FILED

FOR PUBLICATION

MAR 4 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

INNOVATION LAW LAB; CENTRAL No. 19-15716

AMERICAN RESOURCE CENTER OF

NORTHERN CALIFORNIA; CENTRO D.C. No. 3:19-cv-00807-RS LEGAL DE LA RAZA; UNIVERSITY Northern District of California, OF SAN FRANCISCO SCHOOL OF San Francisco

LAW IMMIGRATION AND

DEPORTATION DEFENSE CLINIC; AL

OTRO LADO; TAHIRIH JUSTICE ORDER

CENTER,

Plaintiffs-Appellees,

v.

CHAD F. WOLF, Acting Secretary of Homeland Security, in his official capacity; U.S. DEPARTMENT OF

HOMELAND SECURITY; KENNETH T.

CUCCINELLI, Director, U.S. Citizenship and Immigration Services, in his official capacity; ANDREW DAVIDSON, Chief of Asylum Division, U.S. Citizenship and Immigration Services, in his official capacity; UNITED STATES

CITIZENSHIP AND IMMIGRATION

SERVICES; TODD C. OWEN, Executive Assistant Commissioner, Office of Field Operations, U.S. Customs and Border Protection, in his official capacity; U.S.

CUSTOMS AND BORDER

PROTECTION; MATTHEW ALBENCE,

Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity; US IMMIGRATION AND

CUSTOMS ENFORCEMENT,

Defendants-Appellants.

Before: FERNANDEZ, W. FLETCHER, and PAEZ, Circuit Judges.

This court issued its opinion in Innovation Law Lab v. Wolf, No. 19-15716,

on Friday, February 28, 2020, affirming the district court’s injunction against

implementation and expansion of the Migrant Protection Protocols (“MPP”). That

same day, the Government filed an emergency motion requesting either a stay

pending disposition of a petition for certiorari to the Supreme Court or an

immediate administrative stay. That evening, we granted an administrative stay,

along with an accelerated schedule for briefs addressing the request for a longer-

lasting stay. We received a brief from Plaintiffs-Appellants on Monday, March 2;

we received a reply brief from the Government on Tuesday, March 3. For the

reasons that follow, we grant in part and deny in part the requested stay.

With respect to the merits of our holding that the MPP violates federal law,

we deny the requested stay. With respect to the scope of injunctive relief, we grant

in part and deny in part the requested stay.

2

I. Merits

The MPP requires that all asylum seekers arriving at our southern border

wait in Mexico while their asylum applications are adjudicated. The MPP clearly

violates 8 U.S.C. §§ 1225(b) and 1231(b).

A. 8 U.S.C. § 1225(b)

Section 1225(b) divides aliens applying for asylum into two categories:

“[A]pplicants for admission fall into one of two categories, those covered by §

1225(b)(1) and those covered by § 1225(b)(2).” Jennings v. Rodriguez, 138 S. Ct.

830, 837 (2018).

Section (b)(1) applicants are those who have no documents or fraudulent

documents. In fleeing persecution in their home countries, typical bona fide

asylum seekers have either fraudulent documents or no documents at all.

Section (b)(2) applicants are “all other” applicants. Section (b)(2) applicants

include spies, terrorists, alien smugglers, and drug traffickers.

Section 1225 specifies different procedures for the two categories of

applicants. Section (b)(1) applicants who have expressed a “credible fear” of

persecution have a right to remain in the United States while their applications are

adjudicated. Section (b)(2) applicants do not have that right. Subsection (b)(2)(C)

specifically authorizes the Attorney General to require § (b)(2) applicants to wait in

3 Mexico while their asylum applications are adjudicated. There is no subsection in

§ (b)(1) comparable to subsection (b)(2)(C).

It is easy to understand why § (b)(1) and § (b)(2) applicants are treated

differently. Section (b)(1) applicants pose little threat to the security of the United

States. By contrast, § (b)(2) applicants potentially pose a severe threat.

The MPP applies subsection (b)(2)(C) to § (b)(1) applicants. There is no

legal basis for doing so.

B. 8 U.S.C. § 1231(b)

Section 1231(b), previously codified as § 1253(h), was enacted in 1980 to

implement our treaty-based obligation to avoid “refoulement” of refugees.

Refoulement is the act of sending refugees back to the dangerous countries from

which they have come. Section 1231(b) provides, “[T]he Attorney General may

not remove an alien to a country if the Attorney General decides that the alien’s

life or freedom would be threatened in that country because of the alien’s race,

religion, nationality, membership in a particular social group, or political opinion.”

Under the MPP, an asylum officer screening asylum seekers is not allowed

to ask whether they fear that their “life or freedom would be threatened” upon

being returned to Mexico. The MPP requires asylum seekers—untutored in

asylum law—to volunteer that they fear being returned to Mexico, even though

4 they are not told that the existence of such fear could protect them from being

returned.

Uncontradicted evidence in the record shows not only that asylum officers

implementing the MPP do not ask whether asylum seekers fear returning to

Mexico. It also shows that officers actively prevent or discourage applicants from

expressing such a fear, and that they ignore applicants who succeed in doing so.

For example, Alex Doe, a plaintiff in this case, wrote in a sworn declaration,

“When I tried to respond and explain [why I had left Honduras] the officer told me

something like, ‘you are only going to respond to the questions I ask you, nothing

more.’” Frank Doe, another plaintiff, wrote in a sworn declaration, “He never

asked me if I was afraid of returning to Mexico. At one point, I had to interrupt

him to explain that I didn’t feel safe in Mexico. He told me that it was too bad. He

said that Honduras wasn’t safe, Mexico wasn’t safe, and the U.S. isn’t safe either.”

Uncontradicted evidence also shows that there is extreme danger to asylum

seekers who are returned to Mexico. For example, Howard Doe, a plaintiff, wrote

in a sworn declaration: “While I was in Tijuana, two young Honduran men were

abducted, tortured and killed. . . . On Wednesday, January 30, 2019, I was

attacked and robbed by two young Mexican men. . . . They . . . told me that they

knew I was Honduran and that if they saw me again, they would kill me.” Ian Doe,

5 another plaintiff, wrote in a sworn declaration, “I am not safe in Mexico. I am

afraid that the people who want to harm me in Honduras will find me here.”

Dennis Doe, another plaintiff, had fled the gang “MS-13” in Honduras. He wrote

in a sworn declaration, “In Tijuana, I have seen people who I believe are MS-13

gang members on the street and on the beach. . . . I know that MS-13 were

searching for people who tried to escape them . . . . This makes me afraid that the

people who were trying to kill me in Honduras will find me here.” Kevin Doe,

another plaintiff, had fled MS-13 in Honduras because of his work as an

Evangelical Christian minister. He wrote in a sworn declaration, “[When I was

returned to Mexico from the United States], I was met by a large group of reporters

with cameras. . . . I was afraid that the MS-13 might see my face in the news. . . .

They are a powerful, ruthless gang and have members in Tijuana too.”

It is clear from the text of the MPP, as well as from extensive and

uncontradicted evidence in the record, that the MPP violates the anti-refoulement

obligation embodied in § 1231(b).

C. Stay with Respect to the Merits

Two of the three judges on our panel, Judges W. Fletcher and Paez, held that

the MPP clearly violates both §§ 1225(b) and 1231(b). The third judge, Judge

Fernandez, did not independently reach the question whether the MPP violates

6 those sections. Judge Fernandez dissented from the panel’s decision based on a

point of appellate procedure.

Because the MPP so clearly violates §§ 1225(b) and 1231(b), and because

the harm the MPP causes to plaintiffs is so severe, we decline to stay our opinion

pending certiorari proceedings in the Supreme Court, except as noted below with

respect to the scope of the injunction.

II. Scope of the Injunction

The district court enjoined the Government from continuing to implement or

expand the MPP, and required the Government to allow the named individual

plaintiffs to enter the United States to pursue their applications for asylum. The

injunction provides as follows:

Defendants are hereby enjoined and restrained from continuing to implement or expand the “Migrant Protection Protocols” as announced in the January 25, 2018 DHS policy memorandum and as explicated in further agency memoranda. Within 2 days of the effective date of this order, defendants shall permit the named individual plaintiffs to enter the United States. At defendants’ option, any named plaintiff appearing at the border for admission pursuant to this order may be detained or paroled, pending adjudication of his or her admission application.

Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110, 1130–31 (N.D. Cal. 2019).

When suit was filed in the district court, the MPP had been applied only at the

designated port of entry at San Ysidro, California. There are eleven named

individual plaintiffs.

7 Because the district court’s order was stayed pending appeal, the

Government expanded the scope of the MPP. The MPP is now in effect in the four

states along our southern border with Mexico. Two of those states, California and

Arizona, are in the Ninth Circuit. New Mexico is in the Tenth Circuit. Texas is in

the Fifth Circuit.

For the reasons explained in our opinion, Ninth Circuit case law requires that

we affirm the scope of the district court’s injunction. Plaintiffs challenge the MPP

as inconsistent with § 706(2) of the Administrative Procedure Act, which directs a

reviewing court that has found an agency action “unlawful” to “set aside” that

action. 5 U.S.C. § 706(2). Section 706(2) does not tell a reviewing circuit court to

“set aside” the unlawful agency action only within the geographic boundaries of

that circuit. Further, there is a special need for uniformity in immigration cases, as

recognized both by our court and by the Fifth Circuit. See Regents of the Univ. of

Cal. v. U.S. Dep’t of Homeland Sec., 908 F. 3d 476, 511 (9th Cir. 2018); Texas v.

United States, 809 F.3d 134, 187–88 (5th Cir. 2015), aff’d by an equally divided

Court, 136 S. Ct. 2271 (2016)

However, we recognize that the proper scope of injunctions against agency

action is a matter of intense and active controversy. Dep’t of Homeland Sec. v.

New York, 140 S. Ct. 599, 600–01 (2020) (Gorsuch, J., concurring); Trump v.

8 Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas, J., concurring); see also Wolf

v. Cook Cty., Ill., 140 S. Ct. 681, 681–82 (2020) (Sotomayor, J., dissenting).

While we regard the merits of our decision under §§ 1225(b) and 1231(b) as

clearly correct, we do not have the same level of confidence with respect to the

scope of the injunction entered by the district court. We therefore stay the

injunction insofar as it operates outside the geographical boundaries of the Ninth

Circuit.

III. Declarations Filed in Connection with the Government’s

Motion to Stay Pending Disposition of a Petition for Certiorari

The Government’s motion for stay and reply brief include several sworn

declarations. The United States Ambassador to Mexico writes, “The panel’s

decision, unless stayed, will have an immediate and severely prejudicial impact on

the bilateral relationship between the United States and Mexico.” The Assistant

Secretary for International Affairs for the U.S. Department of Homeland Security

writes, “MPP was a carefully negotiated solution with the Government of Mexico.”

She writes further, “The suspension of MPP undermines almost two years’ worth

of diplomatic engagement with the Government of Mexico through which a

coordinated and cohesive immigration control program has been developed.” The

Deputy Commissioner of U.S. Customs and Border Protection writes that

enforcement of the district court’s injunction will cause substantial disruption at

9 our ports of entry and will cost substantial amounts of money. He writes further

that on Friday, the day our decision was announced, large groups of aliens sought

admission to the United States at various points along the border. The Executive

Associate Director of Enforcement and Removal Operations for U.S. Immigration

and Customs Enforcement writes, “[I]f MPP is discontinued, approximately 25,000

individuals enrolled in MPP who remain in Mexico may soon arrive in the United

States seeking admission. . . . [I]f [Customs and Border Protection] is required to

process approximately 25,000 inadmissible aliens in an extremely short timeframe

and then transfer those aliens to [Immigration and Customs Enforcement] custody,

it would overload [Enforcement and Removal Operations’] already burdened

resources and create significant adverse implications for public safety and the

integrity of the United States immigration system.”

The Plaintiffs-Appellants’ brief responding to the Government’s motion

includes two sworn declarations. Mexico’s Ambassador to the United States from

2007 to 2013 writes, “The government of Mexico has consistently stated that MPP

is a policy unilaterally imposed by the U.S. government. To the extent Mexico

agreed to the policy, it was upon threat of heavy and unprecedented tariffs.” He

writes, further, “I reject the notion that this Court’s determination that MPP is

likely unlawful will harm our two nations’ relationship. Rather, it is MPP

10 itself—and the way the current administration is conducting policy towards

Mexico—that is particularly detrimental to the bilateral relationship between the

United States and Mexico.” An expert on border and immigration issues writes

that it is the MPP that has created chaos at our southern border, and that the MPP

has not had a significant effect in reducing the flow of immigrants into the United

States.

We are not in a position to assess the accuracy of these statements.

Conclusion

If the law were less clear—that is, if there were any serious possibility that

the MPP is consistent with §§ 1225(b) and 1231(b)—we would stay the district

court’s injunction in its entirety pending disposition of the Government’s petition

for certiorari. However, it is very clear that the MPP violates §§ 1225(b) and

1231(b), and it is equally clear that the MPP is causing extreme and irreversible

harm to plaintiffs.

We stay, pending disposition of the Government’s petition for certiorari, the

district court’s injunction insofar as it operates outside the Ninth Circuit. We

decline to stay, pending disposition of the Government’s petition for certiorari, the

district court’s injunction against the MPP insofar as it operates within the Ninth

Circuit.

11 The Government has requested in its March 3 reply brief, in the event we

deny any part of their request for a stay, that we “extend the [administrative] stay

by at least seven days, to March 10, to afford the Supreme Court an orderly

opportunity for review.” We grant the Government’s request and extend our

administrative stay entered on Friday, February 28, until Wednesday, March 11. If

the Supreme Court has not in the meantime acted to reverse or otherwise modify

our decision, our partial grant and partial denial of the Government’s request for a

stay of the district court’s injunction, as described above, will take effect on

Thursday, March 12.

So ordered on March 4, 2020.

12

FILED

Innovation Law Lab v. Wolf, No. 19-15716

MAR 4 2020

FERNANDEZ, Circuit Judge, concurring in part and dissenting in part:MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I would grant in full the government’s emergency motion for a stay of the

district court’s injunction pending disposition of a petition for certiorari to the

Supreme Court. Thus, I concur in the order to the extent that it grants the

requested stay. I also concur in the order’s extension of our administrative stay

until Wednesday, March 11. I respectfully dissent from the order to the extent that

it denies the stay.