Innovation Law Lab v. Chad Wolf, 951 F.3d 1073

Background

In Jan 2019 DHS implemented the Migrant Protection Protocols (MPP), returning non‑Mexican asylum seekers who present at the southern land border to Mexico to await U.S. immigration proceedings.
Plaintiffs (individuals returned to Mexico and organizations serving asylum seekers) sued under the Administrative Procedure Act, alleging MPP conflicted with INA §§ 1225(b) and 1231(b) and caused irreparable harm; the district court preliminarily enjoined the MPP.
A motions panel granted the Government an emergency stay of that injunction (Innovation I), with split views: the per curiam majority expressed doubt that §1225(b)(1) applied; Judge Watford concurred but raised non‑refoulement concerns; Judge Fletcher concurred in result and criticized Government arguments.
On full merits review this merits panel held plaintiffs had standing (individual and organizational), and concluded plaintiffs were likely to succeed on: (a) the statutory claim that §1225(b) does not authorize returning §1225(b)(1) applicants to a contiguous territory, and (b) the treaty/statutory non‑refoulement claim under §1231(b) because MPP procedures are insufficient and evidence showed real danger in Mexico.
The Ninth Circuit affirmed the district court’s preliminary injunction (lifting the motions‑panel stay) and rejected narrowing the injunction; Judge Fernandez dissented, arguing the motions‑panel published decision was binding and would have vacated the injunction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a merits panel is bound by a prior motions‑panel stay opinion	Motions‑panel stay analysis is not binding on a later merits panel decided after full briefing.	Motions‑panel published decision should govern law of the circuit and bind subsequent panels.	Merits panel follows East Bay precedent: motions‑panel stay analysis is not binding here; even if sometimes binding, this motions opinion was non‑definitive and not binding.
Whether §1225(b)(2)(C) authorizes returning §1225(b)(1) arriving aliens to a contiguous territory (legal basis for MPP)	MPP unlawfully returns §1225(b)(1) applicants to Mexico; §1225(b)(1) and (b)(2) create separate, non‑overlapping categories and (b)(2)(C) applies only to (b)(2) applicants.	DHS has discretion to apply (b)(2) procedures (including contiguous‑territory return) to persons encountered at the border; categories overlap in practice.	Held likely success for plaintiffs: plain text, Jennings, and agency practice show (b)(1) and (b)(2) are distinct; (b)(2)(C) return authority does not cover (b)(1) applicants.
Whether MPP violates treaty‑based non‑refoulement protections implemented at 8 U.S.C. §1231(b)	MPP procedures are inadequate (high "more likely than not" standard; officers not prompted to ask about fear of return; minimal notice/rights), risking returns to persecution in Mexico.	§1231(b) protects only against final removals; MPP offers adequate screening—aliens will volunteer fear and Mexico is generally safe.	Held likely success for plaintiffs: §1231(b) embodies a general non‑refoulement obligation; record evidence contradicts Government’s assumptions and shows real risk in Mexico and procedural gaps.
Proper scope of relief (injunction breadth)	Full vacatur of MPP appropriate under APA §706(2)(A) and need for uniform immigration policy; vacatur at southern border practicable.	Relief should be geographically limited; nationwide or broad injunctions are disfavored.	Held: district court did not abuse discretion in setting aside MPP in its entirety (practical effect limited to southern border ports and bordering states; APA presumption to set aside unlawful agency action; immigration uniformity supports broad relief).

Key Cases Cited

Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (explains statutory distinction between §1225(b)(1) and §1225(b)(2))
Innovation Law Lab v. McAleenan, 924 F.3d 503 (9th Cir. 2019) (motions‑panel stay opinion in same litigation; expressed doubt re §1225(b)(1) application and raised non‑refoulement concerns)
East Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018) (motions‑panel reasoning on stay non‑binding for later merits panels; relied on in panel’s treatment of motions‑panel authority)
Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018) (remedy principles in APA cases; vacatur as ordinary result)
INS v. Stevic, 467 U.S. 407 (1984) (context on U.S. accession to refugee protocol and statutory implementation)
INS v. Aguirre‑Aguirre, 526 U.S. 415 (1999) (treats §1253(h)(1) as paralleling Article 33 non‑refoulement)
Cardoza‑Fonseca v. INS, 480 U.S. 421 (1987) (legislative history on Refugee Act implementing Protocol)
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (supports nationwide relief in immigration matters for uniformity)
Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standard for preliminary injunctions)