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No. 19-15716
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INNOVATION LAW LAB, et al.
Plaintiffs-Appellees,
v.
KISRTJEN NIELSEN,
Secretary of Homeland Security, et al.
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
 
 

EMERGENCY MOTION UNDER CIRCUIT RULE
27-3 FOR ADMINISTRATIVE STAY AND
MOTION FOR STAY PENDING APPEAL
JOSEPH H. HUNT
Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
EREZ REUVENI
Assistant Director
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
ARCHITH RAMKUMAR
Trial Attorney

 

 

  

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CIRCUIT RULE 27-3 CERTIFICATE
The undersigned counsel certifies that the following is the information
required by Circuit Rule 27-3:
(1) Telephone numbers and addresses of the attorneys for the parties
Counsel for Appellants Kirstjen Nielsen, et al.
Joseph H. Hunt (jody.hunt@usdoj.gov)
Scott G. Stewart (scott.g.stewart@usdoj.gov)
William C. Peachey (william.peachey@usdoj.gov
Erez Reuveni (erez.r.reuveni@usdoj.gov)
Archith Ramkumar (archith.ramkumar@usdoj.gov)
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
202-307-4293
Counsel for Appellees
Judy Rabinovitz (jrabinovitz@aclu.org)
Michael Tan (mtan@aclu.org)
Omar C. Jadwat (ojadwat@aclu.org)
Lee Gelernt (lgelernt@aclu.org)
Anand Balakrishnan (abalakrishnan@aclu.org)
Daniel Galindo (dgalindo@aclu.org)
ACLU Foundation
Immigrants’ Rights Project
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2660
Jennifer Chang Newell (jnewell@aclu.org)
Katrina Eiland (keiland@aclu.org)
Cody Wofsy (cwofsy@aclu.org)
Julie Veroff (jveroff@aclu.org)
ACLU Foundation
Immigrants’ Rights Project
39 Drumm Street
 

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San Francisco, CA 94111
(415) 343-0770
Melissa Crow (melissa.crow@splcenter.org)
Southern Poverty Law Center
1666 Connecticut Avenue NW, Suite 100
Washington, D.C. 20009
(202) 355-4471
Mary Bauer (mary.bauer@splcenter.org)
Southern Poverty Law Center
1000 Preston Avenue
Charlottesville, VA 22903
(470) 606-9307
Gracie Willis (gracie.willis@splcenter.org)
Southern Poverty Law Center
150 East Ponce de Leon Avenue, Suite 340
Decatur, GA 30030
(404) 221-6700
Michelle P. Gonzalez (mich.gonzalez@splcenter.org)
Southern Poverty Law Center
P.O. Box 370037
Miami, FL 33137-0037
786-753-1383
Steven Watt (swatt@aclu.org)
ACLU Foundation Human Rights Program
125 Broad Street, 18th Floor
New York, NY 10004
(212) 519-7870
Sean Riordan (sriordan@aclunc.org)
Christine P. Sun (csun@aclunc.org)
ACLU Foundation of Northern California
39 Drumm Street
San Francisco, CA 94111
(415) 621-2493

 

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Blaine Bookey (bookeybl@uchastings.edu)
Karen Musalo (musalok@uchastings.edu)
Eunice Lee (leeeunice@uchastings.edu)
Kathryn Jastram (jastramkate@uchastings.edu)
Sayoni Maitra (maitras@uchastings.edu)
Center for Gender & Refugee Studies
200 McAllister St.
San Francisco, CA 94102
(415) 565-4877
(2) Facts showing the existence and nature of the emergency
As set forth more fully in the motion, the district court has entered a
nationwide injunction barring enforcement of an important Executive Branch
initiative that is designed to address the dramatically escalating burdens of
unauthorized migration, which is causing irreparable harm to the defendants and the
public. The injunction rests on serious errors of law and harms the public by
thwarting enforcement of a policy initiative implementing the Secretary of
Homeland Security’s express statutory authority to return certain aliens to Mexico
while their removal proceedings are pending.
(3) When and how counsel notified
The undersigned counsel notified counsel for Plaintiffs by email on April 10,
2019, of Defendants’ intent to file this motion and its substance. Service will be
effected by electronic service through the CM/ECF system and via email.
(4) Submissions to the district court
The defendants requested a stay from the district court, which the district court

 

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denied in an order on April 8, 2019.
(5) Decision requested by
The district court’s nationwide injunction goes into effect at 5:00 P.M. PST,
April 12, 2019. A decision on the motion for an administrative stay is requested by
that time, and a request on the motion for a stay is requested as soon as is possible.
Counsel to Defendants
JOSEPH H. HUNT
Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
By: /s/ Erez Reuveni
EREZ REUVENI
Assistant Director
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 307-4293
Email: Erez.R.Reuveni@usdoj.gov
ARCHITH RAMKUMAR
Trial Attorney

 

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INTRODUCTION
The United States and Mexico face a humanitarian and security crisis on their
shared border. In recent months, hundreds of thousands of migrants have left their
home countries in Central America to journey through Mexico and then across the
southern border of the United States, where they often make meritless claims for
asylum and yet—because of strains on our resources—frequently secure release into
our country. The Department of Homeland Security (DHS) reports that, just last
month, it apprehended more than 92,000 illegal border-crossers—a pace of more
than one million per year and nearly double what it was just months ago. In the same
month, DHS reports encountering 53,000 migrants as part of family units (many
with children), a number never before seen. The extraordinary volume of crossings
has severely burdened DHS’s ability to control the southern border.
In the face of this crisis, and amid ongoing diplomatic discussions with the
government of Mexico, the Secretary of Homeland Security has exercised the
authority expressly conferred on her by the Immigration and Nationality Act (INA)
to return migrants to Mexico while their U.S.-asylum claims are processed. The
INA provides that, for an alien “described in subparagraph (A)”—that is, an alien
who is “seeking admission” but “is not clearly and beyond a doubt entitled to be
admitted”—and who “is arriving on land (whether or not at a designated port of
arrival) from a foreign territory contiguous to the United States,” the Secretary, as

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an alternative to the mandatory detention that would otherwise be statutorily
required, “may return the alien to that territory [of arrival] pending a [removal]
proceeding under section 1229a.” 8 U.S.C. § 1225(b)(2)(A), (C). Pursuant to that
authority, the Secretary recently implemented the Migrant Protection Protocols
(MPP), which guides personnel on the southern border on how and when to return
select aliens to Mexico while their immigration proceedings are ongoing. MPP does
not apply to any Mexican national (among others) seeking to enter the United States,
and it provides a procedure, consistent with international obligations, for DHS to
consider a claim by any alien that she will face persecution or torture if returned to
Mexico.
Despite the crisis on the southern border, the fact that MPP is part of the
Executive Branch’s foreign-policy and national-security strategy, and the INA’s
express authorization for the Secretary’s actions, the district court entered a
nationwide injunction of MPP, to take effect at 5:00 pm PST on Friday, April 12,
2019. The district court’s order is deeply flawed, and a stay from this Court is
urgently needed until the Court can resolve the government’s appeal.
The district court concluded that MPP is not authorized by misreading
8 U.S.C. § 1225(b)(2)(B)(ii). That provision states that the key requirement of
8 U.S.C. § 1225(b)(2)(A)—a full removal proceeding under section 1229a—“shall
not apply to an alien” “to whom [8 U.S.C. § 1225(b)(1)] applies.” That clarification

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is needed because section 1225(b)(1) is a procedure for expedited removal of certain
aliens, and it provides that a covered alien shall be “removed from the United States
without further hearing or review unless the alien indicates either an intention to
apply for asylum under [8 U.S.C. § 1158] or a fear of persecution.”

Id.

§ 1225(b)(1)(A)(i).
The district court reasoned that, because the aliens to whom MPP applies were
eligible for expedited removal under section 1225(b)(1), those aliens were not
“described in [8 U.S.C. § 1225(b)(2)(A)].” Id. § 1225(b)(2)(C). But that is plainly
incorrect, because it is undisputed that the Secretary possesses, and has exercised,
prosecutorial discretion not to seek expedited removal of aliens covered by MPP,
and has instead elected to apply section 1225(b)(2)(A) and afford to those aliens full,
“regular” removal proceedings under section 1229a.

Op. 15 (noting “well-

established law, conceded by plaintiffs, that DHS has prosecutorial discretion to
place aliens in regular removal proceedings under section 1229a notwithstanding the
fact that they would qualify for expedited removal under [8 U.S.C. § 1225(b)(1)]”).
In light of that uncontested discretion, the exception in section 1225(b)(2)(B)(ii) is
inapposite to aliens covered by MPP, because the expedited removal procedures in
section 1225(b)(1) are not being “applie[d]” to them, even though those procedures
could have been applied.

The court’s contrary interpretation is atextual and

internally inconsistent, because the court recognized that the Secretary has discretion

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to apply to these aliens the regular removal procedures, which are called for under
section 1225(b)(2)(A), rather than the expedited removal procedures under section
1225(b)(1), and yet the court prohibited the Secretary from invoking the contiguousterritory-return authority in section 1225(b)(2)(C) that, by its terms, applies to aliens
described in section 1225(b)(2)(A).

The court’s interpretation also produces

implausible results: Given the broad scope of the expedited removal provision, the
court’s view would mean that the contiguous-territory-return provision applies only
to those few aliens who do possess valid documents and do not engage in fraud. It
makes little sense that Congress would authorize return only for aliens who follow
our laws but would preclude return for those lacking documents or engaging in fraud
at the border.
The district court separately found MPP’s procedures for review of individual
migrants’ cases before return to Mexico to be deficient, citing the United States’
international obligations regarding protection for refugees and the Administrative
Procedure Act (APA).

It is unclear whether the court concluded that MPP’s

procedures were substantively deficient or were faulty because they were not
promulgated through notice-and-comment rulemaking, but either conclusion would
be incorrect. To the extent the court meant that MPP provides less than what is
required under treaty obligations, MPP satisfies any applicable international
obligations by providing that any alien who is “more likely than not” to “face

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persecution or torture in Mexico” will not be returned to Mexico. AR1. To the
extent the district court believed MPP’s procedures were problematic for lack of
notice-and-comment rulemaking, MPP governs agency procedures and is a
“statement of policy” concerning the exercise of DHS’s prosecutorial discretion that
preserves significant flexibility in individual cases, so the APA does not require
notice-and-comment rulemaking. See 5 U.S.C. § 553(b)(A).
The district court’s injunction will impose immediate, substantial harm on the
United States, including by diminishing the Executive Branch’s ability to work
effectively with Mexico to manage the crisis on our shared border. That harm is
exacerbated by the court’s decision to exceed limitations on its equitable authority
and issue a universal injunction.

This Court should grant an immediate

administrative stay while it receives stay briefing and considers this stay request; it
should expedite stay briefing and appellate briefing; and it should stay the district
court’s injunction pending appeal.
BACKGROUND
Legal Background.

The Executive Branch has broad constitutional and

statutory power to exclude aliens and secure the border, Knauff v. Shaughnessy, 338
U.S. 537, 543 (1950), and has for decades exercised that authority through its
prosecutorial discretion to prioritize which aliens to remove and through what type

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of proceedings. See Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 523 (BIA
2011).
In 8 U.S.C. § 1225, Congress has delegated to the Executive Branch the
authority to manage the flow of aliens arriving in the United States, and conferred
discretion to address that flow.1 First, Congress has authorized DHS to initiate
expedited (summary) removal proceedings in 8 U.S.C. § 1225(b)(1). Under that
provision, an “applicant for admission” to the United States who lacks valid entry
documentation or misrepresents his identity shall be “removed from the United
States without further hearing or review unless” he “indicates either an intention to
apply for asylum ... or a fear of persecution.”

8 U.S.C. § 1225(b)(1)(A)(i).

Alternatively, Congress has provided that the Secretary shall place an applicant who
is seeking admission into full, regular removal proceedings (proceedings held before
an immigration judge that involve more extensive procedures than expedited
removal proceedings, see id. § 1229a), and shall detain that alien pending such
proceedings, if he is not “clearly and beyond a doubt entitled to be admitted.” Id.
§ 1225(b)(2)(A). When DHS places an alien seeking admission into a regular
removal proceeding under section 1229a, Congress has provided that, if the alien is
“arriving on land (whether or not at a designated port of arrival) from a foreign

1

Section 1225(b) refers to the Attorney General, but those functions have been
transferred to the Secretary. See 6 U.S.C. §§ 251, 552(d); Clark v. Suarez Martinez,
543 U.S. 371, 374 n.1 (2005).
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territory contiguous to the United States,” the Secretary “may return the alien to that
territory pending a proceeding under section 1229a.” Id. § 1225(b)(2)(C). The
statute leaves to DHS’s discretion whether to seek expedited or regular removal as
to aliens who are eligible for expected removal under section 1225(b)(1). See Op.
15-16 (citing authorities). And if the alien is placed in regular proceedings, the
statute also authorizes DHS to choose between detaining the alien or returning him
to contiguous territory pending removal proceedings. Id. § 1225(b)(2)(A), (C).
Migrant Protection Protocols. On December 20, 2018, Secretary Nielsen
announced that DHS would exercise its authority under section 1225(b)(2)(C)
through MPP—guidance aimed at shaping efforts “to address the migration crisis
along our southern border.” AR7. MPP is to be implemented “consistent with
applicable domestic and international legal obligations,” AR8, and it accounts for
the Mexican government’s representations during diplomatic negotiations that aliens
returned to Mexico under MPP would be afforded “all legal and procedural
protection[s] provided for under applicable domestic and international law,”
including “applicable international human rights law and obligations” under the
“1951 Convention relating to the Status of Refugees (and its 1967 Protocol) and the
Convention Against Torture [(CAT)].” Id.
On January 25, 2019, the Secretary further instructed that, “in exercising
[DHS’s] prosecutorial discretion regarding whether” to “return the alien to the

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contiguous country from which he or she is arriving,” officers should act consistent
with the non-refoulement principles contained in the 1951 Convention, 1967
Protocol, and CAT. AR9. Thus, if an alien expresses a fear of return to Mexico, she
will be referred to U.S. Citizenship and Immigration Services to “assess whether it
is more likely than not that” she will “be persecuted on account of race, religion,
nationality, membership in a particular social group, or political opinion,” or will
“be tortured” if “returned pending removal proceedings,” AR9-10, 2273, in which
case the alien “may not be processed for MPP,” AR2. MPP does not apply at all to
arriving Mexican nationals, among others. AR1.
This Lawsuit. On February 14, 2019, eleven aliens subject to MPP and six
organizations that provide services to immigrants filed this suit in the Northern
District of California and sought immediate injunctive relief. On April 8, the district
court issued a decision granting a nationwide injunction that bars implementation of
MPP. See Op., Dkt. 73 (Exhibit A). The court concluded that this case is justiciable
(Op. 7-12); that the contiguous-territory-return provision, 8 U.S.C. § 1225(b)(2)(C),
likely does not authorize return to Mexico of aliens who could be placed in expedited
removal proceedings (Op. 15-19); that, even if the INA authorizes such returns, MPP
is likely inconsistent with non-refoulement principles (Op. 19-22, 23); and that the
other injunctive factors supported Plaintiffs (Op. 24-25). The court denied the

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government’s request for a stay pending appeal, but delayed the effective date of its
ruling to April 12, 2019, at 5:00 pm PST. Op. 26.
ARGUMENT
An immediate stay pending appeal is warranted. The government is likely to
prevail on appeal, the government will be irreparably harmed without a stay, a stay
will not substantially harm Plaintiffs, and the public interest supports a stay. See
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). This case also warrants expedited
appellate consideration—including expedited consideration of this stay request—
and the Court should grant an administrative stay while it receives briefing and
considers this stay request.
I.

Defendants Are Likely to Succeed on Appeal
A.

MPP Is Authorized by Statute

MPP is authorized by section 1225(b) and is a lawful implementation of
DHS’s discretion over what (if any) removal proceedings to initiate against aliens
arriving at the border. Section 1225(b)(2)(C) provides that the Secretary “may
return” certain aliens “who [are] arriving on land (whether or not at a designated port
of arrival) from a foreign territory contiguous to the United States” “to that territory
pending a [full removal] proceeding under section 1229a.”
§ 1225(b)(2)(C).

8 U.S.C.

The Secretary may exercise that contiguous-territory-return

authority against any “alien described in subparagraph (A)”—that is, section

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1225(b)(2)(A). Id. Section 1225(b)(2)(A) provides: “Subject to subparagraphs (B)
and (C), in the case of an alien who is an applicant for admission, if the examining
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 [regular removal] proceeding
under section 1229a.” Id. Taking the two sections together, if an alien who is
inadmissible arrives by land from a contiguous territory and is placed in regular
removal proceedings, he can be returned to that contiguous territory pending those
proceedings. That indisputably describes the aliens here. See Compl. ¶¶ 12-22.
Thus, section 1225(b)(2)(C) authorizes MPP.
Section 1225(b)(2)(B) contains exceptions to section 1225(b)(2)(A), but
contrary to the district court’s reasoning, none changes the straightforward textual
analysis. Section 1225(b)(2)(B) provides that “Subparagraph (A) [i.e., section
1225(b)(2)(A)] shall not apply to an alien—(i) who is a crewman, (ii) to whom
paragraph (1) [i.e., section 1225(b)(1)] applies, or (iii) who is a stowaway.” 8 U.S.C.
§ 1225(b)(2)(B). Subsections (i) and (iii) are irrelevant here. As to subsection (ii),
section 1225(b)(1) provides that an “applicant for admission” who lacks valid entry
documentation or misrepresents his identity shall be placed in expedited removal
proceedings, meaning that he shall be “removed from the United States without
further hearing or review unless the alien indicates either an intention to apply for
asylum ... or a fear of persecution.” Id. § 1225(b)(1)(A)(i).

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Congress included the exceptions in section 1225(b)(2)(B) to make clear that
the core requirement of section 1225(b)(2)(A)—that an alien is entitled to a regular
removal proceeding under section 1229a—“shall not apply” to the classes of aliens
covered by the exceptions. Section 1225(b)(2)(A) is intentionally broad and applies
to any alien who “is not clearly and beyond a doubt entitled to be admitted.” Without
the section 1225(b)(2)(B)(ii) exception, the text of section 1225(b)(2)(A) would
mandate that an alien who is subject to expedited removal proceedings under section
1225(b)(1) would also be entitled to a regular removal proceeding under section
1229a. The section 1225(b)(2)(B)(ii) exception eliminates that potential conflict and
clarifies that, when section 1225(b)(1) “applies,” that alien is “not entitled” to a
regular removal proceeding under section 1229a: he can be removed more swiftly
using a less extensive procedure. Matter of E-R-M-, 25 I. & N. Dec. at 523.
Section 1225(b)(2)(B)(ii) does not, however, strip DHS of its discretion to use
regular section 1229a removal proceedings as provided for in section 1225(b)(2)(A)
even when expedited removal proceedings under 1225(b)(1) are available. See id.
It simply means that the “classes of aliens” referenced “are not entitled to a [section
1229a] proceeding.” Id. (emphasis added). Nor is DHS’s discretion eliminated by
the uses of the word “shall” in both sections 1225(b)(1) and 1225(b)(2). The law is
clear—and Plaintiffs have conceded (Compl. ¶ 73)—that “DHS has discretion to put
aliens in section [1229a] removal proceedings even though” DHS could have placed

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them in “expedited removal [proceedings]” under section 1225(b)(1). Id. This Court
has similarly held that DHS’s discretion encompasses “institut[ing] [normal]
immigration removal proceedings.” Villa-Anguiano v. Holder, 727 F.3d 873, 878
(9th Cir. 2013). That is what MPP does: it implements DHS’s authority place aliens
in full removal proceedings (even if they could be placed in expedited removal
proceedings), and to return such aliens to Mexico while their proceedings are
pending. MPP is thus lawful under the INA.
The district court held (Op. 15-19) that section 1225(b)(2)(C) does not
authorize MPP, reasoning that, under section 1225(b)(2)(B)(ii), “the contiguous
territory return provision [i.e., section 1225(b)(2)(C)] does not apply to persons to
whom [section 1225(b)(1)] does apply.” Op. 16 (emphasis in original). Although
the court recognized that “DHS may choose” whether to use “expedited removal” or
“regular removal,” it concluded that because expedited removal could have been
used, section 1225(b)(1) “applies” exclusively, and thus section 1225(b)(2)(C)’s
contiguous territory-provision does not apply. Op. 16-17.
The district court was wrong. The court recognized that DHS has authority to
choose whether to place such an alien in expedited removal proceedings or regular
removal proceedings as called for by section 1225(b)(2)(A). Id. But the court
nevertheless concluded that section 1225(b)(2)(A) cannot “apply,” and so DHS
cannot take the corresponding step of invoking section 1225(b)(2)(C). That makes

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no sense. The only logical reading of the statute is that, once DHS elects to place an
alien in section 1229a proceedings, DHS has proceeded in the manner provided by
section 1225(b)(2)(A) rather than section 1225(b)(1). And when DHS has made its
choice, the “shall not apply” provision in 1225(b)(2)(B) is simply no longer relevant;
it has already served its purpose of making clear that DHS was not required to afford
that alien a regular removal proceeding under section 1225(b)(2)(A), even though
DHS has elected to do so.
It would be especially wrong to read section 1225(b)(2) as the court did given
that section 1225(b)(2)(C) refers to those “alien[s] described in subparagraph (A).”
(Emphasis added.) By using the phrase “described in” to define who is subject to
the provision, Congress encompassed all aliens substantively described by that
paragraph—i.e., any “applicant for admission” who the “examining officer
determines ... is not clearly and beyond a doubt entitled to be admitted,” 8 U.S.C.
§ 1225(b)(2)(A)—rather than only those aliens to whom one type of proceeding or
another is applied. See Nielsen v. Preap, 139 S. Ct. 954, 964-65 (2019) (explaining
that the phrase “described in” as used in 8 U.S.C. § 1226(c) is used “to communicate
… an account of the salient identifying features” of individuals who could be subject
to that provision, not to provide what DHS must do to the “described” alien).
The district court’s reading largely nullifies section 1225(b)(2)(C) by
imputing to Congress the implausible intent to confine contiguous-territory return to

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only a small subset of land-arriving aliens in full removal proceedings: those who
possess documents necessary for admission and who did not engage in
misrepresentation.

See 8 U.S.C. § 1225(b)(1)(A)(i) (describing the various

categories of aliens subject to expedited removal). The court’s reasoning would also
have the perverse effect of privileging aliens who attempt to obtain entry to the
United States by fraud—and who are for that reason subject to section 1225(b)(1)
through 8 U.S.C. § 1182(a)(6)(C)—over aliens who follow our laws.
The court’s nullification of section 1225(b)(2) also ignores that detention
pending removal proceedings is the process Congress expected for most aliens
arriving at our Nation’s borders who are not clearly and beyond a doubt entitled to
be admitted. See 8 U.S.C. § 1225(b)(1), (b)(2)(A); Jennings v. Rodriguez, 138
S. Ct. 830, 837 (2018). The availability of return under section 1225(b)(2)(C) is a
consequence that may accompany a “pending ... proceeding under section 1229a,”
as an alternative to mandatory detention for aliens in such proceedings. See Matter
of Sanchez-Avila, 21 I. & N. Dec. 444, 450 (BIA 1996) (explaining that if choosing
between “custodial detention or parole[] is the only lawful course of conduct, the
ability of this nation to deal with mass migrations” would be severely undermined).
For aliens whose removal is expedited, Congress had no need to authorize returning
them to Mexico pending proceedings as an alternative to detention.
In sum, Congress’s clarification in section 1225(b)(2)(B)(ii) that the

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requirement of normal removal proceedings would not apply to aliens potentially
subject to expedited removal did not eliminate DHS’s discretion to institute normal
removal proceedings against those aliens under section 1229a, to detain them
pending those proceedings, or to return them to contiguous territory as an alternative
to mandatory detention during those proceedings, as provided under section
1225(b)(2)(C).
B.

MPP is Consistent with Non-Refoulement Obligations and the APA

The district court (Op. 20) described international-law principles of nonrefoulement, including Article 33 of the United Nations 1951 Convention relating to
the Status of Refugees, which provides that a “Contracting State” shall not “expel or
return” a “refugee” 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.” But MPP is consistent with any non-refoulement
obligations that may apply domestically to a decision to invoke section
1225(b)(2)(C), and it is also consistent with the APA.
To the extent that the court concluded that MPP’s procedural provisions for
evaluating non-refoulement concerns are insufficient in light of the United States’
international obligations, that conclusion was flawed. First, it is well-settled that the
Convention (as well as its 1967 Protocol and the CAT) are non-self-executing, and
do not confer judicially enforceable rights beyond those implemented by Congress.

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See Yuen Jin v. Mukasey, 538 F.3d 143, 159 (2d Cir. 2008). Second, MPP satisfies
the United States’ obligations. MPP applies only to non-Mexicans, not Mexicans
fleeing persecution or torture in Mexico. AR1. And MPP provides a procedure
whereby any non-Mexican who is “more likely than not” to “face persecution or
torture in Mexico” will not be subject to MPP. AR1-2, 9-10. Aliens can raise such
a claim at any time, including “before or after they are processed for MPP or other
disposition,” AR1, after “return[ing] to the [port of entry] for their scheduled
hearing,” AR2, or in transit to or at his immigration proceedings. AR2278. Upon
referral, asylum officers conduct an “MPP assessment interview in a non-adversarial
manner, separate and apart from the general public.” AR2273. All assessments must
“be reviewed by a supervisory asylum officer, who may change or concur with the
assessment’s conclusion.” AR2274. Those procedures satisfy the government’s
non-refoulement obligations, as this Court has held in other contexts. See Trinidad
y Garcia v. Thomas, 683 F.3d 952, 956-57 (9th Cir. 2012) (en banc) (concluding, in
challenge to extradition on non-refoulement grounds, that if the agency declared it
“more likely than not” that non-refoulement would not occur, “the court’s inquiry
shall have reached its end”).
The district court noted (Op. 21-22) that MPP’s procedures differ in some
respects from the procedures that apply before an alien is removed to his home
country. That is unsurprising, because the logic of the contiguous-territory-return

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statute is that aliens generally do not face persecution on account of a protected status
in the country from which they happen to arrive by land, as opposed to the home
country from which they may have fled. That is why Plaintiffs are incorrect in their
assertion that MPP’s non-refoulement provisions are inconsistent with 8 U.S.C.
§ 1231(b)(3), the INA provision for withholding of removal. Section 1231(b)(3)
codifies a form of protection from removal that is available only after an alien is
adjudged removable. See id.; 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, as even the district court appeared to recognize. See Op. 21-22.
The district court provided no indication of what procedures it thought should
apply before DHS can exercise its authority under section 1225(b)(2)(C); instead,
the court explicitly declined “to determine what the minimal anti-refoulement
procedures might be.” Op. 21. That is not an appropriate basis for enjoining a major
foreign-policy and border-security initiative of the Executive Branch. The court
thought it problematic that an alien must “affirmatively” claim fear before an asylum
officer will consider whether he may be returned to Mexico, Op. 22, but aliens in
expedited removal proceedings likewise must take the initiative to claim asylum or
assert fear before they receive a credible-fear screening.

See 8 U.S.C.

§ 1225(b)(1)(A)(ii). The court also noted that counsel is not available during the

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initial MPP review, Op. 22, but the process is non-adversarial and no statute or
international obligation requires counsel to be present (or any other specific
procedure) before DHS makes a determination to temporarily return an alien to the
non-home country from which he has arrived. See Matter of M-E-V-G-, 26 I. & N.
Dec. 227, 248 (BIA 2014) (what procedure to use to assess refoulement “is left to
each contracting State”). Last, the court noted that DHS’s determinations regarding
whether an alien is more likely than not to face persecution in Mexico are not subject
to review by an immigration judge. Op. 22. Once again, however, the statute and
international obligations do not require that particular form of process. And the court
failed to acknowledge that the MPP non-refoulement assessment is built in part on
assurances that the Mexican government remains committed to fulfilling its own
domestic and international obligations. See AR7-18, 318, 2273-74.
At other points, the district court suggested that it viewed MPP’s nonrefoulement procedures as deficient because they differ from procedures
implemented under 8 U.S.C. § 1231(b)(3) and were not adopted through notice-andcomment rulemaking under the APA. See Op. 23. But that reasoning, too, is deeply
flawed. As discussed above, contiguous-territory return under section 1225(b)(2)(C)
and withholding-of-removal under section 1231(b)(3) differ in fundamental ways
that make them incomparable, and even the district court agreed that DHS need not
use the same procedures described in section 1231(b)(3) to implement section

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1225(b)(2)(C). Op. 21. Regardless, MPP affords DHS officers significant flexibility
and discretion, and thus constitutes a “general statement of policy,” Mada-Luna v.
Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987), or otherwise a rule of agency
“procedure,” both exempt from notice-and-comment rulemaking.

5 U.S.C.

§ 553(b)(A).
II.

The Balance of Harms Weighs Strongly in Favor of a Stay
The injunction undermines the Executive Branch’s constitutional and

statutory authority to secure the Nation’s borders. The injunction also constitutes a
major and “unwarranted judicial interference in the conduct of foreign policy.”
Kiobel v. Royal Dutch Petroleum, 569 U.S. 108, 116 (2013). As the record reflects,
the “United States has been engaged in sustained diplomatic negotiations with
Mexico ... regarding the situation on the southern border,” AR38, and during the
course of those negotiations obtained an understanding from the Mexican
government that, “[f]or humanitarian reasons ... [it] will authorize the temporary
entrance of” aliens subject to MPP. AR8. The injunction thus harms efforts to
address a national-security and humanitarian crisis that is the subject of ongoing
diplomatic engagement.
The magnitude of the crisis at the heart of these negotiations is enormous.
Last fall, United States officials “each day encountered an average of approximately
2,000 inadmissible aliens at the southern border,” AR38, with “a significant increase

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in the arrival of … family units,” AR430. Last month alone, 53,077 members of
family units and 92,607 total individuals were apprehended at the southwest border.2
MPP responds to the fact that more than “60%” of illegal aliens who cross the
southern border are now “family units and unaccompanied children,” AR12, and that
DHS lacks detention capacity to house these aliens, thus forcing their release. AR718, 418, 575, 620.

MPP also re-calibrates incentives for aliens to make the

“dangerous journey north” to the United States border, and for “[s]mugglers and
traffickers” to exploit “outdated laws” and “migrants” in order “to turn human
misery into profit.” AR12-13. In sum, MPP “provide[s] a safer and more orderly
process that will discourage individuals from attempting illegal entry and making
false claims to stay in the U.S., and allow more resources to be dedicated to
individuals who legitimately qualify for asylum.” AR13. The district court’s
injunction thwarts this important effort to ameliorate the crisis on the southern
border.
The district court, despite noting that the “precise degree of risk and specific
harms that plaintiffs might suffer in this case may be debatable,” Op. 24, found the
“possibility of irreparable injury” sufficient to weigh the balance of harms in their
favor because they assertedly “live in fear of future violence, in Mexico.” Id. But

2

“Southwest
Border
Migration
FY2019,”
https://www.cbp.gov/newsroom/stats/sw-border-migration.
20

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the Mexican government has provided assurances that it will afford returned aliens
all “protection[s] provided for under applicable domestic and international law.”
AR8. The district court accordingly erred in finding that Plaintiffs are likely to suffer
irreparable harm without an injunction. Nor is the organizational Plaintiffs’ asserted
harm remotely sufficient here, even assuming they have a cognizable claim. The
district court found that those organizations have “shown a likelihood of harm in
terms of impairment of their ability to carry out their core mission[s].” Op. 24. But
asserted injuries based on “money, time and energy ... are not enough,” L.A. Mem’l
Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1202 (9th Cir. 1980),
especially when balanced against halting an important national policy to secure our
border.
In any event, this appeal could be expedited to minimize any prejudice. Given
the harms posed by the injunction, the government respectfully requests that this
Court enter an immediate administrative stay pending consideration of the merits of
this motion and expedite consideration of this stay request and of this appeal.
III.

The District Court Improperly Issued a Nationwide Injunction
The district court’s nationwide injunction imposes particularly sweeping harm

because it defies the rules that, under Article III, “[a] plaintiff’s remedy must be
tailored to redress the plaintiff’s particular injury,” Gill v. Whitford, 138 S. Ct. 1916,
1934 (2018), and that injunctions must “be no more burdensome to the defendant

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than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s
Health Ctr., Inc., 512 U.S. 753, 765 (1994). Here, any relief must be tailored to
remedying the individual Plaintiffs’ putative harms stemming from their return to
Mexico. See L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011).
Plaintiffs cannot invoke the rights of individual aliens not part of this lawsuit, and
so an injunction premised on such injuries would be inappropriate. See Zepeda v.
INS, 753 F.2d 719, 728 n.1 (9th Cir. 1983). An injunction limited to the individual
Plaintiffs and any bona fide clients identified by the Plaintiff organizations who were
processed under MPP (if the organizations have a cognizable claim at all), would
“provide complete relief to them.” California v. Azar, 911 F.3d 558, 584 (9th Cir.
2018); City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1244-45 (9th Cir.
2018).3 The injunction is overbroad and should be rejected on that ground alone. At
a minimum, it should be stayed as to everyone other than the named Plaintiffs and
identified clients. See U.S. Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993).
CONCLUSION
The Court should stay the district court’s order and expedite this appeal.

The government maintains that the organizational Plaintiffs lack a “judicially
cognizable interest in the prosecution or nonprosecution of another,” Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973), or in the manner of enforcement of the INA
generally, and otherwise lack organizational standing. Dkt. 42 at 10 n.5. They
accordingly lack standing. But see East Bay Sanctuary Covenant v. Trump, 909 F.3d
1219, 1241-45 (9th Cir. 2018).
3

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Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
By: /s/ Erez Reuveni
EREZ REUVENI
Assistant Director
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 307-4293
Email: Erez.R.Reuveni@usdoj.gov
ARCHITH RAMKUMAR
Trial Attorney
Dated: April 11, 2019

Attorneys for Defendants-Appellants

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CERTIFICATE OF SERVICE
I hereby certify that on April 11, 2018, I electronically filed the foregoing
document with the Clerk of the United States Court of Appeals for the Ninth Circuit
by using the CM/ECF system. Counsel in the case are registered CM/ECF users and
service will be accomplished by the CM/ECF system.

By: /s/ Erez Reuveni
EREZ REUVENI
Assistant Director
United States Department of Justice
Civil Division

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CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing motion complies with the type-volume
limitation of Fed. R. App. P. 27 because it contains 5,186 words. This motion
complies with the typeface and the type style requirements of Fed. R. App. P. 27
because this brief has been prepared in a proportionally spaced typeface using Word
14-point Times New Roman typeface.

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