The United States Supreme Court's decision to take up Wolf v. Immigration Law Labs, the so-called Migrant Protection Protocols case is unsurprising. The Court on March 11 (Sotomayor objecting) had stayed the February 28 order upholding the preliminary injunction issued by District Judge Richard Seeborg (while limiting the order below to the confines of the Circuit) . The Ninth Circuit Court of Appeals a week earlier denied a stay of the District Court's order barring enforcement of the harsh Department of Homeland Security protocols.
The Circuit motion panel explained clearly the legal issues:
The MPP requires that all asylum seekers arriving at our southern border wait in Mexico while their asylum applications are adjudicated. The MPP clearly violates 8 U.S.C. §§ 1225(b) and 1231(b). Section 1225(b) divides aliens applying for asylum into two categories: Section (b)(1) applicants are those who have no documents or fraudulent documents. In fleeing persecution in their home countries, typical bona fide asylum seekers have either fraudulent documents or no documents at all. Section (b)(2) applicants are “all other” applicants. Section (b)(2) applicants include spies, terrorists, alien smugglers, and drug traffickers.Section 1225 specifies different procedures for the two categories of applicants. Section (b)(1) applicants who have expressed a “credible fear” of persecution have a right to remain in the United States while their applications are adjudicated. Section (b)(2) applicants do not have that right. Subsection (b)(2)(c) specifically authorizes the Attorney General to require § (b)(2) applicants to wait in Mexico while their asylum applications are adjudicated. There is no subsection in § (b)(1) comparable to subsection (b)(2)©. It is easy to understand why § (b)(1) and § (b)(2) applicants are treated differently. Section (b)(1) applicants pose little threat to the security of the United States. By contrast, § (b)(2) applicants potentially pose a severe threat. The MPP applies subsection (b)(2)(C) to § (b)(1) applicants. There is no legal basis for doing so.
The underlying factual issues include: is Mexico actually a safe haven for the families who crossed our border seeking recognition as refugees under the Asylum Act, 8 USC 1158 Or is their safety in fact in substantial jeopardy as they huddle in wait?
Prospects for affirming the injunction against MPP appear to be nil. The court will soon be joined by Amy Coney Barrett who has shown no inclination to challenge the Trump administration in any respect, and certainly not on behalf of immigrants. In June Barrett issued a forty page dissent from the ruling of Chief Judge Diane Wood and Judge Ilana Rovner (herself a Latvian refugee from the Nazis). Wood began her opinion saying
Like most people, immigrants to the United States would like greater prosperity for themselves and their families. Nonetheless, it can take time to achieve the American Dream, and the path is not always smooth. Recognizing this, Congress has chosen to make immigrants eligible for various public benefits...
The United States Supreme Court on February 21 of this year, acting a week before oral argument in the Circuit Court stayed the District Court's order in Illinois v Wolf enjoining the "public charge rule" which barred those who in the government's opinion might someday claim public benefits to which they are entitled by law. The stay was met by a powerful Sotomayor dissent. Barrett, in a merits dissenting opinion in in August, saw only a permissible exercise of executive discretion.
The Immigration Law Labs case will likely be a vehicle for the Supreme Court's conservative super majority to sharply limit the use of so-called "nationwide injunctions", a cause Neil Gorsuch has strongly embraced.
By Amy Howe
The Supreme Court announced on Monday morning that it would take up two cases arising out of the Trump administration’s effort to stem immigration through the United States’ border with Mexico. The justices granted review to weigh in on the long-running dispute over the funding for President Donald Trump’s border wall, as well as the legality of the Trump administration’s “remain in Mexico” policy, which allows the Department of Homeland Security to return immigrants seeking asylum to Mexico while they wait for an asylum hearing in U.S. immigration court.
In Wolf, Secretary of Homeland Security v. Innovation Law Labs the Issues accepted are:
(1) 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); (2) whether MPP is consistent with any applicable and enforceable non-refoulement obligations; (3) whether MPP is exempt from the Administrative Procedure Act requirement of notice-and-comment rulemaking; and (4) whether the district court’s universal preliminary injunction is impermissibly overbroad.
Compare to plaintiffs' Counterstatement of issues:
1. Does the government’s return-to-Mexico policy,
known as the “Migrant Protection Protocols”
(“MPP”), violate 8 U.S.C. § 1225(b), by forcing
asylum seekers who lack proper documents and
thus are subject to § (b)(1), to return to Mexico
pending removal proceedings, when the statute
establishes two distinct categories of applicants for
admission, § (b)(1) and § (b)(2); authorizes return
pending proceedings only of applicants under
§ (b)(2); and specifically exempts from § (b)(2) those
applicants to whom § (b)(1) “applies”?
2. Do the procedures implementing MPP violate the
United States’ nonrefoulement obligation under
the withholding-of-removal statute, 8 U.S.C.
§ 1231(b)(3), because they do not inform the
individual of the right to request a fear interview,
and even where such interviews are held, they are
cursory and require that the applicant meet the
same more-likely-than-not standard required for
an ultimate grant of withholding at the conclusion
of full removal proceedings?
3. Are the new procedures the Department of
Homeland Security (“DHS”) created to ensure that
MPP is consistent with the government’s
nonrefoulement obligation arbitrary and capricious
under the Administrative Procedure Act (“APA”)
where they are less protective than established
procedures implementing the same obligation, and
where the agency failed to acknowledge or explain
its departure from these existing procedures?
4. Did the government violate the APA when it
established entirely new procedures to meet its
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mandatory nonrefoulement obligation under MPP
but failed to comply with the APA’s notice-andcomment requirement?
5. Is the district court’s injunction overbroad, where
the court correctly held that MPP violates federal
statutes and directly impedes the organizational
plaintiffs’ missions; where the only way to redress
those injuries is to enjoin MPP as a whole; and
where such relief is consistent with 5 U.S.C.
§ 706(2)(A), which directs courts to “set aside”
unlawful agency action?
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