On February 14, 2019, a group of asylum seekers from Central America and several legal organizations filed this lawsuit in the U.S. District Court for the Northern District of California. The plaintiffs sued the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), and U.S. Customs and Border Protection (CBP). The plaintiffs, represented by the ACLU, the Southern Poverty Law Center, and the Center for Gender & Refugee Studies, sought declaratory and injunctive relief, claiming violations of the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA).

The plaintiffs challenged the Trump Administration’s new policy of forcing asylum seekers to return to Mexico while they await their removal proceedings: the Migrant Protection Protocols. The plaintiff individual asylum seekers are currently residing in Mexico after having entered the U.S. to request asylum, and then been returned to Mexico under this new policy. The plaintiffs alleged that these asylum seekers are living in fear in Mexico, and that the plaintiff legal organizations are being thwarted from providing representation to such asylum seekers by the physical removal of them from the U.S.

The case was initially assigned to Magistrate Judge Joseph C. Spero, and then reassigned to Judge Richard Seeborg on Feb. 19.

On Feb. 20, 2019 the plaintiffs filed a motion for a temporary restraining order, seeking to enjoin the defendants’ forced return policy until a preliminary injunction can be obtained. The plaintiffs alleged that the policy violates the section of the INA that purportedly authorizes it, violates the U.S.’s duty of non-refoulement (non-return), is arbitrary and capricious under the APA, and violates the APA’s notice and comment requirements. The defendants filed their response on March 1. The judge held a hearing on the motion on March 22. On March 28, 2019 the judge issued an order requesting expedited further briefing on the issue of whether jurisdiction of this case lies exclusively in the District of Columbia.

On April 8, 2019 Judge Seeborg issued an order granting the plaintiffs' motion for a preliminary injunction. 366 F. Supp. 3d 1110. The judge found that the INA section vesting DHS with the authority in some circumstances to return certain aliens to a contiguous territory (8 USC § 1225(b)(2)(C)) could not be read to apply to the plaintiff asylum seekers or others similarly situated. Additionally, he found that even if that statute could be applied to the plaintiffs, this new policy still needs to be enjoined because it fails to sufficiently protect immigrants from being returned to places where their lives or freedom are at risk. Judge Seeborg therefore enjoined the defendants from implementing the Migrant Protection Protocols nationwide and ordered that the named individual plaintiffs be permitted to enter the U.S.

The defendants appealed the order to the Ninth Circuit and requested a stay of the preliminary injunction pending the appeal. On May 7, 2019, the Ninth Circuit granted a stay of the injunction. 924 F.3d 503. The panel found that the defendants were likely to prevail on the merits of the plaintiffs' INA and APA claims. It stated that the plaintiff asylum seekers were properly subjected to the contiguous-territory provision of the INA, and that the Migrant Protection Protocols were exempt from the notice-and-comment requirement because they are general statements of policy.

The parties are awaiting a decision on the merits from the Ninth Circuit. The case is ongoing.

Sam Kulhanek - 06/16/2019


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