ANALYSIS: Migrant Protection Protocols Head to Supreme Court

The Supreme Court announced that it will hear oral arguments on a challenge to the Trump Administration’s Migrant Protection Protocols. Announced at the height of last year’s border surge, the Migrant Protection Protocols require inadmissible aliens who claim asylum to remain in Mexico until their asylum hearing occurs.

What the Migrant Protection Protocols are and why they exist:

• In response to the national security and humanitarian crisis that unfolded on the U.S. border with Mexico beginning in March 2018, DHS implemented the Migrant Protection Protocols (MPP) without going through the notice and comment rulemaking laid out in the Administrative Procedures Act (APA).
• The border surge was placing heavy strain on DHS resources, reducing the ability to protect against illegal border crossings and also negatively impacting CBP operations across their broad swatch of statutory responsibilities, including customs enforcement and narcotics interdiction.
• MPP required some aliens interdicted to remain in Mexico, as allowed for in the Immigration and Nationality Act Section 235(b)(2)(C), which provides that “in the case of an alien . . . who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the U.S.,” the Secretary of Homeland Security “may return the alien to that territory pending a proceeding under § 240” of the INA.”
• With certain exceptions, MPP applies to aliens arriving in the U.S. on land from Mexico (including those apprehended along the border) who are not clearly admissible and who are placed in removal proceedings under INA § 240.
• The goal is to both reduce the strain on the vital limited resources of DHS defending the border with Mexico and to eliminate the significant pull factor of illegal aliens who believe they can enter the United States illegally and subsequently be released to live and work indefinitely. This pull factor was a primary cause of the border crisis.

The Response of Courts

• The plaintiffs are: 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; and TAHIRIH JUSTICE CENTER.
• The government interestingly did not challenge standing for the plaintiffs. The Obama Administration had often argued that plaintiffs could not challenge DACA or DAPA for example. Here the courts found individuals had standing when they were forced to remain in Mexico and that organizations with a core mission of providing services to asylees were blocked by the policy from carrying out their purpose.
• A District Court in the Ninth Circuit issued a preliminary injunction on April 8, 2019 holding that the MPP was inconsistent with the INA and violated the APA notice and comment requirement.
• The Ninth Circuit both affirmed the lower court and granted an emergency stay request for the Trump Administration.
• The stay was granted in a per curiam (unsigned) opinion. This opinion states that the District Court was wrong that the MPP conflicted with the statute and also held that the APA did not apply to MPP because it was just a statement of policy.
• The Supreme Court granted certiorari to hear the case.

Questions

• Whether the Department of Homeland Security policy known as the Migrant Protection Protocols is a lawful implementation of the statutory authority conferred by 8 U.S.C. 1225(b)(2)(C).
• DHS should be on solid ground here with regards to statutory analysis. The greater concern will be below regarding how this may or may not conflict with non-refoulment and the procedural issue of implementation with respect to the APA.
• Whether MPP is consistent with any applicable and enforceable non-refoulement obligations.
• The major issue here will be whether Mexico itself is somewhere the largely Central American population can be housed. The United States cannot return asylum seekers (which most of this population are) to a place where they may be subject to persecution, under our non-refoulment obligations.
• Whether MPP is exempt from the Administrative Procedure Act requirement of notice-and-comment rulemaking.
• The Trump Admin has not been successful in many APA related disputes as courts have been quick to raise flags when the APA has been bypassed.
• Whether the district court’s universal preliminary injunction is impermissibly overbroad.
• Justice Thomas used a concurring opinion in the travel ban case to lament the abuse of universal preliminary injunctions. Subsequently, district courts and courts of appeals have had back and forth about the permissibility of one geographically limited district judge issuing nationwide injunctions.
• There was dispute here on this topic at the Ninth and other recent injunctions have been subject to narrowing or stays at the Ninth Circuit appeals level.
• on the U.S. border with Mexico beginning in March 2018, DHS implemented the Migrant Protection Protocols (MPP) without going through the notice and comment rulemaking laid out in the Administrative Procedures Act (APA).
• The border surge was placing heavy strain on DHS resources, reducing the ability to protect against illegal border crossings and also negatively impacting CBP operations across their broad swatch of statutory responsibilities, including customs enforcement and narcotics interdiction.
• MPP requiredallowed for some aliens interdicted to remain in Mexico, as allowed for in the Immigration and Nationality Act Section 235(b)(2)(C), which provides that “in the case of an alien . . . who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the U.S.,” the Secretary of Homeland Security “may return the alien to that territory pending a proceeding under § 240” of the INA.”
• With certain exceptions, MPP applies to aliens arriving in the U.S. on land from Mexico (including those apprehended along the border) who are not clearly admissible and who are placed in removal proceedings under INA § 240.
• The goal is to both reduce the strain on the vital limited resources of DHS defending the border with Mexico and to eliminate the significant pull factor of illegal aliens whothat believe they can enter the United States illegally and subsequently be released to live and work indefinitely. This pull factor was a primary cause of the border crisis.

The Response of Courts

• The plaintiffs are: 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; and TAHIRIH JUSTICE CENTER.
• The government interestingly did not challenge standing for the plaintiffs. The Obama Administration had often argued that plaintiffs could not challenge DACA or DAPA for example. Here the courts found individuals had standing when they were forced to remain in Mexico and that organizations with a core mission of providing services to asylees were blocked by the policy from carrying out their purpose.
• A District Court in the Ninth Circuit issued a preliminary injunction on April 8, 2019 holding that the MPP was inconsistent with the INA and violated the APA notice and comment requirement.
• The Ninth Circuit both affirmed the lower court and granted an emergency stay request for the Trump Administration.
• The stay was granted in a per curiam (unsigned) opinion. This opinion states that the District Court was wrong that the MPP conflicted with the statute and also held that the APA did not apply to MPP because it was just a statement of policy.
• The Supreme Court granted certiorari to hear the case.

Questions

• Whether the Department of Homeland Security policy known as the Migrant Protection Protocols is a lawful implementation of the statutory authority conferred by 8 U.S.C. 1225(b)(2)(C).
• DHS should be on solid ground here with regards to statutory analysis. The greater concern will be below regarding how this may or may not conflict with non-refoulment and the procedural issue of implementation with respect to the APA.
• Whether MPP is consistent with any applicable and enforceable non-refoulement obligations.
• The major issue here will be whether Mexico itself is somewhere the largely Central American population can be housed. The United States cannot return asylum seekers (which most of this population are) to a place where they may be subject to persecution, under our non-refoulment obligations.
• Whether MPP is exempt from the Administrative Procedure Act requirement of notice-and-comment rulemaking.
• The Trump Admin has not been successful in many APA related disputes as courts have been quick to raise flags when the APA has been bypassed.
• Whether the district court’s universal preliminary injunction is impermissibly overbroad.
• Justice Thomas used a concurring opinion in the travel ban case to lament the abuse of universal preliminary injunctions. Subsequently, district courts and courts of appeals have had back and forth about the permissibility of one geographically limited district judge issuing nationwide injunctions.
• There was dispute here on this topic at the Ninth and other recent injunctions have been subject to narrowing or stays at the Ninth Circuit appeals level.