United States v. 2020-03-04 | 19-15716 | INNOVATION LAW LAB V. CHAD WOLF | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INNOVATION LAW LAB; CENTRAL
AMERICAN RESOURCE CENTER OF
NORTHERN CALIFORNIA; CENTRO
LEGAL DE LA RAZA; UNIVERSITY OF
SAN FRANCISCO SCHOOL OF LAW
IMMIGRATION AND DEPORTATION
DEFENSE CLINIC; AL OTRO LADO;
TAHIRIH JUSTICE CENTER,
Plaintiffs-Appellees,
v.
CHAD F. WOLF, Acting Secretary of
Homeland Security, in his official
capacity; U.S. DEPARTMENT OF
HOMELAND SECURITY; KENNETH T.
CUCCINELLI, Acting Director, U.S.
Citizenship and Immigration
Services, in his official capacity;
ANDREW DAVIDSON, Acting Chief
of Asylum Division, U.S.
Citizenship and Immigration
Services, in his official capacity;
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES; TODD C.
OWEN, Executive Assistant
Commissioner, Office of Field
Operations, U.S. Customs and
Border Protection, in his official
No. 19-15716
D.C. No.
3:19-cv-00807-
RS
ORDER

INNOVATION LAW LAB V. WOLF2
capacity; U.S. CUSTOMS AND
BORDER PROTECTION; MATTHEW T.
ALBENCE, Acting Director, U.S.
Immigration and Customs
Enforcement, in his official capacity;
U.S. IMMIGRATION AND CUSTOMS
ENFORCEMENT,
Defendants-Appellants.
Filed March 4, 2020
Before: Ferdinand F. Fernandez, William A. Fletcher,
and Richard A. Paez, Circuit Judges.
Order;
Partial Concurrence and Partial Dissent by
Judge Fernandez

INNOVATION LAW LAB V. WOLF3
SUMMARY
*
Immigration /Preliminary Injunctions
In a case in which the panel issued an opinion on Friday,
February 28, 2020, affirming the district court’s injunction
against implementation and expansion of the Migrant
Protection Protocols (“MPP”), and also granted an immediate
administrative stay pending decision on the Government’s
request for a stay pending disposition of a petition for
certiorari, the panel granted in part and denied in part the
Government’s request for a stay of the district court’s
injunction pending certiorari proceedings.
With respect to the merits of the panel’s holding that the
MPP violates federal law, the panel denied the requested stay.
The panel explained that the MPP clearly violates 8 U.S.C.
§ 1225(b) (dividing aliens applying for asylum into two
categories and providing which aliens may be required to
wait in Mexico while their asylum applications are
adjudicated) and § 1231(b) (implementing treaty-based
obligation to avoid “refoulement,” the act of sending refugees
back to the dangerous countries from which they have come).
However, the panel stayed the injunction insofar as it
operates outside the geographical boundaries of the Ninth
Circuit, noting that the proper scope of injunctions against
agency action is a matter of intense and active controversy.
Further, the panel explained that, while it regarded the merits
of its decision under §§ 1225(b) and 1231(b) as clearly
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

INNOVATION LAW LAB V. WOLF4
correct, it lacked the same level of confidence with respect to
the scope of the injunction entered by the district court.
Finally, at the Government’s request, the panel extended
the administrative stay entered on February 28, 2020, until
March 11, 2020, and directed that, if the Supreme Court has
not in the meantime acted to reverse or modify the panel’s
decision, the panel’s partial grant and partial denial of the
stay will take effect on March 12, 2020.
Concurring in part and dissenting in part, Judge
Fernandez wrote that he would grant in full the motion for a
stay of the district court’s injunction pending disposition of
a petition for certiorari.
COUNSEL
Joseph H. Hunt, Assistant Attorney General; Scott G.
Stewart, Deputy Assistant Attorney General; William C.
Peachey, Director; and Erez Reuveni, Assistant Director;
Office of Immigration Litigation, United States Department
of Justice, Washington, D.C., Washington, D.C.; for
Defendants-Appellants.
Judy Rabinovitz, Michael Tan, Omar Jadwat, Lee Gelernt,
Anand Balakrishnan, Daniel Galindo, and Celso Javier Perez,
American Civil Liberties Union Foundation, Immigrants’
Rights Project, New York, New York; Katrina Eiland, Cody
Wofsy, and Julie Veroff, American Civil Liberties Union
Foundation, Immigrants’ Rights Project, San Francisco,
California; Melissa Crow, Southern Poverty Law Center,
Washington, D.C.; Gracie Willis, Southern Poverty Law
Center, Decatur, Georgia; Sean Riordan, American Civil

INNOVATION LAW LAB V. WOLF5
Liberties Union Foundation of Northern California Inc., San
Francisco, California; Blaine Bookey, Karen Musalo,
Kathryn Jastram, Sayoni Maitra, and Anne Peterson, Center
for Gender and Refugee Studies, San Francisco, California;
Steven Watt, ACLU Foundation Human Rights Program,
New York, New York; for Plaintiffs-Appellees.
ORDER
This court issued its opinion in Innovation Law Lab v.
Wolf, No. 19-15716, on Friday, February 28, 2020, affirming
the district court’s injunction against implementation and
expansion of the Migrant Protection Protocols (“MPP”). That
same day, the Government filed an emergency motion
requesting either a stay pending disposition of a petition for
certiorari to the Supreme Court or an immediate
administrative stay. That evening, we granted an
administrative stay, along with an accelerated schedule for
briefs addressing the request for a longer-lasting stay. We
received a brief from Plaintiffs-Appellants on Monday,
March 2; we received a reply brief from the Government on
Tuesday, March 3. For the reasons that follow, we grant in
part and deny in part the requested stay.
With respect to the merits of our holding that the MPP
violates federal law, we deny the requested stay. With
respect to the scope of injunctive relief, we grant in part and
deny in part the requested stay.

INNOVATION LAW LAB V. WOLF6
I. Merits
The MPP requires that all asylum seekers arriving at our
southern border wait in Mexico while their asylum
applications are adjudicated. The MPP clearly violates
8 U.S.C. §§ 1225(b) and 1231(b).
A. 8 U.S.C. § 1225(b)
Section 1225(b) divides aliens applying for asylum into
two categories: “[A]pplicants for admission fall into one of
two categories, those covered by § 1225(b)(1) and those
covered by § 1225(b)(2).” Jennings v. Rodriguez, 138 S. Ct.
830, 837 (2018).
Section (b)(1) applicants are those who have no
documents or fraudulent documents. In fleeing persecution
in their home countries, typical bona fide asylum seekers
have either fraudulent documents or no documents at all.
Section (b)(2) applicants are “all other” applicants.
Section (b)(2) applicants include spies, terrorists, alien
smugglers, and drug traffickers.
Section 1225 specifies different procedures for the two
categories of applicants. Section (b)(1) applicants who have
expressed a “credible fear” of persecution have a right to
remain in the United States while their applications are
adjudicated. Section (b)(2) applicants do not have that right.
Subsection (b)(2)(C) specifically authorizes the Attorney
General to require § (b)(2) applicants to wait in Mexico while
their asylum applications are adjudicated. There is no
subsection in § (b)(1) comparable to subsection (b)(2)(C).

INNOVATION LAW LAB V. WOLF7
It is easy to understand why § (b)(1) and § (b)(2)
applicants are treated differently. Section (b)(1) applicants
pose little threat to the security of the United States. By
contrast, § (b)(2) applicants potentially pose a severe threat.
The MPP applies subsection (b)(2)(C) to § (b)(1)
applicants. There is no legal basis for doing so.
B. 8 U.S.C. § 1231(b)
Section 1231(b), previously codified as § 1253(h), was
enacted in 1980 to implement our treaty-based obligation to
avoid “refoulement” of refugees. Refoulement is the act of
sending refugees back to the dangerous countries from which
they have come. Section 1231(b) provides, “[T]he Attorney
General may not remove an alien to a country if the Attorney
General decides that the alien’s life or freedom would be
threatened in that country because of the alien’s race,
religion, nationality, membership in a particular social group,
or political opinion.”
Under the MPP, an asylum officer screening asylum
seekers is not allowed to ask whether they fear that their “life
or freedom would be threatened” upon being returned to
Mexico. The MPP requires asylum seekers—untutored in
asylum law—to volunteer that they fear being returned to
Mexico, even though they are not told that the existence of
such fear could protect them from being returned.
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

INNOVATION LAW LAB V. WOLF8
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.”
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.”
Ian Doe, another plaintiff, wrote in a sworn declaration, “I am
not safe in Mexico. I am afraid that the people who want to
harm me in Honduras will find me here.” Dennis Doe,
another plaintiff, had fled the gang “MS-13” in Honduras. He
wrote in a sworn declaration, “In Tijuana, I have seen people
who I believe are MS-13 gang members on the street and on
the beach. . . . I know that MS-13 were searching for people
who tried to escape them . . . . This makes me afraid that the
people who were trying to kill me in Honduras will find me
here.” Kevin Doe, another plaintiff, had fled MS-13 in
Honduras because of his work as an Evangelical Christian
minister. He wrote in a sworn declaration, “[When I was
returned to Mexico from the United States], I was met by a
large group of reporters with cameras. . . . I was afraid that

INNOVATION LAW LAB V. WOLF9
the MS-13 might see my face in the news. . . . They are a
powerful, ruthless gang and have members in Tijuana too.”
It is clear from the text of the MPP, as well as from
extensive and uncontradicted evidence in the record, that the
MPP violates the anti-refoulement obligation embodied in
§ 1231(b).
C. Stay with Respect to the Merits
Two of the three judges on our panel, Judges W. Fletcher
and Paez, held that the MPP clearly violates both §§ 1225(b)
and 1231(b). The third judge, Judge Fernandez, did not
independently reach the question whether the MPP violates
those sections. Judge Fernandez dissented from the panel’s
decision based on a point of appellate procedure.
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.
II. Scope of the Injunction
The district court enjoined the Government from
continuing to implement or expand the MPP, and required the
Government to allow the named individual plaintiffs to enter
the United States to pursue their applications for asylum. The
injunction provides as follows:
Defendants are hereby enjoined and
restrained from continuing to implement or
expand the “Migrant Protection Protocols” as

INNOVATION LAW LAB V. WOLF10
announced in the January 25, 2018 DHS
policy memorandum and as explicated in
further agency memoranda. Within 2 days of
the effective date of this order, defendants
shall permit the named individual plaintiffs to
enter the United States. At defendants’
option, any named plaintiff appearing at the
border for admission pursuant to this order
may be detained or paroled, pending
adjudication of his or her admission
application.
Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110,
1130–31 (N.D. Cal. 2019). When suit was filed in the district
court, the MPP had been applied only at the designated port
of entry at San Ysidro, California. There are eleven named
individual plaintiffs.
Because the district court’s order was stayed pending
appeal, the Government expanded the scope of the MPP. The
MPP is now in effect in the four states along our southern
border with Mexico. Two of those states, California and
Arizona, are in the Ninth Circuit. New Mexico is in the
Tenth Circuit. Texas is in the Fifth Circuit.
For the reasons explained in our opinion, Ninth Circuit
case law requires that we affirm the scope of the district
court’s injunction. Plaintiffs challenge the MPP as
inconsistent with § 706(2) of the Administrative Procedure
Act, which directs a reviewing court that has found an agency
action “unlawful” to “set aside” that action. 5 U.S.C.
§ 706(2). Section 706(2) does not tell a reviewing circuit
court to “set aside” the unlawful agency action only within
the geographic boundaries of that circuit. Further, there is a

INNOVATION LAW LAB V. WOLF11
special need for uniformity in immigration cases, as
recognized both by our court and by the Fifth Circuit. See
Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec.,
908 F. 3d 476, 511 (9th Cir. 2018); Texas v. United States,
809 F.3d 134, 187–88 (5th Cir. 2015), aff’d by an equally
divided Court, 136 S. Ct. 2271 (2016)
However, we recognize that the proper scope of
injunctions against agency action is a matter of intense and
active controversy. Dep’t of Homeland Sec. v. New York,
140 S. Ct. 599, 600–01 (2020) (Gorsuch, J., concurring);
Trump v. Hawaii, 138 S. Ct. 2392, 2424–29 (2018) (Thomas,
J., concurring); see also Wolf v. Cook Cty., Ill., 140 S. Ct.
681, 681–82 (2020) (Sotomayor, J., dissenting). While we
regard the merits of our decision under §§ 1225(b) and
1231(b) as clearly correct, we do not have the same level of
confidence with respect to the scope of the injunction entered
by the district court. We therefore stay the injunction insofar
as it operates outside the geographical boundaries of the
Ninth Circuit.
III. Declarations Filed in Connection with the
Government’s Motion to Stay Pending Disposition of a
Petition for Certiorari
The Government’s motion for stay and reply brief include
several sworn declarations. The United States Ambassador
to Mexico writes, “The panel’s decision, unless stayed, will
have an immediate and severely prejudicial impact on the
bilateral relationship between the United States and Mexico.”
The Assistant Secretary for International Affairs for the U.S.
Department of Homeland Security writes, “MPP was a
carefully negotiated solution with the Government of
Mexico.” She writes further, “The suspension of MPP

INNOVATION LAW LAB V. WOLF12
undermines almost two years’ worth of diplomatic
engagement with the Government of Mexico through which
a coordinated and cohesive immigration control program has
been developed.” The Deputy Commissioner of U.S.
Customs and Border Protection writes that enforcement of the
district court’s injunction will cause substantial disruption at
our ports of entry and will cost substantial amounts of money.
He writes further that on Friday, the day our decision was
announced, large groups of aliens sought admission to the
United States at various points along the border. The
Executive Associate Director of Enforcement and Removal
Operations for U.S. Immigration and Customs Enforcement
writes, “[I]f MPP is discontinued, approximately 25,000
individuals enrolled in MPP who remain in Mexico may soon
arrive in the United States seeking admission. . . . [I]f
[Customs and Border Protection] is required to process
approximately 25,000 inadmissible aliens in an extremely
short timeframe and then transfer those aliens to
[Immigration and Customs Enforcement] custody, it would
overload [Enforcement and Removal Operations’] already
burdened resources and create significant adverse
implications for public safety and the integrity of the United
States immigration system.”
The Plaintiffs-Appellants’ brief responding to the
Government’s motion includes two sworn declarations.
Mexico’s Ambassador to the United States from 2007 to 2013
writes, “The government of Mexico has consistently stated
that MPP is a policy unilaterally imposed by the U.S.
government. To the extent Mexico agreed to the policy, it
was upon threat of heavy and unprecedented tariffs.” He
writes, further, “I reject the notion that this Court’s
determination that MPP is likely unlawful will harm our two
nations’ relationship. Rather, it is MPP itself—and the way

INNOVATION LAW LAB V. WOLF13
the current administration is conducting policy towards
Mexico—that is particularly detrimental to the bilateral
relationship between the United States and Mexico.” An
expert on border and immigration issues writes that it is the
MPP that has created chaos at our southern border, and that
the MPP has not had a significant effect in reducing the flow
of immigrants into the United States.
We are not in a position to assess the accuracy of these
statements.
Conclusion
If the law were less clear—that is, if there were any
serious possibility that the MPP is consistent with §§ 1225(b)
and 1231(b)—we would stay the district court’s injunction in
its entirety pending disposition of the Government’s petition
for certiorari. However, it is very clear that the MPP violates
§§ 1225(b) and 1231(b), and it is equally clear that the MPP
is causing extreme and irreversible harm to plaintiffs.
We stay, pending disposition of the Government’s
petition for certiorari, the district court’s injunction insofar as
it operates outside the Ninth Circuit. We decline to stay,
pending disposition of the Government’s petition for
certiorari, the district court’s injunction against the MPP
insofar as it operates within the Ninth Circuit.
The Government has requested in its March 3 reply brief,
in the event we deny any part of their request for a stay, that
we “extend the [administrative] stay by at least seven days, to
March 10, to afford the Supreme Court an orderly opportunity
for review.” We grant the Government’s request and extend
our administrative stay entered on Friday, February 28, until

INNOVATION LAW LAB V. WOLF14
Wednesday, March 11. If the Supreme Court has not in the
meantime acted to reverse or otherwise modify our decision,
our partial grant and partial denial of the Government’s
request for a stay of the district court’s injunction, as
described above, will take effect on Thursday, March 12.
So ordered on March 4, 2020.
FERNANDEZ, Circuit Judge, concurring in part and
dissenting in part:
I would grant in full the government’s emergency
motion for a stay of the district court’s injunction pending
disposition of a petition for certiorari to the Supreme Court.
Thus, I concur in the order to the extent that it grants the
requested stay. I also concur in the order’s extension of
our administrative stay until Wednesday, March 11. I
respectfully dissent from the order to the extent that it denies
the stay.