NINTH CIRCUIT UPHOLDS TRUMP ADMINISTRATION’S “REMAIN IN MEXICO” PROGRAM

Written by: Taher Kameli, Esq.

In the face of continuing anti-immigration policies from the Trump administration, it has been the judicial branch of the Federal government (the courts) that immigrants have often relied upon to protect immigrant rights.  The U.S. Court of Appeals for the Ninth Circuit, in particular, has issued various decisions in defense of immigrant rights. However, even the Ninth Circuit is not a guarantor of a “pro-immigration” decision, as evidenced by its May 7 opinion upholding President Trump’s Migrant Protection Protocols program (known as the “Remain in Mexico” program).

Based on the “Remain in Mexico” program, the Trump administration had required various asylum seekers from Central America to wait in Mexico while their cases were being processed.  The American Civil Liberties Union and other immigration advocacy groups had filed a lawsuit on behalf of 11 asylum seekers from Central America, challenging the legality of the “Remain in Mexico” program.  On April 8, Federal District Court Judge Richard Seeborg in San Francisco had issued a preliminary injunction against and stopping the “Remain in Mexico” program.

In its May 7 per curiam opinion (Innovation Law Lab v. McAleenan, 2019 U.S. App. LEXIS 13633), the Ninth Circuit issued a stay of the preliminary injunction that had been granted by Judge Seeborg.  The court held that there was likely a legal basis (statutory authorization) for the “Remain in Mexico” program, that the “Remain in Mexico” program did not violate the Administrative Procedure Act, that the Department of Homeland Security “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”, and that “the likelihood of harm [to the plaintiffs upon their return to Mexico] is reduced somewhat by the Mexican government’s commitment to honor its international-law obligations and to grant humanitarian status and work permits to individuals returned under the MPP”.

Judge Paul Watford, in a concurring opinion, stated, “I agree that the Department of Homeland Security (DHS) is likely to prevail on the plaintiffs’ primary claim, as 8 U.S.C. [Section] 1225(b) appears to authorize DHS’s new policy of returning applicants for admission to Mexico while they await the outcome of their removal proceedings.  But congressional authorization alone does not ensure that the Migrant Protection Protocols (MPP) are being implemented in a legal manner”.

Stronger comments appear in the opinion of Judge William Fletcher, who concurred “only in the result” and stated, “I strongly disagree with my colleagues. . . . The question is thus whether [Section] 1225(b)(2)(C) provides authority for promulgation of the MPP.  The answer can also be stated simply: The Government is wrong. Not just arguably wrong, but clearly and flagrantly wrong. Section 1225(b)(2)(C) does not provide authority for the MPP. . . . Acting as a motions panel, we are deciding the Government’s emergency motion to stay the order of the district court pending appeal. . . . I am hopeful that the regular argument panel that will ultimately hear the appeal, with the benefit of full briefing and regularly scheduled argument, will be able to see the Government’s arguments for what they are – baseless arguments in support of an illegal policy that will, if sustained, require bona fide asylum applicants to wait in Mexico for years while their applications are adjudicated”.

As suggested by Judge Fletcher’s comments, it is important to remember that the above-described decision was on a motion to stay a preliminary injunction.  It was not a decision just on general litigation challenging the merits of the “Remain in Mexico” program, for which “the regular argument panel” would apply different judicial standards and possibly a different judicial result would be reached.  Litigation remains an important tool on the issue of the legality of the “Remain in Mexico” program and other immigration law matters. To succeed in litigation, immigrants need to engage the services of law firms such as The Law Offices of Kameli and Associates, which has a track record of immigration litigation victories.  If you are an immigrant seeking litigation representation, please contact the Law Offices of Kameli and Associates, at taher@kameli.com or 312-233-1000, for assistance.