether MPP violates anti-refoulement obligations under 8 U.S.C. §1231(b) | MPP prevents meaningful screening about fear of return and sends asylum seekers to conditions where life/freedom are threatened | Government contends agreements and operational practices mitigate refoulement concerns | Court: MPP violates §1231(b) because it prevents necessary inquiry and returns people to dangerous conditions (two judges agreed) |
| Scope of injunctive relief — whether the district court’s nationwide (all-border-states) injunction is proper | APA §706(2) requires setting aside unlawful agency action nationwide; immigration matters favor uniform national relief | Government argued injunction should be limited geographically to plaintiffs/port or Ninth Circuit | Court: Affirmed injunction within Ninth Circuit; stayed injunction insofar as it operates outside the Ninth Circuit pending certiorari concerns |
| Whether to stay the merits ruling pending Supreme Court review | Plaintiffs: No stay; MPP clearly unlawful and causes irreparable harm | Government: Emergency stay pending certiorari or administrative stay to allow orderly Supreme Court review and to avoid operational/diplomatic harm | Court: Denied stay as to merits within Ninth Circuit; granted partial stay (injunction stayed outside Ninth Circuit) and extended administrative stay to March 11, 2020 |
Key Cases Cited
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (explaining §1225(b) framework and distinction between (b)(1) and (b)(2) applicants)
- Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110 (N.D. Cal. 2019) (district court opinion enjoining MPP and ordering entry for named plaintiffs)
- Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018) (discussing need for uniformity in immigration litigation)
- Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (noting inter-circuit uniformity concerns in immigration matters)
- Trump v. Hawaii, 138 S. Ct. 2392 (2018) (opinions addressing scope and deference in immigration-related claims)
- Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599 (2020) (noting contemporary disputes over scope of injunctions)
- Wolf v. Cook Cty., Ill., 140 S. Ct. 681 (2020) (related commentary on injunction scope)