Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 1 of 24
ADRMOP,APPEAL
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:19−cv−00807−RS

Innovation Law Lab et al v. Nielsen et al Assigned to: Judge Richard Seeborg Case in other court: 19−15716 Cause: 05:551 Administrative Procedure Act
Plaintiff
Innovation Law Lab

Date Filed: 02/14/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant
represented by Anand Balakrishnan ACLU Foundation Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549−2536 Fax: (212) 549−2654 Email: abalakrishnan@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Blaine Meredith Bookey The Center for Gender and Refugee Studies UC Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 (415) 703−8202 Fax: (415) 581−8824 Email: bookeybl@uchastings.edu ATTORNEY TO BE NOTICED
Celso Javier Perez ACLU Foundation IRP 125 Broad Street 18 New York, NY 10004 646−905−8935 Email: cperez@aclu.org ATTORNEY TO BE NOTICED
Christine Patricia Sun ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 (415) 621−2493 Fax: (415) 255−8437 Email: csun@aclunc.org TERMINATED: 09/24/2019
Cody H. Wofsy ACLU Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0785 Fax: 415−395−0950 Email: cwofsy@aclu.org ATTORNEY TO BE NOTICED
Daniel Antonio Galindo ACLU Foundation Immigrants' Rights

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 2 of 24
Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549−2660 Fax: (212) 549−2654 Email: dgalindo@aclu.org ATTORNEY TO BE NOTICED
Eunice Chaeyoung Lee The Center for Gender and Refugee Studies UC Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 (415) 581−8836 Email: leeeunice@uchastings.edu ATTORNEY TO BE NOTICED
Gracie Harper Willis Southern Poverty Law Center 150 East Ponce de Leon Avenue, Suite 340 Decatur, GA 30030 (404) 521−6700 Email: gracie.willis@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer C. Newell ACLU Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343−0774 Fax: (415) 395−0950 Email: jnewell@aclu.org TERMINATED: 01/03/2020
Judy Rabinovitz ACLU Foundation Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004−2400 (212) 549−2618 Fax: (212) 549−2654 Email: Jrabinovitz@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Michelle Veroff ACLU Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343−0778 Fax: (415) 395−0950 Email: jveroff@aclu.org ATTORNEY TO BE NOTICED
Karen Barbara Musalo The Center of Gender and Refugee Studies UC Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 (415) 565−4720 Email: musalok@uchastings.edu

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ATTORNEY TO BE NOTICED
Kathryn Jane Jastram The Center for Gender and Refugee Studies UC Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 (415) 565−4877 Email: jastramkate@uchastings.edu ATTORNEY TO BE NOTICED
Katrina Leigh Eiland ACLU Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343−0770 Fax: (415) 395−0950 Email: keiland@aclu.org ATTORNEY TO BE NOTICED
Lee Gelernt ACLU Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549−2616 Fax: (212) 549−2654 Email: lgelernt@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer Southern Poverty Law Center 1000 Preston Avenue Charlottesville, VA 22903 (470) 606−9307 Fax: (404) 221−5857 Email: mary.bauer@splcenter.org TERMINATED: 12/13/2019
Melissa E Crow American Immigration Council 1331 G St. NW Suite 200 Washington, DC 20005 202−507−7523 Fax: 202−742−5619 Email: melissa.crow@splcenter.org ATTORNEY TO BE NOTICED
Michael King Thomas Tan ACLU Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (347) 714−0740 Fax: (212) 549−2654 Email: mtan@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat ACLU Foundation Immigrants' Rights Project 125 Broad Street, 18th Floor

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 4 of 24

Plaintiff
Central American Resource Center of Northern California

New York, NY 10004 (212) 549−2620 Fax: (212) 549−2654 Email: ojadwat@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Sayoni Maitra The Center of Gender and Refugee Studies 200 McAllister Street San Francisco, CA 94102 (415) 569−0273 Email: maitras@uchastings.edu PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Connor Riordan ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94105 (415) 621−2493 Fax: (415) 255−1478 Email: sriordan@aclunc.org ATTORNEY TO BE NOTICED
Steven M. Watt ACLU Foundation Human Rights Program 125 Broad Street, 18th Floor New York, NY 10004 (212) 519−7870 Fax: (212) 549−2654 Email: swatt@aclu.org ATTORNEY TO BE NOTICED
represented by Anand Balakrishnan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Blaine Meredith Bookey (See above for address) ATTORNEY TO BE NOTICED
Celso Javier Perez (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/24/2019
Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Daniel Antonio Galindo (See above for address) ATTORNEY TO BE NOTICED
Eunice Chaeyoung Lee (See above for address) ATTORNEY TO BE NOTICED

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 5 of 24
Gracie Harper Willis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) TERMINATED: 01/03/2020
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Michelle Veroff (See above for address) ATTORNEY TO BE NOTICED
Karen Barbara Musalo (See above for address) ATTORNEY TO BE NOTICED
Kathryn Jane Jastram (See above for address) ATTORNEY TO BE NOTICED
Katrina Leigh Eiland (See above for address) ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) TERMINATED: 12/13/2019
Melissa E Crow (See above for address) ATTORNEY TO BE NOTICED
Michael King Thomas Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sayoni Maitra (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED

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Plaintiff Centro Legal de la Raza

represented by Anand Balakrishnan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Blaine Meredith Bookey (See above for address) ATTORNEY TO BE NOTICED
Celso Javier Perez (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/24/2019
Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Daniel Antonio Galindo (See above for address) ATTORNEY TO BE NOTICED
Eunice Chaeyoung Lee (See above for address) ATTORNEY TO BE NOTICED
Gracie Harper Willis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) TERMINATED: 01/03/2020
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Michelle Veroff (See above for address) ATTORNEY TO BE NOTICED
Karen Barbara Musalo (See above for address) ATTORNEY TO BE NOTICED
Kathryn Jane Jastram (See above for address) ATTORNEY TO BE NOTICED
Katrina Leigh Eiland (See above for address) ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 7 of 24

Plaintiff
University of San Francisco School of Law Immigration and Deportation Defense Clinic

Mary Catherine Bauer (See above for address) TERMINATED: 12/13/2019
Melissa E Crow (See above for address) ATTORNEY TO BE NOTICED
Michael King Thomas Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sayoni Maitra (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
represented by Anand Balakrishnan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Blaine Meredith Bookey (See above for address) ATTORNEY TO BE NOTICED
Celso Javier Perez (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/24/2019
Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Daniel Antonio Galindo (See above for address) ATTORNEY TO BE NOTICED
Eunice Chaeyoung Lee (See above for address) ATTORNEY TO BE NOTICED
Gracie Harper Willis (See above for address)

Plaintiff

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 8 of 24
PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) TERMINATED: 01/03/2020
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Michelle Veroff (See above for address) ATTORNEY TO BE NOTICED
Karen Barbara Musalo (See above for address) ATTORNEY TO BE NOTICED
Kathryn Jane Jastram (See above for address) ATTORNEY TO BE NOTICED
Katrina Leigh Eiland (See above for address) ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) TERMINATED: 12/13/2019
Melissa E Crow (See above for address) ATTORNEY TO BE NOTICED
Michael King Thomas Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sayoni Maitra (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED

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Al Otro Lado

represented by Anand Balakrishnan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Blaine Meredith Bookey (See above for address) ATTORNEY TO BE NOTICED
Celso Javier Perez (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/24/2019
Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Daniel Antonio Galindo (See above for address) ATTORNEY TO BE NOTICED
Eunice Chaeyoung Lee (See above for address) ATTORNEY TO BE NOTICED
Gracie Harper Willis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) TERMINATED: 01/03/2020
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Michelle Veroff (See above for address) ATTORNEY TO BE NOTICED
Karen Barbara Musalo (See above for address) ATTORNEY TO BE NOTICED
Kathryn Jane Jastram (See above for address) ATTORNEY TO BE NOTICED
Katrina Leigh Eiland (See above for address) ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer

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Plaintiff Tahirih Justice Center

(See above for address) TERMINATED: 12/13/2019
Melissa E Crow (See above for address) ATTORNEY TO BE NOTICED
Michael King Thomas Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sayoni Maitra (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
represented by Anand Balakrishnan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Blaine Meredith Bookey (See above for address) ATTORNEY TO BE NOTICED
Celso Javier Perez (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/24/2019
Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Daniel Antonio Galindo (See above for address) ATTORNEY TO BE NOTICED
Eunice Chaeyoung Lee (See above for address) ATTORNEY TO BE NOTICED
Gracie Harper Willis (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 11 of 24
Jennifer C. Newell (See above for address) TERMINATED: 01/03/2020
Judy Rabinovitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Julie Michelle Veroff (See above for address) ATTORNEY TO BE NOTICED
Karen Barbara Musalo (See above for address) ATTORNEY TO BE NOTICED
Kathryn Jane Jastram (See above for address) ATTORNEY TO BE NOTICED
Katrina Leigh Eiland (See above for address) ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) TERMINATED: 12/13/2019
Melissa E Crow (See above for address) ATTORNEY TO BE NOTICED
Michael King Thomas Tan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sayoni Maitra (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Connor Riordan (See above for address) ATTORNEY TO BE NOTICED
Steven M. Watt (See above for address) ATTORNEY TO BE NOTICED
V.

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 12 of 24

Defendant Kirstjen Nielsen Secretary of Homeland Security, in her official capacity
Defendant U.S. Department of Homeland Security
Defendant

represented by Erez R. Reuveni United States Department of Justice, Civil Division Office of Immigration Litigation 450 5th Street NW Washington, DC 20530 (202) 307−4293 Fax: (202) 305−7000 Email: erez.r.reuveni@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar Office of Immigration Litigation U.S. Department of Justice, Civil Division 450 5th Street NW Washington, DC 20530 (202) 598−8060 Email: Archith.Ramkumar@usdoj.gov ATTORNEY TO BE NOTICED
Scott G. Stewart U.S. Department of Justice Office of Immigration Litigation, Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 202−307−6482 Email: scott.g.stewart@usdoj.gov ATTORNEY TO BE NOTICED
Thomas Benton York United States Department of Justice, Civil Division Office of Immigration Litigation, District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 598−6073 Fax: (202) 305−7000 Email: thomas.b.york@usdoj.gov ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 13 of 24

Lee Francis Cissna Director, U.S. Citizenship and Immigration Services, in his official capacity
Defendant John L. Lafferty Chief of Asylum Division, U.S. Citizenship and Immigration Services, in his official capacity
Defendant U.S. Citizenship and Immigration Services
Defendant Kevin K. McAleenan Commissioner, U.S. Customs and Border Protection, in his official capacity

represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 14 of 24

Defendant Todd C. Owen Executive Assistant Commissioner, Office of Field Operations, U.S. Customs and Border Protection, in his official capacity
Defendant U.S. Customs and Border Protection
Defendant Ronald D. Vitiello Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity
Defendant

Scott G. Stewart (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED

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U.S. Immigration and Customs Enforcement
Amicus Immigration Reform Law Institute

represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Archith Ramkumar (See above for address) ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York (See above for address) ATTORNEY TO BE NOTICED
represented by Lawrence John Joseph Law Office of Lawrence J. Joseph 1250 Connecticut Avenue, NW, Suite 700−1A Washington, DC 20036 (202) 355−9452 Fax: (202) 318−2254 Email: ljoseph@larryjoseph.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Judy Rabinovitz (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/14/2019
02/14/2019
02/14/2019 02/14/2019

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against Lee Francis Cissna, John Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitello (Filing fee $400.00, receipt number 0971−13093503.). Filed by Central American Resource Center of Northern California, Innovation Law Lab, Tahirih Justice Center, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Al Otro Lado. (Attachments: # 1 Civil Cover Sheet) (Newell, Jennifer) (Filed on 2/14/2019) Modified on 2/22/2019 (gbaS, COURT STAFF). (Entered: 02/14/2019)
2 Case assigned to Magistrate Judge Joseph C. Spero.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 2/28/2019. (as, COURT STAFF) (Filed on 2/14/2019) (Entered: 02/14/2019)
3 Proposed Summons. (Newell, Jennifer) (Filed on 2/14/2019) (Entered: 02/14/2019)
4 ADMINISTRATIVE MOTION for Leave to Proceed Pseudonymously filed by Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de

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02/15/2019
02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/15/2019 02/19/2019 02/19/2019 02/19/2019

la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. Responses due by 2/19/2019. (Attachments: # 1 Declaration, # 2 Proposed Order)(Newell, Jennifer) (Filed on 2/14/2019) (Entered: 02/14/2019)
5 Declaration of John Doe; Gregory Doe; Bianca Doe; Dennis Doe; Alex Doe; Christopher Doe; Evan Doe; Frank Doe; Kevin Doe; Howard Doe; Ian Doe in Support of 4 ADMINISTRATIVE MOTION for Leave to Proceed Pseudonymously filed byAl Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. (Attachments: # 1 Declaration of John Doe, # 2 Declaration of Gregory Doe, # 3 Declaration of Bianca Doe, # 4 Declaration of Dennis Doe, # 5 Declaration of Alex Doe, # 6 Declaration of Christopher Doe, # 7 Declaration of Evan Doe, # 8 Declaration of Frank Doe, # 9 Declaration of Kevin Doe, # 10 Declaration of Howard Doe, # 11 Declaration of Ian Doe)(Related document(s) 4 ) (Newell, Jennifer) (Filed on 2/15/2019) (Entered: 02/15/2019)
6 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13099272.) filed by Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. (Rabinovitz, Judy) (Filed on 2/15/2019) (Entered: 02/15/2019)
7 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13099337.) filed by Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. (Gelernt, Lee) (Filed on 2/15/2019) (Entered: 02/15/2019)
8 NOTICE of Appearance by Katrina Leigh Eiland (Eiland, Katrina) (Filed on 2/15/2019) (Entered: 02/15/2019)
9 NOTICE of Appearance by Julie Michelle Veroff (Veroff, Julie) (Filed on 2/15/2019) (Entered: 02/15/2019)
10 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center.. (Newell, Jennifer) (Filed on 2/15/2019) (Entered: 02/15/2019)
11 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13099461.) filed by Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. (Tan, Michael) (Filed on 2/15/2019) (Entered: 02/15/2019)
12 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center.. (Newell, Jennifer) (Filed on 2/15/2019) (Entered: 02/15/2019)
13 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13099513.) filed by Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. (Jadwat, Omar) (Filed on 2/15/2019) (Entered: 02/15/2019)
14 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge (klhS, COURT STAFF) (Filed on 2/19/2019) (Entered: 02/19/2019)
15 NOTICE of Appearance by Erez R. Reuveni (Reuveni, Erez) (Filed on 2/19/2019) (Entered: 02/19/2019)
16 ORDER, Case reassigned to Judge Richard Seeborg. Magistrate Judge Joseph C. Spero no longer assigned to the case. This case is assigned to a judge who

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02/19/2019 02/19/2019 02/20/2019
02/20/2019
02/20/2019
02/21/2019 02/21/2019
02/22/2019 02/22/2019 02/22/2019 02/22/2019 02/22/2019 02/22/2019

participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras. Signed by Executive Committee on 2/19/19. (Attachments: # 1 Notice of Eligibility for Video Recording)(haS, COURT STAFF) (Filed on 2/19/2019) (Entered: 02/19/2019)
17 NOTICE of Appearance by Christine Patricia Sun (Sun, Christine) (Filed on 2/19/2019) (Entered: 02/19/2019)
18 NOTICE of Appearance by Sean Connor Riordan (Riordan, Sean) (Filed on 2/19/2019) (Entered: 02/19/2019)
19 CLERK'S NOTICE re Motion to Consider Whether Cases Should Be Related (Dkt. No. 110 in 3:18−cv−06810−JST East Bay Sanctuary Covenant et al v. Trump et al). The court has reviewed the motion and determined that no cases are related and no reassignments shall occur. (wsn, COURT STAFF) (Filed on 2/20/2019) (Entered: 02/20/2019)
20 MOTION for Temporary Restraining Order filed by Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. (Attachments: # 1 Memorandum in Support of Temporary Restraining Order, # 2 Declaration of Taslim Tavarez, # 3 Declaration of Rubi Rodriguez, # 4 Declaration of Tahirih Justice Center, # 5 Declaration of Centro Legal de la Raza, # 6 Declaration of Innovation Law Lab, # 7 Declaration of Al Otro Lado, # 8 Declaration of CARECEN of Northern CA, # 9 Declaration of USF Law School Deportation Defense Clinic, # 10 Declaration of Adam Isacson, # 11 Declaration of Kathryn Shepherd, # 12 Declaration of Aaron Reichlin−Melnick, # 13 Declaration of Daniella Burgi−Palomino, # 14 Declaration of Stephen W. Manning, # 15 Declaration of Steven H. Schulman, # 16 Declaration of Cecilia Menjivar, # 17 Declaration of Jeremy Slack, # 18 Proposed Order, # 19 Complaint)(Newell, Jennifer) (Filed on 2/20/2019) (Entered: 02/20/2019)
21 Statement on Scheduling by Lee Francis Cissna, John Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitello. (Reuveni, Erez) (Filed on 2/20/2019) Modified on 2/22/2019 (gbaS, COURT STAFF). (Entered: 02/20/2019)
22 ORDER RE BREIFING SCHEDULE. Signed by Judge Richard Seeborg on 2/21/19. (clS, COURT STAFF) (Filed on 2/21/2019) (Entered: 02/21/2019)
23 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13110534.) filed by Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. (Balakishnan, Anand) (Filed on 2/21/2019) (Entered: 02/21/2019)
24 ORDER by Judge Richard Seeborg granting 6 Motion for Pro Hac Vice as to Judy Rabinovitz. (cl, COURT STAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
25 ORDER by Judge Richard Seeborg granting 7 Motion for Pro Hac Vice as to Lee Gelernt. (cl, COURT STAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
26 ORDER by Judge Richard Seeborg granting 11 Motion for Pro Hac Vice as to Michael King Thomas Tan. (cl, COURT STAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
27 ORDER by Judge Richard Seeborg granting 13 Motion for Pro Hac Vice as to Omar Jadwat. (cl, COURT STAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
28 ORDER by Judge Richard Seeborg granting 23 Motion for Pro Hac Vice as to Anand Balakrishnan. (cl, COURT STAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
29 NOTICE of Appearance by Thomas Benton York (York, Thomas) (Filed on 2/22/2019) (Entered: 02/22/2019)

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 18 of 24

02/22/2019
02/22/2019 02/22/2019 02/22/2019
02/25/2019 02/25/2019 02/25/2019
02/25/2019 02/25/2019
02/26/2019 02/26/2019 02/26/2019 02/28/2019 03/01/2019
03/01/2019

30 STIPULATION WITH PROPOSED ORDER on scheduling filed by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Reuveni, Erez) (Filed on 2/22/2019) (Entered: 02/22/2019)
31 ORDER by Judge Richard Seeborg granting 30 Stipulation. (cl, COURT STAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
32 Immigration Mandamus Case Procedural Order. (gbaS, COURT STAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
33 Summons Issued as to Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (gbaS, COURT STAFF) (Filed on 2/22/2019) (Entered: 02/22/2019)
34 NOTICE of Appearance by Daniel Antonio Galindo (Galindo, Daniel) (Filed on 2/25/2019) (Entered: 02/25/2019)
35 Certificate of Interested Entities by Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center (Newell, Jennifer) (Filed on 2/25/2019) (Entered: 02/25/2019)
36 Initial Case Management Scheduling Order with ADR Deadlines: This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras
Case Management Statement due by 5/16/2019. Initial Case Management Conference set for 5/23/2019 10:00 AM in San Francisco, Courtroom 03, 17th Floor. (Attachments: # 1 Notice of Eligibility for Video Recording) (gbaS, COURT STAFF) (Filed on 2/25/2019) (Entered: 02/25/2019)
Electronic filing error. Corrected by Clerk's Office. Re: 32 Immigration Mandamus Case Procedural Order. ***PLEASE DISREGARD, ISSUED IN ERROR*** (gbaS, COURT S TAFF) (Filed on 2/25/2019) (Entered: 02/25/2019)
37 MOTION to Transfer Case to the Southern District of California filed by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement. Responses due by 3/11/2019. Replies due by 3/18/2019. (Attachments: # 1 Exhibit A −− CDCal Transfer Order, # 2 Exhibit B −− NDCAL MTI Order, # 3 Proposed Order Granting Transfer)(York, Thomas) (Filed on 2/25/2019) (Entered: 02/25/2019)
38 NOTICE of Appearance by Karen Barbara Musalo (Musalo, Karen) (Filed on 2/26/2019) (Entered: 02/26/2019)
39 NOTICE of Appearance by Eunice Chaeyoung Lee (Lee, Eunice) (Filed on 2/26/2019) (Entered: 02/26/2019)
40 NOTICE of Appearance by Blaine Meredith Bookey (Bookey, Blaine) (Filed on 2/26/2019) (Entered: 02/26/2019)
41 NOTICE of Appearance by Archith Ramkumar (Ramkumar, Archith) (Filed on 2/28/2019) (Entered: 02/28/2019)
42 OPPOSITION/RESPONSE (re 20 MOTION for Temporary Restraining Order ) filed byLee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Attachments: # 1 Proposed Order)(Reuveni, Erez) (Filed on 3/1/2019) (Entered: 03/01/2019)
43 NOTICE by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 19 of 24

03/01/2019 03/01/2019 03/04/2019
03/05/2019 03/06/2019 03/06/2019 03/06/2019 03/06/2019 03/07/2019

Customs Enforcement, Ronald D. Vitiello (filing of the administrative record) (Reuveni, Erez) (Filed on 3/1/2019) (Additional attachment(s) added on 4/23/2019: Administrative Record # 1 Part 1, # 2 Part 2, # 3 Part 3, # 4 Part 4, # 5 Part 5, # 6 Part 6, # 7 Part 7, # 8 Part 8, # 9 Part 9, # 10 Part 10 (1of 2), # 11 Part 10 (2 of 2)) (gbaS, COURT STAFF). (Entered: 03/01/2019)
44 Administrative Motion to File Under Seal filed by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Attachments: # 1 Declaration of Archith Ramkumar, # 2 Proposed Order, # 3 Unredacted Version of Exhibit A)(Ramkumar, Archith) (Filed on 3/1/2019) (Entered: 03/01/2019)
45 MOTION to Strike 20 MOTION for Temporary Restraining Order filed by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. Responses due by 3/6/2019. Replies due by 3/8/2019. (Attachments: # 1 Proposed Order)(Ramkumar, Archith) (Filed on 3/1/2019) (Entered: 03/01/2019)
46 OPPOSITION/RESPONSE (re 37 MOTION to Transfer Case to the Southern District of California ) filed byAl Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. (Attachments: # 1 Declaration (Supplemental) of Laura Victoria Sanchez (CARECEN), # 2 Declaration (Supplemental) of Jacqueline Brown Scott (USF Clinic), # 3 Declaration (Supplemental) of Eleni Wolfe−Roubatis (Centro Legal), # 4 Declaration (Third) of Stephen W. Manning (Law Lab), # 5 Declaration (Supplemental) of Rena Cutlip−Mason (Tahirih), # 6 Declaration of Miguel Marquez (Santa Clara County), # 7 Declaration of Emilia Garcia and Exhibits)(Eiland, Katrina) (Filed on 3/4/2019) (Entered: 03/04/2019)
47 Consent MOTION for Leave to File Amicus Brief in Support of Federal Defs in Opposition to TRO filed by Immigration Reform Law Institute. (Attachments: # 1 Exhibit Proffered Amicus Brief, # 2 Proposed Order Proposed Order)(Joseph, Lawrence) (Filed on 3/5/2019) (Entered: 03/05/2019)
48 ORDER by Judge Richard Seeborg granting 47 Motion for Leave to File. (cl, COURT STAFF) (Filed on 3/6/2019) (Entered: 03/06/2019)
49 Amicus Curiae Brief by Immigration Reform Law Institute. (gbaS, COURT STAFF) (Filed on 3/6/2019) (Entered: 03/06/2019)
50 OPPOSITION/RESPONSE (re 45 MOTION to Strike 20 MOTION for Temporary Restraining Order ) filed byAl Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. (Attachments: # 1 Proposed Order for Briefing Schedule, # 2 Proposed Order for Consideration of Plaintiffs' Evidence)(Veroff, Julie) (Filed on 3/6/2019) (Entered: 03/06/2019)
51 MOTION Consideration of Plaintiffs' Evidence re 20 MOTION for Temporary Restraining Order filed by Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. Responses due by 3/8/2019. (Attachments: # 1 Proposed Order for Briefing Schedule, # 2 Proposed Order for Consideration of Plaintiffs' Evidence)(Veroff, Julie) (Filed on 3/6/2019) (Entered: 03/06/2019)
52 REPLY (re 20 MOTION for Temporary Restraining Order ) filed byAl Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration and Deportation Defense Clinic at the University of San Francisco School of Law, Innovation Law Lab, Tahirih Justice Center. (Rabinovitz, Judy) (Filed on 3/7/2019) (Entered: 03/07/2019)

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 20 of 24

03/07/2019
03/08/2019 03/08/2019
03/08/2019
03/08/2019
03/18/2019 03/18/2019
03/18/2019 03/19/2019 03/19/2019 03/20/2019 03/22/2019

53 REPLY (re 37 MOTION to Transfer Case to the Southern District of California ) filed byLee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (York, Thomas) (Filed on 3/7/2019) (Entered: 03/07/2019)
54 CLERK'S NOTICE SETTING HEARING ON MOTION FOR PRELIMINARY INJUNCTION. Motion Hearing set for 3/22/2019 at 09:30 AM in San Francisco, Courtroom 03, 17th Floor before Judge Richard Seeborg. (This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Filed on 3/8/2019) (Entered: 03/08/2019)
55 REPLY (re 45 MOTION to Strike 20 MOTION for Temporary Restraining Order ) filed byLee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Ramkumar, Archith) (Filed on 3/8/2019) (Entered: 03/08/2019)
56 OPPOSITION/RESPONSE (re 51 MOTION Consideration of Plaintiffs' Evidence re 20 MOTION for Temporary Restraining Order ) filed byLee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Ramkumar, Archith) (Filed on 3/8/2019) (Entered: 03/08/2019)
57 Statement regarding scheduling motion practice on Plaintiffs yet−to−be−filed Motion to Set a Briefing Schedule for a Motion to Complete the Record" by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Reuveni, Erez) (Filed on 3/8/2019) (Entered: 03/08/2019)
58 NOTICE by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security (York, Thomas) (Filed on 3/18/2019) (Entered: 03/18/2019)
59 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 26G63CEH.) Filing fee previously paid on 3/18/19 filed by University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Innovation Law Lab, Tahirih Justice Center. (Willis, Gracie) (Filed on 3/18/2019) (Entered: 03/18/2019)
60 ORDER by Judge Richard Seeborg granting 59 Motion for Pro Hac Vice as to Gracie Harper Willis. (cl, COURT STAFF) (Filed on 3/18/2019) (Entered: 03/18/2019)
61 NOTICE of Appearance by Scott G. Stewart (Stewart, Scott) (Filed on 3/19/2019) (Entered: 03/19/2019)
62 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13183045.) filed by University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Innovation Law Lab, Tahirih Justice Center. (Crow, Melissa) (Filed on 3/19/2019) (Entered: 03/19/2019)
63 ORDER by Judge Richard Seeborg granting 62 Motion for Pro Hac Vice as to Melissa Crow. (cl, COURT STAFF) (Filed on 3/20/2019) (Entered: 03/20/2019)
64 Minute Entry for proceedings held before Judge Richard Seeborg: Motion for Preliminary Injunction Hearing held on 3/22/2019. Motion taken under submission; Court to issue an order. Total Time in Court: 2 hours 10 minutes. Court Reporter: Jo Ann Bryce.
Plaintiff Attorney: Judy Rabinovitz, Katrina Eiland, Eunice Lee, Julie Veroff,

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 21 of 24

03/22/2019
03/22/2019
03/27/2019
03/28/2019 04/02/2019 04/03/2019 04/03/2019 04/05/2019 04/08/2019 04/08/2019 04/10/2019

Lee Gelernt, Melissa Crow, Blaine Bookey, Jennifer Chang Newell. Defendant Attorney: Scott Stewart, Erez Reuveni.
(This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Date Filed: 3/22/2019) (Entered: 03/22/2019)
65 TRANSCRIPT ORDER for proceedings held on 3/22/2019 before Judge Richard Seeborg by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, for Court Reporter Jo Ann Bryce. (Ramkumar, Archith) (Filed on 3/22/2019) (Entered: 03/22/2019)
66 TRANSCRIPT ORDER for proceedings held on 3/22/2019 before Judge Richard Seeborg by University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Innovation Law Lab, Tahirih Justice Center, for Court Reporter Jo Ann Bryce. (Rabinovitz, Judy) (Filed on 3/22/2019) (Entered: 03/22/2019)
67 Transcript of Proceedings held on 3/22/19, before Judge Richard Seeborg. Court Reporter Jo Ann Bryce, telephone number 510−910−5888, joann_bryce@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction after 90 days. After that date, it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 65 Transcript Order, ) Release of Transcript Restriction set for 6/25/2019. (Related documents(s) 65 ) (jabS, COURTSTAFF) (Filed on 3/27/2019) (Entered: 03/27/2019)
68 ORDER FOR EXPEDITED FURTHER BRIEFING. Signed by Judge Richard Seeborg on 3/28/19. (cl, COURT STAFF) (Filed on 3/28/2019) (Entered: 03/28/2019)
69 NOTICE by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello (York, Thomas) (Filed on 4/2/2019) (Entered: 04/02/2019)
70 Supplemental Brief re 68 Order filed byLee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Related document(s) 68 ) (Reuveni, Erez) (Filed on 4/3/2019) (Entered: 04/03/2019)
71 Supplemental Brief re 68 Order filed by University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Innovation Law Lab, Tahirih Justice Center. (Related document(s) 68 ) (Rabinovitz, Judy) (Filed on 4/3/2019) (Entered: 04/03/2019)
72 NOTICE of Appearance by Cody H. Wofsy (Wofsy, Cody) (Filed on 4/5/2019) (Entered: 04/05/2019)
73 ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION. Signed by Judge Richard Seeborg on 4/8/19. (cl, COURT STAFF) (Filed on 4/8/2019) (Entered: 04/08/2019)
74 ORDER Granting Motion to File Under Seal re 44 Administrative Motion to File Under Seal filed by Ronald D. Vitiello. Signed by Judge Richard Seeborg on 4/8/19. (cl, COURT STAFF) (Filed on 4/8/2019) (Entered: 04/08/2019)
75 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S.

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 22 of 24

04/22/2019
04/22/2019 04/22/2019 04/24/2019 04/26/2019 04/30/2019 04/30/2019 05/16/2019
05/16/2019
05/16/2019
05/20/2019 05/20/2019

Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. Appeal of Order, Terminate Motions 73 (Appeal fee FEE WAIVED.) (Reuveni, Erez) (Filed on 4/10/2019) (Entered: 04/10/2019)
76 Consent MOTION for Extension of Time to File Answer re 1 Complaint,, filed by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Attachments: # 1 Proposed Order)(Ramkumar, Archith) (Filed on 4/22/2019) (Entered: 04/22/2019)
77 USCA Case Number 19−15716 for 75 Notice of Appeal, filed by Ronald D. Vitiello, U.S. Department of Homeland Security, U.S. Customs and Border Protection, John L. Lafferty, Todd C. Owen, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen Nielsen, Kevin K. McAleenan, Lee Francis Cissna. (gbaS, COURT STAFF) (Filed on 4/22/2019) (Entered: 04/22/2019)
78 ORDER of USCA as to 75 Notice of Appeal, filed by Ronald D. Vitiello, U.S. Department of Homeland Security, U.S. Customs and Border Protection, John L. Lafferty, Todd C. Owen, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen Nielsen, Kevin K. McAleenan, Lee Francis Cissna. (gbaS, COURT STAFF) (Filed on 4/22/2019) (Entered: 04/22/2019)
79 ORDER by Judge Richard Seeborg granting 76 Motion for Extension of Time to Answer re 76 Consent MOTION for Extension of Time to File Answer re 1 Complaint,, . (cl, COURT STAFF) (Filed on 4/24/2019) (Entered: 04/24/2019)
80 SUMMONS Returned Executed by Central American Resource Center of Northern California, Innovation Law Lab, Tahirih Justice Center, Centro Legal de la Raza, University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado. All Defendants. (Rabinovitz, Judy) (Filed on 4/26/2019) (Entered: 04/26/2019)
81 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13303984.) filed by Innovation Law Lab. (Watt, Steven) (Filed on 4/30/2019) (Entered: 04/30/2019)
82 ORDER by Judge Richard Seeborg granting 81 Motion for Pro Hac Vice as to Steven M. Watt. (cl, COURT STAFF) (Filed on 4/30/2019) (Entered: 04/30/2019)
83 OPINION of USCA as to 75 Notice of Appeal, filed by Ronald D. Vitiello, U.S. Department of Homeland Security, U.S. Customs and Border Protection, John L. Lafferty, Todd C. Owen, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen Nielsen, Kevin K. McAleenan, Lee Francis Cissna. (Attachments: # 1 Concurrence, # 2 Dissent) (gbaS, COURT STAFF) (Filed on 5/16/2019) (Entered: 05/16/2019)
84 STIPULATION WITH PROPOSED ORDER For an Extension of Time to Respond to Upcoming Deadlines filed by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Ramkumar, Archith) (Filed on 5/16/2019) (Entered: 05/16/2019)
85 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. The Case Management Conference previously set for May 23, 2019 is continued to June 6, 2019 at 10:00 AM in Courtroom 3, 17th Floor, San Francisco. Case Management Statement due by May 30, 2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (rslc2S, COURT STAFF) (Filed on 5/16/2019) (Entered: 05/16/2019)
86 ORDER by Judge Richard Seeborg Granting 84 Stipulation for an Extension of Time to Respond to Upcoming Deadlines. (cl, COURT STAFF) (Filed on 5/20/2019) (Entered: 05/20/2019)
87 MOTION to Stay filed by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S.

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 23 of 24

05/22/2019 05/23/2019 05/24/2019
05/28/2019
06/03/2019 06/10/2019 07/15/2019 07/19/2019 09/05/2019
09/20/2019 10/15/2019 11/06/2019

Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. Responses due by 6/3/2019. Replies due by 6/10/2019. (Attachments: # 1 Proposed Order)(Ramkumar, Archith) (Filed on 5/20/2019) (Entered: 05/20/2019)
88 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13371678.) filed by University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Innovation Law Lab, Tahirih Justice Center. (Bookey, Blaine) (Filed on 5/22/2019) (Entered: 05/22/2019)
89 ORDER by Judge Richard Seeborg granting 88 Motion for Pro Hac Vice Sayoni Maitra. (cl, COURT STAFF) (Filed on 5/23/2019) (Entered: 05/23/2019)
90 ORDER of USCA as to 75 Notice of Appeal, filed by Ronald D. Vitiello, U.S. Department of Homeland Security, U.S. Customs and Border Protection, John L. Lafferty, Todd C. Owen, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen Nielsen, Kevin K. McAleenan, Lee Francis Cissna. USCA No. 19−15716. (wsnS, COURT STAFF) (Filed on 5/24/2019) (Entered: 05/24/2019)
91 CLERK'S NOTICE CONTINUING INITIAL CASE MANAGEMENT CONFERENCE.Case Management Statement due by 9/5/2019. Initial Case Management Conference previously set for 6/6/2019 has been continued to 9/12/2019 at 10:00 AM in San Francisco, Courtroom 03, 17th Floor. (This is a text−only entry generated by the court. There is no document associated with this entry.) (cl, COURT STAFF) (Filed on 5/28/2019) (Entered: 05/28/2019)
92 OPPOSITION/RESPONSE (re 87 MOTION to Stay ) filed by University of San Francisco School of Law Immigration and Deportation Defense Clinic, Al Otro Lado, Central American Resource Center of Northern California, Centro Legal de la Raza, Immigration Reform Law Institute, Innovation Law Lab, Tahirih Justice Center. (Rabinovitz, Judy) (Filed on 6/3/2019) (Entered: 06/03/2019)
93 REPLY (re 87 MOTION to Stay ) filed byLee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Ramkumar, Archith) (Filed on 6/10/2019) (Entered: 06/10/2019)
94 ORDER by Judge Richard Seeborg granting 87 Motion to Stay. (cl, COURT STAFF) (Filed on 7/15/2019) (Entered: 07/15/2019)
95 ORDER of USCA as to 75 Notice of Appeal, filed by Ronald D. Vitiello, U.S. Department of Homeland Security, U.S. Customs and Border Protection, John L. Lafferty, Todd C. Owen, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen Nielsen, Kevin K. McAleenan, Lee Francis Cissna. (gbaS, COURT STAFF) (Filed on 7/19/2019) (Entered: 07/19/2019)
96 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. The Initial Case Management Conference previously set for September 12, 2019 is continued to November 14, 2019 at 10:00 AM in Courtroom 3, 17th Floor, San Francisco. Case Management Statement due by November 7, 2019. (This is a text−only entry generated by the court. There is no document associated with this entry.) (rslc2, COURT STAFF) (Filed on 9/5/2019) (Entered: 09/05/2019)
97 NOTICE of Change In Counsel by Sean Connor Riordan (Riordan, Sean) (Filed on 9/20/2019) (Entered: 09/20/2019)
98 Statement Jointly Filed Regarding Status of Appeal by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Ramkumar, Archith) (Filed on 10/15/2019) (Entered: 10/15/2019)
99 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE: The Initial Case Management Conference previously set for November 14, 2019 is continued to January 9, 2020 at 10:00 AM in Courtroom 3, 17th Floor, San Francisco.

Case: 3:19-cv-807 As of: 03/10/2020 11:23 AM PDT 24 of 24

11/15/2019 11/15/2019 01/03/2020 01/03/2020
01/10/2020
02/18/2020
02/28/2020 02/28/2020 02/28/2020 03/04/2020

Case Management Statement due by January 2, 2020. (This is a text−only entry generated by the court. There is no document associated with this entry.) (rslc2, COURT STAFF) (Filed on 11/6/2019) (Entered: 11/06/2019)
100 NOTICE of Appearance by Celso Javier Perez (Perez, Celso) (Filed on 11/15/2019) (Entered: 11/15/2019)
101 NOTICE of Change In Counsel by Melissa E Crow (Crow, Melissa) (Filed on 11/15/2019) (Entered: 11/15/2019)
102 NOTICE of Change In Counsel by Judy Rabinovitz Notice of Withdrawal of Counsel (Rabinovitz, Judy) (Filed on 1/3/2020) (Entered: 01/03/2020)
103 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. The Initial Case Management Conference previously set for January 9, 2020 is continued to February 27, 2020 at 10:00 AM in Courtroom 3, 17th Floor, San Francisco. Case Management Statement due by February 20, 2020. (This is a text−only entry generated by the court. There is no document associated with this entry.) (rslc2, COURT STAFF) (Filed on 1/3/2020) (Entered: 01/03/2020)
104 JOINT Statement Regarding Status of Appeal by Lee Francis Cissna, John L. Lafferty, Kevin K. McAleenan, Kirstjen Nielsen, Todd C. Owen, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello. (Ramkumar, Archith) (Filed on 1/10/2020) Modified on 1/12/2020 (gbaS, COURT STAFF). (Entered: 01/10/2020)
105 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. The Initial Case Management Conference previously set for February 27, 2020 is continued to April 2, 2020 at 10:00 AM in Courtroom 3, 17th Floor, San Francisco. Case Management Statement due by March 26, 2020. (This is a text−only entry generated by the court. There is no document associated with this entry.) (rslc2, COURT STAFF) (Filed on 2/18/2020) (Entered: 02/18/2020)
106 ORDER of USCA as to 75 Notice of Appeal, filed by Ronald D. Vitiello, U.S. Department of Homeland Security, U.S. Customs and Border Protection, John L. Lafferty, Todd C. Owen, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen Nielsen, Kevin K. McAleenan, Lee Francis Cissna. (gbaS, COURT STAFF) (Filed on 2/28/2020) (Entered: 02/28/2020)
107 USCA Opinion as to 75 Notice of Appeal, filed by Ronald D. Vitiello, U.S. Department of Homeland Security, U.S. Customs and Border Protection, John L. Lafferty, Todd C. Owen, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, Kirstjen Nielsen, Kevin K. McAleenan, Lee Francis Cissna. (gbaS, COURT STAFF) (Filed on 2/28/2020) (Entered: 02/28/2020)
108 ORDER of USCA as to 75 Notice of Appeal 19−15716. The emergency request for an immediate stay of this court's February 28, 2020 decision pending disposition of a petition for certiorari is granted pending further order of this court. (wsnS, COURT STAFF) (Filed on 2/28/2020) (Entered: 03/02/2020)
109 ORDER of USCA as to 75 Notice of Appeal 19−15716. (wsnS, COURT STAFF) (Filed on 3/4/2020) (Entered: 03/05/2020)

 
 Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 1 of 41

1 Judy Rabinovitz*

Michael Tan*

2 Omar C. Jadwat*

ACLU FOUNDATION 3 IMMIGRANTS’ RIGHTS PROJECT

125 Broad Street, 18th Floor 4 New York, NY 10004

T: (212) 549-2660 5 F: (212) 549-2654

6

jrabinovitz@aclu.org mtan@aclu.org

7 ojadwat@aclu.org

Jennifer Chang Newell (SBN 233033) Katrina Eiland (SBN 275701) Julie Veroff (SBN 310161) ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-0770 F: (415) 395-0950 jnewell@aclu.org keiland@aclu.org jveroff@aclu.org

8 Melissa Crow* SOUTHERN POVERTY LAW CENTER
9 1101 17th Street NW, Suite 705

Washington, D.C. 20036 10 T: (202) 355-4471

11

F: (404) 221-5857 melissa.crow@splcenter.org

Attorneys for Plaintiffs (Additional counsel listed on following page)

12 UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14 Innovation Law Lab; Central American Resource Center

of Northern California; Centro Legal de la Raza;

Case No.:

15 Immigration and Deportation Defense Clinic at the University of San Francisco School of Law; Al Otro

16 Lado; Tahirih Justice Center; John Doe; Gregory Doe; Bianca Doe; Dennis Doe; Alex Doe; Christopher Doe; COMPLAINT FOR

17 Evan Doe; Frank Doe; Kevin Doe; Howard Doe; Ian Doe,

DECLARATORY AND INJUNCTIVE RELIEF

18 Plaintiffs,

19 v.

IMMIGRATION ACTION

20 Kirstjen Nielsen, Secretary of Homeland Security, in
21 her official capacity; U.S. Department of Homeland Security; Lee Francis Cissna, Director, U.S. Citizenship
22 and Immigration Services, in his official capacity; John L. Lafferty, Chief of Asylum Division, U.S. Citizenship
23 and Immigration Services, in his official capacity; U.S. Citizenship and Immigration Services; Kevin K.
24 McAleenan, Commissioner, U.S. Customs and Border Protection, in his official capacity; Todd C. Owen,
25 Executive Assistant Commissioner, Office of Field Operations, U.S. Customs and Border Protection, in his
26 official capacity; U.S. Customs and Border Protection; Ronald D. Vitiello, Acting Director, U.S. Immigration
27 and Customs Enforcement, in his official capacity; U.S. Immigration and Customs Enforcement,

28 Defendants.

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 2 of 41

1 Lee Gelernt*

Anand Balakrishnan* 2 Daniel Galindo**(SBN 292854)

3

ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

4 125 Broad Street, 18th Floor New York, NY 10004

5 T: (212) 549-2660

F: (212) 549-2654 6 ojadwat@aclu.org

7

abalakrishnan@aclu.org lgelernt@aclu.org

8 Mary Bauer*

9 SOUTHERN POVERTY LAW CENTER

1000 Preston Avenue 10 Charlottesville, VA 22903

11

T: (470) 606-9307 F: (404) 221-5857

12 mary.bauer@splcenter.org

13 Saira Draper*

Gracie Willis* 14 SOUTHERN POVERTY LAW CENTER

15

150 E Ponce de Leon Avenue, Suite 340 Decatur, GA 30030

16 T: (404) 221-6700 F: (404) 221-5857

17 saira.draper@splcenter.org

gracie.willis@splcenter.org 18

19 Steven Watt* ACLU FOUNDATION
20 HUMAN RIGHTS PROGRAM 125 Broad Street, 18th Floor
21 New York, NY 10004
T: (212) 519-7870 22 F: (212) 549-2654
23 swatt@aclu.org

24 Attorneys for Plaintiffs

25 *Pro hac vice application forthcoming 26 **Application for admission forthcoming

27

28

Sean Riordan (SBN 255752) Christine P. Sun (SBN 218701) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 T: (415) 621-2493 F: (415) 255-8437 sriordan@aclunc.org csun@aclunc.org
Blaine Bookey Karen Musalo Eunice Lee Kathryn Jastram Sayoni Maitra* CENTER FOR GENDER & REFUGEE STUDIES 200 McAllister St. San Francisco, CA 94102 T: (415) 565-4877 F: (415) 581-8824 bookeybl@uchastings.edu musalok@uchastings.edu leeeunice@uchastings.edu jastramkate@uchastings.edu maitras@uchastings.edu

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 3 of 41

1

INTRODUCTION

2 1. This case challenges the federal government’s new policy of forcing asylum seekers to

3 return to danger in Mexico while they await their removal proceedings, in violation of the

4 humanitarian protections to which they are entitled under United States and international law.

5

2. 6

Plaintiffs are individual asylum seekers from Central America who are now living in fear in

7 Mexico because they were returned there under the new policy, as well as legal organizations

8 whose missions to provide representation to such asylum seekers are being thwarted by the physical

9 removal of those asylum seekers from the United States.

10 3. Since the enactment of the 1980 Refugee Act nearly forty years ago, U.S. law has prohibited
11 the return of individuals to countries where they are likely to face persecution, while providing an 12
asylum procedure by which individuals fleeing persecution can seek and obtain permanent safety. 13
But at the end of January, the government began to implement a new policy that eviscerates both of 14
15 these fundamental protections.

16 4. Under the new policy, immigration authorities are forcing asylum seekers at the southern

17 border of the United States to return to Mexico—to regions experiencing record levels of

18 violence—where they must remain for the duration of their asylum proceedings. By placing them in
19 such danger, and under conditions that make if difficult if not impossible for them to prepare their
20 cases, Defendants are depriving them of a meaningful opportunity to seek asylum.
21 22 5. Moreover, the procedure Defendants have implemented for determining who can be
23 returned under the policy is wholly inadequate for ensuring that those who face persecution, torture,

24 or death in Mexico will not be erroneously returned. Indeed, the procedure is unlike any that

25 Defendants have previously used to adjudicate such claims for protection. Yet Defendants’ policy 26 memoranda contain no explanation for such a departure. 27

28

2 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 4 of 41

1 6. Defendants call their new forced return policy the “Migrant Protection Protocols” (“MPP”).

2 It was first announced by Secretary of Homeland Security Kirstjen M. Nielsen on December 20,
3 2018, and implemented at the San Ysidro Port of Entry in California on January 28, 2019. 4
Defendants recently announced imminent expansion of the policy to the Eagle Pass Port of Entry, 5
with other Texas locations soon to follow. 6 7 7. The new policy violates the Immigration and Nationality Act (“INA”) and the
8 Administrative Procedure Act (“APA”). It violates the INA because the authority Defendants cite

9 for the policy, INA § 235(b)(2)(C), 8 U.S.C. § 1225(b)(2)(C)—a provision that allows the return

10 pending removal proceedings of certain noncitizens who arrive by land from a contiguous foreign
11 territory—cannot be used against the asylum seekers to whom Defendants are applying it. It also 12
violates INA § 208, 8 U.S.C. §1158 (establishing a right to apply for asylum), and INA § 241(b)(3), 13
8 U.S.C. § 1231(b)(3) (prohibiting removal to a country where one would face persecution). The 14
15 policy violates the APA, because Defendants failed to comply with the APA’s notice and comment

16 requirements and because the policy is arbitrary, capricious, and contrary to law.

17 8.

Plaintiffs seek a declaration that the policy is illegal and an injunction enjoining its

18 operation.

19 JURISDICTION & VENUE

20
9. 21

This case arises under the United States Constitution; the Administrative Procedure Act

22 (“APA”), 5 U.S.C. § 701 et seq.; the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et

23 seq. and its implementing regulations; and the Convention Against Torture (“CAT”), see Foreign

24 Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-277, div. G, Title

25 XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231).
26 10. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), the Declaratory 27
Judgment Act, 28 U.S.C. §§ 2201-2202, and the Alien Tort Statute, 28 U.S.C. § 1350. 28

3 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 5 of 41

1 11. Venue is proper under 28 U.S.C. § 1391(e)(1) because Defendants are agencies of the

2 United States and officers of the United States acting in their official capacity; three of the Plaintiff

3 organizations have their principal residence in this District; and another two Plaintiff organizations

4 have offices in this District.
5
6

PARTIES

7 12. Plaintiff John Doe fled Guatemala to seek asylum in the United States. On January 30, 2019,

8 he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently in

9 Tijuana, where he fears for his life.

10 13. Plaintiff Gregory Doe fled Honduras to seek asylum in the United States. On January 30,
11 2019, he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently 12
in Tijuana where he fears for his life. 13
14. Plaintiff Bianca Doe fled Honduras to seek asylum in the United States. On January 30, 14
15 2019, she was returned to Mexico pursuant to Defendants’ new forced return policy. She is

16 currently in Tijuana where she fears for her life.

17 15. Plaintiff Dennis Doe fled Honduras to seek asylum in the United States. On January 30,

18 2019, he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently
19 in Tijuana where he fears for his life.
20 16. Plaintiff Alex Doe fled Honduras to seek asylum in the United States. On January 30, 2019,
21 22 he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently in
23 Tijuana where he fears for his life.

24 17. Plaintiff Christopher Doe fled Honduras to seek asylum in the United States. On January 30,

25 2019, he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently 26 in Tijuana where he fears for his life. 27

28

4 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 6 of 41
1 18. Plaintiff Evan Doe fled El Salvador to seek asylum in the United States. On January 30,
2 2019, he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently 3 in Tijuana where he fears for his life. 4
19. Plaintiff Frank Doe fled Honduras to seek asylum in the United States. On February 4, 2019, 5
he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently in 6 7 Tijuana where he fears for his life. 8 20. Plaintiff Kevin Doe fled Honduras to seek asylum in the United States. On January 30,
9 2019, he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently
10 in Tijuana where he fears for his life. 11 21. Plaintiff Howard Doe fled Honduras to seek asylum in the United States. On February 5, 12
2019, he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently 13
in Tijuana where he fears for his life. 14 15 22. Plaintiff Ian Doe fled Honduras to seek asylum in the United States. On February 5, 2019,
16 he was returned to Mexico pursuant to Defendants’ new forced return policy. He is currently in
17 Tijuana where he fears for his life.
18 23. Plaintiff Innovation Law Lab (the “Law Lab”) is a nonprofit organization that has projects 19
in multiple states throughout the country, including California, New Mexico, Texas, Oregon, and 20
North Carolina. The Law Lab seeks to advance the legal rights of immigrants and refugees in the 21 22 United States, with a focus on providing and facilitating representation to asylum seekers through 23 innovative, technology-driven models. The Law Lab has an office in Oakland, California.
24 24. Plaintiff Central American Resource Center of Northern California (“CARECEN”) is a
25 nonprofit organization founded in 1986 by Central American refugees, which provides pro bono 26 and low cost immigration services to primarily low-income, immigrant, Latino, and monolingual 27
Spanish speakers. A central part of CARECEN’s mission is to provide legal counseling and 28
5 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 7 of 41
1 representation to asylum seekers, the vast majority of whom enter the United States through the
2 southern border. The organization is incorporated in California and headquartered in San Francisco, 3 California. 4
25. Plaintiff Centro Legal de la Raza (“Centro Legal”) is nonprofit organization incorporated in 5
California. Centro Legal is a comprehensive immigration services agency focused on protecting 6 7 and expanding the rights of low-income people, particularly Latino immigrants and asylum 8 seekers. Centro Legal’s comprehensive immigration practice specializes in providing removal
9 defense for asylum seekers and others throughout California, including asylum seekers arriving
10 through the U.S.-Mexico border. Centro Legal is the largest provider of removal defense services 11 in California, and has offices in Oakland, Hayward, and San Francisco, California. 12
26. Plaintiff Immigration and Deportation Defense Clinic at the University of San Francisco 13
School of Law (the “USF Clinic”) is a nonprofit organization that provides removal defense and 14 15 engages in advocacy in California. The USF Clinic’s twofold mission is to provide free legal
16 services to noncitizens in removal proceedings, with an emphasis on asylum, and to train law
17 students to be effective and ethical immigration lawyers in the area of defensive asylum cases. The
18 USF Clinic is headquartered in San Francisco, California. 19
27. Plaintiff Al Otro Lado (“AOL”) is a nonprofit legal services organization based in Los 20
Angeles, California that serves indigent deportees, migrants, refugees, and their families in 21 22 Southern California and Tijuana, Mexico. Al Otro Lado’s mission is to provide screening, 23 advocacy, and legal representation for individuals in asylum and other immigration proceedings; to
24 seek redress for civil rights violations; and to provide assistance with other legal and social service
25 needs. 26 28. Plaintiff Tahirih Justice Center (“Tahirih”) is a nonprofit and non-partisan organization 27
providing free legal immigration services to survivors of gender-based violence. Tahirih’s mission 28
6 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 8 of 41
1 is to provide free holistic services to immigrant women and girls fleeing violence such as rape,
2 domestic violence, female genital mutilation/cutting, forced marriage, and human trafficking, and 3 who seek legal immigration status under U.S. law. Tahirih offers legal representation and social 4
services for individuals who seek protection, including asylum, in their immigration proceedings. 5
Tahirih operates from five offices across the country and has an office in San Francisco, California. 6 7 29. Defendant Kirstjen M. Nielsen is the Secretary of Homeland Security. She is sued in her 8 official capacity. In that capacity, she issued the Migrant Protection Protocols (“MPP”) and related
9 policy guidance. She directs each of the component agencies within the Department of Homeland
10 Security. In her official capacity, Defendant Nielsen is responsible for the administration of the 11 immigration laws pursuant to 8 U.S.C. § 1103, and is empowered to grant asylum or other relief. 12
30. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet-level department of 13
the U.S. government. Its components include U.S. Citizenship and Immigration Services 14 15 (“USCIS”), U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and Customs
16 Enforcement (“ICE”).
17 31. Defendant Lee Francis Cissna is the Director of USCIS. He is sued in his official capacity.
18 32. Defendant John L. Lafferty is the Chief of the Asylum Division of USCIS. He is sued in his 19
official capacity. 20
33. Defendant USCIS is the sub-agency of DHS that, through its asylum officers, conducts 21 22 interviews of individuals who apply for asylum and other forms of protection. Under Defendants’ 23 new policy and their implementing guidance, USCIS asylum officers are directed to interview
24 noncitizens who are potentially subject to return to Mexico, and who affirmatively express a fear of
25 such return, in order to determine whether it is more likely than not that they would be persecuted 26 or tortured in Mexico. 27
28
7 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 9 of 41

1 34. Defendant Kevin K. McAleenan is the Commissioner of CBP. He is sued in his official

2 capacity.
3 35. Defendant Todd C. Owen is the Executive Assistant Commissioner of CBP’s Office of Field 4
Operations (“OFO”). OFO is the largest component of CBP and is responsible for border security, 5
including immigration and travel through U.S. ports of entry. 6 7 36. Defendant CBP is the sub-agency of DHS that is responsible for the initial processing and
8 detention of noncitizens who are apprehended at or between U.S. ports of entry.

9 37. Defendant Ronald D. Vitiello is the Acting Director of ICE. He is sued in his official

10 capacity.
11 38. Defendant ICE is the sub-agency of DHS that is responsible for carrying out removal orders 12
and overseeing immigration detention. 13
BACKGROUND 14
15 A. Asylum Seekers at the U.S.-Mexico Border, Including the Named Plaintiffs, Are

16

Fleeing Horrendous Violence

17 39. Asylum seekers who arrive at the southern border seeking protection in the United States

18 are fleeing some of the most dangerous countries in the world.
19 40. Although these asylum seekers come from all over the world, most come from El Salvador,
20 Guatemala, and Honduras. According to the United Nations High Commissioner for Refugees
21 22 (“UNHCR”), these countries are experiencing epidemic levels of violence. Human rights groups
23 have compared the levels of violence in this region to those typically seen in war zones.

24 41. Those who flee are often escaping life-threatening situations. In particular, violence by

25 criminal armed groups has escalated dramatically in Central America, and those governments have 26 been unable or unwilling to provide effective protection. 27

28

8 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 10 of 41
1 42. The vast majority of the migrants coming to the southern border have legitimate claims to
2 asylum. 3 43. Between fiscal years 2014 and 2016, 12,350 people from El Salvador, Guatemala, and 4
Honduras were granted asylum. Between fiscal years 2010 and 2016, the percentage of asylum 5
seekers from these countries granted protection increased by 96 percent. 6 7 44. The Individual Plaintiffs sought asylum in the United States because they have experienced 8 persecution—including brutal beatings, death threats, and rape—in their countries of origin.
9 45. For example, Plaintiff Bianca Doe, a lesbian woman from Honduras, fears returning to her
10 home country where LGBTQ individuals like her face discrimination, violence, and death, and 11 receive no protection from the authorities. In Honduras, Bianca became pregnant by a man who 12
raped her because of her sexual orientation, and who was then granted custody of their son by a 13
Honduran judge who cited the fact Bianca was a lesbian as evidence of her unfitness as a parent. 14 15 Bianca was forced to flee Honduras after her partner’s abusive father discovered their relationship,
16 and threatened to kill them both if Bianca did not leave the country immediately.
17 46. Plaintiff John Doe is an indigenous man from Guatemala who suffered brutal beatings and
18 death threats at the hands of a “death squad” that controls his town. The death squad targeted him 19
for his indigenous identity, frequently taunting him with indigenous slurs when they attacked him. 20
Some of the attacks left him bloodied and unconscious. John reported the first beating to the police, 21 22 but they did nothing to protect him. 23 47. Plaintiff Ian Doe is a former police officer from Honduras who worked undercover to
24 interdict drug trafficking activity. He fled the country to seek asylum in the U.S. after his identity
25 was revealed to the drug traffickers and they came after him. Ian narrowly escaped with his life. 26 After he left the country, the drug traffickers killed his brother, believing that he was Ian. 27
28
9 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 11 of 41
1 48. Plaintiff Alex Doe is a youth pastor and organizer from Honduras who works with young
2 people who are former or current gang members, or at risk of being forcibly recruited by gangs, 3 After he helped organize a strike to protest the killing of a young member of his church by a 4
powerful gang, he was featured on the national news denouncing the gang and demanding the 5
Honduran government provide more security. He was forced to flee after the gang threatened his 6 7 life. 8 B. Asylum Seekers, Including the Named Plaintiffs, Face Extreme Danger in Mexico
9 49. Like the Individual Plaintiffs, many asylum seekers from Central American have no choice
10 but to travel by land to the United States due to documentation requirements that would be 11 necessary to board a plane, as well as financial constraints. Although this means they must cross 12
through Mexico before reaching the United States, for most, remaining in Mexico is not an option. 13
50. According to the U.S. Department of State, “violence against migrants by government 14 15 officers and organized criminal groups” is one of “[t]he most significant human rights issues” in
16 the Mexico. The State Department also reports that the dangers that forced many Central American
17 migrants to flee their homes are likewise present in Mexico, as the presence of Central American
18 gangs has “spread farther into the country and threatened migrants who had fled the same gangs in 19
their home countries.” 20
51. Asylum seekers in Mexico face a heightened risk of kidnapping, disappearance, trafficking, 21 22 sexual assault, and murder, among other harms. Lesbian, gay, bisexual, and transgender persons, 23 as well as people of indigenous heritage, are particularly at risk.
24 52. Even before they were subjected to Defendants new forced return policy, many of the
25 Individual Plaintiffs had already been the victims of discrimination, robbery, extortion, kidnapping, 26 and assault in Mexico. 27
28
10 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 12 of 41
1 53. For example, Mexican police detained Plaintiff Ian Doe several times and demanded his
2 immigration documents. About a month ago, officers required him to pay a bribe of 1,500 pesos to 3 avoid being arrested and taken to jail. 4
54. Similarly, Plaintiff Christopher Doe was stopped by the Mexican police who threatened that 5
they would take him to jail if they saw him on the street again. 6 7 55. Plaintiff Howard Doe was robbed at gunpoint by two Mexican men in Tijuana just days 8 before he presented himself at the port of entry. The robbers said they knew that he was Honduran,
9 and that if they saw him again, they would kill him.
10 56. Plaintiff Gregory Doe was staying at a shelter in Tijuana when a mob of young men 11 wielding sticks surrounded the shelter and threatened the residents. 12
57. Plaintiff Alex Doe was staying in the Playas neighborhood of Tijuana when he and other 13
asylum seekers were forced to flee in the middle of the night after a group of Mexicans threw stones 14 15 at them and additional attackers began to gather with sticks and other weapons.
16 58. While traveling through Mexico on his way to the U.S.-Mexico border, Plaintiff Howard
17 Doe was kidnapped and held for more than two weeks by members of a Mexican drug cartel until
18 he and several others were able to escape. He fears that the well-connected cartel will find him in 19
the border region and torture and murder him for escaping. 20
59. President Trump has himself acknowledged that Mexico is not a safe place for migrants, 21 22 tweeting on January 31, 2019: “Very sadly, Murder cases in Mexico in 2018 rose 33% from 2017, 23 to 33,341.” He further stated that the situation in Mexico is “[w]orse even than Afghanistan.”
24 60. Moreover, the border regions where asylum seekers subjected to Defendants’ new policy
25 will be returned are especially dangerous. Tijuana, the city where Individual Plaintiffs and other 26 migrants returned from the San Ysidro port of entry are being dumped, is one of the deadliest cities 27
in the world. Tijuana had its highest number of reported murders ever last year, and Baja 28
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 13 of 41
1 California, the state in which Tijuana is located, was the state in Mexico with the highest number
2 of reported murders last year. Asylum seekers in Tijuana have been the direct targets of violence. 3 Among the incidents of violence documented by human rights groups in recent months, two 4
teenagers from Honduras were kidnapped and murdered in Tijuana last December. 5
61. Similar dangers face asylum seekers who will soon be forced to return from the Eagle Pass 6 7 Port of Entry and will be dumped in Coahuila state. The U.S. Department of State advises that 8 Americans reconsider travel to Coahuila because violent crime and gang activity are common, and
9 U.S. employees traveling in Piedras Negras, the town across from Eagle Pass, must observe a
10 nighttime curfew. 11 62. In addition to fearing discrimination and violence in Mexico, several of the Individual 12
Plaintiffs fear that Mexico will unlawfully deport them to their home countries where they face 13
persecution. 14 15 63. There is no functioning asylum system in Mexico, and Central American asylum seekers
16 face a substantial risk of being involuntarily repatriated to the countries they have fled.
17 Intergovernmental and human rights organizations have documented widespread instances of
18 Mexican officials returning Central American migrants to their home countries despite their fears 19
of persecution or torture, without any meaningful process. 20
64. The U.S. Department of State’s 2017 Human Rights Report on Mexico notes “incidents in 21 22 which immigration agents had been known to threaten and abuse migrants to force them to accept 23 voluntary deportation and discourage them from seeking asylum.”
24 65. For example, when Plaintiff Dennis Doe first entered Mexico en route to the United States,
25 he was apprehended by Mexican officials who deported him without asking him if he wished to 26 apply for asylum or if he feared returning to his home country. 27
28
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 14 of 41
1 66. Similarly, Plaintiff Alex Doe witnessed Mexican authorities deport several immigrants
2 simply for being in an area where someone had started a fight. 3 67. Plaintiff Kevin Doe and his wife were arrested by Mexican immigration authorities after 4
they entered the country. The authorities separated Kevin from wife and deported her to Honduras, 5
even though she told them that she was pregnant and scared to return to Honduras 6 7 68. President Trump recently advocated for Mexico to deport individuals who arrived on 8 “caravans,” regardless of their claims for asylum and other protection: “Mexico should move the
9 flag waving Migrants, many of whom are stone cold criminals, back to their countries. Do it by
10 plane, do it by bus, do it anyway (sic) you want, but they are NOT coming into the U.S.A. We will 11 close the Border permanently if need be.” 12
69. The conditions in Mexico will make it difficult if not impossible for asylum seekers to 13
meaningfully exercise their right to apply for asylum. Asylum seekers who are attacked, 14 15 kidnapped, or killed in Mexico will be wholly unable to pursue their asylum applications.
16 70. For those who escape violence but nonetheless live in fear of harm, the psychological
17 strains of navigating danger, necessary limitations on their movement to avoid violence, lack of a
18 secure place to live, and other challenges will prevent them from being able to devote the time 19
needed to meaningfully prepare for their asylum proceedings—a process that, under normal 20
conditions, can require hundreds of hours. 21 22 71. Instead of being able to focus on preparing their cases, asylum seekers forced to return to 23 Mexico will have to focus on trying to survive. These pressures may deter even those with the
24 strongest asylum claims to give up, rather than endure the wait under such conditions.
25 C. Asylum Procedures at the U.S.-Mexico Border 26 72. Until recently, individuals applying for asylum at the southern border were either placed in 27
expedited removal proceedings under INA § 235(b)(1), 8 U.S.C. § 1225(b)(1) or placed in full 28
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 15 of 41
1 removal proceedings under INA § 240, 8 U.S.C. § 1229a. Expedited removal allows for the
2 immediate removal of noncitizens who lack valid entry documents or attempt to enter the U.S. 3 through fraud—unless they express a fear removal. See 8 U.S.C. § 1225(b)(1)(A)(i). 4
73. Although most asylum seekers at the southern border lack valid entry documents and are 5
therefore eligible to be placed in expedited removal, it is well established that the government has 6 7 discretion to decline to initiate removal proceedings against any individual; to determine which 8 charges to bring in removal proceedings; and to place individuals amenable to expedited removal
9 in full removal proceedings instead.
10 74. Regardless of whether they were placed in expedited removal or regular removal 11 proceedings, prior to Defendants’ new policy asylum seekers went through these removal 12
proceedings inside the United States. Those who were placed in expedited removal needed to pass 13
a credible fear interview with an asylum officer first. But once they passed this interview—by 14 15 showing a “significant possibility” that they could establish eligibility for asylum, 8 U.S.C. §
16 1225(b)(1)(B)(v), a low threshold—they were placed in regular removal proceedings.
17 75. Those who were not placed in expedited removal were simply placed in regular removal
18 proceedings without going through the credible fear process. 19
76. Both categories of asylum seekers—those who were placed in regular removal proceedings 20
after first passing a credible fear interview, and those who were placed in removal proceedings 21 22 without such an interview—could either be held in detention or released pursuant to parole or bond 23 pending completion of their asylum proceedings.
24 77. Whether detained or released, however, no asylum seeker could be physically removed
25 from the United States without an order of removal duly issued by either an immigration judge in 26 full removal proceedings or, for those asylum seekers who failed to pass a credible fear screening, 27
by an immigration adjudicator in expedited removal proceedings. 28
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 16 of 41
1
2 D. Defendants’ New Forced Return Policy 3 78. On December 20, 2018, DHS Secretary Nielsen announced an “unprecedented” change to 4
the existing policy. In what DHS described as an “historic action to confront illegal immigration,” 5
Defendant Nielsen announced a new policy, dubbed the “Migrant Protection Protocols” (“MPP”), 6 7 under which DHS would begin requiring noncitizens who seek admission from Mexico “illegally 8 or without proper documentation” to be “returned to Mexico for the duration of their immigration
9 proceedings.”
10 79. According to DHS, the new policy would address the problem of noncitizens who allegedly 11 “game the system” and “disappear into the United States,” and deter migrants from making “false” 12
asylum claims at the border, “while ensuring that vulnerable populations receive the protections 13
they need.” 14 15 80. Subsequently, in a press release justifying the new policy, DHS cited “[m]isguided court
16 decisions and outdated laws [that] have made it easier for illegal aliens to enter and remain in the
17 U.S.,” especially “adults who arrive with children, unaccompanied alien children, or individuals 18 who fraudulently claim asylum.” DHS stated that the new policy “will discourage individuals from 19
attempting illegal entry and making false claims to stay in the U.S. and allow more resources to be 20
dedicated to individuals who legitimately qualify for asylum.” 21 22 81. More than a month later, in late January 2019, DHS issued a handful of memoranda and 23 guidance documents implementing its new forced return policy.
24 82. On January 25, 2019, a memo issued by Defendant Nielsen stated that implementation of
25 the forced return policy would be “on a large scale basis.” 26
27
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 17 of 41
1 83. A few days later, a memorandum issued by CBP Commissioner McAleenan announced
2 that Defendants would begin implementing the new policy at the San Ysidro Port of Entry on 3 January 28, 2019, and that expansion was anticipated “in the near future.” 4
84. During the first two weeks the policy was in place at San Ysidro, the asylum seekers forced 5
to return to Mexico were all single adults. On February 13, 2019, several asylum-seeking families 6 7 were returned to Mexico, one of which included a one-year old child. 8 85. On February 11, 2019, a DHS official informed the media that the forced return policy
9 would imminently be expanded to the Eagle Pass Port of Entry in Texas, and thereafter throughout
10 Texas. 11
E. Purported Legal Authority for Defendants’ Forced Return Policy 12
86. Defendants claim that authority for their new forced return policy comes from INA § 13
235(b)(2)(C), 8 U.S.C. § 1225(b)(2)(C). 14 15 87. Section 1225(b)(2)(C) authorizes DHS to “return” certain individuals who are “arriving on
16 land (whether or not at a designated port of arrival) from a foreign territory contiguous to the
17 United States” to that contiguous territory during the pendency of their removal proceedings.
18 88. The provision was enacted in 1996 at the same time Congress enacted expedited removal. 19
It specifically exempts from its coverage those individuals to whom the expedited removal statute 20
“applies.” 8 U.S.C. § 1225(b)(2)(B)(ii). 21 22 89. Defendants state that their forced return policy does not apply to anyone who was 23 “processed for expedited removal.” CBP, MPP Guiding Principles, at *1 (dated Jan. 28, 2019).
24 However, the population that is expressly targeted by the policy—asylum seekers who cross the
25 border illegally or who present themselves for admission at a port of entry without proper 26 documents—is precisely the population to whom the expedited removal statute applies. 27
28
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 18 of 41
1 90. Defendants’ broad application of Section 1225(b)(2)(C) to this population constitutes a
2 major departure from the agency’s prior practice. 3 91. Between 1997 and 2005, the Immigration and Naturalization Service (“INS”), the precursor 4
agency to DHS, issued a number of memoranda purporting to authorize the use of Section 5
1225(b)(2)(C) in expedited removal proceedings. However, this authority appears never to have 6 7 been exercised, at least not on the “large scale” that is currently anticipated for the forced return 8 policy.
9 92. The INS memoranda specify the limited circumstances in which Section 1225(b)(2)(C) was
10 to be used: only in the event of “insufficient detention space” and “as a last resort,” 2001.03, INS 11 Insp. Field Manual 17.15, and only for individuals who did not “express[]a fear of persecution 12
related to Canada or Mexico.” Memorandum for Regional Directors from Michael A. Pearson, INS 13
Executive Associate Commissioner of Field Operations on Detention Guidelines (“Pearson 14 15 Memo”) at *3 (Oct. 7, 1998) (“If an alien expresses a fear of persecution related to Canada or
16 Mexico, the alien . . . may not be required to wait in that country for a determination of the
17 claim.”).
18 93. Other guidance issued in 2005 to authorize use of the return authority against certain 19
Cubans specifies that it was limited to 1) individuals who had permission to legally reside in the 20
contiguous territory to which they were being returned, and 2) who were ineligible for release from 21 22 detention on discretionary parole. 2006.03.27, ICE Detention & Deportation Officers’ Field 23 Manual, Appx. 16-6.
24 94. The “MPP Guiding Principles” for Defendants’ forced return policy do not include such
25 constraints. CBP officers have discretion whether to subject migrants to forced return under the 26 policy, or instead to process them under regular removal proceedings or expedited removal 27
proceedings. In making this decision, however, officers are not required to consider the availability 28
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 19 of 41

1 of detention space or whether the individual could be released on parole in lieu of being returned to

2 Mexico.
3 95. Nor are officers required to consider whether the individual has a legal status in Mexico for 4
the duration of removal proceedings or has a place to reside, nor whether the individual could be 5
gravely harmed in ways that may not amount to persecution or torture. 6

7 8 F.

Plaintiffs Have Been Harmed by Defendants’ Inadequate Procedures for Determining

9

Whether They Will Face Persecution or Torture in Mexico.

10 96. The Guiding Principles do require that Defendants consider whether an individual is “more
11 likely than not” to face persecution or torture if returned to Mexico—the standard required to 12
obtain “withholding of removal” and one of the few exceptions to the forced return policy. 13
97. On January 28, 2019, USCIS issued guidance setting forth the procedure for making this 14
15 determination. See USCIS Policy Guidance, PM-602-0169, Guidance for Implementing Section

16 235(b)(2)(C) of the Immigration and Nationality Act and the Migrant Protection Protocols, dated

17 Jan. 28, 2019 (“USCIS Guidance”). The procedure established for making this determination is

18 extremely truncated and lacking in basic safeguards.
19 98. First, to receive a determination under the procedure, an asylum seeker must, without notice,
20 affirmatively state a fear of persecution. Then the individual must establish before an asylum officer
21 22 that they are entitled to withholding or CAT protection on the merits—i.e., that it is more likely
23 than not they will be persecuted or tortured.

24 99. The asylum seeker is not permitted to consult with counsel either before or after the

25 interview. In addition, there is no guarantee of an interpreter to assist at the interview.
26 100. The asylum officer’s determination is reviewed by a supervisory asylum officer. No other 27
appeal or review is available. Moreover, if while in Mexico the individual suffers actual persecution 28

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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 20 of 41
1 or torture, or other changed circumstances arise that might affect the determination, there is no
2 opportunity to revisit a negative determination, until the individual returns to the port of entry for 3 their scheduled removal hearing 4
101. These procedures are a stark departure from procedures the Executive Branch has adopted to 5
implement its duty of nonrefoulement. In regular removal proceedings, for example, the decision 6 7 whether an individual faces persecution or torture is made in a hearing before an immigration judge, 8 with a right to counsel, present evidence, and cross-examine witnesses, and then with a right to seek
9 administrative and judicial review.
10 102. Although this new procedure effects a sea change in the treatment of asylum seekers, 11 Defendants adopted it without undertaking notice-and-comment rulemaking. A proposed 12
regulation, “Return to Territory,” appeared on a list of anticipated rulemaking in the fall of 2017, 13
spring of 2017, and fall of 2018, but was withdrawn on December 21, 2018. 14 15 103. Moreover, the Individual Plaintiffs’ experiences demonstrate that asylum seekers are not
16 even being referred to asylum officers despite their real fears of return to Mexico. Instead,
17 Defendants are simply processesing asylum seekers for forced return.
18 104. Prior to their interviews, the Individual Plaintiffs were kept overnight in a “hielera” or “ice 19
box,” a small locked holding cell packed with dozens of other migrants. The Individual Plaintiffs 20
and other migrants were given only a thin mat to sleep on and an aluminum emergency blanket. But 21 22 they got little to no rest before their interviews. The overly crowded cells were freezing, the bright 23 lights were never turned out, and there was constant activity. Many of the Plaintiffs were not given
24 sufficient food.
25 105. In contrast to other screenings conducted by Defendants, Individual Plaintiffs received no 26 “rest period” to ensure they were prepared to testify to their fear of persecution. Indeed, several of 27
the Individual Plaintiffs were even called out and interviewed in the middle of the night. 28
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 21 of 41
1 106. Moreover, the Individual Plaintiffs’ interviews were cursory. For example, Kevin Doe’s
2 interview with CBP lasted all of five minutes, and he was never asked about his fear of being 3 returned to Mexico. 4
107. Christopher Doe—who has a first-grade education and childhood head injury that impairs 5
his learning and memory—tried to explain that he had been attacked while in Mexico at his 6 7 interview, but was abruptly cut off by the CBP officer and never referred to an asylum officer. 8 Christopher’s interview lasted all of 10 to 15 minutes. The officer was impatient and angry, and
9 frequently interrupted him, repeatedly saying “No!” in response to his answers. At the conclusion of
10 the interview, the officer instructed Christopher to sign forms he did not understand, including 11 forms that were only provided to him in English. 12
108. Similarly, Ian Doe was never asked about fear of return to Mexico, and the CBP officer 13
frequently cut him off and did not allow him to fully answer his questions. When Ian explained he 14 15 did not feel safe in Mexico, the officer replied “that it was too bad. He said that [] Honduras wasn’t
16 safe, Mexico wasn’t safe, and the U.S. isn’t safe either . . . He told me I’d have to figure out how to
17 survive in Tijuana.” Ian was also directed to sign documents that were written in English, and he 18 was not offered any interpretation before signing. He later found out the officer had written that Ian 19
had stated that “Mexico” had offered him asylum, even though he never said that. Despite 20
expressing a fear of return, Ian was never referred to an asylum officer. 21 22 109. Indeed, almost none of the Individual Plaintiffs were asked by CBP about their fears of 23 being returned to Mexico.
24 110. Although two Plaintiffs, Howard Doe and Frank Doe, were referred to an asylum officer
25 after expressing their fear of return, they were summarily returned to Mexico with no explanation. 26
27
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 22 of 41
1 111. The CBP officers did not explain the purpose of the interview to the Individual Plaintiffs.
2 Several Plaintiffs only realized they were being returned to Mexico at the conclusion of their 3 interviews. 4
112. In several cases, as with Christopher Doe and Ian Doe, CBP officers frequently interrupted 5
Plaintiffs and did not permit them to fully answer questions or provide additional information. 6 7 113. Several CBP officers spoke only limited Spanish and could not communicate effectively 8 with Plaintiffs during their interviews. Nor did those officers provide Plaintiffs with an interpreter.
9 For example, Bianca Doe was interviewed by an agent who struggled to speak Spanish.
10 114. In several cases, as with Christopher Doe and Ian Doe, Plaintiffs were directed to sign forms 11 in English that they did not understand and that were not explained to them. 12
G. Plaintiffs Are Unable to Meaningfully Access the Asylum Process From Mexico 13
115. Many of the Individual Plaintiffs fear they will be unable to properly prepare their cases 14 15 from Mexico, access or meaningfully communicate with attorneys, and access expert or other
16 professional services necessary to make out their asylum claims. The grave danger and insecurity
17 the Individual Plaintiffs face in Mexico will further undermine their ability to prepare for their cases
18 and meaningfully access the asylum system. 19
116. The Individual Plaintiffs were not provided enough information about how to attend their 20
immigration court hearings in the United States when they were forced to return to Mexico. 21 22 117. Several Individual Plaintiffs have friends or family members in the United States who had 23 offered to help support them and find them an attorney. In Mexico, however, the Individual
24 Plaintiffs do not have any family to help them through the legal process and they lack the financial
25 resources to support themselves in Mexico for months or years. 26 118. For example, Plaintiff Gregory Doe has a sister in the United States who had offered to help 27
support him and obtain the resources he would need to apply for asylum. Gregory worries that, 28
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 23 of 41
1 without assistance, he will not be able to gather the evidence necessary to prove his case, such as
2 statements from those who witnessed his persecution. Plaintiff Evan Doe similarly lacks support in 3 Mexico to help him prepare his case. 4
119. Plaintiff Frank Doe does not know where he will stay while he prepares his asylum claim. 5
After being forced to return to Mexico, he attempted to return to the shelter where he resided 6 7 previously, but officials turned him away because it was full. He was able to find a different shelter 8 to stay for a couple of nights, but he does not have a more permanent residence. Plaintiff Ian Doe
9 was also unable to return to the shelter where he stayed previously.
10 H. The Organizational Plaintiffs Are Injured by Defendants’ Forced Return Policy 11 120. The Organizational Plaintiffs are nonprofit organizations that provide legal assistance to 12
asylum seekers from Central America and other parts of the world, the majority of whom arrive 13
through the southern border. Defendants’ policy of returning asylum seekers to Mexico frustrates 14 15 each Organizational Plaintiff’s goals and requires them to expend resources they otherwise would
16 spend in other ways.
17 121. Plaintiff Innovation Law Lab is a nonprofit organization dedicated to advancing the legal
18 rights of immigrants and refugees in the United States, with a focus on providing legal 19
representation to asylum seekers. Among other programs and services, the Law Lab has established 20
various “Centers of Excellence” around the country, which provide support to asylum seekers and 21 22 their pro bono attorneys, including legal, technical, and strategic assistance in preparing and 23 presenting asylum claims in removal proceedings. These projects are established in Georgia,
24 Kansas, Missouri, North Carolina, and Oregon, and the Law Lab is in the process of expanding to
25 sites in Texas, New Mexico, and California. An important component of the Law Lab’s mission is 26 the investment in technology resources to support its work. The Law Lab employs software 27
28
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 24 of 41
1 engineers to maintain its technology and create software deployments that support its representation
2 models across the United States. 3 122. Defendants’ new forced return policy frustrates Law Lab’s efforts to obtain asylum and 4
other relief for asylum seekers, and has required and will continue to require the Law Lab to divert 5
significantly its limited resources to counteract this frustration. For example, because the policy 6 7 makes it more difficult for asylum seekers to obtain legal representation and to successfully pursue 8 their claims, it threatens to hinder Law Lab’s ability to provide its core services. The attorneys and
9 staff who manage those projects, have had to shift their organizational focus, time, resources to
10 Mexico and away, from critical, ongoing matters and clients served by their existing projects. This 11 significant diversion of the Law Lab’s resources, which has been necessary to counter the 12
frustration of their mission and meet the needs of individuals returned to Mexico, vastly diminishes 13
the organization’s operational capacity. Moreover, the process of deploying the Law Lab’s 14 15 immigration case technology in a new, remote location has been particularly complicated and will
16 require additional investment of resources.
17 123. The new policy has also required Law Lab to rework the orientation, training, and
18 resources that it provides to asylum-seeking clients to address the needs of individuals returned to 19
Mexico. Overhauling these materials is especially challenging in light of the unprecedented 20
circumstances surrounding the new policy. For example, it is unclear how individuals who have 21 22 been returned to Mexico will present their cases and at what time; how they will attend their court 23 hearings; or how, if they are able to obtain counsel, they will exchange documents or information
24 with their attorneys in the United States. This uncertainty also significantly undermines the
25 effectiveness of the Law Lab’s goal to provide effective representation and help asylum seekers 26 successfully pursue relief. 27
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 25 of 41
1 124. The new policy also frustrates the Law Lab’s mission and organizational model because, by
2 returning asylum-seekers to Mexico, fewer pro bono attorneys will be able to provide 3 representation. Most of the pro bono attorneys within the Law Lab’s existing network do not have 4
the time, skill, or capacity to engage in representation for individuals stranded in Mexico, 5
particularly because the organization’s model requires that attorneys provide a substantial portion of 6 7 representation through in-person, face-to-face interactions. In this way, the policy undermines the 8 Law Lab’s ability to provide a core service: engaging and supporting pro bono attorneys to provide
9 direct representation to asylum seekers.
10 125. Plaintiff CARECEN of Northern California provides immigration legal and social services 11 to clients throughout the San Francisco Bay Area and elsewhere in California. A central part of the 12
organization’s mission is to provide high-quality legal counseling, representation, and wrap-around 13
social services, such as case management, mental health therapy, and peer education, to asylum 14 15 seekers.
16 126. CARECEN appears on the list of legal services providers that the federal government has
17 distributed to migrants returned to Mexico. The organization has been retained to represent an
18 asylum seeker returned to Mexico under the policy. Because CARECEN provides a consultation to 19
every person who seeks its assistance, it anticipates serving additional returned individuals in the 20
future. 21 22 127. Due to the numerous significant obstacles to providing high-quality legal and social 23 services to asylum seekers returned to Mexico, the new policy frustrates CARECEN’s mission of
24 providing such services and accordingly requires the organization to divert significant
25 organizational resources in response, as CARECEN’s legal program is neither structured nor 26 envisioned to represent asylum clients residing in Mexico. The policy also makes it more difficult 27
for CARECEN’s potential clients, who will be stuck in Mexico pursuant to the policy, to gain 28
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 26 of 41
1 access to and participate in the organization’s core services, thereby impairing CARECEN’s ability
2 to function. 3 128. For example, CARECEN will not be able to effectively present the claims for protection of 4
returned asylum seekers because the organization will be unable to provide to clients in Mexico the 5
same critical legal and social service support needed to assist survivors of trauma that it provides 6 7 to clients in the United States. Because serving individuals in Mexico will be much more resource 8 intensive, CARECEN will be forced to divert significant resources away from its core services for
9 asylum seekers in the United States to attempt to serve clients while they are in Mexico, or
10 substantially cut or curtail its current asylum practice, which undermines its organizational goals. 11 129. CARECEN also will be forced to expend significant resources to change its intake, 12
consultation, and representation model, all of which are currently predicated on in-person services, 13
and bear the significant costs of frequent travel to Mexico and San Diego. Representing asylum 14 15 seekers returned to Mexico will require CARECEN to restructure attorney caseloads and
16 responsibilities, and divert staff time and other resources from other cases. If the policy remains in
17 effect, CARECEN will be able to handle far fewer cases every year, and its ability to provide
18 mental health and other supportive services will be severely compromised. In addition, 19
CARECEN’s asylum representation program is funded by grants from the State of California and 20
various local governments that require the clients served to live or have previously resided in the 21 22 jurisdiction. Accordingly, taking on asylum cases under the policy will require the organization to 23 divert funding from its general operating budget and so will undermine its ability to maintain its
24 various legal and social service programs. Also, because of the policy, the number of potential
25 clients who can satisfy the residency requirements of CARECEN’s funders will decline, thus 26 jeopardizing CARECEN’s ability to secure these grants moving forward. 27
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Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 27 of 41
1 130. Plaintiff Centro Legal de la Raza (“Centro Legal”) is a comprehensive immigration legal
2 services agency that provides legal consultations, limited-scope services, full representation, and 3 legal referrals to over 10,000 clients annually. As part of its services, Centro Legal provides direct 4
legal representation to asylum seekers throughout California, including those in removal 5
proceedings. 6 7 131. Centro Legal is included on the list of free legal services providers provided by the U.S. 8 government to asylum seekers who are returned to Mexico. It is in the process of being retained by
9 three individuals who were forced to return to Mexico.
10 132. Defendants’ policy will frustrate Centro Legal’s core mission of providing comprehensive 11 and effective legal representation to asylum seekers. For example, the resource-intensive nature of 12
assisting asylum seekers located in Mexico will cause Centro Legal to have fewer resources 13
available to continue its existing program and case work. The new policy will also frustrate Centro 14 15 Legal’s mission of providing a high volume of comprehensive removal defense services to asylum
16 seekers because it will be nearly impossible for the organization to provide comprehensive services
17 to individuals in Mexico. Centro Legal’s ability to provide effective representation to asylum
18 seekers subjected to the forced return policy will also be hampered due to the numerous obstacles to 19
counsel access and case preparation in Mexico. The effective and ethical representation of clients in 20
Mexico will require Centro Legal to either hire substantial additional staff or significantly lower the 21 22 number of cases of asylum seekers in the United States that it accepts. Moreover, Centro Legal will 23 have to use significant resources to research or hire counsel to advise on the requirements under
24 both U.S. and Mexican law for its attorneys to practice in Mexico.
25 133. Further, the policy makes it more difficult for Centro Legal’s potential clients, who will be 26 stuck in Mexico pursuant to the policy, to gain access to and participate in the organization’s core 27
services, thereby impairing Centro Legal’s ability to function. 28
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1 134. Plaintiff the Immigration and Deportation Defense Clinic of the University of San Francisco
2 School of Law (“USF Clinic”) provides removal defense and engages in advocacy on behalf of 3 asylum seekers in California. The USF Clinic was established in 2015 in direct response to the 4
increase in individuals fleeing violence in Central America and Mexico and seeking asylum and 5
other relief in the United States. Since that time, 87% of the USF Clinic’s clients have come from 6 7 the Northern Triangle countries and entered the United States through the southern border. A 8 central aim of the USF Clinic is to train USF law students to be effective and ethical immigration
9 practitioners in the area of asylum law, and specifically in removal defense.
10 135. Defendants’ policy of returning certain asylum seekers to Mexico threatens and frustrates 11 the USF Clinic’s mission and will require it to divert resources away from its core services. For 12
example, as greater numbers of asylum seekers are forced to return to Mexico, the policy will make 13
it more difficult for the USF Clinic to connect with potential clients, who are typically referred to 14 15 the clinic through other legal service organizations in Northern California. Indeed, in response to
16 the new policy, the USF Clinic has already had to make arrangements to send a team of eleven
17 students and supervisors to the southern border to assist individuals subject to Defendants’ policy.
18 As the forced return policy is expanded, in order to serve sufficient clients to train its students, the 19
USF Clinic will have to shift its model to focus on representing asylum seekers who are stranded in 20
Mexico, forcing it to seek out new sources of funding, rearrange the way that it provides legal 21 22 services, and divert significant funds to travel and communications costs. 23 136. The USF Clinic’s asylum representation work is currently entirely funded by grants from
24 the State of California and local governments that require the clients to be physically present in
25 California. As Defendants’ policy expands, the Clinic thus risks losing its existing funding, which 26 could lead to a reduction or termination of their program. Representing asylum seekers in Mexico 27
28
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1 would also pose significant obstacles and be more resource intensive, requiring extensive travel and
2 other changes to current practice to provide adequate representation. 3 137. Defendants’ policy will also significantly harm the USF Clinic’s core mission of training 4
law students to be effective advocates. The USF Clinic requires in-person access to its clients in 5
order to effectively train law students consistent with its mission. However, law students lack the 6 7 necessary flexibility in their schedules to travel repeatedly to San Diego for court hearings and 8 Mexico for the multiple, lengthy client meetings typically required to prepare for an asylum
9 hearing. Shifting the organization’s representation model to provide services to clients at a distance
10 would be extremely difficult and compromise the Clinic’s ability to effectively represent clients and 11 train law students. 12
138. Plaintiff Al Otro Lado is a nonprofit organization based in Los Angeles that provides legal 13
representation or other assistance to individuals in asylum and other immigration proceedings in 14 15 Southern California. The organization also provides know-your-rights workshops and other services
16 to asylum seekers in Tijuana, Mexico.
17 139. With its policy of returning asylum seekers, Defendants have frustrated Al Otro Lado’s
18 mission and have forced the organization to divert significant resources away from its other 19
programs. For example, the organization’s small staff has had to pull its attention from integral 20
projects to identify and respond to the urgent needs of asylum seekers stranded in Mexico. Since 21 22 Defendants’ implementation of the new policy, Al Otro Lado has experienced a significant increase 23 in requests for assistance from individuals who have been returned to Mexico, many of whom do
24 not understand what has happened to them or why they have been returned. Staff or volunteers must
25 take time away from other critical tasks to review individuals’ documents, answer questions, and 26 attempt to place them with pro bono attorneys. The new policy has also required Al Otro Lado to 27
28
28 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 30 of 41
1 re-work its volunteer training and know-your-rights presentations and overhaul its training
2 materials to incorporate new and critical information. 3 140. Al Otro Lado has also been forced to divert significant staff resources to help returned 4
migrants find safe housing in Mexico and provide emotional support. Because many returned 5
asylum seekers will be unable to retain legal counsel from Mexico, Al Otro Lado has had to begin 6 7 developing workshops to provide pro se support to those who need assistance completing the 8 English-only asylum application form, which will require significant staff efforts. Providing pro se
9 trainings will also pull volunteer resources away from outreach efforts and general know-your-
10 rights workshops. 11 141. Plaintiff the Tahirih Justice Center (“Tahirih”) is a nonprofit and non-partisan organization 12
providing free legal immigration services to survivors of gender-based violence such as domestic 13
abuse, sexual violence, and human trafficking. Tahirih’s mission is to provide free holistic services 14 15 to immigrant women and girls fleeing violence such as rape, domestic violence, female genital
16 mutilation/cutting, forced marriage, and human trafficking, and who seek legal immigration status
17 under U.S. law. Tahirih offers legal representation and social services for individuals who seek
18 protection, including asylum, in their immigration proceedings. An average of 78% of Tahirih 19
clients in the past few years were Latin American survivors of violence, virtually all of whom 20
would have crossed at Tijuana or other ports of entry along the southern border. 21 22 142. Defendants’ policy will frustrate Tahirih’s mission and require it to divert significant 23 organizational resources to address the consequences of the policy. Tahirih will not be able to
24 effectively provide holistic legal services to the asylum seekers fleeing gender-based violence who
25 are returned to Mexico and will be forced to divert significant resources from its existing services to 26 attempt to serve those clients. Asylum seekers returned to Mexico will have little to no practical 27
way to learn that Tahirih exists or that it offers holistic assistance. Tahirih will have to send staff to 28
29 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 31 of 41
1 Mexico to conduct intakes and to effectively represent to these asylum seekers. This will
2 significantly increate the time and cost Tahirih spends to develop cases, as working with survivors 3 of gender-based violence, who are typically traumatized, requires repeated face-to-face meetings 4
and consultations. Furthermore, Tahirih will be required to spend additional time and money to 5
represent individuals returned to Mexico whose cases have been assigned to the San Diego 6 7 Immigration Court. 8 143. Tahirih will have to divert substantial resources to researching and understanding Mexican
9 law regarding the practice of law by foreign lawyers, including complicated questions of licensing,
10 reciprocity, the effect of NAFTA, any criminal penalties and visa requirements, and how all of 11 those issues interact with lawyers’ professional obligations in each state in which a Tahirih attorney 12
or one of its hundreds of pro bono attorneys is barred. The risk of potential legal sanctions may 13
deter attorneys from taking on asylum seekers returned to Mexico, thereby frustrating Tahirih’s 14 15 mission.
16 144. Tahirih will also be unable to obtain the expert services, including psychological
17 evaluations, that are necessary to represent many survivors of gender-based violence. Tahirih
18 anticipates needing to transport experts to Mexico for psychological evaluations, again requiring a 19
substantial diversion of time and funds for that travel. In addition, Tahirih will be required to divert 20
resources to understanding Mexican laws relating to licensing and the practice of psychology by a 21 22 foreigner in Mexico. 23 145. Finally, Defendants’ new policy will jeopardize Tahirih’s funding streams. Tahirih’s San
24 Francisco office receives grant funding from Santa Clara County, California to provide
25 immigration-related legal services to vulnerable individuals who reside in or are employed in Santa 26 Clara County. Under Defendants’ policy, fewer individuals will be permitted to enter the United 27
28
30 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 32 of 41

1 States pending their removal proceedings, meaning there will be fewer potential clients for Tahirih

2 to serve in Santa Clara County.
3 146. The Organizational Plaintiffs have also been harmed because they were denied the 4
opportunity to comment on Defendants’ policy through a notice-and-comment rulemaking. If 5
Defendants had provided an opportunity for notice and comment before Defendant began 6 7 implementing the policy, Plaintiffs could have informed Defendants of their serious objections to
8 the policy, and they may have convinced Defendants to adopt a different approach.

9

10

CAUSES OF ACTION

11 FIRST CLAIM FOR RELIEF
12 (VIOLATION OF INA § 235(b)(2)(C), 8 U.S.C. § 1225(b)(2)(C),
13 TREATMENT OF ALIENS ARRIVING FROM FOREIGN CONTIGUOUS TERRITORY, AND ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706(2)(A))
14

15 147. The foregoing allegations are repeated and realleged as if fully set forth herein.

16 148. INA § 235(b)(2)(C), 8 U.S.C. § 1225(b)(2)(C) permits the return to a contiguous territory

17 only of an “alien described in subparagraph (A) who is arriving on land (whether or not at a

18 designated port of arrival) from a foreign territory contiguous to the United States.” Id. Section
19 1225(b)(2)(B) further provides that the return authorized in Section 1225(b)(2)(C) shall not be
20 applied to any noncitizen “to whom paragraph (1) [Section 1225(b)(1) expedited removal] applies.”
21 22 8 U.S.C. § 1225(b)(2)(B)(ii).
23 149. In addition, Section 1225(b)(2)(C) authorizes return only of those individuals who are

24

“from” the foreign contiguous territory, and only where return would not violate the United

25

States’ protection obligations under domestic and international law, including the prohibition on

26

returning individuals to face persecution, torture, or cruel, inhumane, and degrading treatment;

27

28

31 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 33 of 41

1

the right to a meaningful opportunity to apply for asylum; and other restrictions on countries to

2

which a noncitizen may be removed or returned.

3 150. Defendants are applying their policy of returning asylum seekers to Mexico (the “forced
4 return policy”) to individuals, including the individual Plaintiffs, who cannot lawfully be
5 returned under Section 1225(b)(2)(C).
6
7 151. As a result, the forced return policy is contrary to law. See 5 U.S.C. § 706(2)(A).

8

SECOND CLAIM FOR RELIEF

9

(VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT,

5 U.S.C. § 553(b), (c), (d)) 10

11 152. The Administrative Procedure Act (“APA”) requires notice and opportunity for comment

12

prior to the promulgation of a rule. 5 U.S.C. § 553(b), (c).

13 153. Defendants’ nondiscretionary procedure for determining whether an individual who is more

14

likely than not to face persecution or torture in Mexico, and thus precluded from being returned

15 to Mexico during the pendency of removal proceedings, constitutes a legislative rule that
16 requires notice-and-comment rulemaking.
17
154. Defendants did not promulgate a rule or engage in notice-and-comment rulemaking before 18

19

implementing their procedure for making fear determinations as part of the forced return policy.

20 155. The APA requires that a substantive rule be published “no less than 30 days before its

21

effective date.” 5 U.S.C. § 553(d).

22 156. Defendants failed to appropriately publish the forced return policy, its screening procedures,

23 and related guidance 30 days before its effective date.
24 THIRD CLAIM FOR RELIEF
25

26

(VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706(2)(A))

27 157. The foregoing allegations are repeated and realleged as though fully set forth herein.
28

32 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 34 of 41

1 158. The APA provides that courts “shall . . . hold unlawful and set aside agency action” that is

2

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

3

U.S.C. § 706(2)(A).

4 159. Defendants’ forced return policy is arbitrary, capricious, and contrary to law. Defendants
5 have not articulated a reasoned explanation for their decision to adopt this policy; failed to
6

7

consider relevant factors; relied on factors Congress did not intend to be considered; and offered

8

explanations for their decision that are counter to the evidence before the agency.

9 160. The policy deprives asylum seekers of a meaningful right to apply for asylum.

10 161. The policy also permits an individual’s forced return to Mexico unless the individual

11

affirmatively states a fear of return and establishes before an asylum officer that it is more likely

12 than not that he or she will face persecution or torture there, without providing basic procedural
13

protections, including: any notice that he or she must affirmatively express such a fear; any 14

15

opportunity to consult with counsel either prior to or during the fear interview; the guarantee of

16

an interpreter; a written summary of the interview and written explanation of the determination;

17

or immigration judge review.

18 162. The policy is arbitrary, capricious, and contrary to law because it departs from the agency’s

19 existing policies for determining whether individuals face a likelihood of persecution or torture,

20
as well as prior policies prohibiting the return of individuals to contiguous territories pending 21

22

their removal proceedings based on a fear of persecution or torture, without providing a

23

reasoned explanation for departing from these policies.

24

FOURTH CLAIM FOR RELIEF

25

(VIOLATION OF INA § 241(b)(3), 8 U.S.C. § 1231(b)(3)

26

WITHHOLDING OF REMOVAL, AND ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706(2)(A))

27 163. The foregoing allegations are repeated and realleged as though fully set forth herein.
28

33 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 35 of 41
1 164. The 1951 Refugee Convention and the 1967 Protocol relating to the Status of Refugees, to
2 which the United States is party, requires that the United States not “expel or return (‘refouler’) a 3 refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be 4
threatened on account of his race, religion, nationality, membership of a particular social group or 5
political opinion.” United Nations Convention Relating to the Status of Refugees, art. 33, July 28, 6 7 1951, 189 U.N.T.S. 150; see also Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 8 U.S.T. 6223, 606 U.N.T.S. 267.
9 165. The Refugee Convention prohibits the return of individuals to countries where they would
10 directly face persecution on a protected ground as well as to countries that would deport them to 11 conditions of persecution. 12
166. Congress has codified these prohibitions in the “withholding of removal” provision at INA § 13
241(b)(3), 8 U.S.C. § 1231(b)(3), which bars the removal of an individual to a country where it is 14 15 more likely than not that he or she would face persecution.
16 167. Pursuant to regulation, only an immigration judge can determine whether an individual
17 faces such a risk of persecution and is entitled to withholding of removal after full removal
18 proceedings in immigration court. 8 C.F.R. § 1208.16(a). 19
168. The forced return policy provides none of these safeguards to ensure the critical protection 20
against nonrefoulement and therefore violates Section 1231(b)(3). It permits an asylum officer to 21 22 determine whether it is more likely than not that an individual faces persecution in Mexico through 23 a truncated procedure, without any right to review or a hearing before an immigration judge.
24 Moreover, the procedure does not assess whether an individual is at risk of refoulement to his or her
25 country of origin by Mexico, and does not account for whether an individual will be able to exercise 26 his or her right to apply for asylum from Mexico. 27
169. This procedure violates Section 1231(b)(3) and its implementing regulations. 28
34 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 36 of 41

1 170. As a result, the forced return policy is contrary to law. See 5 U.S.C. § 706(2)(A).

2

FIFTH CLAIM FOR RELIEF

3

(VIOLATION OF CUSTOMARY INTERNATIONAL LAW:

PROHIBITION ON REFOULEMENT)

4

171. All of the foregoing allegations are repeated and realleged as if fully set forth herein. 5

6 172. The prohibition on refoulement is a specific, universal, and obligatory norm of customary

7 international law. That norm prohibits returning an individual to a country where there exists a

8 threat of subsequent forcible return to a country where the individual would be subject to torture or

9 where the individual’s life or freedom would be threatened on account of their race, religion,
10 nationality, membership of a particular social group, or political opinion.
11 173. Defendants have not undertaken a proper evaluation of the risk of refoulement by Mexico.
12 13 The procedures for carrying out the forced return policy are inadequate to guard against such
14 indirect refoulement in violation of the law of nations.

15 174. Defendants were aware or reasonably should have known that indirect refoulement by

16 Mexico was a foreseeable consequence of its forced return policy.
17 175. Defendants knowingly and purposefully designed and, directly or through their agents, 18
applied their forced return policy to the individual Plaintiffs. 19
176. Defendants’ actions have placed the individual Plaintiffs at risk of return to their countries 20 21 of origin, where their lives or freedom would be threatened on account of their race, religion,
22 nationality, membership in a particular social group, or political opinion, or where they face a

23 substantial risk of torture or other cruel, inhumane, and degrading treatment.

24 177. Defendants’ actions have caused and will continue to cause a grave and foreseeable injury to
25 Plaintiffs, including a continued risk of refoulement in violation of the protections afforded to them
26 under international law.
27

28

35 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 37 of 41

1 178. Plaintiffs do not have an adequate damages remedy at law to address the violations alleged

2 herein.

3

SIXTH CLAIM FOR RELIEF

4 (VIOLATION OF INA § 208(a), 8 U.S.C. § 1108(a), ASYLUM, AND ADMINISTRATIVE

5

PROCEDURE ACT, 5 U.S.C. § 706(2)(A))

6 179. The foregoing allegations are repeated and realleged as though fully set forth herein.
7 180. The INA provides, with certain exceptions, that “[a]ny alien who is physically present in the 8
United States or who arrives in the United States (whether or not at a designated port of arrival and 9
including an alien who is brought to the United States after having been interdicted in international 10
11 or United States waters), irrespective of such alien’s status, may apply for asylum in accordance
12 with this section or, where applicable, section 1225(b) of this title.” 8 U.S.C. § 1158(a)(1).

13 181. The forced return policy is contrary to law, see 5 U.S.C. § 706(2)(A), under 8 U.S.C.

14 § 1158(a)(1), because individuals are returned to conditions that meaningfully deprive them of their
15 right to apply for asylum.
16 PRAYER FOR RELIEF
17 WHEREFORE, Plaintiffs respectfully pray this Court to:
18
19 a. Declare unlawful the new forced return policy (or “Migrant Protection Protocols”),

20 including the Secretary’s January 25, 2019 Memorandum, the USCIS Policy Guidance, and the

21 CBP MPP Guiding Principles, Commissioner’s Memorandum Implementing the MPP, and Field

22 Operations Memorandum Implementing the MPP;

23 b.
24 c.
25

Enter an order vacating the forced return policy; Enter an order enjoining Defendants from continuing to apply the forced return policy to

26 third-party nationals seeking humanitarian protection at a port of entry or between ports of entry;

27

28

36 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 38 of 41

1 d. Enter an order providing relief for the Individual Plaintiffs by ordering that Defendants

2 return them to the San Ysidro Port of Entry for reprocessing of their applications for admission

3 without subjecting them to the unlawful forced return policy;

4 e.

Award Plaintiffs’ counsel reasonable attorneys’ fees under the Equal Access to Justice Act,

5

and any other applicable statute or regulation; and, 6

7 f.

Grant such further relief as the Court deems just, equitable, and appropriate.

8 Dated: February 14, 2019

Respectfully submitted,

9 Judy Rabinovitz*

Michael Tan* 10 Omar Jadwat*

11

Lee Gelernt* Anand Balakrishnan*

12 Daniel Galindo** (SBN 292854) AMERICAN CIVIL LIBERTIES UNION
13 FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT 14 125 Broad St., 18th Floor

15 New York, NY 10004 T: (212) 549-2660

16 F: (212) 549-2654 jrabinovitz@aclu.org
17 mtan@aclu.org

ojadwat@aclu.org 18 lgelernt@aclu.org

19 abalakrishnan@aclu.org dgalindo@aclu.org

20

Melissa Crow*

21 SOUTHERN POVERTY LAW CENTER

22

1101 17th Street NW, Suite 705 Washington, D.C. 20036

23 T: (202) 355-4471 F: (404) 221-5857

24 melissa.crow@splcenter.org

/s/Jennifer Chang Newell Jennifer Chang Newell (SBN 233033) Katrina Eiland (SBN 275701) Julie Veroff (SBN 310161)_ AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 jnewell@aclu.org keiland@aclu.org jveroff@aclu.org
Sean Riordan (SBN 255752) Christine P. Sun (SBN 218701) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 T: (415) 621-2493 F: (415) 255-8437 sriordan@aclunc.org csun@aclunc.org

25 Mary Bauer*

26

SOUTHERN POVERTY LAW CENTER 1000 Preston Avenue

27 Charlottesville, VA 22903 T: (470) 606-9307

28 F: (404) 221-5857

Blaine Bookey Karen Musalo Eunice Lee Kathryn Jastram Sayoni Maitra* CENTER FOR GENDER & REFUGEE

37 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 39 of 41

1 mary.bauer@splcenter.org

2 Saira Draper*

3

Gracie Willis* SOUTHERN POVERTY LAW CENTER

4 150 E Ponce de Leon Avenue, Suite 340 Decatur, GA 30030

5 T: (404) 221-6700

F: (404) 221-5857 6 saira.draper@splcenter.org

7 gracie.willis@splcenter.org

STUDIES 200 McAllister St. San Francisco, CA 94102 T: (415) 565-4877 F: (415) 581-8824 bookeybl@uchastings.edu musalok@uchastings.edu leeeunice@uchastings.edu jastramkate@uchastings.edu maitras@uchastings.edu

8

9 Attorneys for Plaintiffs
10

11

*Pro hac vice application forthcoming **Application for admission forthcoming

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

38 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 40 of 41

1

CERTIFICATION OF INTERESTED ENTITIES OR PARTIES

2

Under Civil Local Rule 3-15, the undersigned certifies that as of this date, other than the

3 named parties, there is no such interest to report.

4 Dated: February 14, 2019

5

Judy Rabinovitz* 6 Michael Tan*

7

Omar Jadwat* Lee Gelernt*

8 Anand Balakrishnan* Daniel Galindo** (SBN 292854)

9 AMERICAN CIVIL LIBERTIES UNION

FOUNDATION 10 IMMIGRANTS’ RIGHTS PROJECT

11

125 Broad St., 18th Floor New York, NY 10004

12 T: (212) 549-2660 F: (212) 549-2654

13 jrabinovitz@aclu.org

mtan@aclu.org 14 ojadwat@aclu.org

15 lgelernt@aclu.org abalakrishnan@aclu.org

16 dgalindo@aclu.org

17 Melissa Crow*
SOUTHERN POVERTY LAW CENTER 18 1101 17th Street NW, Suite 705
19 Washington, D.C. 20036 T: (202) 355-4471
20 F: (404) 221-5857 melissa.crow@splcenter.org
21

Respectfully submitted,
/s/Jennifer Chang Newell Jennifer Chang Newell (SBN 233033) Katrina Eiland (SBN 275701) Julie Veroff (SBN 310161) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 jnewell@aclu.org keiland@aclu.org jveroff@aclu.org
Sean Riordan (SBN 255752) Christine P. Sun (SBN 218701) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 T: (415) 621-2493 F: (415) 255-8437 sriordan@aclunc.org csun@aclunc.org

22

Mary Bauer* SOUTHERN POVERTY LAW CENTER

23 1000 Preston Avenue Charlottesville, VA 22903

24 T: (470) 606-9307

F: (404) 221-5857 25 mary.bauer@splcenter.org

26

27

28

39 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-00807 Document 1 Filed 02/14/19 Page 41 of 41

1 Saira Draper*

Gracie Willis* 2 SOUTHERN POVERTY LAW CENTER

3

150 E Ponce de Leon Avenue, Suite 340 Decatur, GA 30030

4 T: (404) 221-6700 F: (404) 221-5857

5 saira.draper@splcenter.org

gracie.willis@splcenter.org 6

7

Steven Watt* ACLU FOUNDATION

8 HUMAN RIGHTS PROGRAM 125 Broad Street, 18th Floor

9 New York, NY 10004

T: (212) 519-7870 10 F: (212) 549-2654

11 swatt@aclu.org

Blaine Bookey Karen Musalo Eunice Lee Kathryn Jastram Sayoni Maitra* CENTER FOR GENDER & REFUGEE STUDIES 200 McAllister St. San Francisco, CA 94102 T: (415) 565-4877 F: (415) 581-8824 bookeybl@uchastings.edu musalok@uchastings.edu leeeunice@uchastings.edu jastramkate@uchastings.edu maitras@uchastings.edu

12

13 Attorneys for Plaintiffs

14 *Pro hac vice application forthcoming 15 **Application for admission forthcoming

16

17

18

19

20

21

22

23

24

25

26

27

28

40 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
 Case 3:19-cv-00807-RS Document 73 Filed 04/08/19 Page 1 of 27

United States District Court Northern District of California

1

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9
INNOVATION LAW LAB, et al., 10
Plaintiffs, 11
v. 12
KIRSTJEN NIELSEN, et al., 13
Defendants. 14

Case No. 19-cv-00807-RS
ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

15

16

I. INTRODUCTION

17

In January of this year, the Department of Homeland Security (“DHS”) began

18 implementing a new policy regarding non-Mexican asylum seekers arriving in the United States 19 from Mexico.1 Denominated the “Migrant Protection Protocols” (“MPP”), the policy calls for such

20 persons, with certain exceptions, to be “returned to Mexico for the duration of their immigration

21 proceedings,” rather than either being detained for expedited or regular removal proceedings, or

22 issued notices to appear for regular removal proceedings. This case presents two basic questions:

23 (1) does the Immigration and Nationalization Act authorize DHS to carry out the return policy of

24

25 1 The policy is administered by DHS sub-agencies Citizenship and Immigration Services (“CIS”), Customs and Border Protection (“CBP”), and Immigration and Customs Enforcement (“ICE”)).
26 The defendants named in this action are those agencies, and certain of their officials (collectively 27 “DHS” or “the Government”).

28

Case 3:19-cv-00807-RS Document 73 Filed 04/08/19 Page 2 of 27

United States District Court Northern District of California

1 the MPP, and; (2) even assuming Congress has authorized such returns in general, does the MPP

2 include sufficient safeguards to comply with DHS’s admitted legal obligation not to return any

3 alien to a territory where his or her “life or freedom would be threatened”? In support of their

4 motion for a preliminary injunction, the plaintiffs have sufficiently shown the answer to both

5 questions is “no.”

6

First, the statute that vests DHS with authority in some circumstances to return certain

7 aliens to a “contiguous territory” cannot be read to apply to the individual plaintiffs or others

8 similarly situated. Second, even assuming the statute could or should be applied to the individual

9 plaintiffs, they have met their burden to enjoin the MPP on grounds that it lacks sufficient

10 protections against aliens being returned to places where they face undue risk to their lives or

11 freedom. Accordingly, plaintiffs’ motion for a preliminary injunction will be granted.2

12

To be clear, the issue in this case is not whether it would be permissible for Congress to

13 authorize DHS to return aliens to Mexico pending final determinations as to their admissibility.

14 Nor does anything in this decision imply that DHS would be unable to exercise any such authority

15 in a legal manner should it provide adequate safeguards. Likewise, the legal question is not

16 whether the MPP is a wise, intelligent, or humane policy, or whether it is the best approach for

17 addressing the circumstances the executive branch contends constitute a crisis. Policy decisions

18 remain for the political branches of government to make, implement, and enforce.

19

Rather, this injunction turns on the narrow issue of whether the MPP complies with the

20 Administrative Procedures Act (“APA”). The conclusion of this order is only that plaintiffs are

21 likely to show it does not, because the statute DHS contends the MPP is designed to enforce does

22 not apply to these circumstances, and even if it did, further procedural protections would be

23 required to conform to the government’s acknowledged obligation to ensure aliens are not

24 returned to unduly dangerous circumstances.

25

26

2 Plaintiffs’ motion was filed as an application for a temporary restraining order. In response to a court scheduling order, the parties stipulated to deem plaintiffs’ motion as one for a preliminary

27 injunction, which now has been fully briefed and heard.

28 CASE NO. 19-cv-00807-RS
2

Case 3:19-cv-00807-RS Document 73 Filed 04/08/19 Page 3 of 27

United States District Court Northern District of California

1

Furthermore, nothing in this order obligates the government to release into the United

2 States any alien who has not been legally admitted, pursuant to a fully-adjudicated asylum

3 application or on some other basis. DHS retains full statutory authority to detain all aliens pending

4 completion of either expedited or regular removal proceedings. See Jennings v. Rodriguez, 138 S.

5 Ct. 830 (2018).

6

7

II. BACKGROUND

8

In December of 2018, the Secretary of the DHS, Kirstjen Nielsen, announced adoption of

9 the MPP, which she described as a “historic action to confront illegal immigration.” See December

10 20, 2018 press release, “Secretary Kirstjen M. Nielsen Announces Historic Action to Confront

11 Illegal Immigration,” Administrative Record (“AR”) 16-18. DHS explained that pursuant to the

12 MPP, “the United States will begin the process of invoking Section 235(b)(2)(C) of the

13 Immigration and Nationality Act.” Id. DHS asserted that under the claimed statutory authority,

14 “individuals arriving in or entering the United States from Mexico—illegally or without proper

15 documentation—may be returned to Mexico for the duration of their immigration proceedings.”

16 Id.

17

In January of 2019, DHS issued a further press release regarding the implementation of the

18 MPP. See “Migrant Protection Protocols,” AR 11-15. In a paragraph entitled “What Gives DHS

19 the Authority to Implement MPP?” the press release asserts:

20

Section 235 of the Immigration and Nationality Act (INA) addresses

21

the inspection of aliens seeking to be admitted into the U.S. and provides specific procedures regarding the treatment of those not

22

clearly entitled to admission, including those who apply for asylum.

Section 235(b)(2)(C) provides that “in the case of an alien . . . who

23

is arriving on land (whether or not at a designated port of arrival)

from a foreign territory contiguous to the U.S.,” the Secretary of

24

Homeland Security “may return the alien to that territory pending a

25

[removal] proceeding under § 240” of the INA.

26

The positions taken in press releases reflect contemporaneous policy memoranda. On

27 January 25, 2018, Secretary Nielsen issued a memorandum stating:

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1

[T]he United States will begin the process of implementing Section

2

235(b)(2)(C) . . . with respect to non-Mexican nationals who may be arriving on land (whether or not at a designated port of entry)

3

seeking to enter the United States from Mexico illegally or without

proper documentation.

4

5 DHS Memorandum, AR 7-10; see also CIS Policy Memorandum, January 28, 2019, “Guidance

6 for Implementing Section 235(b)(2)(C) of the Immigration and Nationality Act and the Migrant

7 Protection Protocols. AR 2271-2275.

8

Thus, it is undisputed that the MPP represents a legal exercise of defendants’ authority

9 regarding treatment of alien applicants for admission if and only if section 235(b)(2)(C) of the

10 Immigration and Nationality Act applies to the individual plaintiffs and those similarly situated.

11 Section 235(b)(2)(C) is codified at 8 U.S.C. §1225(b)(2)(C) and will hereafter be referred to as the

12 “contiguous territory return provision.”

13

It is similarly undisputed that prior to adoption of the MPP, aliens applying for asylum at a

14 port of entry on the U.S.-Mexico border were either placed in expedited removal proceedings

15 pursuant subparagraph (1) of 8 U.S.C. §1225(b), or in defendants’ discretion were placed in

16 regular removal proceedings described in 8 U.S.C. §1229a. There also is no apparent dispute that

17 aliens placed directly into regular removal proceedings frequently were permitted to remain in the

18 United States during the pendency of those proceedings, and were not detained in custody. In

19 announcing the MPP, Secretary Nielsen asserted the new policy is intended to address a purported

20 problem of aliens “trying to game the system” by making groundless asylum claims and then

21 “disappear[ing] into the United States, where many skip their court dates.” See December 20, 2018

22 press release, AR 16.

23

Although the contiguous territory return provision has existed in the statute for many

24 years, the extent to which it has previously been utilized is unclear in the present record. While the

25 provision theoretically could be applied with respect to aliens arriving from either Mexico or

26 Canada, the focus of the MPP is aliens transiting through Mexico, who originated from other

27 countries. When this suit was filed, the MPP had been implemented only at the San Ysidro port of

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1 entry on the California-Mexico border. Defendants have since advised that it has now been

2 extended to the Calexico port of entry, also on the California-Mexico border, and to El Paso,

3 Texas. Indications are that it will be further extended unless enjoined.

4

The CIS Policy Memorandum providing guidance for implementing the MPP specifically

5 addresses the issue of aliens who might face persecution if returned to Mexico. Under that

6 guidance, aliens who, unprompted, express a fear of return to Mexico during processing will be

7 referred to an asylum officer for interview. CIS Policy Memorandum, AR 2273. The asylum

8 officer’s determination, however, is not reviewable by an immigration judge. Id at 2274. Although

9 DHS insists this policy satisfies all obligations the United States has under domestic and

10 international law to avoid “refoulement”— the forcible return of prospective asylum seekers to

11 places where they may be persecuted—there is no dispute that the procedural protections are less

12 robust than those available in expedited removal proceedings, or those that apply when a decision

13 is made that an alien is subject to removal at the conclusion of regular removal proceedings.

14

Plaintiffs in this action are eleven individuals who were “returned” to Mexico under the

15 MPP, and six non-profit organizations that provide legal services and advocacy related to 16 immigration issues.3 Plaintiffs’ claims in this action are brought under the Administrative

17 Procedures Act and international law, although the preliminary injunction is sought only under the

18 former.

19

20

III. LEGAL STANDARD

21

A. Injunctions

22

An application for preliminary injunctive relief requires the plaintiff to “establish that he is

23 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

24 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

25

26 3 The unopposed motion of the individual plaintiffs to proceed in this litigation under pseudonyms 27 (Dkt. No. 4) is granted.

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1 public interest.” Winter v. N.R.D.C., Inc., 555 U.S. 7, 21-22 (2008). The Ninth Circuit has

2 clarified, however, that courts in this Circuit should still evaluate the likelihood of success on a

3 “sliding scale.” Alliance for Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (“[T]he

4 ‘serious questions’ version of the sliding scale test for preliminary injunctions remains viable after

5 the Supreme Court’s decision in Winter.”). As quoted in Cottrell, that test provides that, “[a]

6 preliminary injunction is appropriate when a plaintiff demonstrates . . . that serious questions

7 going to the merits were raised and the balance of hardships tips sharply in the plaintiff’s favor,”

8 provided, of course, that “plaintiffs must also satisfy the other [Winter] factors” including the

9 likelihood of irreparable harm. Id. at 1135.

10

11

B. The APA

12

Under section 706 of the APA, a reviewing court must “hold unlawful and set aside agency

13 action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or

14 otherwise not in accordance with law; contrary to constitutional right, power, privilege, or

15 immunity; in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

16 [or] without observance of procedure required by law.” 5 U.S.C. § 706(2)(A)-(D). Accordingly,

17 the decision-making process that ultimately leads to the agency action must be “logical and

18 rational.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 374 (1998). Courts should

19 be careful, however, not to substitute their own judgment for that of the agency. Suffolk Cty. v.

20 Sec’y of Interior, 562 F.2d 1368, 1383 (2d Cir. 1977). Ultimately, a reviewing court may uphold

21 agency action “only on the grounds that the agency invoked when it took the action.” Michigan v.

22 EPA, 135 S. Ct. 2699, 2710 (2015). Post hoc rationalizations may not be considered. American

23 Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 539 (1981). In evaluating APA claims, courts

24 typically limit their review to the Administrative Record existing at the time of the decision. Sw.

25 Ctr. for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1450 (9th Cir. 1996); accord

26 Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 499

27

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1 F.3d 1108, 1117 (9th Cir. 2007).4

2

3

IV. DISCUSSION

4

A. Justiciability

5

At the threshold, defendants oppose plaintiffs’ motion for preliminary relief by arguing

6 their claims simply are not justiciable. Defendants advance several interrelated points. First,

7 defendants contend the central issue is fundamentally one of prosecutorial discretion, and

8 therefore immune from judicial review. Were plaintiffs in fact challenging a policy decision to

9 place them in regular removal proceedings as opposed to expedited removal proceedings, that

10 argument might be viable.

11

As discussed below, however, plaintiffs concede DHS has such discretion, and none of

12 their claims in this action rest on a contrary position. Rather, the complaint here alleges the statute

13 on which defendants rely simply does not confer on DHS the powers it claims to be exercising

14 under the MPP. While defendants are free to argue they have discretion under the statute to adopt

15 and enforce the MPP, whether or not they actually do is a justiciable question.

16

Next, defendants contend several different sections of the INA preclude judicial review.

17 Defendants first cite 8 U.S.C. § 1252(g), which provides that “[e]xcept as provided in this section .

18 . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising

19 from the decision or action by the [Secretary] to commence proceedings.” Defendants argue that

20 provision is “designed to give some measure of protection to . . . discretionary determinations”

21

22

4 Here, plaintiffs submit substantial evidence outside the administrative record, which

defendants move to strike and which plaintiffs move separately to deem admitted. The parties

23 agree extra-record evidence is admissible for limited purposes, including to support standing or a

showing of irreparable harm. Plaintiffs stipulate to having the present motion adjudicated based

24 on the administrative record presented by defendants, without waiving their right to challenge the

completeness of that record at a later junction. This order relies only on matters in the 25 administrative record or which the parties otherwise agree may be considered. Further rulings on

26 specific aspects of the motions to strike and to admit accordingly need not be addressed at this juncture.

27

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1 like “the initiation or prosecution of various stages in the deportation process,” and so bars claims

2 “attempt[ing] to impose judicial constraints upon prosecutorial discretion.” Reno v. Am.-Arab

3 Anti-Discrimination Comm., 525 U.S. 471, 485 n.9 (1999). This argument, however, turns on the

4 conclusion that if DHS has discretion to apply the contiguous return provision to persons in the

5 circumstances of the individual plaintiffs, its decisions to return or not return any particular alien

6 under any such authority, might not be subject to review.

7

Defendants next invoke 8 U.S.C. § 1252(a), which provides, in part, “[n]otwithstanding

8 any other provision of law,” “no court shall have jurisdiction to review . . . any other decision or

9 action of the . . . Secretary of Homeland Security the authority for which is specified under this

10 subchapter to be in the discretion of the . . . Secretary.” As defendants admit, however, this

11 provision applies when the relevant decision is “specified by statute to be in the discretion of the”

12 the Secretary. Kucana v. Holder, 558 U.S. 233, 248 (2010). The very point of dispute in this

13 action is whether section 1225(b)(2)(C) applies such that DHS has such discretion, or not. That

14 threshold question is justiciable.

15

Defendants further argue 8 U.S.C. § 1252(a) and (e) jointly preclude review. As noted,

16 §1252(a) does not foreclose examination of whether application of the contiguous territory return

17 provision to the named plaintiffs is legally correct. Defendants also assert section 1252(a)(2)(A)

18 provides that no court shall have jurisdiction, except as permitted in section 1252(e), to review

19 “procedures and policies adopted by the [Secretary] to implement the provisions of section

20 1225(b)(1).” To the extent that is a new argument, it fails because plaintiffs in this action are not

21 challenging the discretionary decision to refrain from placing them in expedited removal under

22 1225(b)(1), and are instead litigating what the consequences of placing them in section 1229a

23 proceedings should or should not be.

24

The final issue is the potential applicability of section 1252(e)(3). That subparagraph

25 provides no court, other than the United States District Court for the District of Columbia, has

26 jurisdiction to review “determinations under section 1225(b) of this title and its implementation,”

27 including “whether such a . . . written policy directive, written policy guideline, or written

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1 procedure issued by or under the authority of the [Secretary] to implement such section, is not

2 consistent with applicable provisions of this subchapter or is otherwise in violation of law.” 8

3 U.S.C. § 1252(e)(3)(A). On its face, this provision arguably requires plaintiffs’ claims to proceed

4 exclusively in the District of Columbia. In light of that concern, the parties were invited to provide

5 further briefing after the hearing on the motion for preliminary relief. See Dkt. No. 68.

6

Plaintiffs argue section 1252(e)(3) is intended only to invest jurisdiction in the district

7 court of the District of Columbia to hear systemic challenges specifically addressing the expedited

8 removal scheme. Thus, plaintiffs argue, the provision’s reference to “determinations under section

9 1225(b) of this title and its implementation,” rather than “determinations under section

10 1225(b)(1)” should be seen as nothing more than a “scrivener’s error.”

11

The question is close, because section 1252(e)(3) otherwise would appear to describe the

12 issues presented in this case quite well. As noted, it expressly refers to review of issues such as,

13 “whether such a regulation, or a written policy directive, written policy guideline, or written

14 procedure issued by or under the authority of the Attorney General to implement such section, is

15 not consistent with applicable provisions of this subchapter or is otherwise in violation of law.”

16 That lines up neatly with the main thrust of plaintiffs’ argument here—that contrary to defendants’

17 claim the MPP merely addresses when discretion should be exercised to apply the contiguous

18 territory return provision, by definition the provision in fact does not apply to plaintiffs.

19

Nevertheless, plaintiffs have the better argument that section 1252(e)(3) should not be read

20 to require them to bring these claims in the District of Columbia. Although statutory titles and

21 headings are not dispositive, they are instructive. See Fla. Dep’t of Revenue v. Piccadilly

22 Cafeterias, Inc., 554 U.S. 33, 47, 128 S. Ct. 2326 (2008) (“To be sure, a subchapter heading

23 cannot substitute for the operative text of the statute . . . [T]he title of a statute . . . cannot limit the

24 plain meaning of the text. Nonetheless, statutory titles and section headings are tools available for

25 the resolution of a doubt about the meaning of a statute.”)(internal quotations and citations

26 omitted).

27

Here, section 1252 as a whole is entitled, “Judicial review of orders of removal,” and most

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1 of its provisions are focused on issues relating to review of individual decisions to remove an

2 alien. More to the point in question here, subparagraph (e) is entitled “Judicial review of orders

3 under section 1225(b)(1)” (emphasis added). Other sub-subparagraphs of (e) explicitly indicate

4 that they are applicable to challenges to determinations made under 1225(b)(1). See

5 §1252(e)(1)(A) (“ . . . in accordance with section 1225(b)(1) . . .); §1252(e)(2) (“any determination

6 made under section 1225(b)(1) . . . .”); §1252(e)(4)(A) (“. . . an alien who was not ordered

7 removed under section 1225(b)(1) of this title”); §1252(e)(5) (“. . . an alien has been ordered

8 removed under section 1225(b)(1) of this title”).

9

Given that sub-subparagraphs (1), (2), (4), and (5) of 8 U.S.C §1252(e) all expressly

10 invoke section 1225(b)(1), the mere fact that §1252(e)(3) fails to state “1225(b)(1)” instead of

11 only “1225(b)” is too thin a reed on which to conclude that jurisdiction of this action lies

12 exclusively in the federal court of the District of Columbia. The omission of “(1)” may or may not

13 constitute a “scrivener’s error,” in the traditional sense of that phrase, but it is not a basis to

14 disregard the clear import of the structure of section 1252 and subparagraph (e).

15

Challenges to “validity of the system” undeniably are subject to section 1252(e)(3), and

16 therefore arguably subject to exclusive jurisdiction in the District of Columbia.5 In context,

17 however, “the system” should be understood as a reference to the expedited removal procedure

18 authorized under section 1225(b)(1). There can be no dispute that this action is not a challenge to

19 that “system.” Rather, plaintiffs acknowledge both that they are subject to expedited removal and

20 that DHS has discretion to place them instead into regular removal proceedings under 8 U.S.C.

21 §1229a. Indeed, in essence, plaintiffs are arguing that because they are subject to expedited

22 removal, they should at a minimum have the protections they would enjoy under that regime,

23 either by being exempt from contiguous territorial return, and/or by having additional procedural

24 and substantive protections against being sent to places in which they would not be safe from

25

26

5 Plaintiffs contend that even where section 1252(e)(3) applies and permits jurisdiction in the District of Columbia, it does not preclude jurisdiction elsewhere. While that proposition appears

27 dubious at best, the question need not be decided here.

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1 persecution.

2

Accordingly, this action is not a challenge to the “system” of expedited removal. Given the

3 overall structure of section 1252(e), the most reasonable construction of subparagraph (3) is that it

4 applies only to such challenges. See Porter v. Nussle, 534 U.S. 516, 528, 122 S.Ct. 983 (2002).

5 (“The placement of §1146(a) within a subchapter expressly limited to postconfirmation matters

6 undermines Piccadilly’s view that §1146(a) covers preconfirmation transfers.”). As a result,

7 whether presented as a jurisdictional issue or one of venue, 8 U.S.C. §1252(e)(3) is not a bar to the

8 particular claims plaintiffs present in this forum.6

9

10

B. Standing

11

In a footnote, defendants assert “[t]he organizational Plaintiffs lack standing because they

12 lack a ‘judicially cognizable interest in the prosecution or nonprosecution of another.’” Opposition

13 at 10, n. 5. (quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)). Defendants concede,

14 however, that their standing arguments are foreclosed by the holding in East Bay Sanctuary

15 Covenant v. Trump, 909 F.3d 1219, 1240 (9th Cir. 2018), where the Ninth Circuit held that

16 similarly situated organizational plaintiffs have organizational standing premised on a diversion of

17 resources caused by the challenged government actions. See id. at 1242.

18

Defendants state they “respectfully disagree with that ruling” and question standing only to

19 preserve their rights on appeal. Nevertheless, to the extent defendants argue East Bay Sanctuary is

20 factually distinguishable, their position is not persuasive. It is true, as defendants point out, that

21 East Bay involved a different statutory provision, and that standing may turn on whether a plaintiff

22

23 6 Defendants also seek a discretionary transfer under 28 U.S.C. §1404 to the Southern District of

24 California. Although the MPP was first implemented at a border crossing point in that district,

defendants have not shown that the balance of factors applicable under §1404 warrant a transfer. 25 Plaintiffs’ choice of forum is supported by the institutional plaintiffs’ presence in this district and

26

is therefore entitled to deference. The issues in the litigation largely involve legal questions not tied to any district and/or federal policy decisions not made in or limited to the Southern District

27 of California. The motion to transfer is therefore denied.

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1 is “arguably within the zone of interests to be protected or regulated by the statute . . . in

2 question.” Clarke v. Sec. Indus. Ass’n., 479 U.S. 388, 396 (1987). Nevertheless, the

3 organizational plaintiffs have made a showing that is stronger, if anything, than that in East Bay

4 Sanctuary. Plaintiffs’ organizational standing in that case was premised on various broad

5 “diversion of resources” arguments and the potential loss of funding. See, e.g., 909 F.3d at 1242

6 (“The Organizations have also offered uncontradicted evidence that enforcement of the Rule has

7 required, and will continue to require, a diversion of resources, independent of expenses for this

8 litigation, from their other initiatives.”) Here, the organizational plaintiffs have made a showing

9 that the challenged policy directly impedes their mission, in that it is manifestly more difficult to

10 represent clients who are returned to Mexico, as opposed to being held or released into the United

11 States. Additionally, there is no suggestion by defendants that the individual plaintiffs lack

12 standing. Accordingly, to whatever extent defendants may have challenged standing, there is no

13 basis to preclude preliminary relief on such grounds.7

14

15

C. Showing on the merits

16

1. Structure of 8 U.S.C. §1225

17

The statute at the center of this action is 8 U.S.C. §1225, which is entitled, “Inspection by

18 immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing.”

19 Paragraph (a) of the statute provides generally that aliens who are arriving in the United States, or

20 who have not already been admitted, are deemed to be applicants for admission and that they

21 “shall be inspected by immigration officers.”8 Paragraph (b) then divides such applicants for

22 admission into two categories.

23

Subparagraph (b)(1) is entitled, “[i]nspection of aliens arriving in the United States and

24
25 7 Furthermore, defendants have not challenged the standing of the individual plaintiffs to bring these claims or to seek preliminary relief.
26 8 For clarity, all statutory exceptions that are not applicable to plaintiffs and that are not relevant to 27 the statutory construction analysis will be omitted from quotations and the discussion in this order.

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1 certain other aliens who have not been admitted or paroled.” It provides, in short, that aliens who

2 arrive in the United States without specified identity and travel documents, or who have

3 committed fraud in connection with admission, are to be “removed from the United States without

4 further hearing or review” unless they apply for asylum or assert a fear of persecution. 8 U.S.C. 5 §1225(b)(1)(A)(i). This procedure is known as “expedited removal.”9

6

Subparagraph (b)(1) provides that aliens who indicate either an intention to apply for

7 asylum or a fear of persecution are to be referred to an asylum officer for an interview.

8 §1225(b)(1)(A)(ii). The officer is to make a written record of any determination that the alien has

9 not shown a credible fear. §1225(b)(1)(B)(iii)(II). The record is to include a summary of the

10 material facts presented by the alien, any additional facts relied upon by the officer, and the

11 officer’s analysis of why, in the light of such facts, the alien has not established a credible fear of

12 persecution. Id.

13

The alien in that scenario is entitled to review by an immigration judge of any adverse

14 decision, including an opportunity for the alien to be heard and questioned by the immigration

15 judge, either in person or by telephonic or video connection. §1225(b)(1)(B)(iii)(II). Additionally,

16 aliens are expressly entitled to receive information concerning the asylum interview and to consult

17 with a person or persons of the alien’s choosing prior to the interview and any review by an

18 immigration judge. §1225(b)(1)(B)(iv). Thus, an alien processed for “expedited” removal under

19 subparagraph (b)(1) still has substantial procedural safeguards against being removed to a place

20 where he or she may face persecution.

21

Subparagraph (b)(2) is entitled, “[i]nspection of other aliens” (emphasis added). It provides

22 that aliens seeking admission are “to be detained for a proceeding under section 1229a of [Title

23 8]” unless they are “clearly and beyond a doubt entitled to be admitted.” §1225(b)(2)(A). Section

24

25 9 Subparagraph (b)(1) also expressly gives defendants discretion to apply expedited removal to

26

aliens already present in the United States who have not been legally admitted or paroled, if they are unable to prove continuous presence in the country for more than two years.

27 §1225(b)(1)(A)(iii).

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1 1229a, in turn, is entitled “Removal proceedings” and sets out the procedures under which

2 immigration judges generally “conduct proceedings for deciding the inadmissibility or

3 deportability of an alien.” 8 U.S.C. § 1229a (a)(1).

4

Section 1225 subparagraph (b)(2)(B) expressly provides that (b)(2)(A) “shall not apply to

5 an alien . . . to whom paragraph (1) applies.” Thus, on its face, section 1225 divides applicants for

6 admission into two mutually exclusive categories. Subparagraph (b)(1) addresses aliens who are

7 subject to expedited removal. Subparagraph (b)(2) addresses those who are either clearly and

8 beyond a doubt entitled to admission, or whose application for admission will be evaluated by an

9 administrative law judge in section 1229a proceedings if they are not.

10

Although not expressly addressing mutual exclusivity of the two categories, the Supreme

11 Court has described the operation of section 1225 similarly:

12

[A]pplicants for admission fall into one of two categories, those

13

covered by § 1225(b)(1) and those covered by § 1225(b)(2). Section 1225(b)(1) applies to aliens initially determined to be inadmissible

14

due to fraud, misrepresentation, or lack of valid documentation. See

§ 1225(b)(1)(A)(i) (citing §§ 1182(a)(6)(C), (a)(7)) . . . . Section

15

1225(b)(2) is broader. It serves as a catchall provision that applies to

all applicants for admission not covered by § 1225(b)(1). 16

17
Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018). 18
As set out above, there is no dispute that the MPP purports to be an implementation of the 19
contiguous territory return provision, which appears in the statute as a sub-subparagraph under 20
subparagraph (b)(2). The provision states, in full: 21

22

In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a

23

foreign territory contiguous to the United States, the Attorney

General may return the alien to that territory pending a proceeding

24

under section 1229a of this title.

25 8 U.S.C. §1225(b)(2)(C).10
26

27 10 Plaintiffs’ complaint includes an assertion that the contiguous territory return provision may
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1

On its face, therefore, the contiguous territory return provision may be applied to aliens

2 described in subparagraph (b)(2)(A). Pursuant to subparagraph (b)(2)(B), however, that expressly

3 excludes any alien “to whom paragraph (1) applies.”

4

5

2. Application of the contiguous territory return provision to the individual plaintiffs

6

At least for purposes of this motion, there is no dispute that the individual plaintiffs are

7 asylum seekers who lack valid admission documents, and who therefore ordinarily would be

8 subject to expedited removal proceedings under subparagraph (1) of section 1225. Applying the

9 plain language of the statute, they simply are not subject to the contiguous territory return

10 provision.

11

Defendants advance three basic arguments to contend the plain language should not apply

12 and that therefore the MPP represents a legal exercise of DHS’s authority under the contiguous

13 return provision. First, defendants rely on well-established law, conceded by plaintiffs, that DHS

14 has prosecutorial discretion to place aliens in regular removal proceedings under section 1229a

15 notwithstanding the fact that they would qualify for expedited removal under subparagraph (b)(1).

16 Indeed, defendants are correct that the apparently mandatory language of subparagraph (b)(1)—

17 “the officer shall order the alien removed from the United States without further hearing or review

18 . . . .”—does not constrain DHS’s discretion.

19

In Matter of E-R-M- & L-R-M, 25 I. & N. Dec. 520 (BIA 2011) the Board of Immigration

20 Appeals rejected a contention that aliens subject to expedited removal could not be placed directly

21 into 1229a proceedings instead.

22

23

24 lawfully be applied only to aliens who are “from” the contiguous territory. Complaint, para. 149.

It may be the individual plaintiffs contend they are not subject to the provision because they are 25 “from” countries other than Mexico. Plaintiffs did not advance this point in briefing, and it is not

26

compelling. The statute refers to aliens “arriving on land . . . from a foreign territory contiguous to the United States.” This language plainly describes the alien’s entry point, not his or her country

27 of origin.

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[W]e observe that the issue arises in the context of a purported

1

restraint on the DHS’s exercise of its prosecutorial discretion. In that

2

context, we find that Congress’ use of the term “shall” in section

235(b) (1) (A) (i) of the Act does not carry its ordinary meaning,

3

namely, that an act is mandatory. It is common for the term “shall”

to mean “may” when it relates to decisions made by the Executive

4

Branch of the Government on whether to charge an individual and

5

on what charge or charges to bring.

6 25 I. & N. Dec. at 522; see also, Matter of J-A-B, 27 I. & N. Dec. 168 (BIA 2017) (“The DHS’s
7 decision to commence removal proceedings involves the exercise of prosecutorial discretion, and
8 neither the Immigration Judges nor the Board may review a decision by the DHS to forgo
9 expedited removal proceedings or initiate removal proceedings in a particular case.”). Plaintiffs do
10 not dispute that DHS holds such discretion and even expressly acknowledge it in the complaint.
11 See Complaint, para. 73 (“Although most asylum seekers at the southern border lack valid entry
12 documents and are therefore eligible to be placed in expedited removal, it is well established that
13 the government has discretion to decline to initiate removal proceedings against any individual; to
14 determine which charges to bring in removal proceedings; and to place individuals amenable to
15 expedited removal in full removal proceedings instead.”)
16 Thus, defendants are correct that DHS undoubtedly has discretion to institute regular
17 removal proceedings even where subparagraph (b)(1) suggests it “shall order the alien removed.”
18 The flaw in defendants’ argument, however, is that DHS cannot, merely by placing an individual
19 otherwise subject to expedited removal into section 1229a regular removal proceedings instead,
20 somehow write out of existence the provision in subparagraph (b)(2) of section 1225 that the
21 contiguous territory return provision does not apply to persons to whom subparagraph (b)(1) does
22 apply. Exercising discretion to process an alien under section 1229a instead of expedited removal
23 under section 1225(b)(1) does not mean the alien is somehow also being processed under section
24 1225(b)(2).
25 DHS may choose which enforcement route it wishes to take—1125(b)(1) expedited
26 removal, or 1229a regular removal—but it is not thereby making a choice as to whether
27

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1 1125(b)(1) or 1125(b)(2) applies. The language of those provisions, not DHS, determines into

2 which of the two categories an alien falls.

3

The E-R-M- & L-R-M decision further illustrates this distinction. There, as discussed

4 above, the Board of Immigration Appeals held DHS has discretion to place aliens subject to

5 expedited removal under subparagraph (b)(1) into regular removal proceedings. Observing that

6 other aliens are entitled to regular removal under (b)(2), the Board found the express exclusion

7 from (b)(2) of aliens to whom (b)(1) applies means only that they are not entitled to regular

8 removal, not that the DHS lacks discretion to place them in it. 25 I. & N. Dec. at 523. Thus, the

9 decision recognizes that such persons remain among those to whom (b)(1) applies and who are

10 thereby excluded from treatment under (b)(2).

11

Defendants’ second argument overlaps with their first. In light of the discretion DHS has to

12 place aliens eligible for expedited removal into section 1229a proceedings, defendants contend

13 subparagraph (b)(1) only “applies”—thereby triggering the exclusion from subparagraph (b)(2)—

14 when DHS elects actually to apply it to a particular alien. This argument is not supportable under

15 the statutory language. Subparagraph (b)(2) provides that it “shall not apply to an alien . . . to

16 whom paragraph (1) applies.” The relevant inquiry therefore is whether the language of

17 subparagraph (b)(1) encompasses the alien, not whether DHS has decided to apply the provisions

18 of the subparagraph to him or her. Because there is no dispute the language of subparagraph (b)(1)

19 describes persons in the position of the individual plaintiffs, the exclusion from subparagraph

20 (b)(2) reaches them.

21

Finally, defendants make a statutory intent argument based on the circumstances under

22 which the contiguous return provision was originally enacted. Defendants assert the provision was

23 adopted by Congress as a direct response to the Board of Immigration Appeals decision in Matter

24 of Sanchez-Avila, 21 I. & N. Dec. 444 (BIA 1996). In Sanchez-Avila, the government argued it

25 had a long-standing and legal practice of, in some instances, “[r]equiring aliens to remain in

26 Mexico or Canada pending their exclusion proceedings.” Id. at 450. The government noted that it

27 has “plenary power . . . . to preserve its dominion” and a “legal right to preserve the integrity of its

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1 borders and ultimately its sovereignty.” Id. Accordingly, the government argued, “its exclusion

2 policy of requiring certain aliens to await their exclusion hearings in either Mexico or Canada”

3 was “a practical exercise of plenary power.” Id.

4

The Sanchez-Avila decision concluded that whatever “plenary power” the government

5 might otherwise have, it had not shown the alleged practice of returning aliens to Mexico (or

6 Canada) pending removal proceedings was “longstanding” with an “unchallenged history.” Id. at

7 465. Nor could the plaintiffs show there was “explicit statutory or regulatory authority for a

8 practice of returning applicants for admission at land border ports to Mexico or Canada

9 to await their hearings.” Id. As a result, the Board declined to treat the practice as valid. Id.

10

Defendants contend that because the contiguous territory return provision purportedly was

11 a direct Congressional response to Sanchez-Avila, it should be seen as authorizing the return of

12 aliens such as the named plaintiffs. The first and most fundamental problem with defendants’

13 argument, however, is that the plaintiff alien “returned” to Mexico in Sanchez-Avila was a resident

14 alien commuter whose application for entry was not granted given apparent grounds to exclude

15 him for “involvement with controlled substances.” Id. at 445. Thus, there is no indication he was

16 an undocumented applicant for admission subject to expedited removal under subparagraph (b)(1).

17 To the extent Congressional intent to supersede the result of Sanchez-Avila can be inferred, doing

18 so would not show Congress intended the contiguous territory return provision to apply to aliens

19 subject to subparagraph (b)(1).

20

Plaintiffs insist that, to the contrary, it is reasonable to assume Congress affirmatively

21 wished to exclude aliens subject to expedited removal from the contiguous territory return

22 provision. Plaintiffs suggest because refugees and asylum seekers are among those most likely to

23 lack proper admission documents and therefore be subject to expedited removal, it is perfectly

24 sensible that Congress would expressly exclude them from the contiguous territory return

25 provision.

26

The record supports no clear conclusion of any Congressional intent beyond that

27 implemented in the plain language of the statute. It is certainly possible that if squarely presented

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1 with the question, Congress could and would choose to authorize DHS to impose contiguous

2 territory return on aliens subject to expedited removal, and that the appearance of the provision in

3 subparagraph (b)(2) was essentially a matter of poor drafting. It is also possible, however, that

4 Congress authorized contiguous return only for aliens not subject to expedited removal because

5 that was the particular issue presented by Sanchez-Avila and/or because there was no indication of

6 any pressing need to “return” persons during the presumably faster process of expedited 7 removal.11 Given the unambiguous language and structure of the statute, speculation about

8 unexpressed Congressional intent does not advance the analysis.

9

Finally, the conclusion that plaintiffs and others similarly situated are not subject to the

10 contiguous territory return provision is neither irrational nor unfair. While at first blush it might

11 appear they thereby are in a better position than those who are not encompassed by section

12 1225(b)(1), any such perceived “advantage” flows only from the exercise of DHS’s prosecutorial

13 discretion. If persons in plaintiffs’ position should not be admitted to this country, DHS retains full

14 statutory authority to process them for expedited removal, and to detain them pending such

15 proceedings. Accordingly, plaintiffs have made a strong showing that they are likely to succeed on

16 the merits with respect to their claim that the MPP lacks a legal basis for applying the contiguous

17 territory return provision in this context.

18

19

3. Refoulement safeguards

20

Even if, contrary to the preceding discussion, the contiguous territory return provision

21

22 11 Even assuming plaintiffs are correct that persons subject to expedited removal are more likely

23 to be asylum seekers with credible fear of persecution if not admitted, that alone would not be a basis to exclude them from contiguous territory return. If the statute were amended, or if the

24 statutory construction of this order were rejected on appeal, that concern would more appropriately

be addressed by adopting appropriate statutory and/or regulatory safeguards against 25 “refoulement,” rather than simply concluding contiguous territory return should never be applied

26

to such persons. It is also worth noting that an asylum seeker from some country other than Mexico will not automatically be at undue risk of persecution in Mexico, even if he or she can

27 present an extremely compelling case of persecution in his or her country of origin.

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1 could be lawfully applied to the individual plaintiffs and others like them, that does not

2 end the inquiry. Defendants openly acknowledge they must comply with the government’s legal

3 obligations to avoid refoulement when removing aliens to a contiguous or any other territory

4 pending conclusion of section 1229a proceedings. The United States is bound by the United 5 Nations 1951 Convention relating to the Status of Refugees.12 Article 33 of the Convention

6 provides:

7 No Contracting State shall expel or return (“refouler”) a refugee in

8

any manner whatsoever to the frontiers of territories where his life

or freedom would be threatened on account of his race, religion,

9

nationality, membership of a particular social group or political

10

opinion.

11

The United States has codified at least some of its obligations under the Convention at 8

12 U.S.C. §1231(b)(3). That section is entitled “Restriction on removal to a country where alien’s life

13 or freedom would be threatened,” and its provisions and the regulations thereunder provide for

14 hearings and reviews far beyond what is required by the MPP and implementing guidance. DHS

15 insists section 1231(b)(3) and its regulations do not apply here because it refers only to

16 circumstances where an alien is removed, as opposed to “returned.”

17

Defendants’ argument ignores that the section is admittedly intended to implement the

18 United States’ obligations under the Convention, which expressly refer to “expel or return.”

19 Additionally, while the record is not completely clear, there is a suggestion the prior statutory

20 language of “deport or return” was amended to substitute the term “remove” only as a result of the

21 consolidation of deportation and exclusion proceedings into unitary “removal” proceedings in

22 1996. If so, there would be no reason to infer the change was intended to make a substantive

23 alteration to the government’s obligations to avoid refoulement.

24

That said, it is not clear that defendants would be obligated to provide the full panoply of

25

26 12 The United States is not a direct party to the Convention, but is a party to the 1967 Protocol 27 Relating to the Status of Refugees, which incorporates Articles 2-34 of the Convention.

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1 procedural and substantive protections prescribed under §1231(b)(3) and its implementing

2 regulations, even assuming the individual plaintiffs are subject to “return” under the contiguous

3 territory return provision. First, as noted above and as reflected generally in subdivision (b) of

4 §1231, the potential issues relating to sending an alien to a contiguous territory as opposed to his

5 or her “home” country may not be identical. Moreover, in this action plaintiffs are not contending

6 the protections against refoulement provided under subparagraph (b)(1) of section 1225 for those

7 placed in expedited return are insufficient. Those restrictions are quite clearly less restrictive than

8 are required under §1231(b)(3).

9

Second, even though plaintiffs are not contending that DHS must place them in expedited

10 removal, all their arguments depend on the fact that the expedited removal statute applies to them,

11 absent prosecutorial discretion. Thus, it would be anomalous to conclude that they necessarily are

12 entitled to greater procedural and substantive protections against refoulement—i.e., those

13 prescribed by §1231(b)(3)—upon temporary “return” to Mexico than they would receive if the

14 government instead elected simply to remove them permanently on an expedited basis.

15

Accordingly, to the extent plaintiffs contend section §1231(b)(3) applies to persons being

16 “returned” under the contiguous territory return provision, they have not shown they are more

17 likely than not to succeed on the merits of such an argument. That, however, does not answer the

18 question of whether the MPP includes sufficient safeguards against refoulement.

19

At the preliminary injunction stage, it is neither possible nor necessary to determine what

20 the minimal anti-refoulement procedures might be. Plaintiffs have established that persons placed

21 in expedited removal proceedings, and persons who ultimately are found removable under section

22 1229a, all benefit from protections not extended to the individual plaintiffs here. The issue in this

23 case is only whether the MPP’s protections for persons like the individual plaintiffs comply with

24 the law. Even assuming neither §1231(b)(3) nor the more limited procedures under expedited

25 removal apply, plaintiffs have shown they are more likely than not to prevail on the merits of their

26 contention that defendants adopted the MPP without sufficient regard to refoulement issues.

27 Notably, the CIS Policy Memorandum, AR 2273 n.5, expressly acknowledges the government’s

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1 obligations “vis-à-vis the 1951 Convention and 1967 Protocol are reflected in Section

2 241(b)(3)(B).” The subsequent conclusion of that memo that “the reference to Section

3 241(b)(3)(B) should not be construed to suggest that Section 241(b)(3)(B) applies to MPP,” may

4 ultimately be supportable. It leaves open, however, the question of what the government’s

5 obligations are.

6

As noted above, the MPP provides only for review of potential refoulement concerns when

7 an alien “affirmatively” raises the point. Access to counsel is “currently” not available. AR 2273.

8 While an CIS officer’s determination is subject to review by a supervisory asylum officer, no

9 administrative review proceedings are available. AR 2274. These procedures undeniably provide

10 less protection than prior legislative and administrative rulemaking procedures have concluded is

11 appropriate upon removal, either expedited or regular. While it might be rational to treat “return”

12 differently, the rules must be adopted in conformance with administrative law and with

13 governments anti-refoulement obligations. Without opining as to what minimal process might be

14 required, plaintiffs’ showing on this point suffices.

15

16

4. Plaintiffs’ specific claims for relief

17

The first claim for relief set out in the complaint asserts the MPP is “contrary to law”

18 because the contiguous return provision does not apply to persons in the position of the individual

19 plaintiffs. As set out above, plaintiffs have the better argument on this point.

20

Plaintiffs’ second claim for relief asserts that under 5 U.S.C. § 553(b) and (c), defendants

21 may not adopt a “rule” without providing notice and an opportunity for comment. If it were the

22 case that the MPP represents a lawful exercise of DHS’s discretion to implement the contiguous

23 territory return provision, plaintiffs would have no tenable “notice and comment” claim regarding

24 that exercise of prosecutorial discretion.

25

Additionally, even given the conclusion above that the contiguous return provision does

26 not provide a legal basis for the MPP, the issue does not rise to a violation of the notice and

27 comment provisions under the APA. Rather, plaintiffs’ claim for relief with respect to notice and

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1 comment is implicated if, and only if, they are subject to the contiguous territory return provision,

2 notwithstanding the discussion above. In that instance, the question would be whether the

3 defendants were obligated to comply with APA notice and comment rules with respect to adopting

4 procedures to address refoulement concerns. Plaintiffs’ complaint appears to recognize this point,

5 and focuses on the allegation that the MPP procedures for addressing an alien’s risk of persecution

6 upon return to Mexico were not adopted after notice and comment.

7

If defendants simply were to proceed by applying the existing procedures and regulations

8 of §1231(b)(3) to temporary “returns” under the contiguous territory return provision, they might

9 have a good argument that no “notice and comment” procedure would be required. If, however,

10 defendants take the position—which may be completely reasonable—that a different set of

11 procedures should apply to contiguous territory “returns,” compliance with APA notice and

12 comment procedures more likely than not would be required. Accordingly, plaintiffs have shown

13 they have a likelihood of success on the merits of their notice and comment claim.

14

The third claim for relief set out in the complaint alleges, in essence, that the adoption of

15 the MPP was arbitrary and capricious as a whole, and that it effectively “deprives asylum seekers

16 of a meaningful right to apply for asylum.” The sixth claim for relief, which may be duplicative,

17 also asserts impairment of the right to seek asylum. At this juncture, it is not necessary to

18 determine whether plaintiffs might be able to prove such broader and/or “catch-all” claims.

19

Finally, the fourth claim for relief13 avers the MPP is contrary to law because it has

20 inadequate provisions to protect against refoulement. The claim invokes the UN Convention, the

21 Protocols, section 1231(b)(3), and its implementing regulations. As discussed above, plaintiffs

22 have not shown they are likely to prove section 1231(b)(3) applies directly. Their claims about

23 refoulement nevertheless likely merge with their “notice and comment” and/or catch-all claims

24 under the second and third claims for relief. Thus, in the event DHS has statutory authority to

25

26 13 As noted above, the present motion does not address the fifth claim for relief, which is not 27 grounded in the APA.

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1 apply the contiguous return provision to plaintiffs and others in their position, plaintiffs have

2 shown a likelihood of success on the refoulement issue, whether that is best characterized as a

3 claim under their second, third, or fourth claims for relief, or some combination thereof.

4

5

C. Other injunction factors

6

Under the familiar standards, plaintiffs who demonstrate a likelihood of success on the

7 merits, as plaintiffs have done here, must also show they are “likely to suffer irreparable harm in

8 the absence of preliminary relief, that the balance of equities tips in [their] favor, and that an

9 injunction is in the public interest.” Winter, 555 U.S. at 21-22. While the precise degree of risk

10 and specific harms that plaintiffs might suffer in this case may be debatable, there is no real

11 question that it includes the possibility of irreparable injury, sufficient to support interim relief in

12 light of the showing on the merits.

13

The individual plaintiffs present uncontested evidence that they fled their homes in El

14 Salvador, Guatemala, and Honduras to escape extreme violence, including rape and death threats.

15 One plaintiff alleges she was forced to flee Honduras after her life was threatened for being a

16 lesbian. Another contends he suffered beatings and death threats by a “death squad” in Guatemala

17 that targeted him for his indigenous identity. Plaintiffs contend they have continued to experience

18 physical and verbal assaults, and live in fear of future violence, in Mexico.

19

Defendants attempt to rebut the plaintiffs’ showing of harm by arguing the merits—

20 contending the individual plaintiffs were all “processed consistent[ly] with applicable law” and

21 had sufficient opportunity to assert any legitimate fears of return to Mexico. As reflected in the

22 discussion above, however, plaintiffs have made a strong showing that defendants’ view of the

23 law on those points is not correct. The organizational plaintiffs have also shown a likelihood of

24 harm in terms of impairment of their ability to carry out their core mission of providing

25 representation to aliens seeking admission, including asylum seekers. Cf. East Bay Sanctuary, 909

26 F.3d at 1242 (describing cognizable harms to organizational plaintiffs for standing purposes.)

27

Finally, the balance of equities and the public interest support issuance of preliminary

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1 relief. As observed in East Bay Sanctuary:

2

the public has a “weighty” interest “in efficient administration of the

3

immigration laws at the border.” Landon v. Plasencia, 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). But the public also has an

4

interest in ensuring that “statutes enacted by [their] representatives”

are not imperiled by executive fiat. Maryland v. King, 567 U.S.

5

1301, 1301, 133 S.Ct. 1, 183 L.Ed.2d 667 (2012) (Roberts, C.J., in

chambers). 6

7 909 F.3d at 1255. Additionally, similar to the situation in East Bay Sanctuary, while this

8 injunction will bring a halt to a current and expanding policy, and in that sense technically does

9 not preserve the “status quo,” it will only “temporarily restore[] the law to what it had been for

10 many years prior.” Id.

11

12

D. Scope of injunction

13

Defendants urge that any injunction be limited in geographical scope. As the East Bay

14 Sanctuary court recently observed, there is “a growing uncertainty about the propriety of universal

15 injunctions.” 909 F.3d at 1255.

16

Nevertheless, as East Bay Sanctuary also noted:

17

In immigration matters, we have consistently recognized the

authority of district courts to enjoin unlawful policies on a universal

18

basis. Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec.,

908 F.3d 476, 511 (9th Cir. 2018) (“A final principle is also

19

relevant: the need for uniformity in immigration policy.”); Hawaii v.

20

Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, –

–– U.S. ––, 138 S. Ct. 2392, 201 L.Ed.2d 775 (2018) (“Because this

21

case implicates immigration policy, a nationwide injunction was

necessary to give Plaintiffs a full expression of their rights.”);

22

Washington [v. Trump], 847 F.3d [1151 (9th Cir. 2017) at 1166–67

23

(“[A] fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration

24

law and policy.” (citing Texas v. U.S., 809 F.3d 134, 187–88 (5th

Cir. 2015)) ). “Such relief is commonplace in APA cases, promotes

25

uniformity in immigration enforcement, and is necessary to provide

the plaintiffs here with complete redress.” Univ. of Cal., 908 F.3d at

26

512.

27

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1

Id. Although issues sometimes arise when a ruling in a single judicial district is applied

2 nationwide, defendants have not shown the injunction in this case can be limited geographically.

3 This is not a case implicating local concerns or values. There is no apparent reason that any of the

4 places to which the MPP might ultimately be extended have interests that materially differ from 5 those presented in San Ysidro. Accordingly, the injunction will not be geographically limited.14

6

7

E. Bond and stay issues

8

No party has suggested that it would be appropriate to condition issuance of a preliminary

9 injunction upon the posting of a bond under the circumstances of this case. No bond will be 10 required.15 At argument, defendants moved orally for a stay pending appeal of any injunctive relief

11 that might issue. Defendants contend the MPP was adopted to address certain aspects of a crisis.

12 Even fully crediting defendants’ characterization of the circumstances, they have not shown that a

13 stay of this injunction is warranted. See East Bay Sanctuary, 909 F.3d at 1255. Accordingly, the

14 request for a stay during the pendency of appeal will be denied. To permit defendants to exercise

15 their right to seek a stay from the Court of Appeal, however, this order will not take effect until

16 5:00 p.m., PST, April 12, 2019.

17

18 14 While the injunction precludes the “return” under the MPP of any additional aliens who would
19 otherwise be subject to expedited removal, nothing in the order determines if any individuals, other than those appearing as plaintiffs in this action, should be offered the opportunity to re-enter
20 the United States pending conclusion of their section1229a proceedings. Nor does anything in the
injunctive relief require that any person be paroled into the country during such proceedings. DHS 21 will have discretion to detain the individual plaintiffs and others when they are allowed back
22 across the border.

23 15 On its face, Federal Rule of Civil Procedure 65(c) permits a court to grant preliminary injunctive relief “only if the movant gives security in an amount that the court considers proper to

24 pay the costs and damages sustained by any party found to have been wrongfully enjoined or

restrained.” The Ninth Circuit has made clear, however, that “[d]espite the seemingly mandatory 25 language, Rule 65(c) invests the district court with discretion as to the amount of security required,

26

if any.” Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009)(citations and quotations omitted, emphasis in original). This is not a case where a bond would serve to protect against

27 quantifiable harm in any event.

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1

V. CONCLUSION

2

Plaintiffs’ motion for a preliminary injunction is granted. Defendants are hereby enjoined

3 and restrained from continuing to implement or expand the “Migrant Protection Protocols” as

4 announced in the January 25, 2018 DHS policy memorandum and as explicated in further agency

5 memoranda. Within 2 days of the effective date of this order, defendants shall permit the named

6 individual plaintiffs to enter the United States. At defendants’ option, any named plaintiff

7 appearing at the border for admission pursuant to this order may be detained or paroled, pending

8 adjudication of his or her admission application.

9

This order shall take effect at 5:00 p.m., PST, April 12, 2012.

10

11

12 IT IS SO ORDERED.

13

14 Dated: April 8, 2019

15

______________________________________

RICHARD SEEBORG

16

United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28 CASE NO. 19-cv-00807-RS
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 CCaassee: 139:1-195-c7v1-60,00850/70-7R/S201D9o, cIDu:m1e1n2t889398F7,ileDdkt0E5n/1tr6y:/1292-1P,aPgaeg1e o1fo1f111

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
MAY 7 2019
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

INNOVATION LAW LAB; CENTRAL AMERICAN RESOURCE CENTER OF NORTHERN CALIFORNIA; CENTRO LEGAL DE LA RAZA; UNIVERSITY OF SAN FRANCISCO SCHOOL OF LAW IMMIGRATION AND DEPORTATION DEFENSE CLINIC; AL OTRO LADO; TAHIRIH JUSTICE CENTER,

No. 19-15716 D.C. No. 3:19-cv-00807-RS
OPINION

Plaintiffs-Appellees,

v.

KEVIN K. MCALEENAN, Acting Secretary of Homeland Security, in his official capacity; U.S. DEPARTMENT OF HOMELAND SECURITY; LEE FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services, in his official capacity; JOHN L. LAFFERTY, 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; RONALD D. VITIELLO, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,

CCaassee: 139:1-195-c7v1-60,00850/70-7R/S201D9o, cIDu:m1e1n2t889398F7,ileDdkt0E5n/1tr6y:/1292-1P,aPgaeg2e o2fo1f111
Page 2 of 11
Defendants-Appellants.
Appeal from the United States District Court for the Northern District of California
Richard Seeborg, District Judge, Presiding Argued and Submitted April 24, 2019 San Francisco, California
Before: O’SCANNLAIN, W. FLETCHER, and WATFORD, Circuit Judges. PER CURIAM: In January 2019, the Department of Homeland Security (DHS) issued the
Migrant Protection Protocols (MPP), which initiated a new inspection policy along the southern border. Before the MPP, immigration officers would typically process asylum applicants who lack valid entry documentation for expedited removal. If the applicant passed a credible fear screening, DHS would either detain or parole the individual until her asylum claim could be heard before an immigration judge. 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

CCaassee: 139:1-195-c7v1-60,00850/70-7R/S201D9o, cIDu:m1e1n2t889398F7,ileDdkt0E5n/1tr6y:/1292-1P,aPgaeg3e o3fo1f111
Page 3 of 11 who are processed for expedited removal, and any applicant “who is more likely than not to face persecution or torture in Mexico.”
Eleven Central American asylum applicants who were returned to Tijuana, Mexico, and six organizations that provide asylum-related legal services challenged the MPP on several grounds in the district court. After concluding that the MPP lacks a statutory basis and violates the Administrative Procedure Act (APA), the district court enjoined DHS on a nationwide basis “from continuing to implement or expand the [MPP].”
DHS has moved for a stay of the preliminary injunction pending its appeal to this court. Our equitable discretion in ruling on a stay motion is guided by four factors: “(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 v. Holder, 556 U.S. 418, 434 (2009) (internal quotation marks omitted). We begin with a discussion of the first factor, which turns largely on the plaintiffs’ likelihood of success on their claim that the MPP lacks statutory authorization.
I Some background is in order before addressing the merits of the plaintiffs’ statutory claim. Congress has established an exhaustive inspection regime for all

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Page 4 of 11
non-citizens who seek admission into the United States. See 8 U.S.C.
§ 1225(a)(3). Applicants for admission are processed either through expedited
removal proceedings or through regular removal proceedings. Section 1225(b)(1)
outlines the procedures for expedited removal and specifies the class of non-
citizens who are eligible for expedited removal:
If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.
§ 1225(b)(1)(A)(i). Simply put, an applicant is eligible for expedited removal only
if the immigration officer determines that the individual is inadmissible on one of
two grounds: fraud or misrepresentation (§ 1182(a)(6)(C)) or lack of
documentation (§ 1182(a)(7)).
All applicants for admission who are not processed for expedited removal
are placed in regular removal proceedings under § 1225(b)(2)(A). That process
generally entails a hearing before an immigration judge pursuant to § 1229a.
Section 1225(b)(2)(B) provides exceptions to § 1225(b)(2)(A), while
§ 1225(b)(2)(C) permits applicants processed under § 1225(b)(2)(A) to be returned

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Page 5 of 11
to the contiguous territory from which they arrived for the duration of their
removal proceedings. Section 1225(b)(2) provides in full:
(A) In general Subject to subparagraphs (B) and (C), in the case of
an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.
(B) Exception Subparagraph (A) shall not apply to an alien— (i) who is a crewman, (ii) to whom paragraph (1) applies, or (iii) who is a stowaway.
(C) Treatment of aliens arriving from contiguous territory
In the case of an alien described in subparagraph (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 Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.
DHS relies on the contiguous-territory provision in subsection (b)(2)(C) as
the statutory basis for the MPP. That provision authorizes DHS to return “alien[s]
described in subparagraph (A)” to Mexico or Canada. § 1225(b)(2)(C). The
phrase “described in” refers to the “salient identifying features” of the individuals
subject to this provision. Nielsen v. Preap, 139 S. Ct. 954, 965 (2019) (emphasis
and internal quotation marks omitted). Because the plaintiffs in this case are not

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Page 6 of 11 “clearly and beyond a doubt entitled to be admitted,” they fit the description in § 1225(b)(2)(A) and thus seem to fall within the sweep of § 1225(b)(2)(C).
As the district court interpreted the statute, however, the contiguous-territory provision may not be applied to applicants for admission who could have been placed in expedited removal under § 1225(b)(1), even if they were placed in regular removal proceedings. The crux of this argument is § 1225(b)(2)(B)(ii), which provides that “[s]ubparagraph (A) shall not apply to an alien . . . to whom paragraph (1) applies.” So long as the applicant is eligible for expedited removal, the district court reasoned, § 1225(b)(1) “applies” to that individual. On this account, it is immaterial that the plaintiffs were not in fact processed for expedited removal during their inspection at the border.
The primary interpretive question presented by this stay motion is straightforward: Does § 1225(b)(1) “apply” to everyone who is eligible for expedited removal, or only to those actually processed for expedited removal? The interpretive difficulty arises mainly because the inadmissibility grounds contained in subsections (b)(1) and (b)(2) overlap. A subset of applicants for admission—those inadmissible due to fraud or misrepresentation, § 1182(a)(6)(C), and those who do not possess a valid entry document, § 1182(a)(7)—may be placed in expedited removal. § 1225(b)(1)(A)(i). But as we read the statute, anyone who is “not clearly and beyond a doubt entitled to be admitted” can be

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Page 7 of 11 processed under § 1225(b)(2)(A). Section 1225(b)(2)(A) is thus a “catchall” provision in the literal sense, and Congress’ creation of expedited removal did not impliedly preclude the use of § 1229a removal proceedings for those who could otherwise have been placed in the more streamlined expedited removal process. See Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 522–24 (BIA 2011).
Because the eligibility criteria for subsections (b)(1) and (b)(2) overlap, we can tell which subsection “applies” to an applicant only by virtue of the processing decision made during the inspection process. Take first the procedures for designating an applicant for expedited removal. When the immigration officer “determines” that the applicant “is inadmissible” under § 1182(a)(6)(C) or (a)(7), he “shall order the alien removed from the United States without further hearing” unless the applicant requests asylum or expresses a fear of persecution, in which case the officer “shall refer the alien for an interview by an asylum officer under subparagraph (B).” 8 U.S.C. § 1225(b)(1)(A)(i)–(ii). In other words, the officer decides inadmissibility on the spot without sending the matter to an immigration judge. DHS’s regulations further explain that a § 1225(b)(1) determination entails either the issuance of a Notice and Order of Expedited Removal or the referral of the applicant for a credible fear screening. 8 C.F.R. § 235.3(b)(2)(i), (4); see also id. § 208.30. And to “remove any doubt” on the issue, § 1225(b)(2)(B) clarifies

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Page 8 of 11 that applicants processed in this manner are not entitled to a proceeding under § 1229a. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008).
In contrast, § 1225(b)(2) is triggered “if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted.” 8 U.S.C. § 1225(b)(2)(A). Following this determination, the officer will issue a Notice to Appear, which is the first step in a § 1229a proceeding. 8 C.F.R. § 235.6(a)(1)(i); see also id. § 208.2(b). A Notice to Appear can charge inadmissibility on any ground, including the two that render an individual eligible for expedited removal. 8 U.S.C. § 1229a(a)(2). The officer then sets a date for a hearing on the issue before an immigration judge. See Pereira v. Sessions, 138 S. Ct. 2105, 2111 (2018).
The plaintiffs were not processed under § 1225(b)(1). We are doubtful that subsection (b)(1) “applies” to them merely because subsection (b)(1) could have been applied. And we think that Congress’ purpose was to make return to a contiguous territory available during the pendency of § 1229a removal proceedings, as opposed to being contingent on any particular inadmissibility ground. Indeed, Congress likely believed that the contiguous-territory provision would be altogether unnecessary if an applicant had already been processed for expedited removal. The plaintiffs are properly subject to the contiguous-territory provision because they were processed in accordance with § 1225(b)(2)(A).

CCaassee: 139:1-195-c7v1-60,00850/70-7R/S201D9o, cIDu:m1e1n2t889398F7,ileDdkt0E5n/1tr6y:/1292-1P,aPgaeg9e o9fo1f111
Page 9 of 11 Though the plaintiffs contend otherwise, our approach is consistent with the subsections’ headings. Section 1225(b)(1) is titled “Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled,” and § 1225(b)(2) is labeled “Inspection of other aliens.” The plaintiffs interpret § 1225(b) to create two mutually exclusive pre-inspection categories of applicants for admission; as explained above, we read the statute to create two mutually exclusive post-inspection categories. In our view, those who are not processed for expedited removal under § 1225(b)(1) are the “other aliens” subject to the general rule of § 1225(b)(2). Our interpretation is also consistent with Jennings v. Rodriguez, 138 S. Ct. 830 (2018), the principal authority on which the plaintiffs rely. There, the Supreme Court explained that “applicants for admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2).” Id. at 837. As the Court noted, “Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation.” Id. (emphasis added). “Section 1225(b)(2) is broader,” since it “serves as a catchall provision that applies to all applicants for admission not covered by § 1225(b)(1).” Id. We think our interpretation more closely matches the Court’s understanding of the mechanics of § 1225(b), as it is attentive to the

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Page 10 of 11 role of the immigration officer’s initial determination under § 1225(b)(1) and to § 1225(b)(2)’s function as a catchall.
For the foregoing reasons, we conclude that DHS is likely to prevail on its contention that § 1225(b)(1) “applies” only to applicants for admission who are processed under its provisions. Under that reading of the statute, § 1225(b)(1) does not apply to an applicant who is processed under § 1225(b)(2)(A), even if that individual is rendered inadmissible by § 1182(a)(6)(C) or (a)(7). As a result, applicants for admission who are placed in regular removal proceedings under § 1225(b)(2)(A) may be returned to the contiguous territory from which they arrived under § 1225(b)(2)(C).
The plaintiffs have advanced only one other claim that could justify a nationwide injunction halting the implementation of the MPP on a wholesale basis: that the MPP should have gone through the APA’s notice-and-comment process. DHS is likely to prevail on this claim as well, since “general statements of policy” are exempted from the notice-and-comment requirement. 5 U.S.C. § 553(b)(A). The MPP qualifies as a general statement of policy because immigration officers designate applicants for return on a discretionary case-by-case basis. See Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 507 (9th Cir. 2018); Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987).

CCaassee: 139:1-195-c7v1-060, 0850/70-7R/S201D9o, cIDu:m1e1n2t889398F7,ileDdkt0E5n/1tr6y/:1292-1P,aPgaeg1e11o1fo1f111
Page 11 of 11 II The remaining factors governing issuance of a stay pending appeal weigh in the government’s favor. As to the second factor, DHS is likely to suffer irreparable harm absent a stay because the preliminary injunction takes off the table one of the few congressionally authorized measures available to process the approximately 2,000 migrants who are currently arriving at the Nation’s southern border on a daily basis. See East Bay Sanctuary Covenant v. Trump, 909 F.3d 1219, 1250–51 (9th Cir. 2018). DHS has therefore made a strong showing on both the first and second factors, which are the “most critical.” Nken, 556 U.S. at 434. The other two factors support the issuance of a stay as well. The plaintiffs fear substantial injury upon return to Mexico, but the likelihood of harm is reduced somewhat by the Mexican government’s commitment to honor its internationallaw obligations and to grant humanitarian status and work permits to individuals returned under the MPP. We are hesitant to disturb this compromise amid ongoing diplomatic negotiations between the United States and Mexico because, as we have explained, the preliminary injunction (at least in its present form) is unlikely to be sustained on appeal. Finally, the public interest favors the “efficient administration of the immigration laws at the border.” East Bay Sanctuary Covenant, 909 F.3d at 1255 (quoting Landon v. Plasencia, 459 U.S. 21, 34 (1982)). The motion for a stay pending appeal is GRANTED.

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

INNOVATION LAW LAB; CENTRAL AMERICAN RESOURCE CENTER OF NORTHERN CALIFORNIA; CENTRO LEGAL DE LA RAZA; UNIVERSITY OF SAN FRANCISCO SCHOOL OF LAW IMMIGRATION AND DEPORTATION DEFENSE CLINIC; AL OTRO LADO; TAHIRIH JUSTICE CENTER,
Plaintiffs-Appellees,

No. 19-15716 D.C. No.
3:19-cv-00807RS
OPINION

v.

CHAD WOLF, Acting Secretary of Homeland Security, in his official capacity; U.S. DEPARTMENT OF HOMELAND SECURITY; KENNETH T. CUCCINELLI, Acting Director, U.S. Citizenship and Immigration Services, in his official capacity; ANDREW DAVIDSON, Acting 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

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capacity; U.S. CUSTOMS AND BORDER PROTECTION; MATTHEW T. ALBENCE, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,
Defendants-Appellants.

Appeal from the United States District Court for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted October 1, 2019 San Francisco, California
Filed February 28, 2020
Before: Ferdinand F. Fernandez, William A. Fletcher, and Richard A. Paez, Circuit Judges.
Opinion by Judge W. Fletcher; Dissent by Judge Fernandez

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SUMMARY*

Immigration /Preliminary Injunctions
The panel affirmed the district court’s grant of a preliminary injunction setting aside the Migrant Protection Protocols (“MPP”), under which non-Mexican asylum seekers who present themselves at the southern border of the United States are required to wait in Mexico while their asylum applications are adjudicated.
After the MPP went into effect in January 2019, individual and organizational plaintiffs sought an injunction, arguing, inter alia, that the MPP is inconsistent with the Immigration and Nationality Act (“INA”), and that they have a right to a remedy under the Administrative Procedure Act (“APA”). The district court issued a preliminary injunction setting aside the MPP.
The Government appealed and requested an emergency stay in this court pending appeal. In three written opinions, a motions panel unanimously granted the emergency stay. In a per curiam opinion, the motions panel disagreed, by a vote of two to one, with the district court’s holding that plaintiffs were likely to succeed in their statutory argument that the MPP is inconsistent with 8 U.S.C. § 1225(b). Judge Watford concurred in that opinion, but wrote separately to express concern that the MPP is arbitrary and capricious because it lacks sufficient non-refoulement protections. Judge Fletcher

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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concurred only in the result, arguing that the MPP was inconsistent with 8 U.S.C. § 1225(b).

The current panel first noted that the individual plaintiffs, all of whom have been returned to Mexico under the MPP, obviously have standing. The panel also concluded that the organizational plaintiffs have standing, noting their decreased ability to carry out their core missions as well as diversion of their resources.

Addressing the question of whether a merits panel is bound by the analysis of a motions panel on a question of law, the panel followed East Bay Sanctuary Covenant v. Trump, Nos. 18-17274 and 18-17436 (9th Cir. Feb. 28, 2020), argued on the same day as this case, in which the court held that a motions panel’s legal analysis, performed during the course of deciding an emergency motion for a stay, is not binding on later merits panels. The panel also concluded that, even if a merits panel may be bound in some circumstances by a motions panel, this panel would not be bound: two of the three judges on the motions panel disagreed in part with the Government’s legal arguments in support of the MPP, and the panel’s per curiam opinion did not purport to decide definitively the legal questions presented. In this respect, the panel noted that Judge Fletcher specifically addressed the effect of the legal analysis of the motions panel and expressed the hope that the merits panel, with the benefit of full briefing and argument, would decide the legal questions differently.

On the merits, the panel concluded that plaintiffs had shown a likelihood of success on their claim that the returnto-Mexico requirement of the MPP is inconsistent with § 1225(b). The Government argued that the MPP is authorized by § 1225(b)(2), which provides that, for certain

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aliens arriving on land from a foreign territory contiguous to the United States, the Attorney General may return the aliens to that territory pending removal proceedings. Plaintiffs argued, however, that they were arriving aliens under § 1225(b)(1), rather than under § 1225(b)(2), and pointed out that there is a contiguous territory return provision in § (b)(2), but no such provision in § (b)(1).

The panel agreed, explaining that there are two distinct categories of “applicants for admission” under § 1225. First, there are applicants described under § 1225(b)(1), who are inadmissible based on either of two grounds, both of which relate to their documents or lack thereof. Such applicants may be placed in either expedited removal proceedings or regular removal proceedings under § 1229a. Second, there are applicants described under § 1225(b)(2), who are, in the words of the statute, “other aliens,” “to whom paragraph [(b)](1)” does not apply; that is, § (b)(2) applicants are those who are inadmissible on grounds other than the two specified in § (b)(1). Such applicants are placed in regular removal proceedings. The panel noted that both § (b)(1) and § (b)(2) applicants can be placed in regular removal proceedings under § 1229a, though by different routes, but concluded that a § (b)(1) applicant does not become a § (b)(2) applicant, or vice versa, by virtue of being placed in a removal proceeding under § 1229a.

Addressing the precise statutory question posed by the MPP, the panel held that a plain-meaning reading of § 1225(b)—as well as the Government’s longstanding and consistent practice—made clear that a § (b)(1) applicant may not be “returned” to a contiguous territory under § 1225(b)(2)(C), which is a procedure specific to a § (b)(2) applicant.

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The panel next concluded that plaintiffs had shown a likelihood of success on their claim that the MPP does not comply with the United States’ treaty-based non-refoulement obligations codified at 8 U.S.C. § 1231(b). The panel explained that refoulement occurs when a government returns aliens to a country where their lives or liberty will be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion. Further, the United States is obliged by treaty—namely, the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 United Nations Protocol Relating to the Status of Refugees—and implementing statute—namely, § 1231(b)—to protect against refoulement of aliens arriving at the country’s borders.

Plaintiffs argued that the MPP provides insufficient protection against refoulement. First, under the MPP, to stay in the United States during proceedings, an asylum seeker must show that it is “more likely than not” that he or she will be persecuted in Mexico, but that standard is higher than the ordinary standing in screening interviews, in which aliens need only establish a “credible fear,” which requires only a “significant possibility” of persecution. Second, an asylum seeker under the MPP is not entitled to advance notice of, and time to prepare for, the hearing with the asylum officer; to advance notice of the criteria the asylum officer will use; to the assistance of a lawyer during the hearing; or to any review of the asylum officer’s determination. Third, an asylum officer acting under the MPP does not ask an asylum seeker whether he or she fears returning to Mexico; instead, asylum seekers must volunteer, without any prompting, that they fear returning. The Government disagreed with plaintiffs on the grounds that: 1) § 1231(b) does not encompass a general non-

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refoulement obligation; and 2) the MPP satisfies nonrefoulement obligations by providing sufficient procedures.

The panel rejected both arguments. With respect to the second argument, the panel noted that the Government pointed to no evidence supporting its speculations either that aliens will volunteer that they fear returning to Mexico, or that there is little danger to non-Mexican aliens in Mexico. The panel also noted that the Government provided no evidence to support its claim that any violence that returned aliens face in Mexico is unlikely to be violence on account of a protected ground. Further, the panel quoted numerous sworn declarations to the district court that directly contradicted the unsupported speculations of the Government.

Addressing the other preliminary injunction factors, the panel concluded that there is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined; uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum. Further, the panel concluded that the balance of factors favored plaintiffs. While the Government has an interest in continuing to follow the directives of the MPP, the strength of that interest is diminished by the likelihood that the MPP is inconsistent with §§ 1225(b) and 1231(b). On the other side, the individual plaintiffs risk substantial harm, and the organizational plaintiffs are hindered in their ability to carry out their missions. The panel concluded that public interest similarly favored plaintiffs: while the public has a weighty interest in efficient administration of the immigration laws, the public also has an interest in ensuring that statutes enacted by their representatives are not imperiled by executive fiat.

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Finally, considering the scope of the district court’s injunction, the panel concluded that the district court did not abuse its discretion in setting aside the MPP. The panel recognized that nationwide injunctions have become increasingly controversial, but noted that it was a misnomer to call this order “nationwide,” as it operates only at the southern border and directs the action of officials only in four states. The panel explained that the district court did not abuse its discretion for two mutually reinforcing reasons. First, the APA provides that a reviewing court shall “set aside” action that is not in accordance with the law and that there is a presumption that an offending agency action should be set aside in its entirety. Second, cases implicating immigration policy have a particularly strong claim for uniform relief, and this court has consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis. The panel also observed that the Fifth Circuit, one of only two other federal circuits with states along the southern border, has held that nationwide injunctions are appropriate in immigration cases.

Dissenting, Judge Fernandez wrote that he believes that this panel is bound by the motions panel’s published decision in this case. Judge Fernandez wrote that the panel is bound by the law of the circuit, which binds all courts within a particular circuit, including the court of appeals itself, and remains binding unless overruled by the court sitting en banc, or by the Supreme Court. Further, Judge Fernandez wrote that, insofar as factual differences might allow precedent to be distinguished on a principled basis, in this case, the situation before this panel is in every material way the same as that before the motions panel. Judge Fernandez also stated that, in Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015), this court held that a motions panel’s published opinion binds

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future panels the same as does a merits panel’s published opinion. Judge Fernandez also concluded that the law of the case doctrine binds this panel, noting that he did not perceive any of the exceptions to the doctrine to be involved here.

Applying those doctrines, Judge Fernandez concluded that: 1) plaintiffs are not likely to succeed on their claim that the MPP was not authorized by § 1225(b)(2)(C); 2) plaintiffs are not likely to succeed on their claim that the MPP’s adoption violated the notice and comment provisions of the APA; and 3) the preliminary injunction should be vacated. Judge Fernandez stated that he expressed no opinion on whether the district court could issue a narrower injunction.

COUNSEL
Scott G. Stewart (argued), Deputy Assistant Attorney General; Archith Ramkumar, Trial Attorney; Erez Reuveni, Assistant Director; William C. Peachey, Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Washington, D.C., Washington, D.C.; for Defendants-Appellants.
Judy Rabinovitz (argued), Michael Tan, Omar Jadwat, Lee Gelernt, Anand Balakrishnan, and Daniel Galindo, American Civil Liberties Union Foundation, Immigrants’ Rights Project, New York, New York; Jennifer Chang Newell, Katrina Eiland, Cody Wofsy, and Julie Veroff, American Civil Liberties Union Foundation, Immigrants’ Rights Project, San Francisco, California; Melissa Crow, Southern Poverty Law Center, Washington, D.C.; Mary Bauer, Southern Poverty Law Center, Charlottesville, Virginia; Gracie Willis, Southern Poverty Law Center, Decatur,

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Georgia; Michelle P. Gonzalez, Southern Poverty Law Center, Miami, Florida; Sean Riordan and Christine P. Sun, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California; Blaine Bookey, Karen Musalo, Eunice Lee, Kathryn Jastram, and Sayoni Maitra, Center for Gender and Refugee Studies, San Francisco, California; Steven Watt, ACLU Foundation Human Rights Program, New York, New York; for PlaintiffsAppellees.

Adeel A. Mangi, Muhammad U. Faridi, Elizabeth Riordan Hurley, W. Robert Fair, and A. Robert Quirk, Patterson Belknap Webb & Tyler LLP, New York, New York, for Amicus Curiae Local 1924.

Alan E. Schoenfeld and Olga Musayev, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Julia Prochazka, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, Massachusetts; Harold Hongju Koh, Rule of Law Clinic, Yale Law School, New Haven, Connecticut; for Amici Curiae Former U.S. Government Officials.

Xiao Wang, Rakesh Kilaru, Aleshadye Getachew, and Sophia Cooper, Wilkinson Walsh & Eskovitz LLP, Washington, D.C.; Chanakya A. Sethi, Wilkinson Walsh & Eskovitz LLP, New York, New York; for Amici Curiae Amnesty International USA, The Washington Office on Latin America, The Latin America Working Group, & Imumi.

Eleni Bakst, Human Rights First, New York, New York; W. Hardy Callcott, Naomi A. Igra, and Tom Magaña, Sidley Austin LLP, San Francisco, California; for Amicus Curiae Human Rights First.

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Ana C. Reyes, Williams & Connolly LLP, Washington, D.C.; Alice Farmer, United Nations High Commissioner for Refugees, Washington, D.C.; for Amicus Curiae United Nations High Commissioner.

OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs brought suit in district court seeking an injunction against the Government’s recently promulgated Migrant Protection Protocols (“MPP”), under which nonMexican asylum seekers who present themselves at our southern border are required to wait in Mexico while their asylum applications are adjudicated. The district court entered a preliminary injunction setting aside the MPP, and the Government appealed. We affirm.
I. Background
In January 2019, the Department of Homeland Security (“DHS”) promulgated the MPP without going through noticeand-comment rulemaking. The MPP provides that nonMexican asylum seekers arriving at our southern border 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.” Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110, 1114 (N.D. Cal. 2019) (quotation marks omitted). The MPP does not apply to certain groups, including “unaccompanied alien children,” “aliens processed for expedited removal,” “aliens with known physical [or] mental health issues,” “returning [Legal

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Permanent Residents] seeking admission,” and “aliens with an advance parole document or in parole status.”

DHS issued guidance documents to implement the MPP. Under this guidance, asylum seekers who cross the border and are subject to the MPP are given a Notice to Appear in immigration court and returned to Mexico to await their court date. Asylum seekers may re-enter the United States to appear for their court dates. The guidance instructs officials not to return any alien who will more likely than not suffer persecution if returned to Mexico. However, this instruction applies only to an alien “who affirmatively states that he or she has a fear of persecution or torture in Mexico, or a fear of return to Mexico.” Officers are not instructed to ask aliens whether they fear returning to Mexico. If an asylum officer determines, based on an alien’s volunteered statement, that he or she will more likely than not suffer persecution in Mexico, the alien is not subject to return to Mexico under the MPP.

The MPP went into effect on January 28, 2019. It was first implemented at the San Ysidro, California, port of entry and was later expanded across the entire southern border.

The MPP has had serious adverse consequences for the individual plaintiffs. Plaintiffs presented evidence in the district court that they, as well as others returned to Mexico under the MPP, face targeted discrimination, physical violence, sexual assault, overwhelmed and corrupt law enforcement, lack of food and shelter, and practical obstacles to participation in court proceedings in the United States. The hardship and danger to individuals returned to Mexico under the MPP have been repeatedly confirmed by reliable news reports. See, e.g., Zolan Kanno-Youngs & Maya Averbuch, Waiting for Asylum in the United States, Migrants

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Live in Fear in Mexico, N.Y. TIMES (Apr. 5, 2019), https://www.nytimes.com/2019/04/05/us/politics/asylumunited-states-migrants-mexico.html; Alicia A. Caldwell, Trump’s Return-to-Mexico Policy Overwhelms Immigration Courts, WALL STREET J. (Sept. 5, 2019), https://www.wsj.com/articles/trumps-return-to-mexicopolicy-overwhelms-immigration-courts-11567684800; Mica Rosenberg, et al., Hasty Rollout of Trump Immigration Policy Has ‘Broken’ Border Courts, REUTERS (Sept. 10, 2019), https://www.reuters.com/article/us-usa-immigration-courtsinsight/hasty-rollout-of-trump-immigration-policy-hasbroken-border-courts-idUSKCN1VV115; Mireya Villareal, An Inside Look at Trump’s “Remain in Mexico” Policy, CBS NEWS (Oct. 8, 2019), https://www.cbsnews.com/news/ remain-in-mexico-donald-trump-immigration-policy-nuevolaredo-mexico-streets-danger-migrants-2019-10-08/.

The organizational plaintiffs have also suffered serious adverse consequences. The MPP has substantially hindered the organizations’ “ability to carry out their core mission of providing representation to aliens seeking admission, including asylum seekers,” Innovation Law Lab, 366 F. Supp. 3d at 1129, and has forced them to divert resources because of increased costs imposed by the MPP.

The Government has not argued in this court that either the individual or organizational plaintiffs lack standing under Article III, but we have an independent obligation to determine our jurisdiction under Article III. The individual plaintiffs, all of whom have been returned to Mexico under the MPP, obviously have Article III standing. The organizational plaintiffs also have Article III standing. The Government conceded in the district court that the organizational plaintiffs have Article III standing based on

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East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 765–67 (9th Cir. 2018), given their decreased ability to carry out their core missions as well as the diversion of their resources, both caused by the MPP. See Innovation Law Lab, 366 F. Supp. at 1120–22. Because East Bay Sanctuary Covenant was a decision by a motions panel on an emergency stay motion, we are not obligated to follow it as binding precedent. See discussion, infra, Part III. However, we are persuaded by its reasoning and hold that the organizational plaintiffs have Article III standing.

II. Proceedings in the District Court

Plaintiffs filed suit in district court seeking an injunction, alleging, inter alia, that the MPP is inconsistent with the Immigration and Nationality Act (“INA”), specifically 8 U.S.C. §§ 1225(b) and 1231(b), and that they have a right to a remedy under 5 U.S.C. § 706(2)(A). Section 706(2)(A) provides, “The 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.” (Internal numbering omitted.)

The district court held that plaintiffs had shown a likelihood of success on the merits of their claim that the MPP is inconsistent with § 1225(b). Id. at 1123. The Government contended that the MPP is authorized by § 1225(b)(2). Plaintiffs argued, however, that they are arriving aliens under § 1225(b)(1) rather than under § 1225(b)(2). They pointed out that there is a contiguous territory return provision in § (b)(2) but no such provision in § (b)(1). The district court agreed with plaintiffs:

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On its face, . . . the contiguous territory return provision may be applied to aliens described in subparagraph (b)(2)(A). Pursuant to subparagraph (b)(2)(B), however, that expressly excludes any alien “to whom paragraph [(b)](1) applies.”

Id. (emphasis in original). The court concluded, “Applying the plain language of the statute, [the individual plaintiffs] simply are not subject to the contiguous territory return provision.” Id.

The district court also held that plaintiffs had shown a likelihood of success on the merits of their claim that the MPP violates § 1231(b)(3), the statutory implementation of the United States’ treaty-based non-refoulement obligations. The district court held that “plaintiffs have shown they are more likely than not to prevail on the merits of their contention that defendants adopted the MPP without sufficient regard to refoulement issues.” Id. at 1127. In so holding, the district court noted that the MPP does not instruct asylum officers to ask asylum seekers whether they fear returning to Mexico. Rather, “the MPP provides only for review of potential refoulement concerns when an alien ‘affirmatively’ raises the point.” Id. The court further held that it was more likely than not that the MPP should have been adopted through notice-and-comment rulemaking with respect to the non-refoulement aspects of the MPP. Id. at 1128.

With respect to the individual plaintiffs, the district court found that “[w]hile the precise degree of risk and specific harms that plaintiffs might suffer in this case may be debatable, there is no real question that it includes the

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possibility of irreparable injury, sufficient to support interim relief in light of the showing on the merits.” Id. at 1129. With respect to the organizational plaintiffs, the court found that they had “shown a likelihood of harm in terms of impairment of their ability to carry out their core mission of providing representation to aliens seeking admission, including asylum seekers.” Id. Finally, the court held that the balance of equities and the public interest support the issuance of a preliminary injunction. Id.

Relying on a decision of our court, the district court issued a preliminary injunction setting aside the MPP. The court noted:

[D]efendants have not shown the injunction in this case can be limited geographically. This is not a case implicating local concerns or values. There is no apparent reason that any of the places to which the MPP might ultimately be extended have interests that materially differ from those presented in San Ysidro.

Id. at 1130.

III. Proceedings Before the Motions Panel

The district court issued its preliminary injunction on April 8, 2019. The Government filed an appeal on April 10 and the next day requested an emergency stay pending appeal. In accordance with our regular procedures, our April motions panel heard the Government’s request for an emergency stay. The motions panel held oral argument on the stay on April 24. In three written opinions, the panel

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unanimously granted the emergency stay on May 7. Innovation Law Lab v. McAleenan, 924 F.3d 503 (9th Cir. 2019).

In a per curiam opinion, the motions panel disagreed, by a vote of two to one, with the district court’s holding that plaintiffs were likely to succeed in their statutory argument that the MPP is inconsistent with 8 U.S.C. § 1225(b). Id. at 508–09. The panel majority stated its legal conclusion in tentative terms, writing that it was “doubtful that subsection (b)(1) [of § 1225] ‘applies’ to [plaintiffs.]” Id. at 509 (emphasis added).

Judge Watford concurred in the per curiam opinion but wrote separately to express concern that the MPP is arbitrary and capricious because it lacks sufficient non-refoulement protections. Id. at 511 (Watford, J., concurring). Judge Watford expressed concern that asylum officers do not ask asylum applicants whether they have a fear of returning to Mexico: “One suspects the agency is not asking an important question during the interview process simply because it would prefer not to hear the answer.” Id. Judge Watford concluded, “DHS’s policy is virtually guaranteed to result in some number of applicants being returned to Mexico in violation of the United States’ non-refoulement obligations.” Id.

Judge Fletcher concurred only in the result. He wrote separately, arguing that the MPP was inconsistent with 8 U.S.C. § 1225(b). Id. at 512 (W. Fletcher, J., concurring in the result). In his view, asylum seekers subject to the MPP are properly characterized as applicants under § 1225(b)(1) rather than § 1225(b)(2), and are thus protected against being returned to Mexico pending adjudication of their applications.

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Judge Fletcher emphasized the preliminary nature of the emergency stay proceedings before the motions panel, writing, “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[.]” Id. at 518.

IV. Standard of Review

When deciding whether to issue a preliminary injunction, a district court considers whether the requesting party has shown “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 that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Likelihood of success on the merits is a threshold inquiry and the most important factor. See, e.g., Edge v. City of Everett, 929 F.3d 657, 663 (9th Cir. 2019).

We review a grant of a preliminary injunction for abuse of discretion. See, e.g., United States v. California, 921 F.3d 865, 877 (9th Cir. 2019). “The district court’s interpretation of the underlying legal principles, however, is subject to de novo review and a district court abuses its discretion when it makes an error of law.” Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc).

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V. Likelihood of Success on the Merits

A. Effect of the Motions Panel’s Decision

A preliminary question is whether a merits panel is bound by the analysis of a motions panel on a question of law, performed in the course of deciding an emergency request for a stay pending appeal. On that question, we follow East Bay Sanctuary Covenant v. Trump, Nos. 18-17274 and 18-17436 (9th Cir. 2020), argued on the same day as this case, in which we held that a motions panel’s legal analysis, performed during the course of deciding an emergency motion for a stay, is not binding on later merits panels. Such a decision by a motions panel is “a probabilistic endeavor,” “doctrinally distinct” from the question considered by the later merits panel, and “issued without oral argument, on limited timelines, and in reliance on limited briefing.” Id. at 21–22, 20. “Such a predictive analysis should not, and does not, forever bind the merits of the parties’ claims.” Id. at 22. At oral argument in this case, the Government acknowledged “that law of the circuit treatment does not apply to [the motion’s panel’s decision].” The Government later reiterated that it was “not advocating for law of the circuit treatment.” The Government “agree[d] that that is inappropriate in the context of a motions panel decision.”

Even if, acting as a merits panel, we may be bound in some circumstances by a decision by a motions panel on a legal question, we would in any event not be bound in the case now before us. Two of the three judges on the motions panel disagreed in part with the Government’s legal arguments in support of the MPP. Further, the motions panel’s per curiam opinion did not purport to decide definitively the legal questions presented to it in the

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emergency stay motion. The per curiam spoke in terms of doubt and likelihood, rather than in terms of definitive holdings. Innovation Law Lab, 924 F.3d at 509; see also supra I.C.2. Indeed, Judge Fletcher, who concurred in granting the emergency stay, specifically addressed the effect of the legal analysis of the motions panel and expressed the hope that the merits panel, with the benefit of full briefing and argument, would decide the legal questions differently.

B. Questions on the Merits

Plaintiffs challenge two aspects of the MPP. First, they challenge the requirement that asylum seekers return to Mexico and wait there while their applications for asylum are adjudicated. They contend that this requirement is inconsistent with the INA, as amended in 1996 by the Illegal Immigration Reform and Immigrant Responsbility Act (“IIRIRA”). Second, in the alternative, they challenge the failure of asylum officers to ask asylum seekers whether they fear being returned to Mexico. They contend that this failure is inconsistent with our treaty-based non-refoulement obligations. They contend, further, that with respect to nonrefoulement, the MPP should have been adopted only after notice-and-comment rulemaking.

We address these challenges in turn. We conclude that plaintiffs have shown a likelihood of success on their claim that the return-to-Mexico requirement of the MPP is inconsistent with 8 U.S.C. § 1225(b). We further conclude that plaintiffs have shown a likelihood of success on their claim that the MPP does not comply with our treaty-based non-refoulement obligations codified at 8 U.S.C. § 1231(b). We do not reach the question whether they have shown a likelihood of success on their claim that the anti-refoulement

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aspect of the MPP should have been adopted through noticeand-comment rulemaking.

1. Return to Mexico

The essential feature of the MPP is that non-Mexican asylum seekers who arrive at a port of entry along the United States’ southern border must be returned to Mexico to wait while their asylum applications are adjudicated. Plaintiffs contend that the requirement that they wait in Mexico is inconsistent with 8 U.S.C. § 1225(b). The government contends, to the contrary, that the MPP is consistent with § 1225(b).

The relevant text of § 1225 is as follows:

(a) Inspection

(1) Aliens treated as applicants for admission

An alien present in the United States who has not been admitted . . . shall be deemed for purposes of this chapter an applicant for admission.

. . .

(b) Inspection of applicants for admission

(1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled

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(A) Screening

(i) In general

If an immigration officer determines that an alien . . . who is arriving in the United States . . . is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.

(ii) Claims for asylum

If an immigration officer determines that an alien . . . is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B).

. . .

(B) Asylum interviews

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. . .

(ii) Referral of certain aliens

If the [asylum] officer determines at the time of the interview that an alien has a credible fear of persecution . . . , the alien shall be detained for further consideration of the application for asylum.

. . .

(2) Inspection of other aliens

(A) In general

Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.

(B) Exception

Subparagraph (A) shall not apply to an alien —

(i) who is a crewman

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(ii) to whom paragraph (1) applies, or

(iii) who is a stowaway.

(C) Treatment of aliens arriving from contiguous territory

In the case of an alien described in subparagraph (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 Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.

There are two categories of “applicants for admission” under § 1225. § 1225(a). First, there are applicants described in § 1225(b)(1). Second, there are applicants described in § 1225(b)(2).

Applicants described in § 1225(b)(1) are inadmissible based on either of two grounds, both of which relate to their documents or lack thereof. Applicants described in § 1225(b)(2) are in an entirely separate category. In the words of the statute, they are “other aliens.” § 1225(b)(2) (heading). Put differently, again in the words of the statute, § (b)(2) applicants are applicants “to whom paragraph [(b)](1)” does not apply. § 1225(b)(2)(B)(ii). That is, § (b)(1) applicants are those who are inadmissible on either of the two grounds specified in that subsection. Section (b)(2) applicants are all other inadmissible applicants.

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Section (b)(1) applicants are more numerous than § (b)(2) applicants, but § (b)(2) is a broader category in the sense that § (b)(2) applicants are inadmissible on more grounds than § (b)(1) applicants. Inadmissable applicants under § (b)(1) are aliens traveling with fraudulent documents (§ 1182(a)(6)(C)) or no documents (§ 1182(a)(7)). By contrast, inadmissable applicants under § (b)(2) include, inter alia, aliens with “a communicable disease of public health significance” or who are “drug abuser[s] or addict[s]” (§ 1182(a)(1)(A)(i), (iv)); aliens who have “committed . . . a crime involving moral turpitude” or who have “violat[ed] . . . any law or regulation . . . relating to a controlled substance” (§ 1182(a)(2)(A)(i)); aliens who “seek to enter the United States . . . to violate any law of the United States relating to espionage or sabotage,” or who have “engaged in a terrorist activity” (§ 1182(a)(3)(A), (B)); aliens who are “likely . . . to become a public charge” (§ 1182(a)(4)(A)); and aliens who are alien “smugglers” (§ 1182(a)(6)(E)).

The Supreme Court recently distinguished § (b)(1) and § (b)(2) applicants, stating unambiguously that they fall into two separate categories:

[A]pplicants for admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2). Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation. . . . Section 1225(b)(2) is broader. It serves as a catchall provision that applies to all applicants for admission not covered by § 1225(b)(1).

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Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018) (emphasis added) (citations omitted).

Even more recently, the Attorney General of the United States, through the Board of Immigration Appeals, drew the same distinction and briefly described the procedures applicable to the two categories:

Under section 235 of the Act [8 U.S.C. § 1225], all aliens “arriv[ing] in the United States” or “present in the United States [without having] been admitted” are considered “applicants for admission,” who “shall be inspected by immigration officers.” INA § 235(a)(1), (3). [8 U.S.C. § 1225(a)(1), (3).] In most cases, those inspections yield one of three outcomes. First, if an alien is “clearly and beyond a doubt entitled to be admitted,” he will be permitted to enter, or remain in, the country without further proceedings. Id. § 235(b)(2)(A). [8 U.S.C. § 1225(b)(2)(A).] Second, if the alien is not clearly admissible, then, generally, he will be placed in “proceeding[s] under section 240 [8 U.S.C. § 1229a]” of the Act—that is, full removal proceedings. Id. Third, if the alien is inadmissible on one of two specified grounds and meets certain additional criteria, DHS may place him in either expedited or full proceedings. Id. § 235(b)(1)(A)(i) [8 U.S.C. § 1225(b)(1)(A)(i)]; see Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 524 (BIA 2011).

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Matter of M-S-, 27 I. & N. Dec. 509, 510 (BIA April 16, 2019).

The procedures specific to the two categories of applicants are outlined in their respective subsections. To some extent, the statutorily prescribed procedures are the same for both categories. If a § (b)(1) applicant passes his or her credible fear interview, he or she will be placed in regular removal proceedings under 8 U.S.C. § 1229a. See 8 C.F.R. § 208.30(f). A § (b)(1) applicant may also be placed directly into regular removal proceedings under § 1229a at the discretion of the Government. See Matter of E-R-M- & L-RM-, 25 I. & N. Dec. 520, 522 (BIA 2011). A § (b)(2) applicant who is “not clearly and beyond a doubt entitled to be admitted” is automatically placed in regular removal proceedings under § 1229a. See § 1225(b)(2)(A).

Both § (b)(1) and § (b)(2) applicants can thus be placed in regular removal proceedings under § 1229a, though by different routes. But the fact that an applicant is in removal proceedings under § 1229a does not change his or her underlying category. A § (b)(1) applicant does not become a § (b)(2) applicant, or vice versa, by virtue of being placed in a removal proceeding under § 1229a.

However, the statutory procedures for the two categories are not identical. Some of the procedures are exclusive to one category or the other. For example, if a § (b)(1) applicant fails to pass his or her credible fear interview, he or she may be removed in an expedited proceeding without a regular removal proceeding under § 1229a. See § 1225(b)(1)(A), (B). There is no comparable procedure specified in § (b)(2) for expedited removal of a § (b)(2) applicant. Further, in some circumstances a § (b)(2) applicant may be “returned” to a

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“territory contiguous to the United States” pending his or her regular removal proceeding under § 1229a. See § 1225(b)(2)(C). There is no comparable “return” procedure specified in §1225(b)(1) for a § (b)(1) applicant.

The statutory question posed by the MPP is whether a § (b)(1) applicant may be “returned” to a contiguous territory under § 1225(b)(2)(C). That is, may a § (b)(1) applicant be subjected to a procedure specified for a § (b)(2) applicant? A plain-meaning reading of § 1225(b)—as well as the Government’s longstanding and consistent practice up until now—tell us that the answer is “no.”

There is nothing in § 1225(b)(1) to indicate that a § (b)(1) applicant may be “returned” under § 1225(b)(2)(C). Section (b)(1)(A)(i) tells us with respect to § (b)(1) applicants that an “officer shall order the alien removed . . . without further hearing or review unless the alien indicates either an intention to apply for asylum . . . or a fear of persecution.” Section (b)(1)(A)(ii) tells us that § (b)(1) applicants who indicate an intention to apply for asylum or a fear of persecution “shall” be referred by the immigration officer to an “asylum officer” for an interview. The remainder of § 1225(b)(1) specifies what happens to a § (b)(1) applicant depending on the determination of the asylum officer—either expedited removal or detention pending further consideration. § 1225(b)(1)(B)(ii)–(iii). There is nothing in § 1225(b)(1) stating, or even suggesting, that a § (b)(1) applicant is subject to the “return” procedure of § 1225(b)(2)(C).

Nor is there anything in § 1225(b)(2) to indicate that a § (b)(1) applicant may be “returned” under § 1225(b)(2)(C). Taking § 1225(b)(2) subparagraph by subparagraph, it provides as follows. Subparagraph (A) tells us that unless a

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§ (b)(2) applicant is “clearly and beyond a doubt entitled to be admitted,” she or he “shall be detained” for a removal proceeding under § 1229a. § 1225(b)(2)(A). Subparagraph (A) is “[s]ubject to subparagraphs (B) and (C).” Id. Subparagraph (B) tells us that subparagraph (A) does not apply to three categories of aliens—“crewm[e]n,” § (b)(1) applicants, and “stowaway[s].” § 1225(b)(2)(B). Finally, subparagraph (C) tells us that a § (b)(2) applicant who arrives “on land . . . from a foreign territory contiguous to the United States,” instead of being “detained” under subparagraph (A) pending his or her removal proceeding under § 1229a, may be “returned” to that contiguous territory pending that proceeding. § 1225(b)(2)(C). Section (b)(1) applicants are mentioned only once in § 1225(b)(2), in subparagraph (B)(ii). That subparagraph specifies that subparagraph (A)—which automatically entitles § (b)(2) applicants to regular removal proceedings under § 1229a—does not apply to § (b)(1) applicants.

The “return-to-a-contiguous-territory” provision of § 1225(b)(2)(C) is thus available only for § (b)(2) applicants. There is no plausible way to read the statute otherwise. Under a plain-meaning reading of the text, as well as the Government’s longstanding and consistent practice, the statutory authority upon which the Government now relies simply does not exist.

The Government nonetheless contends that § (b)(2)(C) authorizes the return to Mexico not only of § (b)(2) applicants, but also of § (b)(1) applicants. The Government makes essentially three arguments in support of this contention. None is persuasive.

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First, the Government argues that § (b)(1) applicants are a subset of § (b)(2) applicants. Blue Brief at 35. Under the Government’s argument, there are § (b)(1) applicants, defined in § (b)(1), and there are § (b)(2) applicants, defined as all applicants, including § (b)(2) and § (b)(1) applicants. The Government argues that DHS, in its discretion, can therefore apply the procedures specified in § (b)(2) to a § (b)(1) applicant. That is, as stated in its brief, the Government has “discretion to make the initial ‘determin[ation]’ whether to apply section 1225(b)(1) or section 1225(b)(2) to a given alien.” Blue Brief at 30.

The Government’s argument ignores the statutory text, the Supreme Court’s opinion in Jennings, and the opinion of its own Attorney General in Matter of M-S-. The text of § 1225(b) tells us that § (b)(1) and § (b)(2) are separate and non-overlapping categories. In Jennings, the Supreme Court told us explicitly that § (b)(1) and § (b)(2) applicants fall into separate and non-overlapping categories. In Matter of M-S-, the Attorney General wrote that applicants are subject to different procedures depending on whether they are § (b)(1) or § (b)(2) applicants.

Second, the Government argues that § (b)(2)(B)(ii) allows DHS, in its discretion, to “apply” to a § (b)(1) applicant either procedures described in § (b)(1) or those described in § (b)(2). The Government’s second argument is necessitated by its first. To understand the Government’s second argument, one must keep in mind that § (b)(2)(A) automatically entitles a § (b)(2) applicant to a regular removal hearing under § 1229a. But we know from § (b)(1) that not all § (b)(1) applicants are entitled to a removal hearing under § 1229a. Having argued that § (b)(2) applicants include not only § (b)(2) but also § (b)(1) applicants, the Government

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needs some way to avoid giving regular removal proceedings to all § (b)(1) applicants. The best the Government can do is to rely on § (b)(2)(B)(ii), which provides: “Subparagraph (A) shall not apply to an alien . . . to whom paragraph [(b)](1) applies.” § 1225(b)(2)(B)(ii) (emphasis added). The Government thus argues that § (b)(2)(B)(ii) allows DHS, in its discretion, to “apply,” or not apply, § (b)(2)(A) to a § (b)(1) applicant.

The Government misreads § (b)(2)(B)(ii). Subparagraph (B) tells us, “Subparagraph (A) shall not apply to an alien — (i) who is a crewman, (ii) to whom paragraph [(b)](1) applies, or (iii) who is a stowaway.” The function of § (b)(2)(B)(ii) is to make sure that we understand that the automatic entitlement to a regular removal hearing under § 1229a, specified in § (b)(2)(A) for a § (b)(2) applicant, does not apply to a § (b)(1) applicant. However, the Government argues that § (b)(2)(B)(ii) authorizes the Government to perform an act. That act is to “apply” the expedited removal procedures of § (b)(1) to some of the aliens under § (b)(2), as the Government defines § (b)(2) applicants.

There is a fatal syntactical problem with the Government’s argument. “Apply” is used twice in the same sentence in § (b)(2)(B)(ii). The first time the word is used, in the lead-in to the section, it refers to the application of a statutory section (“Subparagraph (A) shall not apply”). The second time the word is used, it is used in the same manner, again referring to the application of a statutory section (“to whom paragraph [(b)](1) applies”). When the word is used the first time, it tells us that subparagraph (A) shall not apply. When the word is used the second time, it tells us to whom subparagraph (A) shall not apply: it does not apply to applicants to whom § (b)(1) applies. The word is used in the

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same manner both times to refer to the application of subparagraph (A). The word is not used the first time to refer to the application of a subparagraph (A), and the second time to an action by DHS.

The Government’s third argument is based on the supposed culpability of § (b)(1) applicants. We know from § (b)(2)(A) that § (b)(2) applicants are automatically entitled to full removal proceedings under § 1229a. However, § (b)(2) applicants may be returned to Mexico under § (b)(2)(C) to await the outcome of their removal hearing under § 1229a. It makes sense for the Government, in its discretion, to require some § (b)(2) applicants to remain in Mexico while their asylum applications are adjudicated, for some § (b)(2) applicants are extremely undesirable applicants. As discussed above, § (b)(2) applicants include spies, terrorists, alien smugglers, and drug traffickers.

When the Government was before the motions panel in this case, it argued that § (b)(1) applicants are more culpable than § (b)(2) applicants and therefore deserve to be forced to wait in Mexico while their asylum applications are being adjudicated. In its argument to the motions panel, the Government compared § (b)(1) and § (b)(2) applicants, characterizing § (b)(2) applicants as “less-culpable arriving aliens.” The Government argued that returning § (b)(2), but not § (b)(1), applicants to a contiguous territory would have “the perverse effect of privileging aliens who attempt to obtain entry to the United States by fraud . . . over aliens who follow our laws.”

The Government had it exactly backwards. Section (b)(1) applicants are those who are “inadmissible under section 1182(a)(6)(C) or 1182(a)(7)” of Title 8. These two sections

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describe applicants who are inadmissible because they lack required documents rather than because they have a criminal history or otherwise pose a danger to the United States. Section 1182(a)(6)(C), entitled “Misrepresentation,” covers, inter alia, aliens using fraudulent documents. That is, it covers aliens who travel under false documents and who, once they arrive at the border or enter the country, apply for asylum. Section 1182(a)(7), entitled “Documentation requirements,” covers aliens traveling without documents. In short, § (b)(1) applies to bona fide asylum applicants, who commonly have fraudulent documents or no documents at all. Indeed, for many such applicants, fraudulent documents are their only means of fleeing persecution, even death, in their own countries. The structure of § (b)(1), which contains detailed provisions for processing asylum seekers, demonstrates that Congress recognized that § (b)(1) applicants may have valid asylum claims and should therefore receive the procedures specified in § (b)(1).

In its argument to our merits panel, the Government made a version of the same argument it had made earlier to the motions panel. After referring to (but not describing) § (b)(2) applicants, the Government now argues in its opening brief:

Section 1225(b)(1), meanwhile, reaches, among other classes of aliens, those who engage in fraud or willful misrepresentations in an attempt to deceive the United States into granting an immigration benefit. See 8 U.S.C. § 1182(a)(6)(C). Plaintiffs have not explained why Congress would have wanted that class of aliens to be exempt from temporary return to Mexico while their full removal proceedings are ongoing.

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Blue Brief at 37–38 (emphasis in original).

We need not look far to discern Congress’s motivation in authorizing return of § (b)(2) applicants but not § (b)(1) applicants. Section (b)(2)(C) was added to IIRIRA late in the drafting process, in the wake of Matter of Sanchez-Avila, 21 I. & N. Dec. 444 (BIA 1996). Sanchez-Avila was a Mexican national who applied for entry as a “resident alien commuter” but who was charged with being inadmissible due to his “involvement with controlled substances.” Id. at 445. See 8 U.S.C. § 1182(a)(2)(A)(i) (§ (b)(2) applicants include aliens who have “violat[ed] . . . any law or regulation . . . relating to a controlled substance”). In order to prevent aliens like Sanchez-Avila from staying in the United States during the pendency of their guaranteed regular removal proceeding under § 1229a, as they would otherwise have a right to do under § (b)(2)(A), Congress added § 1225(b)(2)(C). Congress had specifically in mind undesirable § (b)(2) applicants like Sanchez-Avila. It did not have in mind bona fide asylum seekers under § (b)(1).

We therefore conclude that plaintiffs have shown a likelihood of success on the merits of their claim that the MPP is inconsistent with 8 U.S.C. § 1225(b).

2. Refoulement

Plaintiffs claim that the MPP is invalid in part, either because it violates the United States’ treaty-based antirefoulement obligations, codified at 8 U.S.C. § 1231(b)(3)(A), or because, with respect to refoulement, the MPP was improperly adopted without notice-and-comment rulemaking. Our holding that plaintiffs are likely to succeed on their claim that the MPP is invalid in its entirety because

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it is inconsistent with § 1225(b) makes it unnecessary to decide plaintiffs’ second claim. We nonetheless address it as an alternative ground, under which we hold the MPP invalid in part.

Refoulement occurs when a government returns aliens to a country where their lives or liberty will be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion. The United States is obliged by treaty and implementing statute, as described below, to protect against refoulement of aliens arriving at our borders.

Paragraph one of Article 33 of the 1951 United Nations Convention Relating to the Status of Refugees, entitled, “Prohibition of expulsion or return (‘refoulement’),” provides:

No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

The United States is not a party to the 1951 Convention, but in 1968 we acceded to the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967. INS v. Stevic, 467 U.S. 407, 416 (1984). “The Protocol bound parties to comply with the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees.” Id. Twelve years later, Congress passed the Refugee Act of 1980, implementing our obligations under the

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1967 Protocol. “If one thing is clear from the legislative history of the . . . entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees.” INS v. Cardoza-Fonseca, 480 U.S. 421, 436 (1987). The 1980 Act included, among other things, a provision designed to implement Article 33 of the 1951 Convention. After recounting the history behind 8 U.S.C. § 1253(h)(1), part of the 1980 Act, the Supreme Court characterized that section as “parallel[ing] Article 33,” the anti-refoulement provision of the 1951 Convention. INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999).

Section 1253(h)(1) provided, in relevant part, “The Attorney General shall not deport or return any alien . . . to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership of a particular social group, or political opinion.” Id. at 419 (emphasis added). The current version is § 1231(b)(3)(A): “[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.” (Emphasis added.) The words “deport or return” in the 1980 version of the section were replaced in 1996 by “remove” as part of a general statutory revision under IIRIRA. Throughout IIRIRA, “removal” became the new all-purpose word, encompassing “deportation,” “exclusion,” and “return” in the earlier statute. See, e.g., Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1162 (9th Cir. 2005) (“IIRIRA eliminated the distinction between deportation and exclusion proceedings, replacing them with a new, consolidated category—‘removal.’”).

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Plaintiffs point out several features of the MPP that, in their view, provide insufficient protection against refoulement.

First, under the MPP, to stay in the United States during the pendency of removal proceedings under § 1229a, the asylum seeker must show that it is “more likely than not” that he or she will be persecuted in Mexico. More-likely-than-not is a high standard, ordinarily applied only after an alien has had a regular removal hearing under § 1229a. By contrast, the standard ordinarily applied in screening interviews with asylum officers at the border is much lower. Aliens subject to expedited removal need only establish a “credible fear” in order to remain in the United States pending a hearing under § 1229a. §§ 1225(b)(1)(A)(ii), 1225(b)(1)(B)(ii). Credible fear requires only that the alien show a “significant possibility” of persecution. § 1225(b)(1)(B)(v).

Second, under the MPP, an asylum seeker is not entitled to advance notice of, and time to prepare for, the hearing with the asylum officer; to advance notice of the criteria the asylum officer will use; to the assistance of a lawyer during the hearing; or to any review of the asylum officer’s determination. By contrast, an asylum seeker in a removal proceeding under § 1229a is entitled to advance notice of the hearing with sufficient time to prepare; to advance notice of the precise charge or charges on which removal is sought; to the assistance of a lawyer; to an appeal to the Board of Immigration Appeals; and to a subsequent petition for review to the court of appeals.

Third, an asylum officer acting under the MPP does not ask an asylum seeker whether he or she fears returning to Mexico. Instead, asylum seekers must volunteer, without any

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prompting, that they fear returning. By contrast, under existing regulations, an asylum officer conducting a credible fear interview is directed “to elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture.” 8 C.F.R. § 208.30(d). The asylum officer is specifically directed to “determine that the alien has an understanding of the credible fear determination process.” § 208.30(d)(2).

The Government disagrees with plaintiffs based on two arguments. The Government first argues briefly that § 1231(b)(3)(A) does not encompass a general antirefoulement obligation. It argues that the protection provided by § 1231(b)(3)(A) applies to aliens only after they have been ordered removed to their home country at the conclusion of a regular removal proceeding under § 1229a. It writes:

Section 1231(b)(3) codifies a form of protection from removal that is available only after an alien is adjudged removable. See 8 U.S.C. § 1231(b)(3); 8 C.F.R. 1208.16(a). Aliens subject to MPP do not receive a final order of removal to their home country when they are returned (temporarily) to Mexico, and so there is no reason why the same procedures would apply . . . .

Blue Brief at 41 (emphasis in original).

The Government reads § 1231(b)(3)(A) too narrowly. Section 1231(b)(3)(A) does indeed apply to regular removal proceedings under § 1229a, as evidenced, for example, by 8 C.F.R. § 1208.16(a) (discussing, inter alia, the role of the Immigration Judge). But its application is not limited to such

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proceedings. As described above, and as recognized by the Supreme Court, Congress intended § 1253(h)(1), and § 1231(b)(3)(A) as its recodified successor, to “parallel” Article 33 of the 1951 Convention. Aguirre-Aguirre, 526 U.S. at 427. Article 33 is a general anti-refoulement provision, applicable whenever an alien might be returned to a country where his or her life or freedom might be threatened on account of a protected ground. It is not limited to instances in which an alien has had a full removal hearing with significant procedural protections, as would be the case under § 1229a.

The Government’s second argument is that the MPP satisfies our anti-refoulement obligations by providing a sufficiently effective method of determining whether aliens fear, or have reason to fear, returning to Mexico. In its brief, the Government contends that asylum seekers who genuinely fear returning to Mexico have “every incentive” affirmatively to raise that fear during their interviews with asylum officers, and that Mexico is not a dangerous place for non-Mexican asylum seekers. The Government writes:

[N]one of the aliens subject to MPP are Mexican nationals fleeing Mexico, and all of them voluntarily chose to enter and spend time in Mexico en route to the United States. Mexico, moreover, has committed to adhering to its domestic and international obligations regarding refugees. Those considerations together strongly suggest that the great majority of aliens subject to MPP are not more likely than not to face persecution on a protected ground or torture, in Mexico. In the rare case where an MPP-eligible alien does

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have a substantial and well-grounded basis for claiming that he is likely to be persecuted in Mexico, that alien will have every incentive to raise that fear at the moment he is told that he will be returned.

Blue Brief at 45. However, the Government points to no evidence supporting its speculations either that aliens, unprompted and untutored in the law of refoulement, will volunteer that they fear returning to Mexico, or that there is little danger to non-Mexican aliens in Mexico.

The Government further asserts, again without supporting evidence, that any violence that returned aliens face in Mexico is unlikely to be violence on account of a protected ground—that is, violence that constitutes persecution. The Government writes:

[T]he basic logic of the contiguous-territoryreturn statute is that aliens generally do not face persecution on account of a protected status, or torture, in the country from which they happen to arrive by land, as opposed to the home country from which they may have fled. (International law guards against torture and persecution on account of a protected ground, not random acts of crime or generalized violence.)

Blue Brief at 40–41 (emphasis in original).

Plaintiffs, who are aliens returned to Mexico under the MPP, presented sworn declarations to the district court

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directly contradicting the unsupported speculations of the Government.

Several declarants described violence and threats of violence in Mexico. Much of the violence was directed at the declarants because they were non-Mexican—that is, because of their nationality, a protected ground under asylum law. Gregory Doe wrote in his declaration:

I did not feel safe at Benito Juarez [a migrant shelter] because the neighbors kept trying to attack the migrant community. The people who lived near the shelter tried to hurt us because they did not want us in their country. . . .

At El Barretal [another migrant shelter], I felt a little more secure because we had a high wall surrounding us. Even so, one night someone threw a tear gas bomb into the shelter. When I tried to leave the shelter, people in passing cars would often yell insults at me like “get out of here, you pinches Hondurans,” and other bad words that I do not want to repeat.

Alex Doe wrote:

I know from personal experience and from the news that migrants have a bad name here and that many Mexicans are unhappy that so many of us are here. I have frequently been insulted by Mexicans on the street. . . . [O]ther asylum seekers and I had to flee Playas [a

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neighborhood in Tijuana] in the middle of the night because a group of Mexicans threw stones at us and more people were gathering with sticks and other weapons to try to hurt us.

Christopher Doe wrote:

The Mexican police and many Mexican citizens believe that Central Americans are all criminals. They see my dark skin and hear my Honduran accent, and they automatically look down on me and label me as a criminal. I have been stopped and questioned by the Mexican police around five or six times, just for being a Honduran migrant. During my most recent stop, the police threatened to arrest me if they saw me on the street again.

. . .

I have also been robbed and assaulted by Mexican citizens. On two occasions, a group of Mexicans yelled insults, threw stones, and tried to attack me and a group of other Caravan members.

Howard Doe wrote:

I was afraid to leave the house [where I was staying] because I had seen in the news that migrants like myself had been targeted. While I was in Tijuana, two young Honduran men were abducted, tortured and killed.

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. . .

On Wednesday, January 30, 2019, I was attacked and robbed by two young Mexican men. They pulled a gun on me from behind and told me not to turn around. They took my phone and told me that they knew I was Honduran and that if they saw me again, they would kill me. Migrants in Tijuana are always in danger[.]

Some of the violence in Mexico was threatened by persecutors from the aliens’ home countries, and much of that violence was on account of protected grounds—political opinion, religion, and social group. Gregory Doe wrote:

I am also afraid the Honduran government will find me in Mexico and harm me. Even outside the country, the Honduran government often works with gangs and criminal networks to punish those who oppose their policies. I am afraid that they might track me down.

Dennis Doe, who had fled the gang “MS-13” in Honduras, wrote:

In Tijuana, I have seen people who I believe are MS-13 gang members on the street and on the beach. They have tattoos that look like MS-13 tattoos . . . and they dress like MS-13 members with short sleeved button up shirts. I know that MS-13 were searching for people who tried to escape them with at least one of the caravans. This makes me afraid that the

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people who were trying to kill me in Honduras will find me here.

Alex Doe, who had fled Honduras to escape the gang “Mara 18” because of his work as a youth pastor and organizer, wrote:

I am also afraid that the Mara 18 will find me here in Mexico. I am afraid that the Mara 18 might send someone to find me or get information from someone in the caravan. The Mara 18 has networks throughout Central America, and I have heard that their power and connections in Mexico are growing.

Kevin Doe, who fled MS-13 because of his work as an Evangelical Christian minister, wrote:

[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 my face might show up in the news. . . . 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.

Ian Doe wrote:

I am not safe in Mexico. I am afraid that the people who want to harm me in Honduras will find me here. I have learned from the news that there are members of Central American gangs and narcotraffickers that are present here in Mexico that could find and kill me.

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Honduran migrants like me are very visible because of our accents and the way that we look, and it would not be hard for them to find me here.

Several declarants described interviews by asylum officers in which they were not asked whether they feared returning to Mexico. Gregory Doe wrote, “The officer never asked me if I was afraid of being in Mexico or if anything bad had happened to me here [in Mexico].” Christopher Doe wrote:

I don’t remember [the officer] asking if I was afraid to live in Mexico while waiting for my asylum hearing. If she had asked, I would have told her about being stopped by the Mexican police and attacked by Mexican citizens. I would also have told her I am afraid that the people who threatened me in Honduras could find me in Mexico . . . .

Kevin Doe wrote:

The officer who was doing the talking couldn’t understand me, and I could not understand him very well because he was rushing me through the interview and I didn’t fully understand his Spanish. The interview lasted about 4 or 5 minutes. . . . He never asked me if I was afraid of returning to Mexico.

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Two declarants wrote that asylum officers actively prevented them from stating that they feared returning to Mexico. Alex Doe wrote:

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 that I ask you, nothing more.” This prevented me from providing additional information in the interview apart from the answers to the questions posed by the officer.

Dennis Doe wrote:

I was not allowed to provide any information other than the answers to the questions I was asked. I expected to be asked more questions and to have the opportunity to provide more details. But the interview was fairly short, and lasted only about 30 minutes. . . .

No one asked me if I was afraid to return to Mexico, if I had received threats in Mexico, or if I had felt safe in Mexico.

Two declarants did succeed in telling an asylum officer that they feared returning to Mexico, but to no avail. Frank Doe wrote:

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

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

Howard Doe wrote:

I told the asylum officer that I was afraid [of returning to Mexico]. I explained that I’d been kidnapped for fifteen days by Los Zetas in Tuxtla Gutierrez, Chiapas, [Mexico], and that I’d managed to escape. . . . Migrants in Tijuana are always in danger, and I am especially afraid because the Zetas torture people who escape them.

Despite having told their asylum officers that they feared returning, Frank Doe and Howard Doe were returned to Mexico.

This evidence in the record is enough—indeed, far more than enough—to establish that the Government’s speculations have no factual basis. Amici in this case have filed briefs bolstering this already more-than-sufficient evidence. For example, Amnesty International USA, the Washington Office on Latin America, the Latin America Working Group, and the Institute for Women in Migration submitted an amicus brief referencing many reliable news reports corroborating the stories told by the declarants. We referenced several of those reports earlier in our opinion.

Local 1924 of the American Federation of Government Employees, a labor organization representing “men and women who operate USCIS Asylum Pre-Screening Operation, which has been responsible for a large part of USCIS’s ‘credible fear’ and ‘reasonable fear’ screenings, and

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for implementing [the MPP],” also submitted an amicus brief. Local 1924 Amicus Brief at 1. Local 1924 writes in its brief:

Asylum officers are duty bound to protect vulnerable asylum seekers from persecution. However, under the MPP, they face a conflict between the directives of their departmental leaders to follow the MPP and adherence to our Nation’s legal commitment to not returning the persecuted to a territory where they will face persecution. They should not be forced to honor departmental directives that are fundamentally contrary to the moral fabric of our Nation and our international and domestic legal obligations.

Id. at 24.

Based on the Supreme Court’s conclusion that Congress intended in § 1253(h)(1) (the predecessor to § 1231(b)(3)(B)) to “parallel” the anti-refoulement provision of Article 33 of the 1951 Convention, and based on the record in the district court, we conclude that plaintiffs have shown a likelihood of success on the merits of their claim that the MPP does not comply with the United States’ anti-refoulement obligations under § 1231(b). We need not, and do not, reach the question whether the part of the MPP challenged as inconsistent with our anti-refoulement obligations should have been adopted through notice-and-comment rulemaking.

VI. Other Preliminary Injunction Factors

In addition to likelihood of success on the merits, a court must consider the likelihood that the requesting party will

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suffer irreparable harm, the balance of the equities, and the public interest in determining whether a preliminary injunction is justified. Winter, 555 U.S. at 20. “When the government is a party, these last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435 (2009)).

There is a significant likelihood that the individual plaintiffs will suffer irreparable harm if the MPP is not enjoined. Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum.

The balance of equities favors plaintiffs. On one side is the interest of the Government in continuing to follow the directives of the MPP. However, the strength of that interest is diminished by the likelihood, established above, that the MPP is inconsistent with 8 U.S.C. §§ 1225(b) and 1231(b). On the other side is the interest of the plaintiffs. The individual plaintiffs risk substantial harm, even death, so long as the directives of the MPP are followed, and the organizational plaintiffs are hindered in their ability to carry out their missions.

The public interest similarly favors the plaintiffs. We agree with East Bay Sanctuary Covenant:

On the one hand, the public has a “weighty” interest “in efficient administration of the immigration laws at the border.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). But the public also has an interest in ensuring that “statutes enacted by [their] representatives”

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are not imperiled by executive fiat. Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers).

932 F.3d at 779 (alteration in original).

VII. Scope of the Injunction

The district court issued a preliminary injunction setting aside the MPP—that is, enjoining the Government “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.” Innovation Law Lab, 366 F. Supp. 3d at 1130. Accepting for purposes of argument that some injunction should issue, the Government objects to its scope.

We recognize that nationwide injunctions have become increasingly controversial, but we begin by noting that it is something of a misnomer to call the district court’s order in this case a “nationwide injunction.” The MPP operates only at our southern border and directs the actions of government officials only in the four States along that border. Two of those states (California and Arizona) are in the Ninth Circuit. One of those states (New Mexico) is in the Tenth Circuit. One of those states (Texas) is in the Fifth Circuit. In practical effect, the district court’s injunction, while setting aside the MPP in its entirety, does not operate nationwide.

For two mutually reinforcing reasons, we conclude that the district court did not abuse its discretion in setting aside the MPP.

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First, plaintiffs have challenged the MPP under the Administrative Procedure Act (“APA”). Section 706(2)(A) of the APA provides that a “reviewing court shall . . . hold unlawful and set aside agency action . . . not in accordance with law.” We held, above, that the MPP is “not in accordance with” 8 U.S.C. § 1225(b). Section 706(2)(A) directs that in a case where, as here, a reviewing court has found the agency action “unlawful,” the court “shall . . . set aside [the] agency action.” That is, in a case where § 706(2)(A) applies, there is a statutory directive—above and beyond the underlying statutory obligation asserted in the litigation—telling a reviewing court that its obligation is to “set aside” any unlawful agency action.

There is a presumption (often unstated) in APA cases that the offending agency action should be set aside in its entirety rather than only in limited geographical areas. “[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that rules are vacated—not that their application to the individual petitioners is proscribed.” Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F3d 476, 511 (9th Cir. 2018) (internal quotation marks omitted). “When a court determines that an agency’s action failed to follow Congress’s clear mandate the appropriate remedy is to vacate that action.” Cal. Wilderness Coalition v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011); see also United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”); Gen. Chem. Corp. v. United States, 817 F.2d 844, 848 (D.C. Cir. 1987) (“The APA requires us to vacate the agency’s decision if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”).

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Second, cases implicating immigration policy have a particularly strong claim for uniform relief. Federal law contemplates a “comprehensive and unified” immigration policy. Arizona v. United States, 567 U.S. 387, 401 (2012). “In immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.” E. Bay Sanctuary Covenant, 932 F.3d at 779. We wrote in Regents of the University of California, 908 F.3d at 511, “A final principle is also relevant: the need for uniformity in immigration policy. . . . Allowing uneven application of nationwide immigration policy flies in the face of these requirements.” We wrote to the same effect in Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018): “Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.” The Fifth Circuit, one of only two other federal circuits with states along our southern border, has held that nationwide injunctions are appropriate in immigration cases. In sustaining a nationwide injunction in an immigration case, the Fifth Circuit wrote, “[T]he Constitution requires ‘an uniform Rule of Naturalization’; Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly’; and the Supreme Court has described immigration policy as ‘a comprehensive and unified system.’” Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (emphasis in original; citations omitted). In Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017), we relied on the Fifth Circuit’s decision in Texas to sustain the nationwide scope of a temporary restraining order in an immigration case. We wrote, “[W]e decline to limit the geographic scope of the TRO. The Fifth Circuit has held that such a fragmented immigration policy would run afoul of the

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constitutional and statutory requirement for uniform immigration law and policy.” Id. at 1166–67.

Conclusion

We conclude that the MPP is inconsistent with 8 U.S.C. § 1225(b), and that it is inconsistent in part with 8 U.S.C. § 1231(b). Because the MPP is invalid in its entirety due to its inconsistency with § 1225(b), it should be enjoined in its entirety. Because plaintiffs have successfully challenged the MPP under § 706(2)(A) of the APA, and because the MPP directly affects immigration into this country along our southern border, the issuance of a temporary injunction setting aside the MPP was not an abuse of discretion.

We lift the emergency stay imposed by the motions panel, and we affirm the decision of the district court.

AFFIRMED.

FERNANDEZ, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion because I believe that we are bound by the published decision in Innovation Law Lab v. McAleenan (Innovation I), 924 F.3d 503 (9th Cir. 2019) (per curiam).
More specifically, we are bound by both the law of the circuit and the law of the case. Of course, the rules that animate the former doctrine are not the same as those that animate the latter. See Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc).

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As we have said: “Circuit law . . . binds all courts within a particular circuit, including the court of appeals itself. Thus, the first panel to consider an issue sets the law not only for all the inferior courts in the circuit, but also future panels of the court of appeals.” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001). Moreover: “Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court.” Id. (footnote omitted). Published opinions are precedential. See id. at 1177; see also Gonzalez, 667 F.3d at 389 n.4. That remains true, even if some later panel is satisfied that “arguments have been characterized differently or more persuasively by a new litigant,”1 or even if a later panel is convinced that the earlier decision was “incorrectly decided” and “needs reexamination.”2 And those rules are not mere formalities to be nodded to and avoided. Rather, “[i]nsofar as there may be factual differences between the current case and the earlier one, the court must determine whether those differences are material to the application of the rule or allow the precedent to be distinguished on a principled basis.” Hart, 266 F.3d at 1172. In this case, there are no material differences — in fact, the situation before this panel is in every material way the same as that before the motions panel. Furthermore, there is no doubt that motions panels can publish their opinions,3 even though they do not generally do so.4 Once published, there is no difference

1 United States v. Ramos-Medina, 706 F.3d 932, 939 (9th Cir. 2013). 2 Naruto v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018). 3 See 9th Cir. Gen. Order 6.3(g)(3)(ii); see also id. at 6.4(b). 4 See Haggard v. Curry, 631 F.3d 931, 933 n.1 (9th Cir. 2010) (per curiam).

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between motions panel opinions and other opinions; all are entitled to be considered with the same principles of deference by ensuing panels. Thus, any hesitation about whether they should be precedential must necessarily come before the panel decides to publish, not after. As we held in Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015):

Lair contended at oral argument that a motions panel’s decision cannot bind a merits panel, and as a result we are not bound by the motions panel’s analysis in this case. Not so. We have held that motions panels can issue published decisions. . . . [W]e are bound by a prior three-judge panel’s published opinions, and a motions panel’s published opinion binds future panels the same as does a merits panel’s published opinion.

Id. at 747 (citations omitted). Therefore, the legal determinations in Innovation I are the law of the circuit.

We have explained the law of the case doctrine as “a jurisprudential doctrine under which an appellate court does not reconsider matters resolved on a prior appeal.” Jeffries v. Wood, 114 F.3d 1484, 1488–89 (9th Cir. 1997) (en banc), overruled on other grounds by Gonzalez, 677 F.3d at 389 n.4. While we do have discretion to decline application of the doctrine, “[t]he prior decision should be followed unless: (1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial.” Id. at 1489 (internal quotation marks and

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footnote omitted).5 We have also indicated that, in general, “our decisions at the preliminary injunction phase do not constitute the law of the case,”6 but that is principally because the matter is at the preliminary injunction stage and a further development of the factual record as the case progresses to its conclusion may well require a change in the result.7 Even so, decisions “on pure issues of law . . . are binding.” Ranchers Cattlemen, 499 F.3d at 1114. Of course, the case at hand has not progressed beyond the preliminary injunction stage. It is still at that stage, and the factual record has not significantly changed between the record at the time of the decision regarding the stay motion and the current record. Therefore, as I see it, absent one of the listed exceptions, which I do not perceive to be involved here, the law of the case doctrine would also direct that we are bound by much of the motions panel’s decision in Innovation I.

Applying those doctrines:

(1) The individuals and the organizational plaintiffs are not likely to succeed on the substantive claim that the Migrant Protection Protocols directive (the MPP) was not

5 The majority seems to add a fourth exception, that is, motions panel decisions never constitute the law of the case. That would be strange if they can constitute the law of the circuit, which they can.
6 Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007); see also Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1074, 1076 n.5 (9th Cir. 2015); Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013).
7 See Ctr. for Biological Diversity, 706 F.3d at 1090.

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authorized by 8 U.S.C. § 1225(b)(2)(C). Innovation I, 924 F.3d at 506–09.

(2) The individuals and organizational plaintiffs are not likely to succeed on their procedural claim that the MPP’s adoption violated the notice and comment provisions of the Administrative Procedure Act. See 5 U.S.C. § 553(b), (c); Innovation I, 924 F.3d at 509–10.

(3) As the motions panel determined, due to the errors in deciding the issues set forth in (1) and (2), the preliminary injunction lacks essential support and cannot stand. Thus, we should vacate and remand.

(4) I express no opinion on whether the district court could issue a narrower injunction targeting the problem identified by Judge Watford, that is, the dearth of support for the government’s unique rule8 that an alien processed under the MPP must spontaneously proclaim his fear of persecution or torture in Mexico. See Innovation I, 924 F.3d at 511–12 (Watford, J., concurring)

Thus, I respectfully dissent.

8 Cf. 8 C.F.R. § 235.3(b)(2)(i). That regulation describes information which must be provided to an alien facing expedited removal, including a Form I-867AB; the A portion of the pair of forms explains that the United States provides protection for those who face persecution or torture upon being sent home, and the B portion requires asking specific questions about whether the alien fears that kind of harm. See U.S. Immigration & Naturalization Serv., Forms I-867A & I-867B, reprinted in 9 Charles Gordon et al., Immigration Law & Procedure app. B, at 102–05 (2019).

 
 Case 3:19-cv-00807-RS Document 109 Filed 03/04/20 Page 1 of 13

FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
MAR 4 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

INNOVATION LAW LAB; CENTRAL AMERICAN RESOURCE CENTER OF NORTHERN CALIFORNIA; CENTRO LEGAL DE LA RAZA; UNIVERSITY OF SAN FRANCISCO SCHOOL OF LAW IMMIGRATION AND DEPORTATION DEFENSE CLINIC; AL OTRO LADO; TAHIRIH JUSTICE CENTER,

No. 19-15716 D.C. No. 3:19-cv-00807-RS Northern District of California, San Francisco
ORDER

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

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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 longerlasting 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.
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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
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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
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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,
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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
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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.
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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.
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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
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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
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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.
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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.
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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.