Innovation Law Lab et al. v. Nielsen, No. 3:19-cv-00807 (N.D. Cal., filed Feb. 14, 2019)
On December 20, 2018, then-Secretary of Homeland Security, Kirstjen M. Nielsen, announced a new government policy, the so-called “Migrant Protection Protocols” (MPP), which would force noncitizens seeking admission from Mexico to return to Mexico to await their removal proceedings. The Trump Administration voiced its intention to implement the policy “on a large scale basis,” beginning first with San Ysidro Port of Entry in California on January 28, 2019.
A lawsuit challenging this forced return policy (commonly known as “Remain in Mexico”), was brought on behalf of legal organizations that serve asylum seekers and eleven asylum seekers from Central America. Defendants include DHS, CBP, USCIS and ICE. The complaint explains that the individual plaintiffs are particularly vulnerable to, and many have already suffered, serious violence and discrimination while stranded in Mexico. Furthermore, without access to legal representation, information regarding immigration court hearings, or the right to lawfully work in Mexico, these individuals have been effectively deprived of the right to apply for asylum in the United States as a result of the MPP policy.
The lawsuit alleges that procedural deficiencies in the MPP policy undermine the United States’ domestic and international legal obligations to ensure non-refoulement of individuals who have expressed a fear of return to Mexico. In addition, the complaint specifies the grossly deficient—and at times abusive—practices of CBP officers in implementing the MPP policy. The complaint recounts cursory interviews during which plaintiffs routinely were not asked about fear of return to Mexico; were not provided explanations of the process to which they were subjected; were coerced into signing documents they did not understand or wish to sign; and were questioned by U.S. government officers who did not speak their language and who verbally abused or threatened them.
MPP also substantially interferes with legal organizations seeking to serve asylum seekers and other immigrant populations, straining and diverting these organizations’ resources as they scramble to assist asylum seekers stranded in Mexico. The complaint alleges that Defendants’ failure to comply with the notice and comment requirements established under the Administrative Procedures Act is also a violation of law.
On April 8, 2019, the federal district court issued a preliminary injunction blocking MPP. The government appealed, and on May 7, 2019, the Ninth Circuit granted DHS’s motion for a stay of the preliminary injunction while the appeal remained pending; this permitted MPP to go back into effect. The Ninth Circuit heard oral argument on the merits of the government’s appeal of the preliminary injunction grant on October 1, 2019.
On February 28, 2020, the Ninth Circuit denied the government’s appeal. That same day, the government filed an emergency motion requesting a stay of the preliminary injunction pending disposition of a petition for certiorari to the Supreme Court or an immediate administrative stay. That evening, the Ninth Circuit granted the government an administrative stay pending briefing by the parties. On March 4, 2020, following briefing, the Ninth Circuit granted the government’s stay motion in part and denied it in part. The stay was denied with respect to the Ninth Circuit’s holding that MPP violated federal law, affirming the Ninth Circuit’s belief in the policy’s illegality. However, the stay was granted in part and denied in part with respect to the injunctive relief. The order permitted enforcement of MPP nationwide through March 11, 2020, but thereafter prohibited MPP from operating only in the Ninth Circuit.
On March 11, 2020, the government applied for a stay of the preliminary injunction to the Supreme Court, which granted a stay pending filing and disposition of a petition for a writ of certiorari. On April 10, 2020, DHS petitioned for a writ of certiorari to the Supreme Court and on October 19, 2020, the Court granted certiorari.
On January 20, 2021, DHS announced that on January 21, it would stop enrolling people into MPP. On February 11, 2021, DHS then announced a phased winddown of the program. Finally, on June 1, 2021, DHS announced that it was terminating the MPP program altogether. On June 21, 2021, the Supreme Court vacated the Ninth Circuit’s judgment as moot, given the winddown and termination of the MPP program. Given that the Texas injunction impacts the issues in this case, both parties jointly moved to hold the deadlines in this case in abeyance.
On August 6, 2021, the district court issued an order to show cause to the Plaintiffs to demonstrate why the case should not be dismissed as moot.
However, on August 13, 2021, the district court for the Northern District of Texas issued a nationwide injunction in Texas et al. v. Biden requiring the Biden administration to restart the MPP program “in good faith.”
After the Supreme Court declined to stay the injunction on August 24, 2021, DHS issued a statement indicating their intent to appeal the injunction but stating that while the appeals process continues, DHS “will comply with the order in good faith.” However, on October 29, 2021, DHS issued a new memo terminating MPP again. In the interim, DHS reimplemented MPP. The government also filed a petition for certiorari seeking review of the Fifth Circuit decision affirming the injunction. The Supreme Court granted certiorari and reversed the Fifth Circuit’s decision on June 30, 2022.
Pursuant to the Supreme Court’s decision and a subsequent remand from the Fifth Circuit, the district court in Texas v. Biden vacated the injunction on August 8, 2022. Additionally, DHS has announced that it will no longer enroll new individuals in MPP, and will disenroll individuals currently in MPP when they return for their next scheduled court date.
On January 14, 2022, both parties had submitted a request to hold the order to show cause in this case in abeyance until May 2022, which was granted. On May 16, 2022, the parties submitted a joint status report requesting an additional continuance of briefing deadlines in response to the order to show cause. In November 2022, Plaintiffs filed a motion to set a case management conference.
Counsel: Judy Rabinovitz, Michael Tan, Omar Jadwat, Katrina Eiland, Lee Gelernt, Anand Balakrishnan, & Daniel Galindo, ACLU Immigrants’ Rights Project; Sean Riordan, ACLU of Northern California; Mary Bauer, Saira Draper, & Gracie Willis, Southern Poverty Law Center; Melissa Crow, Karen Musalo, Kathryn Jastram, & Sayoni Maitra, Center for Gender & Refugee Studies.
Contact: Judy Rabinovitz | ACLU Immigrants’ Rights Project | firstname.lastname@example.org