Executive Power

Federal Judge Issues Preliminary Injunction on Remain in Mexico

By Andrew Patterson
Tuesday, April 9, 2019, 3:33 PM

A federal court issued a preliminary injunction against the administration’s policy of making asylum seekers wait in Mexico pending the resolution of their cases. The decision prevents the government from implementing or expanding the policy, effective Friday, April 12. 

The policy, called the Migration Protection Protocols and known colloquially as “Remain in Mexico,”  was originally announced on Jan. 25 by Secretary of Homeland Security Kirstjen Nielsen and was first implemented at the San Ysidro port of entry that links San Diego and Tijuana. Under this policy, several hundred asylum seekers have been directed by U.S. Customs and Border Protection to wait in Mexico after receiving a court date for when they will be able to enter the United States solely to present their asylum case to an immigration judge. Before the injunction, the policy recently had been expanded to El Paso, and the administration ultimately planned to extend it along the entire southern border. 

Those turned back under the policy have described violence and dangerous conditions in Mexico, and their lawyers have been hampered by the complicated logistics of working across an international border.  This lawsuit, Innovation Lab v. Nielsen, was filed on Feb. 20 in the U.S. District Court for the Northern District of California by 11 individual plaintiffs—asylum seekers from Central America who were returned under the policy—and several organizational plaintiffs.  

The plaintiffs claimed that the policy does not comply with the Administrative Procedure Act, which requires a court to set aside an agency’s action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]” Judge Richard Seeborg found that the policy was not in accordance with law because Section 235(b)(2)(C) of the Immigration and Nationality Act (INA)—a provision that allows the return of certain people to foreign contiguous territory pending a hearing—cannot be applied to asylum seekers. The plaintiffs also claimed that this policy is contrary to law because it provides insufficient protection against refoulement (the unlawful removal of refugees to countries where they might be in danger). The court found that, even if there were some other legal authority the administration could invoke, the plaintiffs are likely to succeed on their claim that the policy’s procedural protections against refoulement are insufficiently protective.  The core of the opinion, however, focuses on the interpretation of INA § 235(b)(2)(C).

Section 235(b)(2)(C) allows government officials to return people to the “foreign territory contiguous to the United States” from which they arrived, pending regular removal proceedings. A neighboring provision excludes people subject to expedited removal under § 235(b)(1)—which includes asylum seekers who present themselves at a port of entry or are apprehended between ports of entry—from the ambit of § 235(b)(2)(C). 

The government argued that, because it has the discretion to place asylum seekers in either regular or expedited proceedings, it follows that the government can use its discretion to apply the contiguous return provision to asylum seekers. The court responded that the plain language of the statute excludes asylum seekers from being removed to contiguous territory—in this case, meaning Mexico. “The language of those provisions, not [the Department of Homeland Security]” determines whether someone is subject to expedited removal and thus within the scope of § 235(b)(2)(C).  The Department of Homeland Security is free to exercise its prosecutorial discretion to institute either regular or expedited removal proceedings against an asylum seeker—but it can’t change the fact that such a person is, by statute, subject to expedited removal and therefore cannot be removed to contiguous territory pending a regular removal hearing.   

Regarding the nonrefoulement issue, the court found that even if the administration did have statutory authority to implement Remain in Mexico, the policy did not adequately protect the plaintiffs from being removed to a country where they would be in danger. This policy calls for much more streamlined procedures than even those afforded in expedited removal proceedings. The interviews in which people are screened for a fear of return to Mexico are conducted without access to counsel and with no opportunity for review. The court found that these procedures did not meet “minimal process”—though it did not say what would satisfy the minimum. The court’s discussion on this point was very limited, and it seems to have been leaning heavily on the fact that the standard for a preliminary injunction calls for a plaintiff to show a “likelihood of success on the merits” in later litigation and doesn’t call for an actual judgment on the merits. 

So much for the merits. Before reaching them, the court also worked its way through a thicket of the INA’s provisions limiting judicial review, the most significant being INA § 242(e)(3), which specifies that only the District Court for the District of Columbia can review “determinations made under [Section 235(b)] of this title and its implementation.” The court read this narrowly, essentially saying that “determinations” refers to individual orders for removal, not a policy change such as this one, and that Congress likely only meant to bar review of determinations made under § 235(b)(1) and not all of §235(b). The court had solicited additional briefing on this issue, showing that it struggled with it, and it would not be surprising if this district court’s authority to review the Remain in Mexico policy becomes a major point of contention in subsequent litigation.

In theory, the preliminary injunction will remain in effect until the conclusion of the litigation—at which point it can become a permanent injunction if the plaintiffs win or be dissolved if the government wins.  It’s unclear what may come next: The government could appeal to the U.S. Court of Appeals for the Ninth Circuit and, in the interim, petition the Supreme Court for an emergency stay of the injunction pending the appeal. The government made such a petition after this same court enjoined the travel ban in Trump v. Hawaii, and the Supreme Court declined to grant the stay. 

Note: I have used references to the INA for the sake of consistency with earlier posts. The court here, as federal courts often do, used references to the U.S. Code. They are simply alternative ways of citing identical legal authority. Here’s a quick key for the provisions in question: 8 U.S.C. § 1225 = INA § 235; 8 U.S.C. § 1252 = INA § 242. And here’s a handy key for converting the INA to the U.S. Code and vice versa.