Innovation Law Lab v. McAleenan, No. 19-15716 (9th Cir. 2019)Annotate this Case
Asylum applicants and asylum-related legal services challenged the Migrant Protection Protocols (MPP), which initiated a new inspection policy along the southern border. The district court concluded that the MPP lacked a statutory basis and violated the Administrative Procedure Act (APA). The district court then enjoined DHS on a nationwide basis from continuing to implement or expand the MPP. DHS argued that it relied on the contiguous-territory provision in 8 U.S.C.1225(b)(2)(C) as the statutory basis for the MPP.
The Ninth Circuit granted DHS's motion for a stay pending appeal and held that DHS was likely to prevail on its contention that 8 U.S.C.1225(b)(1), which outlines the procedures for expedited removal and specifies the class of non-citizens who are eligible for expedited removal, "applies" only to applicants for admission who are processed under its provisions. Under this reading, section 1225(b)(1) does not apply to an applicant who is processed under section 1225(b)(2)(A), even if that individual is rendered inadmissible by section 1182(a)(6)(C) or (a)(7). Consequently, applicants for admission who are placed in regular removal proceedings under section 1225(b)(2)(A) may be returned to the contiguous territory from which they arrived under section 1225(b)(2)(C). Therefore, plaintiffs were properly subject to the contiguous-territory provision because they were processed in accordance with section 1225(b)(2)(A), rather than section 1225(b)(1).
Furthermore, DHS was likely to prevail on plaintiffs' claim that the MPP should have gone through the APA's notice and comment process, because the MPP qualifies as a general statement of policy where immigration officers designate applicants for return on a discretionary case-by-case basis. Finally, the remaining factors governing issuance of a stay pending appeal weigh in the government's favor.