The Ninth Circuit, Asylum and 'Return to Mexico' - What Next?

On May 7, 2019 a motions panel of the Ninth Circuit granted a stay pending appeal of the preliminary injunction that had blocked the 'return to Mexico' policy under the new DHS Migrant Protection Protocols for southern border asylum claimants.

But two panel members had harsh words for the government:

WATFORD, Circuit Judge: "... DHS’s stated goal is to ensure that the MPP is implemented in a manner that complies with the non-refoulement principles embodied in these treaty provisions. ... In my view, DHS has adopted procedures so ill-suited to achieving that stated goal as to render them arbitrary and capricious under the Administrative Procedure Act. ... DHS’s policy is virtually guaranteed to result in some number of applicants being returned to Mexico in violation of the United States’ non-refoulement obligations. ... DHS will end up violating the United States’ treaty obligations by returning some number of asylum seekers to Mexico who should have been allowed to remain in the United States. ... it seems likely that the plaintiffs will succeed in establishing that DHS’s procedures for implementing the MPP are arbitrary and capricious."

W. FLETCHER, Circuit Judge: "The question of law in this case can be stated simply: The Government relies on 8 U.S.C. § 1225(b)(2)(C) for authority to promulgate its new Migrant Protection Protocols (“MPP”). If § 1225(b)(2)(C) provides such authority, the MPP is valid. If it does not, the MPP is invalid. The question is thus whether § 1225(b)(2)(C) provides authority for promulgation of the MPP. The answer can also be stated simply: The Government is wrong. Not just arguably wrong, but clearly and flagrantly wrong. Section 1225(b)(2)(C) does not provide authority for the MPP. ... The “return-to-a-contiguous-territory” provision of § 1225(b)(2)(C) is available only for § (b)(2) applicants. There is no way to read the statute otherwise. Under a plain-meaning reading of the text, as well as the Government’s longstanding and consistent practice, the statutory authority upon which the Government now relies simply does not exist. ... I regret that my colleagues on the motions panel have uncritically accepted the Government’s arguments. I am hopeful that the regular argument panel that will ultimately hear the appeal, with the benefit of full briefing and regularly scheduled argument, will be able to see the Government’s arguments for what they are — baseless arguments in support of an illegal policy that will, if sustained, require bona fide asylum applicants to wait in Mexico for years while their applications are adjudicated."