Ninth Circuit Stays Injunction of Migrant Protection Protocol

The U.S. Court of Appeals for the Ninth Circuit (Judges Diarmuid O’Scannlain, Willie Fletcher, and Paul Watford) in a per curiam order stayed the district court injunction of the Trump administration’s “Migrant Protection Protocol (MPP).”  As the court described the policy,

“The MPP now directs the `return’ of asylum applicants who arrive from Mexico as a substitute to the traditional options of detention and parole. Under the MPP, these applicants are processed for standard removal proceedings, instead of expedited removal. They are then made to wait in Mexico until an immigration judge resolves their asylum claims. Immigration officers exercise discretion in returning the applicants they inspect, but the MPP is categorically inapplicable to unaccompanied minors, Mexican nationals, applicants who are processed for expedited removal, and any applicant `who is more likely than not to face persecution or torture in Mexico.’”

The court found the Department of Homeland Security likely to prevail on the claim that the statute does not preclude the Protocol.

Judge Watford wrote a concurring opinion, agreeing that the DHS was likely to prevail on its claim that the Protocol did not violate the immigration statute.

Judge Fletcher concurred “only in the result,” claiming that the U.S. government lacked statutory authorization for the MPP.  He was blunt in his assessment:

“The Government relies on 8 U.S.C. § 1225(b)(2)(C) for authority to promulgate its new Migrant Protection Protocols (“MPP”). If § 1225(b)(2)(C) provides such authority, the MPP is valid. If it does not, the MPP is invalid. The question is thus whether § 1225(b)(2)(C) provides authority for promulgation of the MPP. The answer can also be stated simply: The Government is wrong. Not just arguably wrong, but clearly and flagrantly wrong. Section 1225(b)(2)(C) does not provide authority for the MPP.”

Judge Fletcher further noted the procedural posture of the case:

“Acting as a motions panel, we are deciding the Government’s emergency motion to stay the order of the district court pending appeal. Because it is an emergency motion, plaintiffs and the Government were severely limited in how many words they were allowed. Our panel heard oral argument on an expedited basis, a week after the motion was filed.

I regret that my colleagues on the motions panel have uncritically accepted the Government’s arguments. 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.”

Given the division of the panel on the stay, we can expect the Ninth Circuit to hear an interesting set of arguments on the merits.

UPDATE (May 9):  Here is Perter Margulies’ take on the stay on Lawfare.

KJ