Saturday, February 29, 2020

Trump Immigration Measures Suffer Setbacks in the Ninth Circuit


Yesterday, the same panel of U.S. Court of Appeals for the Ninth Circuit issued two important rulings on Trump immigration enforcement policies.

In the first opinion, the Ninth Circuit upheld an injunction that prevents the Trump Administration’s asylum ban and the Remain in Mexico policy (also known as “Migrant Protection Protocols”) from continuing to go into effect. President Todd Schulte issued the following statement:
“The Trump Administration’s continual efforts to essentially eliminate the entire asylum system at our Southern border harkens back to the worst moments in our nation’s history. Today’s decision from the Ninth Circuit is a rebuke of the Trump Administration’s hardline immigration policy, and reaffirms that Remain In Mexico violates both the Immigration and Nationality Act (INA), and the United Nations Convention on Refugees.
“More than 60,000 people — including over 16,000 children — seeking the lawful right to asylum in the United States are living in unsafe conditions in Mexico as they await their day in court. Depriving these already-vulnerable families access to the asylum system both leaves them in extreme danger, and also undermines due process.
“It’s also important to note for more than the 60,000 people currently trapped in Mexico that if this policy does not go into effect immediately, families will remain in danger. We urge the Trump Administration to allow the Remain in Mexico policy to end.
“The United States has been made stronger, more prosperous, and more vibrant because of the contributions of people seeking refuge and asylum who have fled their homes in search of safety and freedom. We are encouraged by the ruling from the Ninth Circuit and will continue to reject the premise that smart immigration policy requires separating families, ending legitimate pathways for immigrants to come to the United States legally, or eliminating due process for people seeking asylum.”

The Ninth Circuit opinion (Innovation Law Lab v. Wolf) was written by Judge William A. Fletcher, and joined by Richard A. Paez.  Judge Ferdinand F. Fernandez dissented.  Judge Fletcher's introductory paragraph succinctly summarizes the court's holding:

"Plaintiffs brought suit in district court seeking an injunction against the Government’s recently promulgated Migrant Protection Protocols (“MPP”), under which nonMexican asylum seekers who present themselves at our southern border are required to wait in Mexico while their asylum applications are adjudicated.  The district court entered a preliminary injunction setting aside the MPP, and the Government appealed.  We affirm."

Here is a NPR report on the ruling.

In another case (East Bay Sanctuary Covenant v. Trump) decided yesterday,  the Ninth Circuit, in an opinion written by Richard A. Paez, joined by Judge William A. Fletcher, with a concurrence by Judge Ferdinand F. Fernandez,

"affirmed the district court’s grant of a temporary restraining order and a subsequent grant of a preliminary injunction enjoining enforcement of a rule and presidential proclamation that, together, strip asylum eligibility from every migrant who crosses into the United States along the southern border of Mexico between designated ports of entry. In November 2018, the Department of Justice and Department of Homeland Security adopted an interim final rule (`the Rule') that makes migrants who enter the United States in violation of a `a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico' categorically ineligible for asylum.  The same day, President Trump issued a presidential proclamation (`the Proclamation') that suspends the entry of all migrants along the southern border of the United States for ninety days, except for any migrant who enters at a port of entry and properly presents for inspection."


UPDATE (Feb. 29):  The panel has issued a stay in the MPP case:

"The emergency request for an immediate stay of this court’s February 28, 2020 decision pending disposition of a petition for certiorari is granted pending further order of this court. Appellees are directed to file a response by the close of business on Monday, March 2, 2020. Any reply is due by the close of business on Tuesday, March 3, 2020."


UPDATE (March 3):  Peter Margulies on Lawfare looks at the two Ninth Circuit rulings.


UPDATE (March 5):  For procedural wrangling (stays of the panel's ruling, etc.) in the Innovation Law Lab appeal, click here.


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