Ninth Circuit Hands Trump a Win on ‘Return to Mexico’

I reported last month that the Court of Appeals for the Ninth Circuit had “Temporarily Allow[ed] DHS’s ‘Remain in Mexico’ Plan to Proceed”. In an opinion this week the circuit court removed the “temporary” portion of that earlier decision, granting the government’s motion to stay a district court’s order enjoining the Department of Homeland Security (DHS) from continuing to implement or expand that plan on a nationwide basis, pending appeal. While this is a win for the Trump administration, there are some significant legal considerations that were overlooked by that three-judge circuit panel.

{snip}

MPP [Migrant Protection Protocols, aka “Remain in Mexico”] was enacted in accordance with sections 235(c)(2)(A) and (C) of the Immigration and Nationality Act (INA). The latter section of the INA allows DHS to return an alien deemed inadmissible back across the border pending removal proceedings to the country they sought admission from, generally Mexico.

As the DHS policy-guidance memorandum for MPP explained, the government of Mexico stated on December 20, 2018, that it would agree to allow the “temporary entrance … for humanitarian reasons” of third-country nationals (that is, nationals of any country other than Mexico or the United States) “who entered … at a port of entry or who were detained between ports of entry” and placed into removal proceedings in the United States. The Mexican government promised that such third-country nationals “will be entitled to equal treatment with no discrimination whatsoever and due respect will be paid to their human rights. They will also have the opportunity to apply for a work permit for paid employment, which will allow them to meet their basic needs.” This latter determination is crucial to the circuit court’s decision.

The policy-guidance memorandum also made clear that a third-country national should not be “involuntarily returned” to Mexico “if the alien would more likely than not be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion.” This is equivalent to the burden of proof that applies to applications for withholding of removal under section 241(b)(3) of the INA.

{snip}

The circuit court held in its latest decision that the main question in the case was fairly basic: whether the expedited-removal process in section 235(b)(1) of the INA applies to every alien who is “eligible for expedited removal”, or whether it only applies to those aliens who were “actually processed for expedited removal”. The circuit court’s use of the word “eligible” shows how far through the looking glass the disaster at the border has actually gone. “Expedited removal” under section 235(b)(1) of the INA is actually supposed to be a process that makes it easier for DHS to remove aliens from the United States. As I have noted previously, that provision contains a “credible fear” exception for those who may have an asylum and/or Convention Against Torture (CAT) claim if they were to be returned to their home countries.

Unfortunately, the exception has swallowed the rule, to such an extent that commentators have referred to the “right” to enter the United States illegally to apply for asylum, a point George Washington University Law School professor Jonathan Turley rebutted in a July 12, 2018, opinion piece in The Hill. Respectfully, this is tantamount to saying that you are “eligible” to be convicted of a crime so that you can apply for parole without appearing before a judge, but there you have it.

{snip}

The court held that three other factors also supported its decision. The first major one was the fact that:

DHS is likely to suffer irreparable harm absent a stay because the preliminary injunction takes off the table one of the few congressionally authorized measures available to process the approximately 2,000 migrants who are currently arriving at the Nation’s southern border on a daily basis.

This is significant because it reflects a recognition by the nation’s largest circuit court of the disaster that is unfolding at the Southwest border. Most of the prior court decisions that have gone against the Trump administration, on the other hand, have simply maintained the status quo in the face of the administration’s efforts to tighten the immigration laws the United States.

{snip}

The other two factors supporting the order were the fact that any likelihood of harm faced by aliens who are returned to Mexico would be mitigated “somewhat” by the commitment of the Mexican government “to honor its international law obligations and to grant humanitarian status and work permits to individuals returned under the MPP”, as well as the fact that the public interest favors the “efficient administration of the immigration laws at the border”, again, a significant recognition by the Ninth Circuit.

One point that the court failed to consider (possibly because it was not argued by the government) is that many aliens (including almost every alien who has entered illegally) is removable on more than one ground. {snip}

{snip}

If the argument is made that expedited removal applies to any alien who seeks admission without proper documents or through fraud, regardless of whether they are also removable based on another ground, does that mean that a drug trafficker or terrorist who is also removable on those grounds is, as the court says, “eligible” for expedited removal? There are strong reasons to hope not.

{snip}

[Editor’s Note: This article includes complex legal arguments, and the necessary edits have sometimes removed key points. Interested readers should see the complete article.]