Innovation Law Lab v. McAleenan
924 F.3d 503
9th Cir.2019Background
- In Jan 2019 DHS announced the Migrant Protection Protocols (MPP), which returns certain asylum applicants who arrived from Mexico to wait in Mexico while their removal proceedings run, instead of detaining or paroling them in the U.S.
- Before MPP, applicants eligible for expedited removal (§1225(b)(1)) were either expedited removed or, if they indicated fear/asylum intent, referred for credible-fear screening and then detained/paroled pending §1229a proceedings; MPP directs returns as an alternative.
- Plaintiffs: eleven Central American asylum seekers returned to Tijuana and six legal-service organizations sued, and the district court enjoined DHS nationwide, finding MPP lacked statutory basis and violated the APA.
- DHS moved for a stay of the preliminary injunction pending appeal; the Ninth Circuit evaluated the four Nken stay factors, centering on statutory interpretation of 8 U.S.C. §1225(b).
- Core statutory question: does §1225(b)(1) “apply” to all aliens who are merely eligible for expedited removal, or only to those actually processed under (b)(1)? That determines if §1225(b)(2)(C)’s contiguous-territory return power can be used for applicants placed in regular proceedings.
- The motions panel concluded DHS likely prevails on statutory authority and that MPP is a policy (exempt from notice-and-comment), granted the stay, but concurring opinions raised distinct objections about non-refoulement and statutory reading.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statutory authority to return applicants under §1225(b)(2)(C) | MPP lacks statutory basis: (b)(1) “applies” to those eligible for expedited removal, so those individuals cannot be returned under (b)(2)(C) | (b)(1) applies only to applicants actually processed under it; applicants placed in regular proceedings under (b)(2)(A) may be returned under (b)(2)(C) | Court: DHS likely to prevail; (b)(1) applies to those processed under it, so (b)(2)(C) covers applicants placed in §1229a proceedings and authorizes returns to contiguous territory |
| APA notice-and-comment rulemaking | MPP is a substantive rule and required notice-and-comment | MPP is a general statement of policy exempt from notice-and-comment because returns are discretionary and case-by-case | Court: DHS likely to prevail; MPP qualifies as a general statement of policy and is exempt |
| Stay factors: irreparable harm, balance of equities, public interest | Plaintiffs: return to Mexico poses serious harm; nationwide injunction appropriate to prevent ongoing violations | DHS: injunction eliminates a congressionally authorized tool needed to manage large border flows and harms government and public interest | Court: factors favor DHS—DHS showed likely success on merits and irreparable harm without stay; public interest supports efficient immigration administration; stay granted |
| Compliance with non-refoulement and APA arbitrary-and-capricious claim (concurrence) | MPP implementation is arbitrary because officers do not inquire whether applicants fear return to Mexico, risking refoulement | DHS contends procedures aim to comply with non-refoulement and rely on case-by-case discretion; diplomatic assurances from Mexico reduce risk | Concurrence: likely plaintiffs will succeed on arbitrary-and-capricious claim re: failure to ask about fear of return; remedy should be targeted (e.g., require officers to ask), not a nationwide injunction; but stay of district court’s broad injunction is appropriate pending appeal |
Key Cases Cited
- Nken v. Holder, 556 U.S. 418 (stay factors guiding standard)
- Nielsen v. Preap, 139 S. Ct. 954 (interpretive instruction on which features identify covered aliens)
- Jennings v. Rodriguez, 138 S. Ct. 830 (two-category structure of §1225(b))
- Ali v. Federal Bureau of Prisons, 552 U.S. 214 (statutory-interpretation principle regarding clarity)
- East Bay Sanctuary Covenant v. Trump, 909 F.3d 1219 (public-interest/administration-of-immigration-laws context)
- Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec., 908 F.3d 476 (policy vs rule; discretionary-return context)
- Pereira v. Sessions, 138 S. Ct. 2105 (Notice to Appear and procedural effects)
- California v. Azar, 911 F.3d 558 (remedy-scope principle for injunctions)