Weekly Blog for 5.10.19 by Merle Kahn, Esq.
Part I
In a decision that positively flummoxed me, a three-judge panel of the Ninth Circuit in a per curiam decision overruled a District Court’s injunction enjoining the implementation of the Trump Administration’s Migrant Protection Protocol (MPP) (commonly called “remain in Mexico”). The part that baffles me are the two concurring opinions that seemingly contradict the majority opinion. The concurrence by Judge Watford argues that MPP likely violates international treaties to which the United States is a party: the prohibition against non-refoulement. (A government cannot send a person back to a country where they will likely be persecuted or tortured). The concurrence by Judge Fletcher argues that MPP violates the statute: INA § 235(b). You can see the confusion. It’s a brain-exploding decision. One theory about why the Ninth Circuit panel did not uphold the injunction is that the facts simply did not support an injunction. The final paragraphs of Judge Fletcher’s concurrence seem to support this theory. In other Ninth Circuit cases this week, the Ninth held that a reduction of a marijuana conviction for felony possession for sale under California’s Prop 64 (the law legalizing marijuana) was not valid for immigration purposes. There were also a few very interesting criminal cases that might have immigration consequences. I shall blog about the rest of the cases separately. The marijuana case is especially interesting.
Background
Let’s start the background of the case. Before January 2019, the Department of Homeland Security (DHS) would process asylum applicants who lacked valid entry documents or who entered the United States without inspection, under the expedited removal procedures set forth at INA § 235. If the asylum applicant passed the credible fear interview (CFI) (the applicant had to prove a significant possibility that they faced a well-founded fear of persecution in their home country) then DHS would either place them in detention or parole them into the United States. In January 2019, DHS implemented the “remain in Mexico” policy on parts of the Southern border. Under MPP an asylum applicant is “returned” to Mexico while an Immigration Judge (IJ) decides their case. MPP does not apply to unaccompanied children; Mexican nationals who are processed for expedited removal; and any applicant who is more likely than not to face persecution or torture in Mexico.
The “safeguard” standard for a person who is more likely than not to face persecution or torture in Mexico is unconscionably high. Under asylum law, an asylum application only has to establish a well-founded fear of persecution. The Supreme Court interpreted this standard to mean a one in ten chance of persecution. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). A “more likely than not” standard would require an asylum applicant to establish that there is a 51% that they would be persecuted in Mexico and violates asylum law. But I digress.
Back to the background of the case. Eleven Central American asylum applicants who were returned to Mexico and six organizations who provide legal services for asylees, filed a lawsuit in the Northern District of California. The District Court enjoined the implementation of MPP finding that it lacked a statutory basis and that it violates the Administrative Procedure Act (APA). DHS moved for a stay of the preliminary injunction pending its appeal to the Ninth Circuit.
LEGAL ANALYSIS
The Ninth Circuit went through the four factors for a stay and ruled in the Government’s favor. To grant a preliminary injunction the plaintiff must show: (1) they have made a strong showing that they are likely to succeed on the merits; (2) the applicant will be irreparably harmed absent a stay; (2) the issuance of the stay will not substantially injure the other parties in the proceedings; and (4) where the public interest lies.
The Government Established that They Were Likely to Succeed on the Merits
MPP Does Not Lack Statutory Authorization
The Ninth Circuit found that MPP did not lack statutory authorization. The entire question revolves around interpreting one statute: INA § 235(b). Here are the relevant (and significantly culled) parts of the statute:
“(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
(A)Screening
(i)In general
If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) [Subparagraph F was for Cubans who arrived by airplane, before the U.S. had diplomatic relations with Cuba] who is arriving in the United States or is described in clause (iii) is inadmissible under section [212 (a)(6)(C) or 212 (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 [208] of this title or a fear of persecution.
(ii)Claims for asylum
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 [ 212(a)(6)(C) or 212(a)(7)] of this title and the alien indicates either an intention to apply for asylum under section [208] of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B).*.*.*.
(IV)Mandatory detention
Any alien subject to the procedures under this clause shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.*.*.*.
(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 [240] of this title.*.*.*.
(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 [240] of this title.”
The interpretation of this statute is where the majority opinion and Judge Fletcher’s concurrence diverge. Simply put, under INA § 235(b)(1) an applicant is subject to expedited removal if the immigration officer determines that the noncitizen is inadmissible either under INA § 212(a)(6)(C) (fraud or misrepresentation – namely false documents) or is inadmissible under INA § 212(a)(7) (no documents). Here is where the case gets confusing. Under INA § 235(b)(2) an applicant is for admission who is not clearly and beyond a doubt admissible “shall be detained for a proceeding under [INA § 240].” In other words, full on removal proceedings. The statute then says that a noncitizen put in full removal proceedings who is arriving on land from a foreign territory contiguous to the United States (i.e., Mexico or Canada) may be returned to that territory pending a proceeding under INA § 240.
Judge Fletcher argues that § 235(b)(2) does not apply to asylum applicants who are subject to expedited removal under § 235(b)(1). He argues that § 235(b)(2) only applies to applicants for admission who are subject to the other grounds of inadmissibility such as a person convicted of controlled substance offenses or where there is reason to believe that the person is a smuggler or drug trafficker. But the majority holds that 235(b)(2) is the catch-all provisions and applies to all applicants for admission; including asylees. As I said, I am baffled by why Judge Fletcher concurred in the result.
The District Court interpreted the statute to mean that applicants for admission who fell under § 235(b)(1) who could have been placed in expedited removal were not subject to the provisions of § 235(b)(2) even if they were placed in regular removal hearings under § 240. That is a lot of statutory cites and it’s hard to understand. I apologize. The District Court held that it was immaterial that the applicants were not placed in expedited removal proceedings.
The Ninth Circuit framed the issue as follows: “Does § [235] (b)(1) apply to everyone who is eligible for expedited removal, or only to those actually processed for expedited removal.” Innovation Law Lab et al. v. McAleenan, et al., No. 19-15761 slip op. at * 6 (9th Cir. May 7, 2019) (emphasis in the original). The Ninth Circuit reads INA § 235(b)(2) as a “catchall” phrase that includes those who have passed a credible fear interview and are placed in regular removal proceedings under INA § 240. The Ninth Circuit notes that the asylum applicants were not processed under INA § 235(b)(1) and were instead processed under INA § 235(b)(2) and thus could be forced to remain in Mexico during the pendency of their removal hearings. Innovation Law Labs, slip op. at *8.
The Ninth Circuit concludes: “In our view, those who are not processed for expedited removal under § [235](b)(1) are the “other aliens” subject to the general rule of § [235](b)(2).” Id., slip op. * 9. The Ninth Circuit cites to the Supreme Court in support of its position.
“Section [235](b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation.*.*.*. Section [235](b)(2) is broader,” since it serves as a catchall provision that applies to all applicants for admission not covered by § 1225(b)(1).”
Ibid. quoting Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018) (emphasis in the original).
More simply, the Ninth Circuit found that 235(b)(1) only applies to applicants for admission who are placed in expedited removal proceedings; not to those who are placed in regular removal proceedings. Now, had there been no Fletcher concurrence, I would understand this case. I would disagree with the conclusion, but I would understand the legal reasoning.
Lack of Notice and Comment Ruling-Making Under the Administrative Procedure Act
The second issue that the Ninth Circuit found in the government’s favor was that MPP did not have to go through notice and comment rule making under the Administrative Procedure Act (APA) to be a valid change to the agency’s procedures. The Ninth Circuit held that MPP is a “general statement of policy” and is exempt from the notice and comment requirement. 5 U.S.C. § 553 (b)(1). The Ninth Circuit found that MPP qualifies as a general statement of policy because immigration officers designate applicants for return on a discretionary case by case basis. Innovation Law Labs, slip op. at *10. What? It’s a statement of policy because the government decides cases on a discretionary case by case basis? There is not much more discussion on t his topic so we will leave it here.
Remaining Factors for A Stay Weigh in the Government’s Favor
The Ninth Circuit found that the remaining factors for a stay weigh in the government’s favor. First, 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.” Innovation Law Lab, slip op. at *11. Second, the likelihood of harm to the plaintiffs is somewhat reduced “by the Mexican government’s commitment to honor its international-law obligations and to grant humanitarian status and work permits to individual returned under MPP.” Ibid. Finally, the Ninth Circuit found that public interest favors the efficient administration of the immigration laws at the border. There is a crisis, but it is not being caused by the victims of the violence in Central America. Anyhow, I think it’s important to try to understand the two concurrences here.
Judge Watford’s Concurrence
Judge Watford agrees that INA § 235(b) appears to authorize DHS to return applicants for admission to the United States to Mexico while they await the outcome of removal proceedings. But, he argues, that congressional authorization alone does not ensure that MPP is being implemented in a legal matter. Judge Watford refers to Article 33 of the 1951 Convention Relating to the Status of Refugees which does not allow the United States to expel or return a refugee to the frontiers of territories where their life or freedom would be threatened on account of race, religion, nationality, membership in a social group or political opinion. Judge Watford then cites to Article 3 of the Convention Against Torture which provides that the United States cannot expel or return a person to a country where there are substantial grounds for believing they may be tortured.
Judge Watford argues that DHS has adopted procedures that are so ill-suited to achieving the goal of non-refoulement that they are arbitrary and capricious under the APA. He notes that under the current procedures immigration officers to not ask applicants being returned to Mexico whether they fear persecution or fear torture in Mexico. Judge Watford writes:
“There is, of course, a simple way for DHS to help ensure that the United States lives up to its non-refoulement obligations: DHS can ask asylum seekers whether they fear persecution or torture in Mexico. I’m at a loss to understand how an agency whose professed goal is to comply with non-refoulement principles could rationally decide not to ask that question, particularly when the immigration officers are already conducting one-on-one interviews with each applicant.”
Innovation Law Lab, slip op. at * 3 (Waterford, J. concurring). Judge Waterford argues that it seems likely that the plaintiffs will establish that the procedures for implementing the MPP are arbitrary and capricious, but success on this claim does not support issuing a preliminary injunction. Judge Watford suggests a smaller injunction directing DHS officers to ask applicants for admission whether they fear returning to Mexico and notes that the district court should fashion that injunction.
Judge Fletcher’s Concurrence
This concurrence totally confuses me. I’ve read it three times and I don’t understand why it is not a dissent. Judge Fletcher notes that INA § 235(b)(1) and (b)(2) are separate statutory provisions. He notes that § 235(b)(1) applies to applicants for admission who either have no documents or have fraudulent documents; while INA § 235(b)(2) applies to applicants for admission who fall under the other grounds of inadmissibility under INA § 212 (smugglers, drug traffickers, people who have been convicted of controlled substance offenses….you get it).
Judge Fletcher argues that the plaintiffs here are bona fide asylum applicants under § 235(b)(1) who are entitled to stay in the United States while their asylum applications are being adjudicated. He then cites the entire statute and argues that the statutory text is unambiguous. There are two separate categories of applicants for admission one under § 235(b)(1) and one under § 235(b)(2). Judge Fletcher also cites to Jennings v. Rodriguez in support of his argument that the two groups are separate.
[A]pplicants for admission fall into one of two categories, those covered by § [235](b)(1) and those covered by § [235](b)(2). Section [235](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 § [235](b)(1).
Innovation Law Lab, slip op. at * 7, (Fletcher J., concurring) quoting Jennings v. Rodriguez, 138 S. Ct. at 837 (emphasis added by Judge Fletcher). Judge Fletcher then cites to the AG’s recent decision in Matter of M-S-, 27 I.&N. Dec. 509 (A.G. 2019). (You can read my blog about Matter of M-S- here). He notes that the AG divides applicants for admission into three categories: (1) those who are clearly eligible for admission; (2) those who are not clearly eligible for admission and are placed in full removal proceedings under INA § 240; and, (3) those who are inadmissible either for misrepresentation or lack of documentation and may be placed either in expedited removal proceedings under INA § 235 or full removal proceedings under INA § 240.
Judge Fletcher argues that the statutorily prescribed procedures are the same for both categories. If an applicant for admission falls under 235(b)(1) and passes the credible fear interview they will be placed in full removal proceedings under INA § 240. But even if they do not pass the credible fear interview, DHS may place them in full removal proceedings under INA § 240 at their discretion. Judge Fletcher notes that both § 235(b)(1) and (b)(2) an applicant may be placed in regular removal proceedings under INA § 240 but, it does not change their underlying category. He notes that some of the procedures are exclusive to one category or the other. For example, an applicant for admission who falls under (b)(2) is not subject to expedited removal; but an applicant who falls under (b)(1) is not subject to being “returned” to a contiguous territory. You may be wondering why Judge Fletcher is concurring rather than dissenting. I have no answer. Here’s what he writes:
“The precise question in this case is whether a § (b)(1) applicant may be “returned” to a contiguous territory under § [235](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 § [235](b) – as well as the Government’s longstanding and consistent practice – tell us that the answer is “no.”
Innovation Law Labs, slip op. at * 9 (Fletcher J., concurring). Judge Fletcher concludes that the return-to-contiguous territory provision only applies to applicants for admission who fall under INA § 235(b)(2). What???? I’m so confused.
After destroying the government’s and the majority’s arguments for 15 ½ pages, Judge Fletcher seems to explain why he is concurring in the result – the facts aren’t there. But I have read his concurrence three times, and I simply don’t get it. He destroys the statutory basis for the Government’s argument, the facts should be irrelevant. That said, I’ll let Judge Fletcher speak for himself.
“Acting as a motions panel, we are deciding the Government’s emergency motion to stay the order of the district court pending appeal. Because it is an emergency motion, plaintiffs and the Government were severely limited in how many words they were allowed. Our panel heard oral argument on an expedited basis, a week after the motion was filed.
I regret that my colleagues on the motions panel have uncritically accepted the Government’s arguments. I am hopeful that the regular argument panel that will ultimately hear the appeal, will benefit of full briefing and regularly scheduled argument, will be able to see the Government’s arguments for what they are – baseless arguments in support of an illegal policy that will, if sustained, require bona fide asylum applicants to wait in Mexico for years while their applications are adjudicated.”
Innovation Law Labs, slip op. at *16 (Fletcher, J. concurring). Some very wise person said to me, IIRIRA was passed in 1996, but it’s being fully enacted in 2019.
Innovation Law Labs, et al. v. McAleenan, et al., No. 19-15716 (9th Cir. May 7, 2019).