Ninth Circuit Allows Policy that Sends Asylum-Seekers Back to Mexico

The Trump Administration won a battle in the Ninth Circuit this week, when a three-judge panel permitted a policy that forces asylum-seekers to wait in Mexico as their U.S. court cases proceed. On May 7, 2019, the U.S. Court of Appeals for the Ninth Circuit granted the government’s emergency motion to stay the preliminary injunction that had been issued in April by a California District Court.

The case was initially filed in February by the American Civil Liberties Union and other groups on behalf of 11 asylum-seekers from Central America. The complaint alleged that the policy, known as the “Migrant Protection Protocols” (MPP) was in violation of a bedrock principle of U.S. and international law known as “nonrefoulement,” which means that prospective asylum seekers cannot be returned to places where they may be persecuted. It further argued that the MPP was capricious and arbitrary and in violation of the Administrative Procedure Act.

The Department of Homeland Security (DHS) began implementing the policy in January for non-Mexican asylum seekers arriving in the United States from Mexico. “[T]he policy calls for such persons, with certain exceptions, to be ‘returned to Mexico for the duration of their immigration proceedings,’ rather than either being detained for expedited or regular removal proceedings, or issued notices to appear for regular removal proceedings.” (Preliminary Injunction, 1)

In the April ruling that granted the preliminary injunction District Court Judge Richard Seeborg said “this injunction turns on the narrow issue of whether the MPP complies with the Administrative Procedures Act (“APA”). The conclusion of this order is only that plaintiffs are likely to show it does not, because the statute DHS contends the MPP is designed to enforce does not apply to these circumstances, and even if it did, further procedural protections would be required to conform to the government’s acknowledged obligation to ensure aliens are not returned to unduly dangerous circumstances.” (Preliminary Injunction, 2) The court additionally added that “To permit defendants to exercise their right to seek a stay from the Court of Appeals, however, this order will not take effect until 5:00 p.m., PST, April 12, 2019.” (Preliminary Injunction, 26)

On April 11, 2019, the government filed an Emergency Motion requesting the stay pending appeal. On April 12, 2019, a panel made up of Circuit Judges Diarmuid O’Scannlain, William Fletcher, and Paul Watford in a two-paragraph order temporarily stayed Seeborg’s nationwide injunction pending resolution of the emergency stay motion.

The same three-judge panel heard oral arguments on April 24. This week, the panel granted the government’s emergency motion to stay pending appeal, with Judge Watford concurring and Judge Fletcher concurring “only in the result.” Judge Watford stated that “it seems likely that the plaintiffs will succeed in establishing that DHS’s procedures for implementing the MPP are arbitrary and capricious.” However, he concurred on the ground that “the plaintiffs’ injury can be fully remedied without enjoining the MPP in its entirety.”

Judge Fletcher, while he concurred in the result, stated that the government was not authorized by the statute it relied on to promulgate the MPP. He further stated that “I am hopeful that the regular argument panel that will ultimately hear the appeal, with the benefit of full briefing and regularly scheduled argument, will be able to see the Government’s arguments for what they are—baseless arguments in support of an illegal policy that will, if sustained, require bona fide asylum applicants to wait in Mexico for years while their applications are adjudicated.” (Opinion, 16)