Immigrant Defenders Law Center, et al. v. Noem, et al.Immigrant Defenders Law Center, et al. v. Noem, et al.
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IMMIGRANT DEFENDERS LAW No. 25-2581 CENTER, a California corporation; D.C. No. JEWISH FAMILY SERVICE OF 2:20-cv-09893- SAN DIEGO, a California JGB-SHK corporation; LIDIA DOE; ANTONELLA DOE; CHEPO DOE; YESENIA DOE; SOFIA DOE; ORDER GABRIELA DOE; ARIANA DOE; FRANCISCO DOE; REINA DOE; CARLOS DOE; DANIA DOE, individually and on behalf of all others similarly situated,
Plaintiffs - Appellees , v.
KRISTI NOEM, Secretary,
Department of Homeland Security, in her official capacity; MICHAEL W.
BANKS, Chief of U.S. Border Patrol, in his official capacity; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; PETE R.
FLORES, Commissioner, U.S.
Customs and Border Protection, in his official capacity; DIANE J.
SABATINO, Acting Executive *2 Assistant Commissioner, Office of Field Operations, U.S. Customs and Border Protection, in her official capacity; TODD M. LYONS, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity,
Defendants - Appellants .
Filed July 18, 2025
Before: Mary H. Murguia, Chief Judge, and Ryan D. Nelson and Gabriel P. Sanchez, Circuit Judges. Order;
Dissent by Judge R. Nelson
SUMMARY [*]
Immigration Law / Stay
The panel (1) denied a motion by Plaintiff Immigrant Defenders Law Center (“ImmDef”) to dismiss the government’s appeal from the district court’s order imposing a nationwide stay of the 2025 reimplementation of the Trump administration’s “Remain in Mexico” policy (also known as “Migrant Protection Protocols” or “MPP”); and (2) granted in part the government’s emergency motion for a stay pending appeal of the district court’s nationwide stay order by limiting the stay to ImmDef’s current and future clients.
Denying ImmDef’s motion to dismiss the government’s appeal, the panel held that the government made a sufficient *3 showing to satisfy the three factors required for immediate appellate review of the district court’s stay order. First, the district court’s stay order has many of the same practical effects as a preliminary injunction would. Second, the government has made a sufficient showing of irreparable harm absent a stay. Third, the government has made a sufficient showing that the stay can be effectively challenged only by an immediate appeal.
In adjudicating the government’s motion for a stay
pending appeal, the panel relied on the four factors set forth
in
Nken v. Holder
,
Finally, the panel granted the government’s motion for a stay pending appeal in part by limiting the district court’s stay order to exempting ImmDef’s current and future clients from the Remain in Mexico policy.
Dissenting, Judge R. Nelson wrote that ImmDef lacks Article III standing because, following FDA v. All. for Hippocratic Med. , 602 U.S. 367 (2024), an organizational plaintiff like ImmDef cannot rely on a frustration-of-mission or diversion-of-resources theory to support its standing.
Even if ImmDef did have standing, its First Amendment and APA claims lack merit. ImmDef’s claim that the Remain in Mexico policy violates its First Amendment right to advise potential and existing clients fails because the Remain in Mexico policy does not regulate speech. It regulates non-expressive conduct—whether aliens may stay in the United States pending their removal proceedings. ImmDef’s claim that the Remain in Mexico policy violates the right to apply for asylum, rendering the policy arbitrary and capricious under the APA, fails because Congress authorized contiguous-territory return as part of the INA, 8 U.S.C. § 1225(b)(2)(C), and does not violate the statute by exercising that authority while still allowing aliens to apply for asylum. *5 6 I MMIGRANT D EFENDERS L AW C ENTER V . N OEM
COUNSEL
Allyson C. Myers (argued), Hannah R. Coleman (argued), Matthew T. Heartney, and Daniel S. Shimell, Arnold & Porter Kaye Scholer LLP, Los Angeles, California; Stephanie M. Alvarez-Jones, Sirine Shebaya, and Victoria Neilson, National Immigration Project of the National Lawyers' Guild, Washington, D.C.; Steven L. Mayer and Sean M. SeLegue, Arnold & Porter Kaye Scholer LLP, San Francisco, California; Kathleen X. Weng, Arnold & Porter Kaye Scholer LLP, Washington, D.C.; Anne Dutton, Edith Sangüeza, and Dulce S. Rodas, Center for Gender and Refugee Studies, San Francisco, California; Melissa E. Crow, Center for Gender and Refugee Studies, Washington, D.C.; Jordan E. Cunnings, Kelsey L. Provo, Tess M. Hellgren, Rosa G.S. Vanacore, and Stephen W. Manning, Innovation Law Lab, Portland, Oregon; for Plaintiffs- Appellees.
Sarah Welch (argued); Cara E. Alsterberg, Catherine M. Reno, and Alanna T. Duong, Senior Litigation Counsel; Brian C. Ward, Acting Assistant Director; Office of Immigration Litigation; Drew C. Ensign, Deputy Assistant Attorney General; Brett A. Shumate, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; Jason K. Axe and Christina A. Marquez, Assistant United States Attorney, Office of the United States Attorney, United States Department of Justice, Los Angeles, California; for Defendants-Appellants.
ORDER
MURGUIA, Chief Circuit Judge:
A noncitizen “arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States,” may be returned “to that territory pending a [removal] proceeding under section 1229a” of the Immigration and Nationality Act (“INA”). 8 *6 U.S.C. § 1225(b)(2)(C) (citation modified). It is undisputed that the Executive Branch has the authority to enact policies to implement this discretionary provision. Biden v. Texas , 597 U.S. 785, 806 (2022). But any policy implemented pursuant to this provision must comply with constitutional and statutory constraints. See Loper Bright Enters. v. Raimondo , 603 U.S. 369, 391 (2024) (citing the Administrative Procedure Act (“APA”), 5 U.S.C. § 706).
This case raises questions of whether the Trump
administration’s “Remain in Mexico” policy (also known as
“Migrant Protection Protocols” or “MPP”) issued pursuant
to 8 U.S.C. § 1225(b)(2)(C), violates Plaintiffs’
constitutional rights and violates the APA by infringing the
statutory right to apply for asylum as codified in the INA.
See
8 U.S.C. § 1158(a)(1). The first Trump administration
enacted Remain in Mexico in 2019.
Immigrant Defs. L. Ctr.
v. Noem
, No. 20-9893,
In January 2025, the second Trump administration
moved to reimplement Remain in Mexico.
Immigrant Defs.
L. Ctr.
,
The government filed an immediate appeal of the § 705 Stay and moved on an emergency basis for a stay pending *7 appeal of the district court’s § 705 Stay. ImmDef moved to dismiss the appeal for lack of appellate jurisdiction. For the reasons discussed herein, we deny ImmDef’s motion to dismiss the appeal and grant in part the government’s emergency motion for a stay pending appeal by limiting the *8 10 I MMIGRANT D EFENDERS L AW C ENTER V . N OEM “difficulties in accessing counsel” as “endemic to the program’s design” and emphasized that “[o]pportunities for attorneys to meet with their clients outside of those organized hearing locations were limited due to, among other constraints, complications associated with cross- border communication.”
In October 2020, the Plaintiffs in this case—individual
plaintiffs subjected to Remain in Mexico and two
organizational plaintiffs including ImmDef—filed a lawsuit
in the Central District of California challenging the
implementation of Remain in Mexico. Plaintiffs alleged that
Remain in Mexico violated their rights under the First
Amendment, the Fifth Amendment Due Process Clause, and
the APA.
[3]
In February 2022, Plaintiffs filed their Second
Amended Complaint (“SAC”).
[4]
*9
In January 2021, DHS suspended new enrollments under
Remain in Mexico, and on June 1, 2021, terminated the
policy.
See Biden v. Texas
,
On March 15, 2023, the district court in this case denied
in part the government’s motion to dismiss and certified a
class and three subclasses of individuals subject to the
original Remain in Mexico policy who remained outside the
United States.
The district court found that the
organizational plaintiffs, including ImmDef, had standing
because the original Remain in Mexico policy had
“perceptibly impaired their ability to perform the services
they were formed to provide.” On October 2, 2024, the
district court granted the parties’ joint stipulation to stay the
matter pending settlement discussions.
Immigrant Defs. L.
Ctr.
,
On January 20, 2025, President Trump issued an executive order announcing the reimplementation of Remain in Mexico based on the original 2019 policy documents (“Reimplementation Order”). The next day, DHS announced that it would “restart[] the Migrant Protection Protocols (MPP) immediately.” On February 5, 2025, the parties filed a joint stipulation to lift the stay and modify the scheduling order because settlement was no longer viable in the wake of the second Trump administration’s 2025 *10 Reimplementation Order. Id.
ImmDef then moved for emergency relief through an ex parte application for a stay of Remain in Mexico’s reimplementation pending the conclusion of this litigation. The district court granted the application and issued a nationwide stay of the Reimplementation Order under 5 U.S.C. § 705, which postponed the effective date of Remain in Mexico’s reimplementation during the pendency of this litigation.
On May 12, 2025, the district court denied a stay pending appeal of its § 705 Stay order. The district court ruled that reimplementation of Remain in Mexico would lead ImmDef’s clients to “once again be subjected to violence, deprived of their ability to access the asylum system, and stripped of their ability to access and communicate with counsel.” Immigrant Defs. L. Ctr., No. 2:20-cv-9893 (C.D. Cal. May 12, 2025) Order Denying Defendants’ Ex Parte Application To Stay [ECF No. 413]. The district court concluded that the government faced no irreparable harm to its executive authority because it “neither has the discretionary authority nor legitimate reasons to enforce programs that violate the [C]onstitution or federal law.”
A. Procedural History of this Appeal The government appealed the § 705 Stay order on April 22, 2025, and this Court set a merits briefing schedule in line with a preliminary injunction appeal. On May 7, 2025, the government filed a motion to expedite the appeal, “[b]ecause the district court is preventing the Department of Homeland Security from using a discretionary tool to secure the United States-Mexico border.” Concurrently, the government filed an emergency motion for a stay pending appeal pursuant to Circuit Rule 27–3, requested urgent designation under General Order 3.3.g, and asked that the merits panel be drawn immediately under General Order 6.4.d. The Court granted the request to expedite the appeal, to designate the case as urgent, and to draw the merits panel immediately. Plaintiffs subsequently filed a motion to dismiss the appeal. [5] This Order resolves ImmDef’s motion to dismiss the appeal and the government’s emergency motion for a stay pending appeal of the § 705 Stay.
II. STANDARDS OF REVIEW
A. Motion to Dismiss Appeal
Non-injunctive orders may be appealed under
§ 1292(a)(1) only if the appellant satisfies the three-part test
*11
established in
Carson v. American Brands, Inc.
,
III. ANALYSIS
A. Appellate Jurisdiction The government has made a sufficient showing to satisfy the three Carson factors required for immediate appellate review of the district court’s § 705 Stay order.
As to the first factor, “[a]ppellate courts have jurisdiction
to review interlocutory orders that have ‘the practical effect
of [granting or] refusing an injunction.’”
A. A. R. P. v.
Trump
,
We have similarly treated a temporary restraining order
as a preliminary injunction where an adversarial hearing has
been held and the district court’s basis for issuing the order
is strongly challenged.
See, e.g.
,
E. Bay Sanctuary Covenant
v. Trump
, 932 F.3d 742, 762 (9th Cir. 2018) (“
EBSC I
”);
Washington v. Trump
,
As to the second Carson factor, risk of irreparable harm, the government argues that the nationwide § 705 Stay *14 district court that Mexico had agreed to accept asylum seekers under the reimplementation of Remain in Mexico, which would mean the policy has not actually gone into effect. When pressed by the district court on these questions, counsel for the government was only willing to state that the government decided to implement MPP based on “situations that have changed on the ground,” but counsel declined to opine on what those situations entailed because counsel did not “have that information.” In this appeal, counsel for the government largely repeated these same general responses at oral argument and would not provide any further details.
The government’s evidence of concrete and irreparable
harm is relatively scant at this juncture in the litigation. It is
well established that the mere existence of the Executive
Branch’s desire to enact a policy is not sufficient to satisfy
the irreparable harm prong.
Doe #1 v. Trump
, 957 F.3d
1050, 1059 (9th Cir. 2020) (“[I]f we were to adopt the
government’s assertion that the irreparable harm standard is
satisfied by the fact of executive action alone, no act of the
executive branch asserted to be inconsistent with a
legislative enactment could be the subject of a preliminary
injunction. That cannot be so.”). Nevertheless, “Article II
of the Constitution authorizes the Executive to engage in
direct diplomacy with foreign heads of state and their
ministers,”
Biden v. Texas
, 597 U.S. at 805 (quoting
Zivotofsky v. Kerry
, 576 U.S. 1, 14 (2015) (citation
modified)), and courts must take care “to avoid ‘the danger
of unwarranted judicial interference in the conduct of foreign
policy.’”
Id.
(quoting
Kiobel v. Royal Dutch Petroleum Co.
,
569 U.S. 108, 115–16 (2013)). Although counsel for the
government mostly spoke in general terms and was unable
at this preliminary posture to articulate concrete evidence of
irreparable harm to the government, the district court’s
nationwide § 705 Stay runs the “risk of ‘serious, perhaps
irreparable,’ consequences” to the Executive’s ability to
implement immigration policy and foreign affairs as it sees
fit.
See A. A. R. P.
,
The government’s satisfaction of the third
Carson
factor
flows from the second factor, because as the government
phrases it, “[n]o final judgment can restore to the
Government the opportunity to exercise its discretionary
*15
authority to secure the border now.” Remain in Mexico is a
policy that requires negotiation with a foreign sovereign—
Mexico—which is presumably a time- and labor-intensive
process.
See Noem v. Abrego Garcia
,
For the foregoing reasons, we have jurisdiction to hear an immediate appeal of the district court’s § 705 Stay in this case and deny ImmDef’s motion to dismiss the appeal.
B. Motion for Stay Pending Appeal
We rely on the
Nken
factors when adjudicating a motion
for a stay pending appeal. Those are “(1) whether the stay
applicant has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in
the proceeding; and (4) where the public interest lies.”
Nken
,
1. Likelihood of Success on the Merits Whether the government is likely to succeed on the merits turns on whether the district court properly issued the § 705 Stay. The APA permits courts “[o]n such conditions as may be required and to the extent necessary to prevent irreparable injury” to “issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings” 5 U.S.C. § 705; see also Bakersfield City Sch. Dist. of Kern Cnty. v. Boyer , 610 F.2d 621, 624 (9th Cir. 1979) (“The agency or the court may postpone or stay agency action pending such judicial review.” (citing § 705)).
As the district court found, the factors considered in
determining whether to postpone agency action pursuant to
§ 705 “‘substantially overlap with the
Winter
factors for a
preliminary injunction.’”
Immigrant Defs. L. Ctr.
, 2025 WL
1172442, at *6 (quoting
Immigrant Legal Res. Ctr. v. Wolf
,
Under the original Winter standard, a party must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and *17 that an injunction is in the public interest.” Under the “sliding scale” variant of the Winter standard, “if a plaintiff can only show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied. (first quoting Winter v. Nat. Res. Def. Council, Inc. , 555
U.S. 7, 20 (2008); and then quoting
Shell Offshore, Inc. v.
Greenpeace, Inc.
,
a. The Government’s Challenges Before reaching the merits of Plaintiff’s claims, we address procedural challenges raised by the government, which we conclude at this stage in the litigation are without merit. The government argues against ImmDef’s likelihood of success on the merits by challenging the district court’s organizational standing analysis; arguing that § 1252(f)(1) of the INA bars the district court from issuing a § 705 Stay in these circumstances; and contending that the Remain in Mexico reimplementation is not final agency action and is therefore nonjusticiable under the APA. We address each contention in turn.
i. ImmDef’s Standing
To establish Article III standing, a plaintiff must
demonstrate that: (1) she suffered an injury in fact that is
concrete, particularized, and actual or imminent (not
conjectural or hypothetical); (2) the injury is fairly traceable
to the challenged conduct; and (3) the injury is likely to be
redressed by a favorable court decision.
Lujan v. Defs. of
Wildlife
,
Like an individual, an organization may not establish
standing simply based on the “intensity of the litigant’s
interest” or because of strong opposition to the government’s
conduct,
Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc.
, 454 U.S.
464, 486 (1982), “no matter how longstanding the interest
and no matter how qualified the organization,”
Sierra Club
v. Morton
,
In Havens Realty , a fair housing organization claimed that the defendant’s discriminatory housing practices “perceptibly impaired” the organization’s ability to “provide counseling and referral services for low- and moderate- income homeseekers,” forcing it “to devote significant resources to identify and counteract” the alleged discriminatory practices. Id. The Supreme Court held that the organization had standing to challenge the housing practices. As the Court explained, “there [could] be no question that the organization . . . suffered injury in fact” because it established a “concrete and demonstrable injury to the organization’s activities—with the consequent drain on the organization’s resources—[that] constitute[d] far more than simply a setback to the organization’s abstract social interests.”
The government argues that ImmDef lacks standing to challenge the reimplementation of Remain in Mexico because it has essentially spent its way into standing contrary to Hippocratic Medicine and has not identified any harm flowing from Remain in Mexico’s “reimplementation” in January 2025. The government’s assertion is not supported by Hippocratic Medicine , which reinforced the holding in Havens Realty . The Court in Hippocratic Medicine reiterated that when a defendant’s actions “directly affect[] and interfere[] with” a plaintiff’s “core business activities,” then the plaintiff may assert organizational standing. 602 U.S. at 395.
Unlike the plaintiffs in
Hippocratic Medicine
, ImmDef
is not “assert[ing] standing simply because [it] object[s] to
[the government’s] actions” or is gathering information and
*19
24
I MMIGRANT D EFENDERS L AW C ENTER V . N OEM advocating against Remain in Mexico.
See
ImmDef expanded its legal representation across the U.S.-Mexico border to continue carrying out its core activities and longstanding mission. Prior to Remain in Mexico, such core activities had never required cross-border work because noncitizens seeking protection were not forced to remain in Mexico while their removal proceedings were pending. To avoid abandoning a core constituency and undermining its mission of universal representation of asylum seekers in California, ImmDef had to expend resources to counteract and offset the barriers that MPP imposed. See id. ImmDef cites to ample record evidence of how Remain in Mexico caused “concrete and demonstrable injury” to its core activities, id. , which was far more extensive than the “issue-advocacy” work that was found insufficient in Hippocratic Medicine , 602 U.S. at 395. Based on ImmDef’s experience with the implementation of the 2019 Remain in Mexico, ImmDef will have to hire additional staff, expand its office space, conduct additional fundraising efforts, increase travel to Mexico, and divert staff resources away from other projects towards MPP- *20 related projects to continue carrying out its core business activities and longstanding mission.
Accordingly, ImmDef has alleged a “concrete and
demonstrable injury” to these core activities, “which remain
the same apart from, prior
to, and after MPP’s
implementation.” ImmDef is thus similarly situated to the
plaintiff organization in
Havens Realty
, where the
defendants’ racially discriminatory steering practices
“directly affected and interfered with” the plaintiff’s “core
business activities,”
Hippocratic Med.
,
Furthermore, we reject the government’s contention that
ImmDef’s harm is speculative. ImmDef has submitted
evidence drawn from the initial Remain in Mexico
implementation establishing imminent irreparable harm to
its organization from the reimplementation of Remain in
Mexico. For example, dangerous conditions in Mexico
would impede ImmDef’s attorneys’ ability to provide
representation; ImmDef will have to expend additional
resources to reach individuals located in Mexico to
adequately and ethically represent them; ImmDef will once
again have to hire additional staff, purchase international
phone plans, and rent confidential meetings spaces in
Mexico; and ImmDef will have to contend with the time
limits and restrictions on when and how its staff can
communicate with its clients prior to court hearings pursuant
to the Remain in Mexico policy guidance. The 2019
directive establishing the one-hour time limit before a court
hearing is a component of Remain in Mexico that the
government has confirmed is part of the “current operative
guidance” for its reimplementation.
Immigrant Defs. L. Ctr.
,
As the district court concluded, the fact that Remain in Mexico was reinstated using the same operative guidance from January 2019 is sufficient to find “that a threat to ImmDef’s concrete interest is imminent.” , at *23. Accordingly, we hold that ImmDef has standing to challenge the Reimplementation Order.
ii. Section 1252(f)(1)’s Bar on Injunctive Relief
The government also argues that the district court’s
§ 705 Stay is impermissible under 8 U.S.C. § 1252(f)(1)
because the § 705 Stay restrains how DHS will implement
its discretionary authority under 8 U.S.C. § 1225(b)(2)(C) of
*21
the INA.
See Garland v. Aleman Gonzalez
,
The government’s argument fails for several reasons. First, there is a “strong presumption . . . that the actions of federal agencies are reviewable in federal court.” KOLA, Inc. v. United States , 882 F.2d 361, 363 (9th Cir. 1989) (citation omitted); see also Sackett v. EPA , 566 U.S. 120, 128 (2012) (“The APA . . . creates a presumption favoring judicial review of administrative action.” (citation modified)). “[O]nly upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Lab’ys v. Gardner , 387 U.S. 136, 141 (1967) (citation omitted), abrogated on other grounds by Califano v. Sanders , 430 U.S. 99, 105 (1977).
Second, current Supreme Court jurisprudence indicates
that § 705 stay relief is permissible in cases involving these
provisions of the INA.
See Biden v. Texas
,
The Supreme Court has also distinguished stays from injunctive relief. An injunction “is a means by which a court tells someone what to do or not to do.” Nken 556 U.S. at 428. “When a court employs ‘the extraordinary remedy of injunction,’ it directs the conduct of a party, and does so with the backing of its full coercive powers.” at 428 (internal *22 citation omitted). “It is true that in a general sense, every order of a court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam .” Id. (citation modified). “This is so whether the injunction is preliminary or final; in both contexts, the order is directed at someone, and governs that party’s conduct.” Id. A stay, by contrast, “achieves this result by temporarily suspending the source of authority to act—the order or judgment in question—not by directing an actor’s conduct.” Id. at 429. A stay “simply suspend[s] judicial alteration of the status quo.” (alteration in original).
The Fifth Circuit recently rejected the argument that § 1252(f)(1) bars relief under the APA. Texas v. United States , 40 F.4th 205, 219 (5th Cir. 2022) (“There are meaningful differences between an injunction, which is a drastic and extraordinary remedy, and vacatur, which is a less drastic remedy.”) (citation modified); id. at 220 (“[A] vacatur does nothing but re-establish the status quo absent the unlawful agency action . . . . We decline to extend Aleman Gonzalez to such judicial orders . . . .”). We agree with the Fifth Circuit here.
Lastly, § 1252(f)(1) expressly identifies injunctive relief
but makes no mention of stays nor other forms of relief under
the APA. Congress knows, however, how to limit relief
under the APA in other statutory schemes such as the
Magnuson-Stevens Act and the Clean Air Act.
See Anglers
Conservation Network v. Pritzker
, 809 F.3d 664, 668 n.4
(D.C. Cir. 2016) (“The review provision of the Magnuson–
Stevens Act also expressly makes § 705 of the APA ‘not
applicable.’”
(quoting 16 U.S.C. § 1855(f)(1)(A));
Mexichem Specialty Resins, Inc. v. EPA
,
In sum, we hold that § 1252(f)(1) does not bar the district court’s stay pursuant to § 705 of the APA pending further review of the merits of Plaintiffs’ APA challenge.
iii. Final Agency Action Lastly, the government argues that there is no legal basis for the district court to have issued the § 705 Stay because the reimplementation of Remain in Mexico does not constitute a discrete and final agency action reviewable under the APA. An agency action is deemed final if two conditions are met. First, the action “must mark the consummation of the agency’s decisionmaking process” and “must not be of a merely tentative or interlocutory nature.” Bennett v. Spear , 520 U.S. 154, 177–78 (1997) (internal quotation marks and citation omitted). “And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.” at 178 (internal quotation marks omitted).
The 2019 version of MPP and its 2025 reimplementation
each constituted final agency action. The district court
correctly concluded that legal consequences flowed or will
flow from MPP’s 2019 implementation and its 2025
reimplementation because those actions had an “actual or
immediately threatened effect” on both ImmDef and the
population it serves.
Lujan
,
The reimplementation of Remain in Mexico similarly
*24
constituted the consummation of DHS’s decisionmaking
process as distinguished from the policy decisions of the
prior administration’s DHS. On January 20, 2025, the
Trump administration issued an executive order announcing
its decision to reimplement Remain in Mexico based on the
original 2019 policy documents. The next day, DHS
announced that it would “restart[] the Migrant Protection
Protocols (MPP) immediately.” These actions “mark[ed]
the consummation of the agency’s decisionmaking process.”
Spear
,
Accordingly, the second Trump administration’s reimplementation of MPP constituted a reversal of the previous final administrative action and was a deliberate decision to reinstitute Remain in Mexico. As discussed, this agency action will cause new legal and practical effects to flow from it that have not been in effect for years. See id. Under these circumstances, we conclude that the reimplementation of Remain in Mexico is a final agency action subject to APA review.
b. ImmDef’s Statutory APA Claims
ImmDef has shown that the Remain in Mexico reimplementation likely violates the APA by infringing the right to apply for asylum with the assistance of counsel as codified in the INA. ImmDef has shown a strong likelihood of success on the merits of these claims.
The APA provides for judicial review of final agency
actions. 5 U.S.C. §§ 702, 706. A reviewing court shall “hold
unlawful and set aside agency action, findings, and
conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law . . . [and]
in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right[.]” 5 U.S.C. § 706(2)(A). Agency
action is arbitrary and capricious where the agency “relied
on factors which Congress has not intended it to consider”
or “entirely failed to consider an important aspect of the
*25
problem.”
Motor Vehicle Mfrs. Ass’n v. State Farm Mut.
Auto. Ins. Co.
,
The agency must examine relevant data and articulate a
satisfactory explanation for its action, including a “rational
connection between the facts found and the choice made.”
Id.
(quoting
Burlington Truck Lines v. United States
, 371
U.S. 156, 168 (1962)). The agency must also “be cognizant
that longstanding policies may have ‘engendered serious
reliance interests that must be taken into account.’”
Dep’t of
Homeland Sec. v. Regents of Univ. of Cal.
,
The district
court
correctly
concluded
that
§ 1225(b)(2)(C), which provides that an asylum applicant
arriving by land from a contiguous country may be returned
to that territory, does not permit the government to abrogate
“the legal rights bestowed upon asylum seekers by
Congress.”
Immigrant Defs. L. Ctr.
,
The government resists this conclusion and argues that there can be no violation of 8 U.S.C. § 1158(a)(1) because Remain in Mexico does not “bar [noncitizens] from applying for asylum.” The record does not bear this out. Indeed, DHS’s October 2021 rescission memo underscored that “the key predicate on which the statutory authority underlying [Remain in Mexico] is built—that noncitizens stay in Mexico and continue to participate in their removal proceedings—was upended by reality in too many cases.” The government found that “insecurity in Mexico and inadequate notice about court hearings” likely caused the disproportionate increase in in absentia orders of removal and terminations of proceedings for noncitizens enrolled in [Remain in Mexico], with their rate of in absentia orders and terminations “three-and-a-half times higher than the in absentia rate for comparable noncitizens not enrolled in [Remain in Mexico].” Moreover, DHS’s data reflected that noncitizens enrolled in Remain in Mexico were also significantly less likely to receive relief, with a “remarkably low 1.1 percent grant rate for MPP cases,” approximately two-fifths the rate of comparable non-MPP cases. The record at this stage of the proceedings firmly supports Plaintiff’s claims. The burdens imposed upon the right to apply for asylum with the assistance of counsel are severe and have the effect of barring swaths of noncitizens from exercising their statutory right to apply for asylum.
The government also disputes the district court’s ruling that 8 U.S.C. § 1229 mandates “the right to contact counsel and the time, space, and ability to consult with counsel safely and confidentially.” Immigrant Defs. L. Ctr. , 2025 WL 1172442, at *21. But the government fails to acknowledge that noncitizens’ “fundamental” right to counsel “must be respected in substance as well as in name” and the unprecedented difficulty for ImmDef to provide representation in the United States to respondents who are only allowed to consult with their attorneys for one hour prior to their hearing. Orantes-Hernandez v. Thornburgh , *27 34 I MMIGRANT D EFENDERS L AW C ENTER V . N OEM 919 F.2d 549, 554 (9th Cir. 1990) (citation modified). Similarly, in Orantes-Hernandez , we found that “the provisions of the district court’s injunction designed to ensure access to counsel were appropriate remedies for a pattern of practices which severely impeded class members from communicating with counsel.” Id. at 566–67.
In
Orantes-Hernandez
, noncitizens “were frequently
detained far from where potential counsel or existing counsel
were located,” noncitizens experienced “limited attorney
visitation hours at several detention centers,” “inadequate
efforts to ensure the privacy of both in-person and telephonic
attorney-client interviews interfered with the attorney-client
relationship,” and detained noncitizens “experienced
difficulty reaching counsel when using collect call
telephones” and “the system of informing detainees of
attorneys’ phone calls was not reliable.”
Id.
at 565–66.
These are the same types of improper restrictions ImmDef
alleges here. For example, ImmDef alleges that “[i]n-person
attorney-client consultations were limited to an illusory one-
hour window before a scheduled hearing.” SAC at 24.
“Even when these meetings could take place, legal
representatives were forced to meet with their clients in a
public setting, where they could not speak confidentially.”
Id.
Moreover, “[u]nrepresented individuals were prohibited
even from approaching legal representatives present in the
immigration court to discuss possible representation.” at
24, 47. Moreover, as the district court aptly observed, “the
[g]overnment cannot actively facilitate a breakdown in
ongoing or potential attorney-client relationships, and then
claim no responsibility or control over it.”
Immigrant Defs.
L. Ctr.
,
Finally, the government’s argument that the district court has made an “effort to read the contiguous-territory return authority out of the INA,” is unlikely to succeed. ImmDef does not challenge the legality of contiguous-territory return in general. Rather, it specifically challenges the *28 government’s reimplementation of this policy—Remain in Mexico—because such reimplementation will likely violate procedural rights enshrined in the INA. The district court correctly concluded that the government’s authority under 8 U.S.C. § 1225(b)(2)(C) must be exercised in accordance with the INA’s other provisions, including 8 U.S.C. §§ 1158(d)(4)(A), 1229a(b)(4)(A), 1362. , at *20 (citing Epic Sys. Corp. v. Lewis , 584 U.S. 497, 502 (2018) (requiring courts to interpret statutes as a “harmonious whole rather than at war with one another”)). ImmDef has shown a likelihood of success on the merits of its APA claims.
2. Irreparable Harm
The irreparable harm to the government discussed above
applies here as well. While the evidence is somewhat scant,
we acknowledge the harms involved in denying the duly
elected branches the policies of their choice.
See Trump v.
CASA
,
Inc.
,
3. Public Interest and Balancing of the Harms Where the government is the opposing party, balancing of the harms and the public interest merge. See Nken , 556 U.S. at 435. Thus, the Court here must balance the public’s interest in “prompt execution” of the immigration laws with potential harms to ImmDef. Id. at 436.
The government argues that challenges to DHS’s discretion on how best to enforce immigration law implicate an inherent executive power. Trump v. Hawaii , 585 U.S. 667, 684 (2018) (explaining that 8 U.S.C. § 1182(f) “exudes deference to the President” and “vests the President with ample power to impose entry restrictions in addition to those elsewhere enumerated in the INA” (citation modified)). For the government, the § 705 Stay prevents DHS from reinstating a discretionary program and would thus interfere with a core constitutional power conferred on the Executive Branch, inflicting irreparable injury to the interests of the government and the public.
For ImmDef, the Remain in Mexico reimplementation would inflict many, if not all, of the same harms the organization faced during the initial roll out of the policy in 2019. ImmDef’s “MPP 1.0 clients faced extraordinary risks to their personal safety,” and some were “kidnapped, tortured, or assaulted in Mexico while waiting for their *29 hearings.” The harms suffered by ImmDef’s clients correspond to those reported by Human Rights Watch, which found that asylum seekers returned under MPP 1.0 were subjected to “rape, kidnapping, sexual exploitation, assault, and other violent crimes.” These dangerous conditions impeded ImmDef’s attorneys’ ability to provide representation, as it was “impossible to know” whether certain clients “had given up and left Mexico, whether they were alive, or whether they would get in touch with me after being released by a cartel.” Because of these conditions, ImmDef had to “divert even more resources to these cases.” To reach these individuals and adequately and ethically represent them, ImmDef will once again have to incur “significantly more expensive . . .[a]dditional costs related to MPP representation,” such as “travel expenses,” “phones with international plans,” “salaries for staff in San Diego,” and “rental of space to meet with clients in Tijuana.” SAC at 69–72.
Additionally, Remain in Mexico places time limits and restrictions on when and how ImmDef staff can communicate with their clients prior to court hearings. For instance, the 2019 directive establishing the one-hour limit before a court hearing is a component of Remain in Mexico that the government has confirmed is part of the “current operative guidance” for its reimplementation. Immigrant Defs. L. Ctr. , 2025 WL 1172442, at *24. According to ImmDef, “[i]n practice, [they] were often given less than an hour for these meetings, during which an Immigration and Customs Enforcement (ICE) officer was always present— making it impossible for [them] to have private conversations with [their]clients.”
Between January 2019 and November 2020, ImmDef also spent approximately $400,000 on costs associated with launching and sustaining its CBI to provide legal services for MPP clients. In 2021, ImmDef’s funding for the CBI was $210,000, a substantial portion of which was associated with representing MPP clients. Since MPP effectively ended in the summer of 2021, ImmDef explains that it “has reprioritized and expanded its legal representation programs for noncitizen children and adults in and around southern California,” especially in San Diego. ImmDef’s primary work in Mexico has been conducting “Know Your Rights” presentations and providing legal consultations in migrant shelters. The reinstatement of the 2019 MPP policy *30 38 I MMIGRANT D EFENDERS L AW C ENTER V . N OEM threatens to undermine ImmDef’s existing programs, force it to expend additional resources on carrying out its longstanding mission, and diminish its overall capacity to provide removal defense assistance. Havens Realty , 455 U.S. at 379.
At this stage, we find that the substantial and concrete harm that ImmDef will suffer upon reimplementation of MPP likely outweighs the harm to the government and public’s interest in the Executive Branch exercising its contiguous-territory return authority without restriction in the form of the Remain in Mexico policy. For ImmDef, these harms include impairment to its ability to provide meaningful legal representation to clients in removal proceedings; the jeopardizing of the safety of its staff; threats to its financial stability; and otherwise the undermining of its core business activities.
IV. SCOPE OF STAY
Part of the government’s motion for a stay pending appeal asked this Court to limit the nationwide scope of the district court’s § 705 Stay. The government reemphasized this request in its supplemental briefing, stating that we should, “at minimum, grant a partial stay limiting the district court’s order to exempting ImmDef’s clients from MPP.” Gov’t Supp. Br. 10 [Dkt. No. 40]. At this stage in the litigation, we agree that limiting the district court’s order to ImmDef’s current and future clients is the more equitable approach “to preserve status [and] rights pending conclusion of the review proceedings,” 5 U.S.C. § 705.
Section 705 of the APA grants courts the power to issue
all “necessary and appropriate process” tailored to the
circumstances of a particular case to “preserve status or
rights.” Though the Supreme Court’s recent
Trump v.
*31
CASA, Inc.
decision explicitly declined to extend its holding
to the APA context,
see
Accordingly, we grant the government’s motion for a stay pending appeal in part. During the pendency of this appeal, we limit the district court’s § 705 Stay order to “exempting ImmDef’s [current and future] clients from MPP.” Gov’t Supp. Br. 10 [Dkt. No. 40]. As the government acknowledges, “ImmDef would receive ‘complete relief’ if the government were barred from applying MPP’s ‘reimplementation’ to its clients and only its clients.” Therefore, no current or future clients of ImmDef shall be enrolled in MPP during the pendency of this appeal.
CONCLUSION
ImmDef’s motion to dismiss the appeal is DENIED and the government’s motion for a stay pending appeal is GRANTED IN PART . The Court will set an expedited briefing schedule for the merits appeal of the district court’s § 705 Stay in due course.
R. NELSON, Circuit Judge, dissenting:
Yet again, a majority panel of our court resists direction
from the Supreme Court. Five years ago, a divided panel of
our court affirmed a preliminary injunction that blocked
enforcement of the Migrant Protection Protocols (MPP).
Innovation L. Lab v. Wolf
,
When it comes to the Trump Administration’s policies, the Supreme Court’s rulings are often unfairly disparaged as rubber stamps for the Administration. One Justice infamously called a recent Court decision an “existential threat to the rule of law.” Trump v. CASA, Inc. , No. 24A884, slip op. at 1 (U.S. June 27, 2025) (Jackson, J., dissenting). But the real threat to our republic are lower courts like the district court that, by placing policy ideals over judicial analysis in immigration cases, force the Supreme Court to address poorly reasoned decisions of social and political import in an emergency posture.
The majority does not defend the district court’s faulty
First Amendment holding and cabins the district court’s
error by limiting the stay to Appellant. Still, the majority
affirms the district court’s policy-based reasoning on the
Administrative Procedure Act (APA) claims with little
additional legal analysis. And the majority’s decision is
particularly troubling because an existing nationwide stay
bars the Government from terminating MPP.
Texas v. Biden
,
Time and again, the Supreme Court has held that the
Constitution gives the political branches near plenary
authority over immigration.
See Reno v. Flores
, 507 U.S.
292, 305 (1993). The right to exclude aliens “is inherent in
the executive power.”
United States ex rel. Knauff v.
Shaughnessy
,
Given the emergency posture, I only address the issues
as framed by the parties. That said, the Government has
carried its burden on all four
Nken
factors: likelihood of
success, irreparable harm, the balance of equities, and the
public interest.
Nken v. Holder
,
I A In 2019, the Department of Homeland Security (DHS) implemented MPP—known as Remain in Mexico—to address a “humanitarian and border security crisis” in which federal officials encountered up to 4,800 inadmissible aliens each day. Texas v. Biden , 554 F. Supp. 3d 818, 831–32 (N.D. Tex. 2021). For years, DHS lacked the resources to detain most aliens while their removal proceedings were ongoing, even though the law typically requires detention. See 8 U.S.C. § 1225(b)(2)(A). As a result, DHS had to release thousands of undocumented aliens into the United States and cross its fingers that they would appear voluntarily for their removal proceedings. Texas v. Biden , 20 F.4th 928, 944 (5th Cir. 2021). That was particularly troubling since most aliens (upwards of 80 percent) advanced bogus asylum claims, see Texas , 554 F. Supp. 3d at 831, aided in their manipulation of the process by groups such as the Immigrant Defenders Law Center (ImmDef). *34 I MMIGRANT D EFENDERS L AW C ENTER V . N OEM 43 Legal immigration—necessary for the country and legitimate asylum seekers—suffered.
MPP addresses this problem by requiring that certain
aliens arriving by land from Mexico be returned to Mexico
while their removal proceedings are ongoing.
See Texas
, 20
F.4th at 944
.
The policy spares DHS from detaining those
aliens “at considerable expense,” or else “allow[ing them] to
reside in this country, with the attendant risk that [they] may
not later be found.”
Dep’t of Homeland Sec. v.
Thuraissigiam
,
Congress expressly authorized MPP in the Immigration and Nationality Act (INA). See Pub. L. No. 104-208, 110 Stat. 3009–583 (1996). The INA provides that “[i]n the case of an alien . . . who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a [removal] proceeding under section 1229a of this title.” [2] 8 U.S.C. § 1225(b)(2)(C). This contiguous-territory return authority codifies the Government’s “long-standing practice” of requiring some aliens to await removal proceedings abroad. Matter of M-D-C-V- , 28 I. & N. Dec. 18, 25 (BIA 2020).
B
MPP is no stranger to the federal courts. In April 2019,
a district court in our circuit preliminarily enjoined MPP
nationwide.
Innovation L. Lab v. Nielsen
, 366 F. Supp. 3d
1110, 1114, 1130 (N.D. Cal. 2019). After we affirmed in a
divided opinion, the Supreme Court stayed the district
*35
certiorari to review our decision affirming that injunction.
Wolf
,
While briefing was underway, DHS—after President Biden took office—announced that it would suspend new enrollments in MPP pending further review. Texas , 554 F. Supp. 3d at 836; see also Exec. Order No. 14010, 86 Fed. Reg. 8267, 8269 (2021) (directing the DHS Secretary to “promptly review and determine whether to terminate or modify the [MPP] program”). In 2021, then-DHS Secretary Mayorkas issued two memoranda officially terminating MPP. Texas , 20 F.4th at 945–46. The Supreme Court vacated our judgment and remanded with instructions to direct the district court to vacate as moot its order enjoining MPP. Mayorkas v. Innovation L. Lab , 141 S. Ct. 2842 (2021) (citing United States v. Munsingwear, Inc. , 340 U.S. 36 (1950)). The case was never litigated on the merits.
Still, DHS’s termination of MPP sparked its own
litigation. Texas and Missouri sued in the Northern District
of Texas and, after a bench trial, the district court entered
judgment for the States.
Texas
,
The Supreme Court reversed.
Biden v. Texas
, 597 U.S.
785, 814 (2022). On remand, the district court lifted its
original injunction.
Texas
,
This complex history leads to a simple point: MPP has *36 never been rescinded. That said, the policy has not been widely applied for several years. Though the Mexican government at first cooperated with MPP, Texas , 554 F. Supp. 3d at 832, it later withdrew consent for the United States to unilaterally return aliens to Mexico, see Defendants’ Supplemental Response Brief in Support of Summary Judgment at 4, Texas v. Biden , No. 21-cv-0067 (N.D. Tex. Oct. 6, 2023), Dkt. 205. According to the Government’s representation in the Texas litigation, Mexico’s “withdrawal of consent render[ed] restarting MPP impossible.” Id.
Earlier this year, DHS announced that the “situation at the border has changed and the facts on the ground are favorable to resuming implementation of the 2019 MPP Policy.” DHS Reinstates Migrant Protection Protocols, Allowing Officials to Return Applicants to Neighboring Countries , U.S. Dep’t of Homeland Sec. (Jan. 21, 2025), https://perma.cc/6VST-YCA8. DHS immediately began reinstating the policy in line with the President’s day-one directive: “[T]ake all appropriate action to resume the Migrant Protection Protocols in all sectors along the southern border of the United States.” Exec. Order No. 14165, 90 Fed. Reg. 8467, 8468 (Jan. 20, 2025). So began the “reimplementation” of MPP.
C
ImmDef is a nonprofit law firm that provides
immigration-related services
to clients
in southern
California. In MPP’s early days, ImmDef—along with
several other Plaintiffs—challenged the policy in the Central
District of California.
Immigrant Defs. L. Ctr. v. Noem
, No.
20-cv-9893, 2025 WL 1172442, at *1 (C.D. Cal. Apr. 16,
2025). Plaintiffs filed a second amended complaint in
December 2021, after the Texas district court’s injunction
requiring DHS to enforce MPP in good faith.
Id.
;
see Texas
,
The litigation picked up speed after the new Administration revived its earlier efforts to secure the *37 border. ImmDef—alone among Plaintiffs—moved for an ex parte emergency order staying MPP’s reimplementation while this litigation plays out. Id. at *2. ImmDef asserted that it would suffer irreparable harm without immediate relief, that it is likely to succeed on the merits, and that the balance of equities and public interest “tip sharply in its favor.” Id. at *6.
The district court granted ImmDef’s motion, issuing a
nationwide stay under § 705 of the APA that blocks MPP’s
reimplementation for the rest of this case.
Id.
at *25. The
district court concluded that ImmDef had standing to
challenge MPP’s reimplementation.
[3]
Id.
at *7–10. The
court also determined that a § 705 stay would comply with 8
U.S.C. § 1252(f)(1)—which generally bars lower courts
from ordering class-wide relief that enjoins or restrains the
operation of specific provisions in the INA, including the
statutory authority for MPP.
Id.
at *13–15;
see Garland v.
Aleman Gonzalez
,
As for ImmDef’s likelihood of success on the merits, the district court reasoned that MPP violates the First Amendment by imposing barriers on ImmDef’s ability to advise current and future clients. Immigrant Defs. L. Ctr. , 2025 WL 1172442, at *17–19. It also found that MPP impeded asylum seekers’ access to counsel, and that “trapping” individuals in Mexico makes it harder for them to apply for asylum. Id. at *20–22. On the remaining stay factors, the district court noted that ImmDef would suffer irreparable harm without a stay, and that the equities and public interest cut in ImmDef’s favor. at *22–25.
The Government asked the district court to put its decision on hold pending appeal. When the district court refused, the Government moved for an emergency stay from *38 48 I MMIGRANT D EFENDERS L AW C ENTER V . N OEM our court, which we agreed to consider on an expedited basis.
II
Four factors dictate whether to grant a stay pending
appeal: “(1) whether the stay applicant has made a strong
showing that [it] is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding; and
(4) where the public interest lies.”
Nken
, 556 U.S. at 434
(quotation omitted). Though the “first two factors . . . are
the most critical,”
id.
, the Government wins on all four.
Because we are reviewing legal questions, our review is de
novo.
See Where Do We Go Berkeley v. Cal. Dep’t of
Transp.
,
A
The Government is likely to succeed on appeal. [4] For one, ImmDef lacks Article III standing. And even if ImmDef did have standing, its First Amendment and APA claims have no merit.
1
a
Article III of the Constitution gives us the power to
decide only genuine “Cases” and “Controversies.” U.S.
*39
stake in the case—in other words, standing.” (internal
quotation marks omitted). The standing requirement guards
against those who wish to use the courts for “general
complaints about the way in which government goes about
its business.”
Allen v. Wright
, 468 U.S. 737, 760 (1984).
The principle is no less important for organizational
plaintiffs, whose “standing is not measured by the intensity
of the litigant’s interest or the fervor of his advocacy.”
Valley Forge Christian Coll. v. Ams. United for Separation
of Church & State
,
To establish standing, a plaintiff must show that it has
“(1) suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.”
Spokeo,
Inc. v. Robins
, 578 U.S. 330, 338 (2016). Without these
showings, “there is no case or controversy for [us] to
resolve.”
TransUnion
,
The usual requirements also govern organizational
plaintiffs, who may have standing “to sue on their own
behalf for injuries they have sustained.”
Havens Realty
Corp. v. Coleman
, 455 U.S. 363, 379 n.19 (1982).
[5]
The
*40
missions.’”
Id.
at 394. “That argument,” the Court held,
“does not work to demonstrate standing.”
Id.
Just as an
individual may not establish standing because of “strong
opposition to the government’s conduct,” an organization
“must show ‘far more than simply a setback to [its] abstract
social interests.’”
Id.
(quoting
Havens
, 455 U.S. at 379).
That remains true “no matter how longstanding the interest
and no matter how qualified the organization.”
Id.
(quoting
Sierra Club v. Morton
,
organization is not injured for purposes of standing simply because the challenged action frustrates its mission.
Putting aside their organizational mission, the medical associations also claimed standing “based on their incurring costs to oppose FDA’s actions.” Id. In their view, FDA “caused” them to conduct their own studies to better inform their members and the public about the risks of mifepristone. Id. They also alleged that FDA “forced” them to “expend considerable time, energy, and resources” drafting petitions and engaging in other advocacy efforts. Id. All these activities, the medical associations maintained, required the expenditure of “‘considerable resources’ to the detriment of other spending priorities.” Id.
None of that mattered to the Court’s standing analysis. In the Court’s words, “an organization that has not suffered a concrete injury caused by a defendant’s action cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action.” Id. “An organization cannot manufacture its own standing in that way.” ; see Clapper v. Amnesty Int’l USA , 568 U.S. 398, 416 (2013) (no standing where plaintiffs “inflict[ed] harm on themselves” by “incurr[ing] certain costs” in response to defendant’s actions). The second takeaway from Hippocratic Medicine is as clear as the first: an organization cannot establish standing by diverting resources to counter the challenged action, even if it means taking away resources from other organizational priorities.
In reaching this conclusion, the Court cabined
Havens
,
which the medical associations understood as endorsing a
diversion-of-resources theory.
Hippocratic Med.
, 602 U.S.
at 395. The defendant company in
Havens
owned and
operated two apartment complexes—one predominately
*41
52
I MMIGRANT D EFENDERS L AW C ENTER V . N OEM occupied by whites, and another racially integrated.
Havens
,
The Supreme Court held that HOME had organizational standing to challenge the company’s racial steering practices. Id. at 379. HOME alleged in its complaint that those practices “frustrated” the organization’s “efforts to assist equal access to housing through counseling and other referral services,” and required the organization “to devote significant resources to identify and counteract” the practices. Id. HOME suffered an injury in fact, the Court reasoned, because the company’s steering practices “perceptibly impaired HOME’s ability to provide counseling and referral services for low- and moderate- income homeseekers.” Id. The Court concluded that HOME alleged a “concrete and demonstrable injury to the organization’s activities—with [a] consequent drain on [its] resources.”
The medical associations in
Hippocratic Medicine
latched onto this language, arguing that standing exists under
Havens
“when an organization diverts its resources in
response to a defendant’s actions.”
Hippocratic Med.
, 602
U.S. at 395. That reading, the Court explained, “is
incorrect.”
Id. Havens
turned not on diversion of resources,
but on direct interference to HOME’s “core business
*42
activities.”
Id.
“Critically, HOME not only was an issue-
advocacy organization, but also operated a housing
counseling service.”
Id.
(citing
Havens
,
Viewed that way,
Havens
did not support the medical
associations’ standing. The associations had not alleged “the
kind of injury” at issue in
Havens
, and FDA’s actions did not
“impose[] any similar impediment to [their] advocacy
businesses.”
Id.
“At most,” the Court continued, the
medical associations alleged that “FDA [was] not properly
collecting
and
disseminating
information
about
mifepristone.”
Id.
But at no point had the medical
associations “claimed an informational injury,” nor had they
suggested that FDA had a statutory obligation to publicly
release information about mifepristone upon request. at
395–96 (citing
FEC v. Akins
,
Hippocratic Medicine also leaves open the possibility that an organization could establish standing without relying on Havens . While not relevant to ImmDef’s alleged injury, the Court suggested that the medical associations may have had standing if they adequately alleged an informational injury apart from Havens ’ “core business activities” test. See id. at 395–96. And nothing in Hippocratic Medicine suggests that an organization would not be injured if it was, say, the “object” of a government regulation that does not interfere with the organization’s core business activities. See *44 organizational standing cases were out of step with modern standing doctrine. [8]
*45 I MMIGRANT D EFENDERS L AW C ENTER V . N OEM 57 areas. See Second Amended Complaint for Injunctive Relief and Declaratory Relief (SAC) at 69, Immigrant Defs. L. Ctr. v. Noem , No. 20-cv-9893 (C.D. Cal. Dec. 22, 2021), Dkt. 175. Later, “[i]n response to Defendants’ implementation of [MPP],” ImmDef shifted focus by establishing “its Cross Border Initiative (CBI), which focuses on providing direct representation, pro se assistance, and advocacy to individuals subjected to MPP.” Id. “To represent individuals subjected to [MPP],” ImmDef had to “undertake two new ventures.” Id. First, it began “representing individuals in the San Diego immigration court.” Id. Second, it initiated “cross-border travel and communication.” Id. Both ventures, ImmDef alleged, “required new infrastructure, staff, materials, and funding.” Id.
ImmDef also clarified that it “diverted substantial resources” from other projects “to support the expansion of MPP-related work.” at 70. ImmDef’s February 2025 stay motion described how, because of MPP, the organization began “to reallocate staff time, expend significant time and financial resources, send its staff to Mexico, and [] rent a new office, all at the expense of its core programs.” Plaintiff Immigrant Defenders Law Center’s Memorandum of Points and Authorities in Support of Ex Parte Application for a Stay of Agency Action Under 5 U.S.C. § 705 (Memorandum) at 21, Immigrant Defs. L. Ctr. v. Noem , No. 20-cv-9893 (C.D. Cal. Feb. 11, 2025), Dkt. 371-1. As ImmDef summarized in its second amended complaint: “[T]he manner in which Defendants implemented [MPP] . . . frustrate[s] [the] Organizational Plaintiffs’ missions and require[s] them to expend resources they otherwise would invest in other programs.” SAC at 68– 69.
That theory of harm is untenable after
Hippocratic
Medicine
. No longer can an organizational plaintiff rely on
a frustration-of-mission or diversion-of-resources theory to
*46
support its standing.
Hippocratic Med.
,
ImmDef’s disconnect on alleging harms
is
understandable. ImmDef filed its second amended
complaint in December 2021, over two years before
Hippocratic Medicine. See
SAC at 98. It reasonably
believed that it had standing under our frustration-of-mission
and diversion-of-resource cases, which are now effectively
overruled.
See, e.g.
,
Sabra
,
Recognizing the conundrum, ImmDef and the majority refashion the allegations as interference with ImmDef’s core business activities. See Order at 23–25. In their telling, ImmDef had to divert resources in response to MPP to continue carrying out its core activities—which ImmDef characterizes in its briefing on appeal as “providing direct representation, counseling, and legal assistance to noncitizens in removal proceedings in and around southern California, with the goal of providing universal representation.” See id.
Two problems there. First, ImmDef twists the facts. The organization’s post-MPP initiatives are not mere extensions of its core business activities; they are new activities altogether. ImmDef concedes that its pre-MPP core activities never required cross-border work. SAC at 69. Nor did those activities involve representing clients before the San Diego immigration court. In other words, ImmDef changed its business activities in response to MPP. That cannot support standing under Havens or Hippocratic Medicine , both of which analyzed the interference with the organization’s core activities as they existed at the time of the challenged conduct. See Hippocratic Med. , 602 U.S. at 395 (citing Havens , 455 U.S. at 379). And in any case, *47 ImmDef cannot seem to get its story straight on what exactly its core activities are. In its stay motion before the district court, ImmDef alleged that “in order to represent its clients competently and serve asylum seekers subjected to MPP,” it was forced to reallocate resources to its MPP-related initiatives, “all at the expense of its core programs.” Memorandum at 21 (emphasis added). Apparently, such “core programs” do not include responding to MPP.
The majority’s own description of ImmDef’s injuries makes my point. ImmDef, the majority explains, “had to expend resources to counteract and offset the barriers that MPP imposed.” Order at 24. The majority further notes that, to reach MPP clients, ImmDef will allegedly have to “hire additional staff, expand its office space, conduct additional fundraising efforts, increase travel to Mexico, and divert staff resources away from other projects towards MPP- related projects.” The majority relies on the exact theory of injury that the Supreme Court just rejected as a basis for . organizational standing. See Hippocratic Med. , 602 U.S. at 394 (“[A]n organization . . . cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action.”). Inexplicably, the majority asserts that ImmDef is “similarly situated” to HOME. Order at 25. But ImmDef, unlike HOME, does not claim an informational injury. Nor does ImmDef allege a similarly direct interference with its pre-existing core business activities. ImmDef’s alleged injuries look nothing like the injuries claimed in Havens ; they resemble the exact harms rejected in Hippocratic Medicine
Instead of faithfully applying the Supreme Court’s
instructions, the majority shoehorns ImmDef’s outdated
allegations into
Hippocratic Medicine
’s “core business
activities.”
Hippocratic Med.
,
These fundamental errors are made worse because ImmDef and the majority frame the organization’s core business activities at too high a level of generality. See Order at 23–25. Even before Hippocratic Medicine , we advised that “an organization cannot manufacture standing merely by defining its mission with hydra-like or extremely broad aspirational goals.” Nielsen v. Thornell , 101 F.4th 1164, 1170 (9th Cir. 2024). The same goes for an organization’s core activities. Without a sufficiently discrete definition, an organization can assert that virtually any *48 challenged action interferes with its broadly defined “activities.” And if courts hew to the majority’s tactic and allow organizations to reconceptualize their core business activities in response to government action, organizational standing will devolve into exactly what the Supreme Court . 61 cautioned against in Hippocratic Medicine : a loophole for vindicating “general legal, moral, ideological, or policy objection[s]” without the kind of injury required to satisfy Article III. See 602 U.S. at 381. The majority sanctions ImmDef’s end-run around such a basic constitutional principle.
To sum up, the Government is likely to prevail on appeal based on standing alone. Though ImmDef’s frustration-of- mission and diversion-of resource theories may have worked in a bygone era, we are operating today with a new conception of organizational standing. Under Hippocratic Medicine , ImmDef has not met the constitutional requirements to challenge the reimplementation of MPP.
The Government is likely to prevail for another reason: even if ImmDef had standing, its First Amendment and APA claims fail.
a
ImmDef alleges that MPP violates its First Amendment
right to advise potential and existing clients
See In re
Primus
,
With that in mind, ImmDef focuses on MPP’s implementing guidance. It singles out a requirement that the Government bring MPP aliens from Mexico to a federal courthouse in the United States at least one hour before their immigration hearing. See SAC at 24, 71, 94. ImmDef is allowed to advise its clients during this one-hour window. Yet, in ImmDef’s view, one hour is too short. See id. Combined with a lack of “viable alternative channels” to advise MPP asylum seekers while they are in Mexico, the one-hour limit allegedly violates ImmDef’s First Amendment rights to solicit and consult its clients. at 94.
The district court credited ImmDef’s argument, held that MPP’s burdens on protected speech fail intermediate or strict scrutiny, and stayed MPP in its entirety. Immigrant Defs. L. Ctr. , 2025 WL 1172442, at *17–19. As the majority implicitly acknowledges, that was wrong.
Assuming MPP’s implementing guidance has anything
to do with speech, it does no more than impose content-
neutral time, place, and manner restrictions on ImmDef’s
communications with existing and prospective clients. Such
restrictions do not violate the First Amendment so long as
*50
they are “narrowly tailored to serve a significant
governmental interest” and “leave open ample alternative
channels for communication.”
Kuba v. 1-A Agric. Ass’n
,
387 F.3d 850, 858 (9th Cir. 2004) (quoting
Ward v. Rock
Against Racism
,
The one-hour limit satisfies both conditions. The district court discounted the Government’s strong interest in protecting the country’s borders. See Plyler v. Doe , 457 U.S. 202, 225 (1982) (“The obvious need for delicate policy judgments has counseled the Judicial Branch to avoid intru[ding] into” matters involving “admission to our Nation and status within our borders.”). And, in any event, ImmDef has no explanation for why the one-hour limit is not narrowly tailored. Moreover, ImmDef’s point about alternative communication channels holds little water: MPP and its implementing guidance do not restrict attorney-client communications in the days and weeks before a client’s hearing. See Defendants’ Opposition to Plaintiff Immigrant Defenders Law Center’s Ex Parte Application for a Stay of Agency Action Under 5 U.S.C. § 705 at 19 & n.7, Immigrant Defs. L. Ctr. v. Noem , No. 20-cv-9893 (C.D. Cal. Feb. 25, 2025), Dkt. 378; see also Oral Arg. at 38:49–39:00 (ImmDef conceding that MPP does not prevent its lawyers from traveling to Mexico to meet with clients).
ImmDef counters that it is not a “meaningful” alternative
to communicate with MPP clients outside of a federal
courthouse—whether because “health, safety, and resource
constraints” prevent ImmDef attorneys from traveling to
Mexico, or because “[c]ommunication by telephone or
internet” is “unreliable.” SAC at 92. Even so, it does not
follow that MPP or its implementing guidance violate the
First Amendment. A content-neutral regulation is not
invalid simply because “the government’s interest could be
adequately
served by
some
less-speech-restrictive
alternative.”
TikTok Inc. v. Garland
, 145 S. Ct. 57, 71
(2025) (quoting
Ward
,
The district court also suggested that MPP violates the *51 First Amendment because the Government “forbade” ImmDef from providing “Know Your Rights” presentations to asylum seekers. Immigrant Defs. L. Ctr. , 2025 WL 1172442, at *19. It is unclear where the district court got this. ImmDef’s own complaint confirms that it “continues to conduct virtual Know Your Rights presentations” and, “as of September 28, 2021,” had “resumed in-person presentations.” SAC at 72. Maybe the district court confused ImmDef with the other organizational plaintiff, Jewish Family Service (JFS), which did allege that the Government denied its request to conduct a Know Your Rights session for potential MPP clients. at 75. But ImmDef makes no mention of its standing to challenge that denial on behalf of JFS. And ImmDef does not explain why the First Amendment requires the Government to open courthouses for legal presentations. See U.S. Postal Serv. v. Council of Greenburgh Civic Ass’ns , 453 U.S. 114, 129 (1981) (“[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government.”). This First Amendment argument, like ImmDef’s challenge to the one-hour limit, fails on multiple grounds.
b
Next, ImmDef claims that MPP violates the right to
apply for asylum, rendering the policy “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law” under the APA.
Fejes v. FAA
,
The INA permits an alien “who is physically present in the United States or who arrives in the United States” to apply for asylum. 8 U.S.C. § 1158(a)(1). The statutory right, however, may be exercised only “in accordance with this section or, where applicable, section 1225(b) of this title.” Id. (emphasis added). And § 1225(b) provides the express authority for MPP. See id. § 1225(b)(2)(C). It follows that Congress limited an alien’s right to apply for asylum when the Government is exercising its contiguous- territory return authority under § 1225(b)(2)(C). See Thuraissigiam , 591 U.S. at 140 (“[A]n alien . . . has only *52 claim is distinct from the right to counsel claim. See SAC at 83, 85. 66 I MMIGRANT D EFENDERS L AW C ENTER V . N OEM those rights regarding admission that Congress has provided by statute.”). In such cases, an alien can apply for asylum during the § 1229a removal proceedings referenced in the statute. See 8 U.S.C. § 1225(b)(2)(C) (“[T]he Attorney General may return the alien to [a contiguous] territory pending a proceeding under section 1229a of this title.”).
That is the only way to make sense of the statutory scheme. The INA confers a right to apply for asylum. See 8 U.S.C. § 1158(a)(1). But it also authorizes expulsion to contiguous countries while removal proceedings play out. Id. § 1225(b)(2)(C). On ImmDef’s view, the former swallows the latter.
Courts do not read statutes to clash in that way. We have
a “duty” to interpret the INA “as a harmonious whole rather
than at war with [itself].”
Epic Sys. Corp. v. Lewis
, 584 U.S.
497, 502 (2018). Here, the right to apply for asylum and the
contiguous-territory return authority “are capable of co-
existence.”
See County of Yakima v. Confederated Tribes &
Bands of Yakima Indian Nation
,
While the majority recognizes § 1225(b)(2)(C), it effectively reads the provision out of the statutory scheme. Under the majority’s interpretation, § 1225(b)(2)(C) cannot be implemented if an alien’s ability to seek asylum is impeded. But access to the asylum process from Mexico will always be incidentally affected by MPP. Congress *53 knew as much when it enacted § 1225(b)(2)(C). Interpreting the INA as the majority does puts one section—authorizing MPP—on an unnecessary collision course with another— permitting applications for asylum.
What’s more, ImmDef’s accusations about how MPP
affects the asylum process are, at best, overblown. We have
held (wrongly) that an alien may apply for asylum while
standing on Mexican soil.
Al Otro Lado v. Exec. Off. for
Immigr. Rev.
,
Ultimately, Congress authorized contiguous-territory return as part of the INA. See 8 U.S.C. § 1225(b)(2)(C). The Government does not violate the statute by exercising that authority while still allowing aliens to apply for asylum.
c
ImmDef’s remaining APA claim is just as meritless. ImmDef alleges that MPP violates the statutory right to counsel because, again, it “trap[s] individuals in conditions that obstruct their access to legal representation.” SAC at 86. Like its First Amendment claim, ImmDef contends that MPP makes it harder for asylum seekers to obtain meaningful legal assistance by, for example, requiring them to stay in Mexico where there are “barriers to communication.” See, e.g. , id. at 38. That is not enough to show a statutory violation.
In removal proceedings, Congress gave aliens “the privilege of being represented (at no expense to the Government) by such counsel . . . as [the alien] shall choose.” 8 U.S.C. § 1362; see id. § 1229a(b)(4)(A). The alien is also entitled by regulation to a list of organizations, referral services, and attorneys qualified to provide pro bono services in immigration proceedings. 8 C.F.R. § 1003.61(b).
But that is as far as the right goes, at least with respect to
*54
aliens returned to Mexico under MPP.
See United States v.
Valdivias-Soto
,
The majority repeats ImmDef’s mistake. It asserts that
MPP violates the statutory right to counsel because it causes
“unprecedented difficulty
for
ImmDef
to provide
representation in the United States” to aliens required to
remain in Mexico. Order at 33. Putting the majority’s policy
preferences aside, nothing requires the Government to pave
the way for ImmDef to represent clients inside our borders.
Similarly, the majority cannot fall back on the principle that
the right to counsel “must be respected in substance as well
as in name.”
Id.
(quoting
Orantes-Hernandez v.
Thornburgh
, 919 F.2d 549, 554 (9th Cir. 1990)). The
majority relies on a case about aliens who were allegedly
deprived of their right to counsel while detained inside the
United States under conditions the Government controlled.
See Orantes-Hernandez
,
The most the majority can muster are citations to October 2021 memoranda laying out the Biden Administration’s rationale for terminating MPP, which included purported concerns about access to counsel. See Order at 33; see also id. at 9–10. For starters, the memoranda were issued by a prior Administration that had its own vested interest in terminating MPP. And as the majority recognizes, the Biden Administration partly justified the termination as a matter of policy, not based on a judgment about MPP’s *55 legality. See id. at 9–10. Even more, the majority fails to mention that the Texas district court stayed the memoranda in 2022, concluding that Texas and Missouri were likely to succeed on their claims that the memoranda’s reasoning was arbitrary or capricious under the APA. Texas , 646 F. Supp. 3d at 771–80, 781. In that court’s words, the October 2021 termination memoranda “abandoned statistic- based decisionmaking for intuitional decisionmaking.” at 777. The majority’s policy-driven analysis falls into the same trap.
ImmDef and the majority ignore that inconveniencing the right to counsel is different from depriving an alien of that right. Though MPP may make it harder for an alien to coordinate with a lawyer while they are abroad, it does not follow that the individual’s statutory right to counsel is violated when the Government exercises return authority that the same statute expressly allows. See 8 U.S.C. § 1225(b)(2)(C). The Government must only permit MPP aliens to be represented by a lawyer should they find one. See id. § 1362. The INA requires no more.
* * *
There is an easy way to decide this case: ImmDef lacks
Article III standing. Putting standing aside, though,
ImmDef’s merits arguments are still likely to fail. The first
Nken
factor—likelihood of success on appeal—therefore
points in the Government’s direction.
See
B
The remaining factors also favor the Government. Take
irreparable harm. The district court’s stay “‘improper[ly]
intru[des]’ on ‘a coordinate branch of the Government’” by
preventing the Executive from enforcing statutes duly
enacted by the People’s elected representatives.
CASA, Inc.
,
slip op. at 24 (maj. op.) (quoting
INS v. Legalization
Assistance Project of L.A. Cnty. Fed’n of Lab.
, 510 U.S.
1301, 1306 (1993) (O’Connor, J., in chambers));
see also
Maryland v. King
, 567 U.S. 1301, 1303 (2012)
(Roberts, C.J., in chambers) (“[A]ny time a State is enjoined
by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable
*56
I MMIGRANT D EFENDERS L AW C ENTER V . N OEM 71
injury.” (quotation omitted)). The Government’s injury is
particularly acute when it involves “a fundamental sovereign
attribute”—like immigration—that is “exercised by the
Government’s political departments largely immune from
judicial control.”
Fiallo v. Bell
,
For MPP specifically, the Supreme Court has recognized
that the policy’s “foreign affairs consequences” implicate
authority that the Constitution vests exclusively in the
Executive, like “‘direct diplomacy with foreign heads of
state and their ministers.’”
Biden
,
Indeed, the Supreme Court has recently stayed several
lower court orders that prevented the Government from
enforcing immigration laws.
See Dep’t of Homeland Sec. v.
D.V.D.
, 145 S. Ct. 2153 (2025);
Noem v. Doe
, 145 S. Ct.
1524, 1524 (2025);
Noem v. Nat’l TPS All.
, No. 24A1059,
Without intervention, the Government’s contiguous- territory return authority will suffer a significant blow. In fairness, the majority scales back the district court’s nationwide stay. See Order at 38–39. But the majority’s reasoning still discounts the fact that MPP is authorized by statute. See 8 U.S.C. § 1225(b)(2)(C). And never mind that the Supreme Court determined five years ago that an injunction against MPP irreparably harmed the Government’s sovereign authority. [10] See Wolf , 140 S. Ct. at 1564. It is unclear when this case will make it to final judgment—it has been ongoing for close to five years, and discovery alone is set to continue well into the fall. In the meantime, the district court’s stay will “compound the harm to the [G]overnment over time,” Order at 19, depriving federal officials of a critical tool for enhancing border security and facilitating legal immigration. As the majority recognizes, that harm is irreparable. See Order at 16–18, 35.
The last two factors (balance of equities and public interest) also favor the Government. To date, ImmDef has struggled to identify clients impacted by MPP. ImmDef told the district court that it has been “looking out for” a fully operationalized MPP, which it has “not yet seen.” And it *58 “compet[e] with citizens and legal resident aliens for jobs, and generat[e] extra demand for social services.” See United States v. Brignoni-Ponce , 422 U.S. 873, 878–79 (1975). MPP also diminishes the “evil effects of illegal immigration,” Arizona , 567 U.S. at 431 (Scalia, J., concurring in part and dissenting in part), as aliens with weak claims will (according to DHS) voluntarily return home rather than cross the border illegally, Texas , 554 F. Supp. 3d at 833. All these considerations warrant a stay.
III
The Government makes a compelling showing on each Nken factor. ImmDef lacks standing and raises facially implausible claims. The Government’s strong likelihood of success on appeal, combined with the irreparable harm being inflicted on the Government’s border security efforts, warrants a stay pending appeal. Because the majority rejects that straightforward conclusion and intrudes on the Executive’s sovereign prerogatives, I dissent.
Notes
[*] This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Before addressing the merits of ImmDef’s claims, the panel rejected three procedural challenges raised by the government. First, ImmDef has organizational standing to challenge the reimplementation of the Remain in Mexico policy because ImmDef has alleged a non-speculative concrete and demonstrable injury to its core activities and longstanding mission of providing direct representation, counseling, and legal assistance to noncitizens in removal proceedings. Second, 8 U.S.C. § 1252(f)(1)’s bar on injunctive relief does not bar the district court’s stay pursuant to § 705 of the Administrative Procedure Act (“APA”). Third, the reimplementation of the Remain in Mexico policy is a final agency action subject to APA review. Addressing ImmDef’s likelihood of success on the merits, the panel held that ImmDef has shown that reimplementation of the Remain in Mexico policy likely violates the APA by infringing on the right to apply for asylum with the assistance of counsel as codified in the Immigration and Nationality Act. Addressing irreparable harm, the panel held that the government has made a showing of irreparable harm, albeit a weak one at this juncture in the litigation. Addressing the public interest and balancing of the harms—factors that merge when the government is the opposing party—the panel held that the substantial and
[1] The United States stated that “MPP could not be functionally operative for a period of time due to Mexico’s lack of cooperation.” Texas v. Biden , No. 21-cv-67 (N.D. Tex. Jan. 31, 2025) Joint Status Report on Reinstatement of Migrant Protection Protocols, [ECF No. 211].
[2] This Order will refer to the district court’s order as the “§ 705 Stay” to distinguish it from the government’s request for a stay pending appeal. district court’s § 705 Stay order to ImmDef’s current and future clients. I. BACKGROUND AND PROCEDURAL HISTORY From January 2019 to February 2021, Defendants’ Remain in Mexico policy caused nearly 70,000 asylum seekers to remain in Mexico as they awaited adjudication of their asylum proceedings. Remain in Mexico derived its authority from the INA, which provides that, “[i]n the case of a[] [noncitizen] described in [Section 1225)(b)(2)(A)] who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the [Secretary of Homeland Security] may return the [noncitizen] to that territory pending a proceeding under [8 U.S.C.] section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(C). On October 29, 2021, the Department of Homeland Security (“DHS”) issued a memorandum (“2021 DHS Memo”) that analyzed data from the first Trump administration’s implementation of Remain in Mexico beginning in January 2019. The 2021 DHS Memo demonstrated numerous logistical, legal, and safety challenges to migrants and U.S.-based organizations whose missions centered on supporting migrants. The Trump administration placed nearly 70,000 asylum seekers in the program and returned them to Mexico, where many experienced unsanitary living conditions, human trafficking, and difficulties accessing counsel to represent them in their asylum proceedings. The government concluded that Remain in Mexico obstructed the ability of migrants to access legal services and hampered the ability of various organizations whose mission it was to supply those legal services to render them. The 2021 DHS Memo described
[3] ImmDef does not argue the Fifth Amendment claim in this appeal.
[4] Another action challenging Remain in Mexico on alternative statutory
grounds during the first Trump administration was filed in the Northern
District of California, where the policy was enjoined. The Ninth Circuit
affirmed the preliminary injunction, but the Supreme Court stayed the
injunction.
See Wolf v. Innovation L. Lab
, 140 S. Ct. 1564 (2020);
Innovation L. Lab v. Wolf
,
[5] When ImmDef filed its Motion to Dismiss the Appeal on May 19, 2025,
that suspended the briefing schedule on the Merits appeal of the § 705
Stay pursuant to Circuit Rule 27-11 (“Motions [to dismiss] . . . shall stay
the schedule for . . . briefing pending the Court’s disposition of the
motion.”).
Dorado County
, 704 F.3d 1261, 1263 (9th Cir. 2013).
“[T]he appealing party must show that the order (1) has ‘the
practical effect of the grant or denial of an injunction’;
(2) has ‘serious, perhaps irreparable consequences’; and
(3) can be ‘effectively challenged only by immediate
appeal.’”
Id.
(quoting
Thompson v. Enomoto
, 815 F.2d
1323, 1326–27 (9th Cir. 1987));
see also Carson
, 450 U.S.
at 84.
B. Motion for Stay Pending Appeal
“A stay is an ‘intrusion into the ordinary processes of
administration and judicial review,’ and accordingly ‘is not
a matter of right, even if irreparable injury might otherwise
result to the appellant.’”
Nken v. Holder
,
[6] Recently, the Supreme Court and this circuit have not hesitated to hear
interlocutory appeals of orders labeled as 5 U.S.C. § 705 stays.
See, e.g.
,
Noem v. Nat’l TPS All.
, No. 25-2120,
[1] I agree that we have jurisdiction to hear this appeal. See Order at 15– 19.
[2] The Attorney General’s authority has since been transferred to the
Secretary of Homeland Security.
See Clark v. Martinez
,
[3] The district court addressed other arguments not raised in the pending stay motion, like whether ImmDef’s claims are ripe. See, e.g. , Immigrant Defs. L. Ctr. , 2025 WL 1172442, at *11–13. The parties are free to address those arguments in their merits briefing.
[4] I take no position at this stage on whether the district court’s § 705 stay
is barred by 8 U.S.C. § 1252(f)(1) or whether the reimplementation of
MPP is final agency action for purposes of APA review.
See
Order at
26–30. Assuming § 1252(f)(1) does not apply and that the
reimplementation is final, the Government is still likely to succeed as
explained.
Const. art. III, § 2, cl. 1. That power demands that we ask a
critical question, posed to the plaintiff in every case: “What’s
it to you?”
TransUnion LLC v. Ramirez
,
[5] This form of direct organizational standing is distinct from another
doctrine—sometimes called associational standing—that permits an
organization to assert “standing solely as the representative of its
members,” at least one of whom meets the requirements of Article III.
organization, however, is held to the “usual standards for
injury in fact, causation, and redressability that apply to
individuals.”
FDA v. All. for Hippocratic Med.
, 602 U.S.
367, 393–94 (2024) (citing
Havens
,
[6] An informational injury occurs when a “plaintiff fails to obtain
information which must be publicly disclosed pursuant to a statute.”
FEC v. Akins
,
[7] Id. at 396. That brings us to the third takeaway from Hippocratic Medicine . If a plaintiff organization alleges standing under Havens , it must show that the challenged action “directly affect[s] and interfere[s]” with its “core business activities.”
[7] The majority declares that
Hippocratic Medicine
“reinforced the
holding in
Havens
.” Order at 23. That assertion ignores the Supreme
Court’s reluctance to greenlight
Havens
-based claims of organizational
standing.
See
[8]
See, e.g.
,
Nielsen v. Thornell
, 101 F.4th 1164, 1181 (9th Cir. 2024)
(Collins, J., dissenting) (“[M]ere advocacy against a policy, and
spending resources on such advocacy, is not enough under
Havens
Realty
and its progeny.”);
Sabra
, 44 F.4th at 895 (VanDyke, J.,
concurring) (“[O]ur court’s [organizational standing] jurisprudence is at
‘loggerheads’ with Supreme Court precedent.” (quotation omitted));
E.
Bay Sanctuary Covenant
,
[9] The majority collapses its analysis of both APA claims. But the asylum
[10] According to the majority, the Supreme Court’s stay in
Wolf
is
irrelevant because that case involved different statutory claims.
See
Order at 10 n.4. Different, yes. Weaker, no. Again, the plaintiffs in
Wolf
had stronger claims than what ImmDef presses here. And yet the
Court still stayed the district court’s injunction. The majority treats this
case differently despite ImmDef’s comparatively weaker claims.
. concededly “does not currently have clients subjected to the
reimplementation of MPP ” The equities thus favor the
Government, which is being deprived of a critical authority
for responding to the ever-changing dynamics along the
southern border.
As for the public interest, we have recognized that the
Government’s interests tend to track those of the public.
That is because ‘‘‘responsible public officials . . . have
already considered’ the public interest in enacting the policy
at issue.”
Doe #1 v. Trump
,