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Panel: ‘Remain in Mexico’ Policy to Partially Resume
Ninth Circuit Grants Government’s Motion Requesting That Nationwide Stay of Trump Administration’s Revival of Immigration Practice Be Paused Pending Appeal, Except as to Litigant Group’s Clients; Jurist Dissents
By a MetNews Staff Writer
A divided panel of the Ninth U.S. Circuit Court of Appeals has decreed that the Department of Homeland Security may largely resume its policy requiring asylum seekers entering the U.S. through Mexico to remain south of the border until their court date, ordering that a District Court’s issuance of a nationwide stay be put on pause pending appeal except as applied to the clients of the advocacy group challenging the Trump Administration’s revival of the rule.
Chief Circuit Judge Mary H. Murguia authored Friday’s order for the majority, in which Circuit Judge Gabriel P. Sanchez joined. She declared that the partial relief represents the “equitable approach” given the substantial interests of the executive branch in exercising its authority to implement immigration policy and of the advocacy group in avoiding impairment to its ability to provide meaningful legal representation to clients in removal proceedings.
Dissenting, Circuit Judge Ryan D. Nelson decried the majority’s ruling, arguing the government’s request for a stay pending appeal should have been granted in its entirety because the group lacks standing to challenge the policy and the department carried its burden to show that it is likely to succeed on the merits.
At issue are the so-called Migrant Protection Protocols (“MPP”), first adopted in 2019 during President Donald Trump’s first term. Before its implementation, foreigners coming to the country through Mexico could remain in the U.S. while awaiting immigration proceedings.
Temporary Deportations
Following the adoption of the MPP, those crossing the southern border are to be temporarily deported to Mexico until their immigration court date.
The Immigrant Defenders Law Center (referred to in the order as “ImmDef”) and others filed a lawsuit in the Central District of California in 2020, challenging the implementation of the remain-in-Mexico rule, arguing that the policy violated their rights under the Constitution and the Administrative Procedure Act (“APA”).
In 2021, then-President Joe Biden announced that he was terminating the rule, and several states responded by seeking injunctive relief to keep the policy in place. After initial victories in court, the U.S. Supreme Court held that the Biden administration’s rescission of the MPP did not violate the law and reversed an order enjoining the termination.
After Trump sought to reimplement the remain-in-Mexico policy in January, Immigrant Defenders Law Center filed an ex parte application for an emergency stay of the rule under §705 of the APA, which provides:
“[T]o the extent necessary to prevent irreparable injury, the reviewing court…may 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.”
Emergency Stay
District Court Judge Jesus G. Bernal of the Central District of California granted the immigration group’s request. He ordered a nationwide stay of the federal government’s reimplementation of MPP, pending the conclusion of the litigation.
On May 12, Bernal denied the government’s request for a stay of the order pending appeal, reasoning that the reimplementation of the MPP would lead to the group’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.”
Bernal concluded that the government faced no irreparable harm to its executive authority because it has no “legitimate reasons to enforce programs that violate the [C]onstitution or federal law.”
The Department of Homeland Security (“DHS”) filed a motion to expedite the appeal, which was granted by the Ninth Circuit, and an emergency request for a stay pending appeal.
Friday’s order declared that the Immigrant Defenders Law Center had standing to challenge the return-to-Mexico rule, and considered whether the nationwide stay should be paused pending appeal.
May Be Returned
Murguia noted that, under 8 U.S.C. §1229(b)(2)(C) of the Immigration and Nationality Act (“INA”), a noncitizen “arriving on land…from a foreign territory contiguous to the United States,” may be returned “to that territory pending a [removal] proceeding.”
She acknowledged that “the Executive Branch has the authority to enact policies to implement this discretionary provision,” but said that “any policy…must comply with constitutional and statutory constraints.”
The chief judge said courts look to several factors when adjudicating a motion for a stay pending appeal, including the public interests at stake, the likelihood of success on the merits, irreparable harm, and whether a pause in the proceedings will substantially injure the other parties.
Applying the standard, she opined:
“While both parties have plausibly alleged some measure of irreparable harm, ImmDef has demonstrated a strong likelihood of success on the merits of at least its APA claims. Nevertheless, at this stage in the litigation, we find it more equitable ‘to preserve status [and] rights pending conclusion of the review proceedings,’…and grant the government’s motion for a stay pending appeal in part. During the pendency of this appeal, the district court’s §705 Stay order shall be limited to ‘exempting ImmDef’s [current and future] clients from MPP.’…Therefore, no current or future clients of ImmDef shall be enrolled in MPP during the pendency of this appeal.”
Right to Counsel
Pointing out that federal law provides for the right to counsel for those seeking asylum, Murguia reasoned:
“This privilege cannot be made illusory by the government’s own actions. It would be ‘the hollowest of rights that [a noncitizen] must be allowed to apply for asylum’ with the assistance of counsel if the government enacts policies such that, irrespective of the merits of their claims for protection, a noncitizen’s application has virtually no chance of success.”
She cited data by the federal government reflecting that noncitizens seeking relief from Mexico only succeeded in a “remarkably low 1.1 percent” of cases and remarked that the rule had the “effect of barring swaths of noncitizens from exercising their statutory right to apply for asylum.” Murguia wrote:
“ImmDef alleges that ‘[i]n-person attorney-client consultations were limited to an illusory one-hour window before a scheduled hearing.’…Moreover, ‘[u]nrepresented individuals were prohibited even from approaching legal representatives present in the immigration court to discuss possible representation.’…[A]s 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.’ Thus, the government’s reimplementation of Remain in Mexico likely will violate the APA by impermissibly disregarding the…right to apply for asylum with the assistance of counsel.”
She declared:
“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.”
Nelson’s View
Nelson said the government “has carried its burden on…the likelihood of success, irreparable harm, the balance of equities, and the public interest” and declared that “[w]e should have granted a stay pending appeal in full.”
He wrote:
“Time and again, the Supreme Court has held that the Constitution gives the political branches near plenary authority over immigration….Yet in denying a stay pending appeal, the majority strips the Executive of a statutory authority to secure the southern border….And it does so at the request of an organizational plaintiff that cannot demonstrate standing, let alone success on the merits.”
Saying that an organization “cannot spend its way into standing,” he argued that “ImmDef’s frustration-of-mission and diversion-of resource theories may have worked in a bygone era” but “we are operating today with a new conception of organizational standing” after last year’s U.S. Supreme Court decision in Food and Drug Adminstration v. Alliance for Hippocratic Medicine.
He added that “even if ImmDef had standing, its First Amendment…claims fail” because “MPP does not regulate speech. It regulates pure, non-expressive conduct—whether aliens may stay in the United States pending their removal proceedings. At most, the policy results in ‘incidental burdens on speech’….”
As to the APA claims, he commented:
“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….The Government must only permit MPP aliens to be represented by a lawyer should they find one….The INA requires no more.”
The case is Immigrant Defenders Law Center v. Noem, 25-2581.
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