On May 7, the Ninth Circuit stayed an injunction against the Trump administration’s “Stay in Mexico” policy. This policy, officially called the Migrant protection protocols (MPP), demands the return of certain migrants to Mexico pending a full immigration court hearing. The majority of the Ninth Circuit committee, which included conservative Judge Diarmuid O’Scannlain and liberal Judge Paul Watford (Judge William Fletcher dissented), concluded that the Immigration and Nationality Act (INA) granted officers immigration the discretion to keep foreign nationals in the United States under the “expedited removal” process or require them to wait in Mexico for a hearing.
The Trump administration has opted for the latter course for would-be immigrants at some border crossings, hoping to reduce the growing number of Central American migrant inflows. The Ninth Circuit’s decision allows the administration to continue this policy. The result, as Judge Watford’s agreement recognised, may be an increased risk for bona fide asylum seekers.
The statutory question is whether the expedited removal process, which Congress added to INA in 1996, is the only way to deal with prospective immigrants who are inadmissible because they do not have a visa or have fraudulent documents. Under expedited removal, immigration officials can summarily remove foreign nationals at the border unless they express a fear of persecution in their country of origin. If an entrant does, a trained asylum officer interviews the subject to determine if they have a “credible fear” of persecution. If so, that person gets a full hearing before an immigration judge. If the asylum officer finds no credible fear, the subject gets a truncated hearing before an immigration judge, often without a lawyer.
While Congress added the expedited removal provisions to the INA to make it Easier deport incoming aspirants, in practice this process did not result in the rapid deportation of the bulk of Central American migrants, who sought to enter the United States in growing number since 2014. The main reason is that Central American migrants, fleeing violence and the effects of deforestation and climate changehave often come to the United States as families with children. Under current court decisions regarding the Federal Court’s settlement in the Flores vs. Reno In this case, immigration officials cannot detain children, whether or not they are accompanied by their parents, for more than 20 days. After the Trump administration ended its disastrous family separation policy, authorities released children in the United States after 20 days also had to release the children parents.
Even with the more summary procedures authorized in the event of accelerated removal, it is practically impossible to settle an asylum file in 20 days. Thus, seeking asylum, regardless of the merits of the claim, has become a pathway to release in the United States for many Central American border entrants. This is why the Trump administration has turned to the “Remain in Mexico” option.
The “Remain in Mexico” option, or Migrant Protection Protocols, stems from an INA provision added in 1996—8 USC § 1225(b)(2)(C)— which allows immigration officials to return certain newcomers to a country “contiguous” (i.e. bordering) the United States while those foreign nationals await a full hearing before an immigration judge . As the New York Times immigration analysis cited earlier noted, most asylum seekers from Central America end up lose in immigration court. Therefore, immigrants subject to the MPP will generally be do not be released in the United States. Instead, they will stay in Mexico, get a hearing in immigration court, and then, if they lose, either stay in Mexico permanently or wait in Mexico to be sent back to their home country. from Central America. Trump administration officials found the MPP compelling because it would dramatically reduce the release of Central American migrants into the United States.
MPP challengers, a collection of immigration advocacy groups and legal clinics, argue that Mexico is often dangerous, especially for Central American migrants. Given the current asylum backlog, asylum seekers could face prolonged stays in Mexico totaling three years or more. As Justice Watford noted, U.S. border officials currently do not ask those subject to MPP if they fear persecution in Mexico as well as Central America, although immigrants who know enough to provide this information will receive additional safeguards. In addition, pending entrants to Mexico will encounter obstacles in obtaining an attorney and fully developing their asylum claims, especially as the Trump administration has harassed US attorneys seeking to provide legal assistance to this group. As a result, the MPP, far from protecting bona fide asylum seekers, will often lead them to failure.
In support of these policy concerns, opponents of the MPP argue that the “contiguous return” provision does not apply to persons subject to expedited removal. The challengers, along with dissenting Justice Fletcher, dive deep into the legislative text, saying the contiguous return is do not an option for any foreign national who may possibly be subject to an accelerated withdrawal. To support this position, the challengers cite text from a subsection of the INA, 8 USC § 1225(b)(2)(B)(ii)which states that the contiguous return provision does not do not include people to whom the expedited removal process “applies(emphasis added).
The challengers read the statutory term “applies” broadly, to include any foreign national that the government could place in accelerated removal. This group, including people without visas or with fraudulent documents, includes large majority inadmissible aliens apprehended at or near the southern border. For challengers, the group subject to contiguous return is restricted: it only includes people who are ineligible for other reasons, including the commission of a crime abroad. In practice, therefore, most asylum seekers from Central America would eventually be released in the United States.
Rejecting this narrow interpretation of the contiguous return provision, the Ninth Circuit held that any inadmissible foreign national arriving at the southern border is potentially subject to contiguous return until the government places that person on expedited deportation. Under this interpretation, expedited removal is a choice made by the government, not a path prescribed by law. The government can therefore circumvent expedited deportation and place virtually all ineligible southern commuters in contiguous return. This large group would include many asylum seekers from Central America – those with valid claims and those without – who would otherwise likely be released in the United States.
Overall, the text and structure of the INA favor the challengers, but the deal is tight. The majority and Justice Fletcher, dissenting, cited the Supreme Court’s decision in Jennings v. Rodriguez. This decision does not definitively resolve the issue of the scope of the contiguous return provision, since it dealt with INA detention, not contiguous return. However, Judge Alito, writing for the Jennings court, arguably favored a narrow interpretation of the contiguous return provision because it seemed to read the expedited removal provision broadly, stating that it “applies ‘to foreign nationals'”initially determined be inadmissible” due to fraud, lack of visa or misrepresentation (emphasis added).
In most cases, border agents must make an “initial” determination that a potential entrant does not have a visa, as this determination makes a huge difference in border processing. As a general rule, border officials admit people with valid visas and detain those without visas. When a border agent engages with a potential entrant, the agent seeks to determine as soon as possible whether that person has a valid document allowing entry into the United States. Given the pervasive nature of this “initial” decision, Alito’s description of expedited deportation seemed to present contiguous return as a modest residual provision encompassing those who had valid visas and who happened to be inadmissible to others. reasons, just as the challengers and Judge Fletcher assert.
The dictionary definition of “applies” reinforces this view. According to oxford dictionarythe second definition of “applies” is “[b]e applicable or relevant. This definition is quite broad — the expedited removal provision is potentially “applicable” and “relevant” to any foreign national who is inadmissible for the reasons listed there, such as lack of a visa. In other contexts, the word “applies” has the same broad meaning. For example, the criminal law “applies” to everyone (unless conferred immunity) on US territory. Prosecutors will not charge every person with a crime; indeed, they can exercise their discretion do not to charge certain people who they believe have in fact committed crimes. Nevertheless, in general, the criminal law surely “applies” to these people.
It also seems strange that the contiguous return provision does not mention whether those it includes fear persecution in a country contiguous to the United States, such as Mexico. If this provision “applies” to persons with a credible fear of persecution, it would seem natural that the provision also include language granting express protection from persecution in a contiguous country. However, the provision on contiguous return is silent on this point. Given the numerous references to credible fear in the expedited removal section that is adjacent to the contiguous return provision in the INA, this deafening silence suggests that the contiguous return authority does not apply. at all to asylum seekers. While Judge Watford suggested that the government could address concerns about credible fear of persecution in Mexico by asking applicants for contiguous return about their fears, this safeguard may miss the larger structural point that the provision does not apply. simply not in cases where a credible fear of persecution exists.
That said, the Supreme Court showed deference to the executive by Trump vs. Hawaii, in which the court upheld President Trump’s travel ban. If the Supreme Court ultimately takes up the “Remain in Mexico” case, similar deference may prevail. The government’s victory at this stage may well prefigure this outcome. At this time, the MPP challenge returns to the district court for retrial, unless the challengers appeal the stay to the Ninth Complete Circuit or the Supreme Court.
