By Linda Friedman Ramirez
On February 28, 2020, the Ninth Circuit Court of Appeals decided Innovation Lab v Wolf and affirmed a preliminary injunction against the Department of Homeland Security in its controversial Migrant Protection Protocols. The injunction had been issued by the District Court for the Northern District of California on April 8, 2019.
Some hours after the Ninth Circuit issued its Order, the Government appealed. Four days later and after briefing by the parties, the Ninth Circuit on March 4, 2020, reaffirmed its original order. The court temporarily stayed the Order to allow the Government until March 12, 2020 to seek intervention by the Supreme Court, and also limited enforcement of its injunction to border areas within the Court’s jurisdiction, that is California and Arizona.
Just what is the Migrant Protection Protocol and how does it impact asylum seekers? In January of 2019, the Department of Homeland Security (“DHS”) began implementing this new policy regarding non-Mexican asylum seekers arriving in the United States from Mexico. Denominated the “Migrant Protection Protocols” (“MPP”), the policy calls for such persons, with certain exceptions, to be “returned to Mexico for the duration of their immigration proceedings,” rather than either being detained for expedited or regular removal proceedings, or issued notices to appear for regular removal proceedings.
An illustrative case is that of a 41-year-old asylum-seeker, who “thought she would be safe and out of reach from the men in the Mexican border city of Ciudad Juárez who had tortured her for 12 days.” According to an article published in BuzzFeed, this asylum seeker was sent right back to the same city to wait until her U.S. Immigration Court case was completed. She was, however, later released with an ankle monitor.
The plaintiffs in the Innovative Lab v Wolf, a collection of immigrant advocacy and civil rights organizations, do not view the Migrant Protection Protocols as protective of migrants. As has been explained, “The immigrant as a threat will always have traction within the current approach, whereas any attempt to protect migrants and thereby reduce violence along the border has been met with extreme resistance,” writes Professor Jeremy Slack, Assistant Professor of Geography at the University of Texas at El Paso in his new book Deported to Death. “Around the world, the figure of the immigrant has seen resurgence as the scapegoat of choice.”
The initial Complaint for Declaratory and Injunctive Relief was filed on February 14, 2019. In his Order Granting Motion for Preliminary Injunction, the Honorable Richard Seeborg considered only the narrow issue of whether the MPP complies with the Administrative Procedures Act (“APA”). “This case presents two basic questions: (1) does the Immigration and Naturalization Act authorize DHS to carry out the return policy of the MPP, and; (2) even assuming Congress has authorized such returns in general, does the MPP include sufficient safeguards to comply with DHS’s admitted legal obligation not to return any alien to a territory where his or her “life or freedom would be threatened? In support of their motion for a preliminary injunction, the plaintiffs have sufficiently shown the answer to both questions is ‘no.’ Judge Seeborg concluded that the statute DHS contends the MPP is designed to enforce does not apply to these circumstances, and even if it did, further procedural protections would be required to conform to the government’s acknowledged obligation to ensure aliens are not returned to unduly dangerous circumstances.
The Court noted that “the legal question is not whether the MPP is a wise, intelligent, or humane policy, or whether it is the best approach for addressing the circumstances the executive branch contends constitute a crisis. Policy decisions remain for the political branches of government to make, implement, and enforce. Rather, this injunction turns on the narrow issue of whether the MPP complies with the Administrative Procedures Act (“APA”).
First Order, February 28, 2020.
On February 28, 2020, the Ninth Circuit issued an Order affirming the lower court’s granting of an injunction. The Court reviewed whether MPP was authorized by USC 1225 and 1231. Of particular interest was the degree to which the Government’s program failed to inform asylum seekers as how to express fear of removal to Mexico, when in fact, asylum seekers who are forced to remain in the border areas of Mexico are targeted by criminal elements.
The Court cited one Howard Doe: “‘told the asylum officer that I was afraid [of returning to Mexico]. I explained that I’d been kidnapped for fifteen days by Los Zetas in Tuxtla Gutierrez, Chiapas, [Mexico], and that I’d managed to escape. … Migrants in Tijuana are always in danger, and I am especially afraid because the Zetas torture people who escape them.’ Despite having told their asylum officers that they feared returning, Frank Doe and Howard Doe were returned to Mexico.”
The Ninth Circuit concluded that the MPP is inconsistent with 8 U.S.C. § 1225(b), and that it is inconsistent in part with 8 U.S.C.§ 1231(b). “Because the MPP is invalid in its entirety due to its inconsistency with § 1225(b), it should be enjoined in its entirety. Because plaintiffs have successfully challenged the MPP under § 706(2)(A) of the APA, and because the MPP directly affects immigration into this country along our southern border, the issuance of a temporary injunction setting aside the MPP was not an abuse of discretion.”
Some hours after the Court had filed its opinion and order, the Government sought an emergency stay of the Injunction. The Court issued the stay and required briefing on the stay. On March 2, and March 3, 2020, the parties filed briefs on the issue of the emergency stay.
Second Ninth Circuit Order March 4, 2020.
On March 4, 2020, the Court issued a revised Order, reaffirming its earlier decision, but restricting its application to only the border areas contained within the Ninth Circuit (California and Arizona.) The Court also allowed the government seven days to pursue its remedies to the Supreme Court of the United States. In declining to delay the Order beyond March 12, 2020, the Court cited to “uncontradicted evidence in the record shows not only that asylum officers implementing the MPP do not ask whether asylum seekers fear returning to Mexico. It also shows that officers actively prevent or discourage applicants from expressing such a fear, and that they ignore applicants who succeed in doing so. For example, Alex Doe, a plaintiff in this case, wrote in a sworn declaration, “When I tried to respond and explain [why I had left Honduras] the officer told me something like, ‘you are only going to respond to the questions I ask you, nothing more.’” Frank Doe, another plaintiff, wrote in a sworn declaration, “He never asked me if I was afraid of returning to Mexico. At one point, I had to interrupt him to explain that I didn’t feel safe in Mexico. He told me that it was too bad. He said that Honduras wasn’t safe, Mexico wasn’t safe, and the U.S. isn’t safe either.”
The Court also considered the danger:
“Uncontradicted evidence also shows that there is extreme danger to asylum seekers who are returned to Mexico. For example, Howard Doe, a plaintiff, wrote in a sworn declaration: “While I was in Tijuana, two young Honduran men were abducted, tortured and killed. . . . On Wednesday, January 30, 2019, I was attacked and robbed by two young Mexican men. . . . They . . . told me that they knew I was Honduran and that if they saw me again, they would kill me.”
“Because the MPP so clearly violates §§ 1225(b) and 1231(b), and because the harm the MPP causes to plaintiffs is so severe, we decline to stay our opinion pending certiorari proceedings in the Supreme Court, except as noted below with respect to the scope of the injunction.” 
One week after the Opinion, the Government now plans to deploy active duty troops to the Border in response to the decision by the Ninth Circuit.  “U.S. Customs and Border Protection announced Friday that it would deploy 80 active duty troops to San Diego’s San Ysidro border crossing and 80 more to El Paso’s Paso del Norte bridge as early as Saturday to provide ‘military police support, engineer, and aviation support’ to customs officials at those two ports of entry. The border agency’s announcement emphasized the role that a Feb. 28 ruling from the 9th U.S. Circuit Court of Appeals in San Francisco factored into their decision to deploy troops to those two cities.”
 Linda Friedman Ramirez, Esq. provides research and writing services for attorneys. She is a Life Member of NACDL, and has written for the Champion magazine.
 2020 WL 964402 (9th. 2020)
 Adolfo Flores, An Asylum-Seeker Who Was Kidnapped And Tortured With Acid Begged US Border Officers Not To Send Her Back. They Did Anyway, BuzzFeed, March 7, 2020, https://www.buzzfeednews.com/article/adolfoflores/asylum-seeker-tortured-mexico.
 Deported to Death.
 Order dated March 4, 2020.
 Rafael Carranza, Trump to deploy 160 active duty troops to border in response to court rulings, coronavirus, Arizona Central, March, 6 2020, https://www.azcentral.com/story/news/politics/border-issues/2020/03/06/trump-send-active-duty-troops-border/4978776002/