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19-15716

d
IN THE

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,
—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; U NITED S TATES C ITIZENSHIP 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. C USTOMS AND B ORDER P ROTECTION ; R ONALD D.
VITIELLO, Acting Director, U.S. Immigration And Customs Enforcement, in his
official Capacity; US IMMIGRATION AND CUSTOMS ENFORCEMENT,
Defendants-Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NOTHERN DISTRICT OF CALIFORNIA
HON. RICHARD SEEBORG, CASE NO. 3:19-CV-00807-RS

BRIEF OF AMICUS CURIAE LOCAL 1924 IN SUPPORT OF
PLAINTIFFS-APPELLEES’ ANSWERING BRIEF AND AFFIRMANCE
OF THE DISTRICT COURT’S DECISION
ADEEL A. MANGI
MUHAMMAD U. FARIDI*
ELIZABETH RIORDAN HURLEY*
W. ROBERT FAIR*
A. ROBERT QUIRK*
PATTERSON BELKNAP WEBB
& TYLER LLP
1133 Avenue of the Americas
New York, New York 10036
Telephone: (212) 336-2000
Facsimile: (212) 336-2222
*Application for admission pending
Attorneys for Amicus Curiae Local 1924

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RULE 26.1 CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, amicus curiae
hereby certifies that it has no parent corporations and that no publicly held
company owns 10% or more of its stock.

ii

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TABLE OF CONTENTS
Page
RULE 26.1 CORPORATE DISCLOSURE STATEMENT..................................... ii
TABLE OF AUTHORITIES ....................................................................................iv
INTEREST OF AMICUS CURIAE............................................................................1
SUMMARY OF ARGUMENT .................................................................................2
ARGUMENT .............................................................................................................4
I.

II.

III.

THE MPP IS CONTRARY TO AMERICA’S LONGSTANDING
TRADITION OF PROVIDING SAFE HAVEN TO PEOPLE
FLEEING PERSECUTION ............................................................................4
A.

America Has Been a Global Leader in Providing Protection to
the Persecuted and Has Developed a World-Class System to Do
So...........................................................................................................4

B.

The World Is Experiencing another Wave of Displacement ..............15

THE MPP VIOLATES OUR NATION’S OBLIGATIONS TO NOT
RETURN ASYLUM SEEKERS TO WHERE THEY MAY FACE
PERSECUTION ............................................................................................16
A.

The MPP Provides Inadequate Safeguards against the Return of
Those Who Fear Persecution in Mexico to that Country....................17

B.

Mexico Is Not Safe for Most Individuals Seeking Asylum from
Persecution in Central America...........................................................22

THE MPP IS NOT DESIGNED TO REDRESS THE CHALLENGES
FACING OUR IMMIGRATION SYSTEM .................................................25

CONCLUSION........................................................................................................27

iii

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TABLE OF AUTHORITIES
Page(s)
Cases
Bartolme v. Sessions,
904 F.3d 803 (9th Cir. 2018) ..............................................................................19
Colemenar v. I.N.S.,
210 F.3d 967 (9th Cir. 2000) ..............................................................................19
I.N.S. v. Aguirre-Aguirre,
526 U.S. 415 (1999)............................................................................................16
Innovation Law Lab v. McAleenan,
924 F.3d 503 (9th Cir. 2019) ..................................................................17, 18, 20
Innovation Law Lab v. Nielsen,
366 F. Supp. 3d 1110 (N.D. Cal. 2019)..............................................................19
I.N.S. v. Stevic,
467 U.S. 407 (1984)............................................................................................12
Statutes, Regulations, and Treaties
8 C.F.R. § 208 ..........................................................................................................14
8 C.F.R. § 208.13(b)(1)............................................................................................19
8 C.F.R. § 208.16 .....................................................................................................19
8 C.F.R. § 208.30 ...............................................................................................14, 21
8 C.F.R. § 235.3 .................................................................................................14, 21
8 C.F.R. § 238.1 .......................................................................................................14
8 C.F.R. § 241.8 .......................................................................................................14
8 C.F.R. § 208.31 .....................................................................................................14
8 C.F.R. § 1208.31 ...................................................................................................21
8 C.F.R. § 1240.3 .....................................................................................................19
iv

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TABLE OF AUTHORITIES
(CONTINUED)
Page(s)
8 U.S.C. § 208.9.......................................................................................................19
8 U.S.C. § 208.14.....................................................................................................19
8 U.S.C. § 1101(a)(42)(A) .......................................................................................12
8 U.S.C. § 1225(b)(1)...............................................................................................25
8 U.S.C. § 1229a(b)(4).............................................................................................19
8 U.S.C. § 1231(b)(3).........................................................................................12, 16
8 U.S.C. § 1299a ......................................................................................................26
8 U.S.C. § 1362........................................................................................................19
Azores Refugee Act ...................................................................................................8
Chinese Exclusion Act of 1882..................................................................................7
Displaced Persons Act of 1948 ..................................................................................7
Federal Rule of Appellate Procedure 29....................................................................1
Immigration Act of 1875 ...........................................................................................7
Immigration and Nationality Act .............................................................7, 14, 18, 19
Indochinese Immigration and Refugee Act of 1975................................................11
Refugee Act........................................................................................................11, 12
Refugee-Escapee Act of 1957....................................................................................8
Refugee Relief Act of 1953 .......................................................................................8
United Nations Protocol Relating to the Status of Refugees, Jan. 31,
1967, 606 U.N.T.S. 267 ........................................................................................9
United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984......................13

v

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TABLE OF AUTHORITIES
(CONTINUED)
Page(s)
United Nations Convention Relating to the Status of Refugees, July
28, 1951, 189 U.N.T.S. 137 ................................................................................10
Other Authorities
Adolf Eduard Zucker, The Forty-Eighters: Political Refugees of the
German Revolution of 1848 (1967) ......................................................................5
American Jewish Joint Distribution Committee, Minutes of the
Meeting of the Executive Committee (June 5, 1939)...........................................6
Jeremy Dupertuis Bangs, Strangers and Pilgrims, Travellers and
Sojourners, Leiden and the Foundations of Plymouth Plantation
(2009)....................................................................................................................4
Gregg A. Beyer, Reforming Affirmative Asylum Processing in the
United States: Challenges and Opportunities,
9 Am. U. Int’l L. Rev..........................................................................................12
Maggie Black, The Children and the Nations: The Story of Unicef
(1986)....................................................................................................................7
Carl J. Bon Tempo, Americans at the Gate: The United States and
Refugees During the Cold War 70-73 (2008).......................................................8
William Bradford, Of Plymouth Plantation (Harold Paget ed. 2006) .......................4
Richard Breitman & Alan M. Kraut, American Refugee Policy and
European Jewry, 1933-1945 (1988) .....................................................................6
Citizenship and Immigration Services Ombudsman, Annual Report
2018.....................................................................................................................26
Doctors Without Borders, Forced to Flee Central America’s Northern
Triangle: A Neglected Humanitarian Crisis (2017)...........................................23
Evian, Voelkischer Beobachter (July 13, 1938) ........................................................6
Examining the Syrian Humanitarian Crisis From the Ground (Part II)
Before the Subcomm. on the Middle East and North Africa of the
House Comm. on Foreign Affairs, 114th Cong. (2017) .....................................16
vi

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TABLE OF AUTHORITIES
(CONTINUED)
Page(s)
Claire Felter & James McBride, How Does the U.S. Refugee System
Work?, Council on Foreign Relations (Feb. 6, 2017).........................................11
Joan Fitzpatrick, The International Dimension of U.S. Refugee Law,
15 Berkeley J. Int’l L. 1 (1997). .........................................................................10
David W. Haines, Safe Haven?: A History of Refugees in America
(2010)..................................................................................................................15
Philip A. Holman, Refugee Resettlement in the United States, in
Refugees in America in the 1990s: A Reference Handbook
(David W. Haines ed., 1996) ................................................................................5
Gil Loescher & John A. Scanlan, Calculated Kindness: Refugees and
America’s Half-Open Door 1945-Present (1986) ................................................7
Bryan L. McDonald, Food Power: The Rise and Fall of the Postwar
American Food System 143 (2017).......................................................................7
Timothy J. Meagher, The Columbia Guide to Irish American History
(2005)....................................................................................................................5
Migrant Women, May 4, 2016, United Nations University.....................................23
William A. Spray, et al., Fleeing the Famine, North America and Irish
Refugees (Margaret M. Mulrooney ed., 2003) .....................................................5
Clarence K. Streit, Germans Belittle Results, N.Y. Times, July 13,
1938.......................................................................................................................6
UNHCR, Global Trends: Forced Displacement in 2016 (June 19,
2017) ...................................................................................................................15
USCIS, Refugee Timeline ....................................................................8, 9, 11, 12, 13
USCIS, Credible Fear FAQ.....................................................................................21
USCIS, Guidance for Implementing Section 235(b)(2)(C) of the
Immigration and Nationality Act and the Migrant Protection
Protocols, at 3, Jan. 28, 2019 ........................................................................18, 19
vii

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TABLE OF AUTHORITIES
(CONTINUED)
Page(s)
U.S. Department of State, Mexico 2018 Human Rights Report (Mar.
13, 2019) .................................................................................................22, 23, 24
Tom K. Wong, The Politics of Immigration: Partisanship,
Demographic Change, and American National Identity (2017) ........................12

viii

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INTEREST OF AMICUS CURIAE1
Amicus curiae Local 1924 is a labor organization within the American
Federation of Government Employees that represents the interests of over 2,500
bargaining unit employees of the Department of Homeland Security’s (“DHS”)
United States Citizenship and Immigration Services (“USCIS”) located in the
National Capital Region and abroad, including USCIS Headquarters in
Washington, DC, the Potomac Service Center in Arlington, VA, the Asylum Office
in Arlington, VA, and the worldwide Refugee Officer Corps and USCIS districts
based in Mexico, Italy, and Thailand. Local 1924’s constituents include 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 for implementing a new DHS policy called the Migrant Protection
Protocols (the “MPP”). The MPP requires individuals entering the United States
from Mexico illegally or without proper documentation to be returned to Mexico
for the duration of their immigration proceeding.
Local 1924 has a special interest in this case because, as the collective
bargaining unit of federal government employees who are at the forefront of
1

Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(e), amicus curiae
certifies that this brief was not written in whole or in part by counsel for any party,
and no person or entity other than amicus curiae and its counsel has made a
monetary contribution to the preparation and submission of this brief. All parties
have consented to the filing of this amicus brief. See Fed. R. App. 29(a)(2).

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interviewing and adjudicating the claims of individuals seeking asylum in the
United States, Local 1924’s members have first-hand knowledge as to whether the
MPP assures the United States’ compliance with international and domestic laws
concerning due process for asylum seekers and the protection of refugees and
whether the MPP is necessary to deal with the flow of migrants through our
Nation’s Southern Border.
This brief relies solely upon information that is publicly available, and it
does not rely on any information that is confidential, law enforcement sensitive, or
classified. It represents only the views of Local 1924 on behalf of the bargaining
unit, and does not represent the views of USCIS or USCIS employees in their
official capacities.
SUMMARY OF ARGUMENT
The MPP, promulgated by the Trump Administration in January 2019,
fundamentally changed our Nation’s procedures for the processing of asylum
applicants who enter the United States through our Nation’s Southern Border with
Mexico. Prior to the MPP, our country’s processing of asylum applicants ensured
that people fleeing persecution would not be—pending adjudication of their
asylum application or anytime thereafter—returned to a territory where they may
face persecution or threat of torture. That process was consistent with our
country’s longstanding tradition of providing safe haven to the persecuted, and was
2

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also compelled by our international treaty obligations and domestic law
implementing those obligations.
The MPP upended that process in favor of a new one purportedly designed
to address the challenges faced by our immigration system as a result of migrants
from Guatemala, Honduras, and El Salvador (referred to as the “Northern
Triangle”) entering the United States through our Southern Border. Under the new
process, asylum applicants entering the United States through the Southern Border,
with certain exceptions, are forced to return to Mexico where they are required to
remain pending adjudication of their asylum applications. In the course of waiting
for a determination of their asylum applications, many will face persecution
because of their race, religion, nationality, political opinion, or membership in a
particular social group. By forcing a vulnerable population to return to a hostile
territory where they are likely to face persecution, the MPP abandons our tradition
of providing a safe haven to the persecuted and violates our international and
domestic legal obligations.
Moreover, the MPP is entirely unnecessary, as our immigration system has
the foundation and agility necessary to deal with the flow of migrants through our
Southern Border. The system has been tested time and again, and it is fully
capable—with additional resources where appropriate—of efficiently processing
asylum claims by those with valid claims while removing those that are not entitled
3

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to protection after they undergo the process designed to ensure that they will not be
returned to a place where they will be persecuted. The MPP, contrary to the
Administration’s claim, does nothing to streamline the process, but instead
increases the burdens on our immigration courts and makes the system more
inefficient.
Accordingly, for the reasons set forth herein and in the Plaintiffs-Appellees’
submission, amicus curiae urge the Court to affirm the district court’s award of a
preliminary injunction enjoining Defendants from administering the MPP.
ARGUMENT
I.

THE MPP IS CONTRARY TO AMERICA’S LONGSTANDING
TRADITION OF PROVIDING SAFE HAVEN TO PEOPLE
FLEEING PERSECUTION
A.

America Has Been a Global Leader in Providing Protection
to the Persecuted and Has Developed a World-Class System
to Do So

America has provided a safe haven to the persecuted since even before its
founding, with the country’s roots sprouting from the footsteps of Pilgrims onto a
Massachusetts shore in November 1620.2 Fleeing religious persecution in their
native England and exiled to Holland, the Pilgrims journeyed across the Atlantic to
make their permanent home in what would become the United States.3 Their
2
3

See William Bradford, Of Plymouth Plantation (Harold Paget ed. 2006).

Jeremy Dupertuis Bangs, Strangers and Pilgrims, Travellers and Sojourners,
Leiden and the Foundations of Plymouth Plantation, vii, 7, 605, 614, 630 (2009).
4

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arrival etched into the Nation’s identity the promise that it would serve as a safe
haven for the persecuted.
The mid-19th century brought millions more refugees to America’s
doorstep.4 Between 1847 and 1851, an estimated two million Irish fled starvation
and disease wrought by the Great Famine, with 840,000 passing through the port of
New York and many more arriving by way of Canada.5 During the same period,
German political refugees fleeing reactionary reprisals in the wake of the 1848
Revolution—known as the “Forty-Eighters”—came to America seeking freedom
of thought and expression.6
Our Nation’s treatment of refugees, however, is not unblemished, as
demonstrated by United States policy towards Jewish refugees during World War
4

While U.S. policy during the 19th century did not draw a distinction between
immigrants and refugees, historians have characterized groups whose emigration
during this period was motivated by persecution, oppression, or natural disaster as
refugees. See Philip A. Holman, Refugee Resettlement in the United States, in
Refugees in America in the 1990s: A Reference Handbook 3, 5 (David W. Haines
ed., 1996).
5

Timothy J. Meagher, The Columbia Guide to Irish American History 77 (2005).
See generally William A. Spray, et al., Fleeing the Famine, North America and
Irish Refugees, 1845-1851 (Margaret M. Mulrooney ed., 2003). Many historians
refer to these Irish migrants as refugees because their plight had roots in British
colonial repression and conditions of serfdom. See, e.g., Meagher, at 66-71
(discussing various historians’ assignment of culpability for the famine’s
devastation to British colonial rule and noting “the paradox that Ireland exported
food while its people starved.”).
6

See generally Adolf Eduard Zucker, The Forty-Eighters: Political Refugees of the
German Revolution of 1848 (1967).
5

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II.7 Although the United States accepted approximately 250,000 refugees fleeing
Nazi persecution prior to the country’s entry into World War II, it refused to accept
more as Nazi Germany increased its atrocities.8 American indifference to refugees
fleeing German aggression is perhaps best reflected in the United States’ denial of
entry in 1939 to the St. Louis, an ocean liner carrying 907 German-Jewish refugees
stranded off the coast of Miami.9 The ship returned to Europe where many of its
occupants met their fate—254 would die in the Holocaust.10 Nazi Germany found
it “astounding” that countries that found it “incomprehensible why Germany did
not wish to preserve in its population an element like the Jews . . . seem in no way
particularly anxious to [welcome Jews] themselves, now that the opportunity
offers.”11
In many ways, our Nation’s refugee policy since the Second World War has
sought to rectify our humanitarian failures during the most devastating of
7

Richard Breitman & Alan M. Kraut, American Refugee Policy and European
Jewry, 1933-1945, 1-10 (1988).
8

Holman, supra note 4, at 5 (citing Congressional Research Service 1991:556).

9

The American Jewish Joint Distribution Committee, Minutes of the Meeting of
the Executive Committee (June 5, 1939), https://archives.jdc.org/wpcontent/uploads/2018/06/stlouis_minutesjune-5-1939.pdf.
10

Id.

11

Clarence K. Streit, Germans Belittle Results, N.Y. Times, July 13, 1938, at 12,
https://timesmachine.nytimes.com/timesmachine/1938/07/13/issue.html; see also
No One Wants to Have Them: Fruitless Debates at the Jew-Conference in Evian,
Voelkischer Beobachter, (July 13, 1938), http://www.jewishvirtuallibrary.org/
german-paper-ridicules-evian-conference.
6

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international conflicts. Immediately after the war, the United States played a
leading role in the formation and funding of international aid organizations such as
the United Nations International Children’s Emergency Fund and the World Food
Programme, both of which provide support for refugees and displaced persons.12
After the war’s end, in response to reports that Jewish survivors of the
Holocaust were kept in poor conditions in Allied-occupied Germany, President
Truman directed the issuance of 40,000 visas to resettle the survivors in the United
States.13 Congress also took action by enacting the Displaced Persons Act of
1948—the first major refugee legislation in American history14—that allowed for
the admission of 415,000 displaced persons by the end of 1952.15 The Displaced
Persons Act of 1948 expired in 1952, when Congress passed the Immigration and

12

See Maggie Black, The Children and the Nations: The Story of Unicef, 25-35
(1986); Bryan L. McDonald, Food Power: The Rise and Fall of the Postwar
American Food System 143 (2017).
13

See Gil Loescher & John A. Scanlan, Calculated Kindness: Refugees and
America’s Half-Open Door 1945-Present 4-6 (1986).
14

Congressional action surrounding refugees should not be confused with
legislation regarding other forms of immigration, which dates back to the
Immigration Act of 1875 and the Chinese Exclusion Act of 1882. These laws
limited entry of Chinese nationals into the United States. See Chinese Exclusion
Act, ch. 126, 22 Stat. 58 (1882); Immigration Act (Page Law) of 1875, ch. 141, 18
Stat. 477.
15

Displaced Persons Act of 1948, ch. 647, Pub. L. No. 80-774, 62 Stat. 1009;
Holman, supra note 3, at 5.
7

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Nationality Act (“INA”), placing immigration and nationality laws under the same
statute for the first time.16
American compassion toward refugees following the Second World War
was not limited to Holocaust survivors. In 1953, Congress enacted the Refugee
Relief Act of 1953, which, along with its amendments, authorized the admission of
214,000 refugees, including escapees from Communist-dominated countries.17 In
1956, the United States permitted entry of over 30,000 refugees fleeing persecution
in Hungary.18 Soon after, the Refugee-Escapee Act of 1957 allowed for the
resettlement of “refugee-escapees,” defined as persons fleeing persecution in
Communist or Middle Eastern countries.19
In the following years, the United States continued to welcome millions of
refugees from other parts of the world. In 1958, Congress passed the Azores
Refugee Act which authorized 2,000 special non-quota immigrant visas for victims
of the earthquakes and volcanic eruptions that struck the Island of Fayal in 1957.20
16

See USCIS, Refugee Timeline, https://www.uscis.gov/history-andgenealogy/our-history/refugee-timeline.
17

Refugee Relief Act of 1953, Pub. L. No. 83-203, 67 Stat. 400; see Holman,
supra note 5, at 5.
18

Carl J. Bon Tempo, Americans at the Gate: The United States and Refugees
During the Cold War 70-73 (2008).
19

Refugee-Escapee Act of 1957, Pub. L. No. 85-316, 71 Stat. 639; see Holman,
supra note 4, at 6.
20

Bon Tempo, supra note 18, at 107-15.
8

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After the Cuban Revolution in 1959, the United States began admitting more than
58,000 Cubans fleeing persecution under the attorney general’s parole authority.21
And in 1965, President Lyndon B. Johnson opened the country to all Cubans
seeking refuge from Fidel Castro’s communist regime.22 In order to more safely
and efficiently bring Cubans to the United States, the federal government created
an airlift program which brought more than 250,000 Cuban refugees to the United
States.23 And around the same time, our Nation also welcomed thousands fleeing
persecution from the Soviet Union, Eastern Europe, and Afghanistan.24
The United States also began to undertake international treaty obligations
related to refugee resettlement.25 In 1968, the United States ratified the 1967
Protocol Relating to the Status of Refugees, a treaty drafted by the United Nations
High Commissioner for Refugees (“UNHCR”).26 The 1967 Protocol removed the
geographic and temporal limits to refugee resettlement contained in an earlier
21

See USCIS, Refugee Timeline, https://www.uscis.gov/history-and-genealogy
/our-history/refugee-timeline.
22

Id.

23

Id. Later, in 1980, after the Castro regime announced that all Cubans wishing to
go to the U.S. were free to board boats at the Port of Mariel, the United States
allowed around 125,000 Cubans to enter the country under the Attorney General’s
parole authority. Id.
24

Mark Gibney, Global Refugee Crisis 91-92 (2d ed. 2010).

25

See id. at 8-13.

26

United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606
U.N.T.S. 267.
9

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treaty, the 1951 Convention Relating to the Status of Refugees, which limited
resettlement to European refugees displaced prior to 1951.27 By ratifying the 1967
Protocol, the United States also became bound by all of the substantive provisions
of the 1951 Convention,28 and also agreed not to, among other things: (i)
discriminate against refugees on the basis of their race, religion, or nationality; (ii)
penalize refugees for their illegal entry or stay in the country; or (iii) engage in
“refoulement”—i.e., to “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
group or political opinion.” 29
To uphold the principle of asylum in the 1951 Convention and the 1967
Protocol, and to ensure that no refugees were returned to conditions of persecution,
in 1972 the Immigration and Naturalization Service (the “INS”)—an agency that
was created in 1933—began granting asylum to foreign nationals already in the
United States and used existing procedures, such as parole, stays of deportation,

27

United Nations Convention Relating to the Status of Refugees, July 28, 1951,
189 U.N.T.S. 137.
28

Joan Fitzpatrick, The International Dimension of U.S. Refugee Law, 15 Berkeley
J. Int’l L. 1, 1 n.1 (1997).
29

Id. at 2.
10

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and adjustment of status, to allow foreign nationals who feared persecution in their
homeland to remain in the country.30
The end of the Vietnam War created a large flow of refugees, with about
300,000 Southeast Asians entering the United States through the attorney general’s
parole authority between 1975 and 1980. The Indochinese Immigration and
Refugee Act of 1975 funded their transportation and resettlement, and, in 1977,
Congress enacted a law allowing Southeast Asian refugees who had entered the
United States through the attorney general’s parole authority the opportunity to
become lawful permanent residents.31 In 1977, the INS also created a special
Office of Refugee and Parole to address global refugee crises and implement
refugee policies.32
In 1980, Congress enacted the Refugee Act, which sought to convert the
existing ad hoc approach to refugee resettlement to a more permanent and
standardized system for identifying, vetting, and resettling refugees.33 The

30

See USCIS, Refugee Timeline, https://www.uscis.gov/history-andgenealogy/our-history/refugee-timeline.
31

Id.

32

Id.

33

Claire Felter & James McBride, How Does the U.S. Refugee System Work?,
Council on Foreign Relations (Feb. 6, 2017), https://www.cfr.org/backgrounder/
how-does-us-refugee-system-work.
11

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Refugee Act provided the first statutory basis for asylum in the United States34 and
aligned United States refugee law with our country’s international treaty
obligations, namely the 1951 Convention and the 1967 Protocol.35 It did so, for
example, by adopting the definition of “refugee” contained in Article 1 of the
Convention36 and—consistent with Article 33 of the Convention—prohibiting the
removal of an alien to any country where “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.”37
In 1990, the INS took action by promulgating a rule that mandated the
establishment of a corps of professional asylum officers trained in international law
and access to a center containing information on human rights.38 The designers of
34

Tom K. Wong, The Politics of Immigration: Partisanship, Demographic
Change, and American National Identity 52-53 (2017).
35

See I.N.S. v. Stevic, 467 U.S. 407, 425-26 (1984).

36

Compare United Nations Convention Relating to the Status of Refugees, supra
note 27, at art. 1A(2) with 8 U.S.C. § 1101(a)(42)(A).
37

Compare United Nations Convention Relating to the Status of Refugees, supra
note 27, at art. 33(1) with 8 U.S.C. § 1231(b)(3)(A). In 1990, the Lautenberg
Amendment established a reduced evidentiary burden for applications for refugee
status from certain categories of people, including Jews and some Christian
minorities from the Former Soviet Union, as well as some individuals from Laos,
Cambodia, and Vietnam. In 2004, the Specter Amendment added certain Iranian
religious minorities to this list. See USCIS, Refugee Timeline,
https://www.uscis.gov/history-and-genealogy/our-history/refugee-timeline.
38

Gregg A. Beyer, Reforming Affirmative Asylum Processing in the United States:
Challenges and Opportunities, 9 Am. U. Int’l L. Rev. & Pol’y 43 (1994).
12

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the 1990 asylum rule aimed to achieve twin goals of compassion (through the
prompt approval of meritorious cases) and control (by discouraging spurious or
abusive claims).39
In 1994, the United States ratified the United Nations Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (the
“CAT”), which it had signed in 1988.40 Article 3(1) of the CAT provides: “No
State Party shall expel, return (‘refouler’) or extradite a person to another State
where there are substantial grounds for believing that he would be in danger of
being subjected to torture.”41
Following the terrorist attacks on September 11, 2001 and the creation of
DHS, USCIS became the primary agency to oversee refugee and asylum affairs, in
cooperation with other agencies. As to refugee affairs, in 2005, USCIS formed the
Refugee Corps, which is composed of specially-trained refugee officers who travel
around the world to interview refugee applicants seeking resettlement in the United
States.42

39

Id. at 44.

40

See Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, at 20
(1988).
41

Id.

42

See USCIS, Refugee Timeline, https://www.uscis.gov/history-andgenealogy/our-history/refugee-timeline.
13

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And as to asylum affairs, USCIS set up an Asylum Division to focus on
three main areas. First, the Asylum Division is tasked with administering the
“affirmative asylum” process, which involves an asylum application by an
individual who is not in removal proceedings and who files Form I-589 with
USCIS.43 Second, the Asylum Division determines whether individuals subject to
expedited removal who indicate an intention to apply for asylum or a fear of return
to their home country have a “credible fear” of persecution or torture.44
Individuals found to have a “credible fear” of persecution or torture in the
expedited removal process are placed in formal removal proceedings and may
apply for asylum or withholding of removal as a defense to removal before an
immigration judge, or pursue other forms of relief or protection from removal.
Third, the Asylum Division evaluates whether an individual ordered removed by
an immigration judge and who expresses a fear of return to the country to which he
or she has been ordered removed has a “reasonable fear” of persecution or
torture.45 Individuals found to have a “reasonable fear” of persecution or torture
are referred to an immigration judge for withholding-only proceedings in which
they may seek withholding of removal under INA § 241(b)(3), or withholding or

43

INA § 208; see also 8 CFR § 208.

44

INA § 235; see also 8 C.F.R. § 235.3 and 8 C.F.R. § 208.30.

45

See 8 C.F.R. §§ 238.1, 241.8, 208.31.
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deferral of removal under regulations implementing United states’ obligations
under the CAT by filing Form I-589.
Our country’s process for dealing with displaced people is highly respected
internationally. It has been highly adaptable, and it has effectively offered
protection to qualified asylum seekers while also ensuring the enforcement of
applicable laws and addressing national security concerns by working to mitigate
fraud and abuse by bad actors. The agility and success of the system is perhaps
best reflected in the sheer number of refugees absorbed into the United States since
the war. In total, since the Second World War, the United States has granted entry
to nearly five million refugees, representing well over 70 nationalities.46
B.

The World Is Experiencing another Wave of Displacement

Today, the world is experiencing yet another surge in displacement wrought
by conflict, civil war, famine, and violence.47 The displacement spans the world,
from the Middle East to Africa to Asia to Central America—a region that has a
legacy of violence and fragile institutions resulting in part from the civil wars of
the 1980s.48 Now, perhaps more than ever, America needs to continue its
longstanding tradition of offering protection, freedom, and opportunity to the
46

David W. Haines, Safe Haven?: A History of Refugees in America 4 (2010).

47

See UNHCR, Global Trends: Forced Displacement in 2016, at 5 (June 19,
2017), http://www.unhcr.org/5943e8a34.
48

Id. at 2-3, 7.
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vulnerable and persecuted.49 Members of the amicus curiae signed up to be
asylum and refugee officers to help our Nation fulfill that commitment. They did
not sign up to administer the MPP, a policy that is contrary to our country’s longstanding tradition because, as detailed below, it does not adequately protect against
the forced return to Mexico of those who fear persecution in that country.
II.

THE MPP VIOLATES OUR NATION’S OBLIGATIONS TO
NOT RETURN ASYLUM SEEKERS TO WHERE THEY MAY
FACE PERSECUTION
The non-refoulement requirement of the 1967 Protocol and the CAT is a

bedrock principle of international law governing asylum that is also codified in
domestic law.50 The administration of the MPP results in a violation of the nonrefoulement obligation because, under the MPP, individuals whose lives and
freedoms would be threatened on the basis of their race, religion, nationality,
political opinion, or membership of a particular social group in Mexico, or who
would be in danger of being subjected to torture in Mexico, will be returned to
Mexico. As a result, the MPP places amicus curiae’s members at risk of
participation in the widespread violation of international treaty and domestic legal
49

See Examining the Syrian Humanitarian Crisis From the Ground (Part II)
Before the Subcomm. on the Middle East and North Africa of the House Comm. on
Foreign Affairs, 114th Cong. 114-115 (2017) (written testimony of Leon
Rodriguez, Director, U.S. Citizenship and Immigration Servs., Dep’t of Homeland
Security), http://docs.house.gov/meetings/.
50

See 8 U.S.C. § 1231(b)(3); see also I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 427
(1999).
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obligations—something that they did not sign up to do when they decided to
become asylum and refugee officers for the United States government.
A.

The MPP Provides Inadequate Safeguards against the
Return of Those Who Fear Persecution in Mexico to that
Country

The MPP results in violation of our Nation’s non-refoulement obligation in
two fundamental ways. First, under the MPP, “immigration officers do not ask
applicants being returned to Mexico whether they fear persecution or torture in that
country.”51 “Immigration officers make inquiries into the risk of refoulement only
if an applicant affirmatively states that he or she fears being returned to Mexico.”52
Thus, under the MPP, the immigration officer makes an inquiry into the risk of
refoulement only if an asylum seeker spontaneously mentions a fear of persecution
in Mexico—something that most asylum seekers to whom the MPP is applicable
would not volunteer when being apprehended at the border. Accordingly, with
respect to those individuals who do not express a fear of being returned to Mexico,
the MPP “virtually guarantee[s] . . . [a] violation of the United States’ nonrefoulement obligations.”53 The likelihood of persecution in Mexico is not remote
because, as demonstrated below, many of the asylum seekers forced to return to
51

Innovation Law Lab v. McAleenan, 924 F.3d 503, 511 (9th Cir. 2019) (Watford,
J. concurring).
52

Id.

53

Id.
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Mexico under the MPP belong to groups that face persecution in Mexico (as well
as perhaps in their home countries).54
Second, the MPP directs that individuals who, unprompted, express a fear of
persecution or torture in Mexico be referred for an interview before an asylum
officer—but the interview process also virtually guarantees a violation of the nonrefoulement obligation.55 “The purpose of the interview is to elicit all relevant and
useful information bearing on whether the alien would more likely than not face
persecution on account of a protected ground, or torture, if the alien is returned to
Mexico pending the conclusion of the alien’s . . . immigration proceedings.”56
However, unlike other immigration contexts where the “more likely than not”
standard is applied, the MPP interview process does not provide the concomitant
protections that are necessary to meet the high evidentiary threshold.
Specifically, the “more likely than not” standard required by the MPP has
traditionally been reserved for use in full-scale removal proceedings administrated
by immigration judges, not summary removal processes where asylum officers
have applied lower standards—the “credible fear” standard in the expedited
54

Id.

55

See USCIS, Guidance for Implementing Section 235(b)(2)(C) of the
Immigration and Nationality Act and the Migrant Protection Protocols, at 3, Jan.
28, 2019, https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2019/
2019-01-28-Guidance-for-Implementing-Section-35-b-2-C-INA.pdf.
56

Id. (emphasis added).
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removal process or the “reasonable fear” standard applied to determine whether a
person has a “well-founded fear” of persecution in removal and affirmative asylum
proceedings.57 In full-scale removal proceedings, asylum seekers are provided a
whole host of protections such as a full evidentiary hearing, notice of rights, access
to counsel, time to prepare, and a right to administrative and judicial review.58 The
affirmative asylum process includes additional robust procedural protections.59
The MPP, however, provides none of these safeguards. Under the MPP, the
asylum officer’s assessment can be performed “via teleconference, or
telephonically,” and the asylum seeker is not “provide[d] access to counsel during
the assessment.”60 Nor is the asylum officer’s determination reviewable by an
immigration judge.61 The lack of the right to prepare with counsel in connection
with an MPP interview is especially problematic because, at the time of the
interviews, many asylum seekers do not know whether they may face persecution
in Mexico since they were only passersby through Mexico en route to the United
57

See 8 C.F.R. §§ 208.13(b)(1), 208.16; see also Bartolme v. Sessions, 904 F.3d
803, 809 (9th Cir. 2018).
58

See 8 U.S.C. §§ 1362, 1229a(b)(4)(A), (B); 8 C.F.R. § 1240.3; see also
Colemenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000).
59

See 8 U.S.C. §§ 208.9, 208.14.

60

See USCIS, Guidance for Implementing Section 235(b)(2)(C) of the
Immigration and Nationality Act and the Migrant Protection Protocols, at 3, Jan.
28, 2019, https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2019/
2019-01-28-Guidance-for-Implementing-Section-35-b-2-C-INA.pdf.
61

Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110, 1116 (N.D. Cal. 2019).
19

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States and also because they would “be unaware that their fear of persecution in
Mexico is a relevant factor in determining whether they may lawfully be returned
to Mexico.”62
The standards of proof differ across stages for a reason. The standard is
lower in the “credible fear” and “reasonable fear” interviews conducted before
asylum officers because those interviews are preliminary assessments that
efficiently dispose of facially unsupportable claims for relief under asylum law, the
withholding procedures, or the CAT. Asylum seekers who show “credible” or
“reasonable” fear in these interviews are then given the chance to make their case
to an immigration judge in a full evidentiary hearing where the “more likely than
not” standard is applied and where the asylum seekers is provided the safeguards
described above. Screening interviews of the type conducted under the MPP or in
the “credible fear” and “reasonable fear” contexts are not appropriate fora for
applying the “more likely than not” standard because these interviews do not allow
asylum seekers a full and fair opportunity to make out a fully developed case
regarding their risk of persecution, nor do they provide asylum officers an adequate
basis to make a reliable and accurate determination of an individual’s risk of
persecution in a given country.

62

Innovation Law Lab v. McAleenan, 924 F.3d 503, 511 (9th Cir. 2019) (Watford,
J. concurring).
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Moreover, the MPP fails to provide even the basic procedural protections
available to asylum applicants subject to “credible fear” and “reasonable fear”
interviews. Upon referral to a “credible fear” interview, asylum seekers are
provided Form M-444, titled “Information about Credible Fear Interview,” which
describes the purpose of the interview and informs the applicant of: (i) the right to
consult with other persons (including counsel); (ii) the right to request review of
the asylum officer’s determination by an immigration judge; (iii) the consequences
of a failure to establish “credible fear”; and (iv) the right to rest 48 hours prior to
the interview.63 Before a “credible fear” assessment can proceed, the asylum
officer is required to confirm that the asylum seeker has received Form M-444 and
to verify that the asylum seeker understands the credible fear determination
process.64 Individuals referred for a “reasonable fear” interview are afforded
similar protections.65 These protections are designed to ensure that the United
States does not violate its non-refoulement obligation.
The MPP process, however, does not provide any of the safeguards provided
to asylum applicants subject to “credible fear” and “reasonable fear” interviews.

63

8 C.F.R. § 235.3(b)(4)(i); Credible Fear FAQ, USCIS.gov,
https://www.uscis.gov/faq-page/credible-fear-faq#t12831n40242 (last accessed
June 25, 2019)
64

8 C.F.R. § 208.30.

65

8 C.F.R. § 1208.31.
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Yet, it imposes a significantly higher evidentiary standard previously reserved for a
full-scale hearing before an immigration judge. This mismatch between the high
evidentiary standard and the inadequate procedures all but ensures violation of the
non-refoulement obligation.
B.

Mexico Is Not Safe for Most Individuals Seeking Asylum
from Persecution in Central America

Mexico is simply not safe for Central American asylum seekers. As the U.S.
Department of State recently noted, “impunity for human rights abuses remain[s] a
problem” in Mexico.66 In 2018, “Central American gang presence spread farther
into [Mexico] and threatened migrants who had fled the same gangs in their home
countries.”67 There were also reports of kidnapping migrants for ransom or
conscription into criminal activity.68 And despite professing a commitment to
protecting the rights of persons seeking asylum, the Mexican government has
proven unable to provide this protection. According to an NGO report relied upon
by the State Department, 5,824 crimes were reported against migrants in just 5

66

U.S. Department of State, Mexico 2018 Human Rights Report, at 1 (Mar. 13,
2019), available at https://www.state.gov/wp-content/uploads/2019/03/MEXICO2018.pdf.
67

Id. at 19.

68

Id. at 20.
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Mexican states, and only 1% of the reported crimes were resolved by the Mexican
authorities.69
The risk of persecution in Mexico is even higher for the most vulnerable
segments of asylum seekers. Many asylum seekers are ethnic minorities from
indigenous cultures. Members of those cultures face persecution in Mexico that is
similar to the persecution they face in their home countries. Indeed, the National
Human Right Commission recently recognized that indigenous women are among
the most vulnerable groups in Mexican society.70 Migrant women at large are at
particular risk of sexual assault. In one study, nearly one-third of women fleeing
the Northern Triangle have experienced sexual abuse during their journey through
Mexico.71 “Given the frequency of sexual and gender-based violence, many
migrant women take contraceptives before migrating to avoid the risk of pregnancy
from rape by armed criminal groups, locals, or their smugglers.”72
Sexual minorities also face extraordinarily high rates of persecution and
violence in Mexico. According to the UNHCR, two-thirds of LGBTI migrants
69

Id. at 20.

70

Id. at 28-29.

71

Doctors Without Borders, Forced to Flee Central America’s Northern Triangle:
A Neglected Humanitarian Crisis 5 (2017).
72

Anjali Fleury, Fleeing to Mexico for Safety: The Perilous Journey for Migrant
Women, May 4, 2016, United Nations University, https://unu.edu/publications/
articles/fleeing-to-mexico-for-safety-the-perilous-journey-for-migrantwomen.html.
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from El Salvador, Guatemala, and Honduras who applied for asylum reported
having been victims of sexual violence in Mexico.73
If migrants entering the United States through our Southern Border are given
the protections that our system typically affords to those fleeing persecution, most
would be able to establish that they are likely to face persecution in Mexico if
forced to stay there. However, they are not able to do so under the MPP because it
does not afford them any of the safeguards that our system provides to the
persecuted in other contexts.
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.

73

U.S. Department of State, Mexico 2018 Human Rights Report, at 19-20 (Mar.
13, 2019), available at https://www.state.gov/wpcontent/uploads/2019/03/MEXICO-2018.pdf
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III.

THE MPP IS NOT DESIGNED TO REDRESS THE
CHALLENGES FACING OUR IMMIGRATION SYSTEM
The pre-MPP removal procedures struck an efficient balance between

vetting asylum claims and expeditiously removing individuals without a viable
asylum claim. The system was not, as the Administration has claimed,
fundamentally broken. With adequate resources (e.g., more immigration judges
and asylum officers), it is capable of dealing with the flow of migrants seeking to
enter the United States through our Southern Border. Rather than redressing the
challenges faced by our immigration system, however, the MPP adds to them. It
does so in two ways.
First, the MPP actually increases the number of asylum seekers who will be
given a chance to appear before an immigration judge. The expedited removal
procedure set forth in 8 U.S.C. § 1225(b)(1) adequately vetted asylum seekers with
viable asylum claims and allowed expeditious deportation of those who lacked
such a claim. Specifically, under the expedited removal procedure, individuals
who did not present a “credible fear” were expeditiously removed from the country
while those who could meet the “credible fear” threshold were allowed to proceed
to a formal hearing before an immigration judge. This process promoted efficiency
and judicial economy by screening out non-viable asylum claims early in the
process, while upholding our Nation’s non-refoulement obligations by ensuring

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that persons with credible asylum claims are afforded an opportunity to articulate
and support those claims through a robust judicial process.
Under the MPP, however, all asylum seekers who are subject to the MPP—
regardless of whether they have a “credible fear” of persecution—are processed
under the standard removal process set forth in 8 U.S.C. § 1299a that takes place
before immigration judges. In other words, individuals who would never see an
immigration judge under the expedited removal procedure are now added to the
backlog of cases in line for a full hearing. This adds to the already overwhelming
burden on our country’s immigration judges, and further delays hearings for
asylum seekers with meritorious claims.
Second, the MPP diverts the limited resources of asylum officers to carry out
a task that they did not perform before—the administration of the MPP. As noted,
asylum officers are tasked with administering the “affirmative asylum” process and
conducting “credible fear” and “reasonable fear” interviews for asylum seekers
from around the world. These processes already faced a backlog before the MPP.74
The MPP exacerbates the backlog because asylum officers now have to administer
the MPP. As a result, there are likely to be delays in the removal of individuals
who are unlikely to pass the “credible fear” and “reasonable fear” screenings and
74

Office of Citizenship and Immigration Services Ombudsman, Annual Report
2018, at 41-42, available at https://www.dhs.gov/sites/default/files/publications/
DHS%20Annual%20Report%202018.pdf.
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in the processing of claims by those with legitimate claims to asylum who must
now wait even longer periods of time for adjudication of their asylum applications.
These inefficiencies underscore that, rather than address the challenges faced
by our immigration system due to the flow of migrants across our Southern Border,
the MPP exacerbates the problem faced by the system. And in doing so, it violates
our Nation’s longstanding tradition and international treaty and domestic
obligation not to return those fleeing persecution to a territory where they will be
persecuted.
CONCLUSION
For the foregoing reasons, amicus curiae respectfully urge the Court to
affirm the preliminary injunction granted by the district court.
Respectfully submitted,

Dated: June 26, 2019

PATTERSON BELKNAP WEBB &
TYLER LLP
By: /s/Adeel A. Mangi
Adeel A. Mangi
Muhammad U. Faridi
Elizabeth Riordan Hurley
W. Robert Fair
A. Robert Quirk
1133 Avenue of the Americas
New York, NY 10036-6710
Telephone: 212.336.2000
Facsimile: 212.336.2222
Attorneys for Amicus Curiae Local 1924
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Certificate of Compliance With Type-Volume Limit, Typeface Requirements,
and Type-Style Requirements
I certify that:
1.

This document complies with the type-volume limit of
Fed. R. App. P. 29(a)(5), 32(a)(7)(B), and Circuit Rule
32-1 because, excluding the parts of the document
exempted by Fed. R. App. P. 32(f), this document
contains 5,989 words.

2.

This document complies with the typeface requirements
of Fed. R. App. P. 32(a)(5) and the type-style
requirements of Fed. R. App. P. 32(a)(6) because this
document has been prepared in a proportionally spaced
typeface using Microsoft Word 2010 in 14-point Times
New Roman font.

Dated: June 26, 2019

PATTERSON BELKNAP WEBB & TYLER
LLP

By: /s/ Adeel A. Mangi
Attorneys for Amicus Curiae Local 1924

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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on June 26, 2019. I certify that all participants in the
case are registered CM/ECF users and that service will be accomplished by the
appellate CM/ECF system.
Dated: June 26, 2019

PATTERSON BELKNAP WEBB & TYLER
LLP

By: /s/ Adeel A. Mangi
Attorneys for Amicus Curiae Local 1924