Innovation Law Lab v. Chad Wolf

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INNOVATION LAW LAB; CENTRAL No. 19-15716
AMERICAN RESOURCE CENTER OF
NORTHERN CALIFORNIA; CENTRO D.C. No.
LEGAL DE LA RAZA; UNIVERSITY OF 3:19-cv-00807-
SAN FRANCISCO SCHOOL OF LAW RS
IMMIGRATION AND DEPORTATION
DEFENSE CLINIC; AL OTRO LADO;
TAHIRIH JUSTICE CENTER, OPINION
Plaintiffs-Appellees,
v.
CHAD 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
2 INNOVATION LAW LAB V. WOLF
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.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted October 1, 2019
San Francisco, California
Filed February 28, 2020
Before: Ferdinand F. Fernandez, William A. Fletcher,
and Richard A. Paez, Circuit Judges.
Opinion by Judge W. Fletcher;
Dissent by Judge Fernandez
INNOVATION LAW LAB V. WOLF 3
SUMMARY*
Immigration /Preliminary Injunctions
The panel affirmed the district court’s grant of a
preliminary injunction setting aside the Migrant Protection
Protocols (“MPP”), under which non-Mexican asylum
seekers who present themselves at the southern border of the
United States are required to wait in Mexico while their
asylum applications are adjudicated.
After the MPP went into effect in January 2019,
individual and organizational plaintiffs sought an injunction,
arguing, inter alia, that the MPP is inconsistent with the
Immigration and Nationality Act (“INA”), and that they have
a right to a remedy under the Administrative Procedure Act
(“APA”). The district court issued a preliminary injunction
setting aside the MPP.
The Government appealed and requested an emergency
stay in this court pending appeal. In three written opinions,
a motions panel unanimously granted the emergency stay. In
a per curiam opinion, the motions panel disagreed, by a vote
of two to one, with the district court’s holding that plaintiffs
were likely to succeed in their statutory argument that the
MPP is inconsistent with 8 U.S.C. § 1225(b). Judge Watford
concurred in that opinion, but wrote separately to express
concern that the MPP is arbitrary and capricious because it
lacks sufficient non-refoulement protections. Judge Fletcher
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 INNOVATION LAW LAB V. WOLF
concurred only in the result, arguing that the MPP was
inconsistent with 8 U.S.C. § 1225(b).
The current panel first noted that the individual plaintiffs,
all of whom have been returned to Mexico under the MPP,
obviously have standing. The panel also concluded that the
organizational plaintiffs have standing, noting their decreased
ability to carry out their core missions as well as diversion of
their resources.
Addressing the question of whether a merits panel is
bound by the analysis of a motions panel on a question of
law, the panel followed East Bay Sanctuary Covenant v.
Trump, Nos. 18-17274 and 18-17436 (9th Cir. Feb. 28, 2020),
argued on the same day as this case, in which the court held
that a motions panel’s legal analysis, performed during the
course of deciding an emergency motion for a stay, is not
binding on later merits panels. The panel also concluded that,
even if a merits panel may be bound in some circumstances
by a motions panel, this panel would not be bound: two of the
three judges on the motions panel disagreed in part with the
Government’s legal arguments in support of the MPP, and the
panel’s per curiam opinion did not purport to decide
definitively the legal questions presented. In this respect, the
panel noted that Judge Fletcher specifically addressed the
effect of the legal analysis of the motions panel and expressed
the hope that the merits panel, with the benefit of full briefing
and argument, would decide the legal questions differently.
On the merits, the panel concluded that plaintiffs had
shown a likelihood of success on their claim that the return-
to-Mexico requirement of the MPP is inconsistent with
§ 1225(b). The Government argued that the MPP is
authorized by § 1225(b)(2), which provides that, for certain
INNOVATION LAW LAB V. WOLF 5
aliens arriving on land from a foreign territory contiguous to
the United States, the Attorney General may return the aliens
to that territory pending removal proceedings. Plaintiffs
argued, however, that they were arriving aliens under
§ 1225(b)(1), rather than under § 1225(b)(2), and pointed out
that there is a contiguous territory return provision in § (b)(2),
but no such provision in § (b)(1).
The panel agreed, explaining that there are two distinct
categories of “applicants for admission” under § 1225. First,
there are applicants described under § 1225(b)(1), who are
inadmissible based on either of two grounds, both of which
relate to their documents or lack thereof. Such applicants
may be placed in either expedited removal proceedings or
regular removal proceedings under § 1229a. Second, there
are applicants described under § 1225(b)(2), who are, in the
words of the statute, “other aliens,” “to whom paragraph
[(b)](1)” does not apply; that is, § (b)(2) applicants are those
who are inadmissible on grounds other than the two specified
in § (b)(1). Such applicants are placed in regular removal
proceedings. The panel noted that both § (b)(1) and § (b)(2)
applicants can be placed in regular removal proceedings
under § 1229a, though by different routes, but concluded that
a § (b)(1) applicant does not become a § (b)(2) applicant, or
vice versa, by virtue of being placed in a removal proceeding
under § 1229a.
Addressing the precise statutory question posed by the
MPP, the panel held that a plain-meaning reading of
§ 1225(b)—as well as the Government’s longstanding and
consistent practice—made clear that a § (b)(1) applicant may
not be “returned” to a contiguous territory under
§ 1225(b)(2)(C), which is a procedure specific to a § (b)(2)
applicant.
6 INNOVATION LAW LAB V. WOLF
The panel next concluded that plaintiffs had shown a
likelihood of success on their claim that the MPP does not
comply with the United States’ treaty-based non-refoulement
obligations codified at 8 U.S.C. § 1231(b). The panel
explained that refoulement occurs when a government returns
aliens to a country where their lives or liberty will be
threatened on account of race, religion, nationality,
membership of a particular social group, or political opinion.
Further, the United States is obliged by treaty—namely, the
1951 United Nations Convention Relating to the Status of
Refugees and the 1967 United Nations Protocol Relating to
the Status of Refugees—and implementing statute—namely,
§ 1231(b)—to protect against refoulement of aliens arriving
at the country’s borders.
Plaintiffs argued that the MPP provides insufficient
protection against refoulement. First, under the MPP, to stay
in the United States during proceedings, an asylum seeker
must show that it is “more likely than not” that he or she will
be persecuted in Mexico, but that standard is higher than the
ordinary standing in screening interviews, in which aliens
need only establish a “credible fear,” which requires only a
“significant possibility” of persecution. Second, an asylum
seeker under the MPP is not entitled to advance notice of, and
time to prepare for, the hearing with the asylum officer; to
advance notice of the criteria the asylum officer will use; to
the assistance of a lawyer during the hearing; or to any review
of the asylum officer’s determination. Third, an asylum
officer acting under the MPP does not ask an asylum seeker
whether he or she fears returning to Mexico; instead, asylum
seekers must volunteer, without any prompting, that they fear
returning. The Government disagreed with plaintiffs on the
grounds that: 1) § 1231(b) does not encompass a general non-
INNOVATION LAW LAB V. WOLF 7
refoulement obligation; and 2) the MPP satisfies non-
refoulement obligations by providing sufficient procedures.
The panel rejected both arguments. With respect to the
second argument, the panel noted that the Government
pointed to no evidence supporting its speculations either that
aliens will volunteer that they fear returning to Mexico, or
that there is little danger to non-Mexican aliens in Mexico.
The panel also noted that the Government provided no
evidence to support its claim that any violence that returned
aliens face in Mexico is unlikely to be violence on account of
a protected ground. Further, the panel quoted numerous
sworn declarations to the district court that directly
contradicted the unsupported speculations of the Government.
Addressing the other preliminary injunction factors, the
panel concluded that there is a significant likelihood that the
individual plaintiffs will suffer irreparable harm if the MPP
is not enjoined; uncontested evidence in the record establishes
that non-Mexicans returned to Mexico under the MPP risk
substantial harm, even death, while they await adjudication of
their applications for asylum. Further, the panel concluded
that the balance of factors favored plaintiffs. While the
Government has an interest in continuing to follow the
directives of the MPP, the strength of that interest is
diminished by the likelihood that the MPP is inconsistent
with §§ 1225(b) and 1231(b). On the other side, the
individual plaintiffs risk substantial harm, and the
organizational plaintiffs are hindered in their ability to carry
out their missions. The panel concluded that public interest
similarly favored plaintiffs: while the public has a weighty
interest in efficient administration of the immigration laws,
the public also has an interest in ensuring that statutes enacted
by their representatives are not imperiled by executive fiat.
8 INNOVATION LAW LAB V. WOLF
Finally, considering the scope of the district court’s
injunction, the panel concluded that the district court did not
abuse its discretion in setting aside the MPP. The panel
recognized that nationwide injunctions have become
increasingly controversial, but noted that it was a misnomer
to call this order “nationwide,” as it operates only at the
southern border and directs the action of officials only in four
states. The panel explained that the district court did not
abuse its discretion for two mutually reinforcing reasons.
First, the APA provides that a reviewing court shall “set
aside” action that is not in accordance with the law and that
there is a presumption that an offending agency action should
be set aside in its entirety. Second, cases implicating
immigration policy have a particularly strong claim for
uniform relief, and this court has consistently recognized the
authority of district courts to enjoin unlawful policies on a
universal basis. The panel also observed that the Fifth
Circuit, one of only two other federal circuits with states
along the southern border, has held that nationwide
injunctions are appropriate in immigration cases.
Dissenting, Judge Fernandez wrote that he believes that
this panel is bound by the motions panel’s published decision
in this case. Judge Fernandez wrote that the panel is bound
by the law of the circuit, which binds all courts within a
particular circuit, including the court of appeals itself, and
remains binding unless overruled by the court sitting en banc,
or by the Supreme Court. Further, Judge Fernandez wrote
that, insofar as factual differences might allow precedent to
be distinguished on a principled basis, in this case, the
situation before this panel is in every material way the same
as that before the motions panel. Judge Fernandez also stated
that, in Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015), this
court held that a motions panel’s published opinion binds
INNOVATION LAW LAB V. WOLF 9
future panels the same as does a merits panel’s published
opinion. Judge Fernandez also concluded that the law of the
case doctrine binds this panel, noting that he did not perceive
any of the exceptions to the doctrine to be involved here.
Applying those doctrines, Judge Fernandez concluded
that: 1) plaintiffs are not likely to succeed on their claim that
the MPP was not authorized by § 1225(b)(2)(C); 2) plaintiffs
are not likely to succeed on their claim that the MPP’s
adoption violated the notice and comment provisions of the
APA; and 3) the preliminary injunction should be vacated.
Judge Fernandez stated that he expressed no opinion on
whether the district court could issue a narrower injunction.
COUNSEL
Scott G. Stewart (argued), Deputy Assistant Attorney
General; Archith Ramkumar, Trial Attorney; Erez Reuveni,
Assistant Director; William C. Peachey, Director; Joseph H.
Hunt, Assistant Attorney General; Office of Immigration
Litigation, United States Department of Justice, Washington,
D.C., Washington, D.C.; for Defendants-Appellants.
Judy Rabinovitz (argued), Michael Tan, Omar Jadwat, Lee
Gelernt, Anand Balakrishnan, and Daniel Galindo, American
Civil Liberties Union Foundation, Immigrants’ Rights
Project, New York, New York; Jennifer Chang Newell,
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.; Mary Bauer,
Southern Poverty Law Center, Charlottesville, Virginia;
Gracie Willis, Southern Poverty Law Center, Decatur,
10 INNOVATION LAW LAB V. WOLF
Georgia; Michelle P. Gonzalez, Southern Poverty Law
Center, Miami, Florida; Sean Riordan and Christine P. Sun,
American Civil Liberties Union Foundation of Northern
California Inc., San Francisco, California; Blaine Bookey,
Karen Musalo, Eunice Lee, Kathryn Jastram, and Sayoni
Maitra, Center for Gender and Refugee Studies, San
Francisco, California; Steven Watt, ACLU Foundation
Human Rights Program, New York, New York; for Plaintiffs-
Appellees.
Adeel A. Mangi, Muhammad U. Faridi, Elizabeth Riordan
Hurley, W. Robert Fair, and A. Robert Quirk, Patterson
Belknap Webb & Tyler LLP, New York, New York, for
Amicus Curiae Local 1924.
Alan E. Schoenfeld and Olga Musayev, Wilmer Cutler
Pickering Hale and Dorr LLP, New York, New York; Julia
Prochazka, Wilmer Cutler Pickering Hale and Dorr LLP,
Boston, Massachusetts; Harold Hongju Koh, Rule of Law
Clinic, Yale Law School, New Haven, Connecticut; for Amici
Curiae Former U.S. Government Officials.
Xiao Wang, Rakesh Kilaru, Aleshadye Getachew, and Sophia
Cooper, Wilkinson Walsh & Eskovitz LLP, Washington,
D.C.; Chanakya A. Sethi, Wilkinson Walsh & Eskovitz LLP,
New York, New York; for Amici Curiae Amnesty
International USA, The Washington Office on Latin America,
The Latin America Working Group, & Imumi.
Eleni Bakst, Human Rights First, New York, New York;
W. Hardy Callcott, Naomi A. Igra, and Tom Magaña, Sidley
Austin LLP, San Francisco, California; for Amicus Curiae
Human Rights First.
INNOVATION LAW LAB V. WOLF 11
Ana C. Reyes, Williams & Connolly LLP, Washington, D.C.;
Alice Farmer, United Nations High Commissioner for
Refugees, Washington, D.C.; for Amicus Curiae United
Nations High Commissioner.
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs brought suit in district court seeking an
injunction against the Government’s recently promulgated
Migrant Protection Protocols (“MPP”), under which non-
Mexican 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.
I. Background
In January 2019, the Department of Homeland Security
(“DHS”) promulgated the MPP without going through notice-
and-comment rulemaking. The MPP provides that non-
Mexican asylum seekers arriving at our southern border 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.” Innovation Law Lab v.
Nielsen, 366 F. Supp. 3d 1110, 1114 (N.D. Cal. 2019)
(quotation marks omitted). The MPP does not apply to
certain groups, including “unaccompanied alien children,”
“aliens processed for expedited removal,” “aliens with known
physical [or] mental health issues,” “returning [Legal
12 INNOVATION LAW LAB V. WOLF
Permanent Residents] seeking admission,” and “aliens with
an advance parole document or in parole status.”
DHS issued guidance documents to implement the MPP.
Under this guidance, asylum seekers who cross the border
and are subject to the MPP are given a Notice to Appear in
immigration court and returned to Mexico to await their court
date. Asylum seekers may re-enter the United States to
appear for their court dates. The guidance instructs officials
not to return any alien who will more likely than not suffer
persecution if returned to Mexico. However, this instruction
applies only to an alien “who affirmatively states that he or
she has a fear of persecution or torture in Mexico, or a fear of
return to Mexico.” Officers are not instructed to ask aliens
whether they fear returning to Mexico. If an asylum officer
determines, based on an alien’s volunteered statement, that he
or she will more likely than not suffer persecution in Mexico,
the alien is not subject to return to Mexico under the MPP.
The MPP went into effect on January 28, 2019. It was
first implemented at the San Ysidro, California, port of entry
and was later expanded across the entire southern border.
The MPP has had serious adverse consequences for the
individual plaintiffs. Plaintiffs presented evidence in the
district court that they, as well as others returned to Mexico
under the MPP, face targeted discrimination, physical
violence, sexual assault, overwhelmed and corrupt law
enforcement, lack of food and shelter, and practical obstacles
to participation in court proceedings in the United States.
The hardship and danger to individuals returned to Mexico
under the MPP have been repeatedly confirmed by reliable
news reports. See, e.g., Zolan Kanno-Youngs & Maya
Averbuch, Waiting for Asylum in the United States, Migrants
INNOVATION LAW LAB V. WOLF 13
Live in Fear in Mexico, N.Y. TIMES (Apr. 5, 2019),
https://www.nytimes.com/2019/04/05/us/politics/asylum-
united-states-migrants-mexico.html; Alicia A. Caldwell,
Trump’s Return-to-Mexico Policy Overwhelms
Immigration Courts, WALL STREET J. (Sept. 5, 2019),
https://www.wsj.com/articles/trumps-return-to-mexico-
policy-overwhelms-immigration-courts-11567684800; Mica
Rosenberg, et al., Hasty Rollout of Trump Immigration Policy
Has ‘Broken’ Border Courts, REUTERS (Sept. 10, 2019),
https://www.reuters.com/article/us-usa-immigration-courts-
insight/hasty-rollout-of-trump-immigration-policy-has-
broken-border-courts-idUSKCN1VV115; Mireya Villareal,
An Inside Look at Trump’s “Remain in Mexico” Policy,
CBS NEWS (Oct. 8, 2019), https://www.cbsnews.com/news/
remain-in-mexico-donald-trump-immigration-policy-nuevo-
laredo-mexico-streets-danger-migrants-2019-10-08/.
The organizational plaintiffs have also suffered serious
adverse consequences. The MPP has substantially hindered
the organizations’ “ability to carry out their core mission of
providing representation to aliens seeking admission,
including asylum seekers,” Innovation Law Lab, 366 F. Supp.
3d at 1129, and has forced them to divert resources because
of increased costs imposed by the MPP.
The Government has not argued in this court that either
the individual or organizational plaintiffs lack standing under
Article III, but we have an independent obligation to
determine our jurisdiction under Article III. The individual
plaintiffs, all of whom have been returned to Mexico under
the MPP, obviously have Article III standing. The
organizational plaintiffs also have Article III standing. The
Government conceded in the district court that the
organizational plaintiffs have Article III standing based on
14 INNOVATION LAW LAB V. WOLF
East Bay Sanctuary Covenant v. Trump, 932 F.3d 742,
765–67 (9th Cir. 2018), given their decreased ability to carry
out their core missions as well as the diversion of their
resources, both caused by the MPP. See Innovation Law Lab,
366 F. Supp. at 1120–22. Because East Bay Sanctuary
Covenant was a decision by a motions panel on an emergency
stay motion, we are not obligated to follow it as binding
precedent. See discussion, infra, Part V.A. However, we are
persuaded by its reasoning and hold that the organizational
plaintiffs have Article III standing.
II. Proceedings in the District Court
Plaintiffs filed suit in district court seeking an injunction,
alleging, inter alia, that the MPP is inconsistent with the
Immigration and Nationality Act (“INA”), specifically
8 U.S.C. §§ 1225(b) and 1231(b), and that they have a right
to a remedy under 5 U.S.C. § 706(2)(A). Section 706(2)(A)
provides, “The reviewing court shall . . . hold unlawful and
set aside agency action, findings, and conclusions found to be
. . . arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” (Internal numbering omitted.)
The district court held that plaintiffs had shown a
likelihood of success on the merits of their claim that the
MPP is inconsistent with § 1225(b). Id. at 1123. The
Government contended that the MPP is authorized by
§ 1225(b)(2). Plaintiffs argued, however, that they are
arriving aliens under § 1225(b)(1) rather than under
§ 1225(b)(2). They pointed out that there is a contiguous
territory return provision in § (b)(2) but no such provision in
§ (b)(1). The district court agreed with plaintiffs:
INNOVATION LAW LAB V. WOLF 15
On its face, . . . the contiguous territory return
provision may be applied to aliens described
in subparagraph (b)(2)(A). Pursuant to
subparagraph (b)(2)(B), however, that
expressly excludes any alien “to whom
paragraph [(b)](1) applies.”
Id. (emphasis in original). The court concluded, “Applying
the plain language of the statute, [the individual plaintiffs]
simply are not subject to the contiguous territory return
provision.” Id.
The district court also held that plaintiffs had shown a
likelihood of success on the merits of their claim that the
MPP violates § 1231(b)(3), the statutory implementation of
the United States’ treaty-based non-refoulement obligations.
The district court held that “plaintiffs have shown they are
more likely than not to prevail on the merits of their
contention that defendants adopted the MPP without
sufficient regard to refoulement issues.” Id. at 1127. In so
holding, the district court noted that the MPP does not
instruct asylum officers to ask asylum seekers whether they
fear returning to Mexico. Rather, “the MPP provides only for
review of potential refoulement concerns when an alien
‘affirmatively’ raises the point.” Id. The court further held
that it was more likely than not that the MPP should have
been adopted through notice-and-comment rulemaking with
respect to the non-refoulement aspects of the MPP. Id.
at 1128.
With respect to the individual plaintiffs, the district court
found that “[w]hile the precise degree of risk and specific
harms that plaintiffs might suffer in this case may be
debatable, there is no real question that it includes the
16 INNOVATION LAW LAB V. WOLF
possibility of irreparable injury, sufficient to support interim
relief in light of the showing on the merits.” Id. at 1129.
With respect to the organizational plaintiffs, the court found
that they had “shown a likelihood of harm in terms of
impairment of their ability to carry out their core mission of
providing representation to aliens seeking admission,
including asylum seekers.” Id. Finally, the court held that
the balance of equities and the public interest support the
issuance of a preliminary injunction. Id.
Relying on a decision of our court, the district court
issued a preliminary injunction setting aside the MPP. The
court noted:
[D]efendants have not shown the injunction in
this case can be limited geographically. This
is not a case implicating local concerns or
values. There is no apparent reason that any
of the places to which the MPP might
ultimately be extended have interests that
materially differ from those presented in San
Ysidro.
Id. at 1130.
III. Proceedings Before the Motions Panel
The district court issued its preliminary injunction on
April 8, 2019. The Government filed an appeal on April 10
and the next day requested an emergency stay pending
appeal. In accordance with our regular procedures, our April
motions panel heard the Government’s request for an
emergency stay. The motions panel held oral argument on
the stay on April 24. In three written opinions, the panel
INNOVATION LAW LAB V. WOLF 17
unanimously granted the emergency stay on May 7.
Innovation Law Lab v. McAleenan, 924 F.3d 503 (9th Cir.
2019).
In a per curiam opinion, the motions panel disagreed, by
a vote of two to one, with the district court’s holding that
plaintiffs were likely to succeed in their statutory argument
that the MPP is inconsistent with 8 U.S.C. § 1225(b). Id.at 508–09. The panel majority stated its legal conclusion in
tentative terms, writing that it was “doubtful that subsection
(b)(1) [of § 1225] ‘applies’ to [plaintiffs.]” Id. at 509
(emphasis added).
Judge Watford concurred in the per curiam opinion but
wrote separately to express concern that the MPP is arbitrary
and capricious because it lacks sufficient non-refoulement
protections. Id. at 511 (Watford, J., concurring). Judge
Watford expressed concern that asylum officers do not ask
asylum applicants whether they have a fear of returning to
Mexico: “One suspects the agency is not asking an important
question during the interview process simply because it
would prefer not to hear the answer.” Id. Judge Watford
concluded, “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.”
Id.
Judge Fletcher concurred only in the result. He wrote
separately, arguing that the MPP was inconsistent with
8 U.S.C. § 1225(b). Id. at 512 (W. Fletcher, J., concurring in
the result). In his view, asylum seekers subject to the MPP
are properly characterized as applicants under § 1225(b)(1)
rather than § 1225(b)(2), and are thus protected against being
returned to Mexico pending adjudication of their applications.
18 INNOVATION LAW LAB V. WOLF
Judge Fletcher emphasized the preliminary nature of the
emergency stay proceedings before the motions panel,
writing, “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[.]” Id. at 518.
IV. Standard of Review
When deciding whether to issue a preliminary injunction,
a district court considers whether the requesting party has
shown “that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). Likelihood of success
on the merits is a threshold inquiry and the most important
factor. See, e.g., Edge v. City of Everett, 929 F.3d 657, 663
(9th Cir. 2019).
We review a grant of a preliminary injunction for abuse
of discretion. See, e.g., United States v. California, 921 F.3d
865, 877 (9th Cir. 2019). “The district court’s interpretation
of the underlying legal principles, however, is subject to de
novo review and a district court abuses its discretion when it
makes an error of law.” Sw. Voter Registration Educ. Project
v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc).
INNOVATION LAW LAB V. WOLF 19
V. Likelihood of Success on the Merits
A. Effect of the Motions Panel’s Decision
A preliminary question is whether a merits panel is bound
by the analysis of a motions panel on a question of law,
performed in the course of deciding an emergency request for
a stay pending appeal. On that question, we follow East Bay
Sanctuary Covenant v. Trump, Nos. 18-17274 and 18-17436
(9th Cir. 2020), argued on the same day as this case, in which
we held that a motions panel’s legal analysis, performed
during the course of deciding an emergency motion for a stay,
is not binding on later merits panels. Such a decision by a
motions panel is “a probabilistic endeavor,” “doctrinally
distinct” from the question considered by the later merits
panel, and “issued without oral argument, on limited
timelines, and in reliance on limited briefing.” Id. at 21–22,
20. “Such a predictive analysis should not, and does not,
forever bind the merits of the parties’ claims.” Id. at 22. At
oral argument in this case, the Government acknowledged
“that law of the circuit treatment does not apply to [the
motion’s panel’s decision].” The Government later reiterated
that it was “not advocating for law of the circuit treatment.”
The Government “agree[d] that that is inappropriate in the
context of a motions panel decision.”
Even if, acting as a merits panel, we may be bound in
some circumstances by a decision by a motions panel on a
legal question, we would in any event not be bound in the
case now before us. Two of the three judges on the motions
panel disagreed in part with the Government’s legal
arguments in support of the MPP. Further, the motions
panel’s per curiam opinion did not purport to decide
definitively the legal questions presented to it in the
20 INNOVATION LAW LAB V. WOLF
emergency stay motion. The per curiam spoke in terms of
doubt and likelihood, rather than in terms of definitive
holdings. Innovation Law Lab, 924 F.3d at 509; see also
supra Part III. Indeed, Judge Fletcher, who concurred in
granting the emergency stay, specifically addressed the effect
of the legal analysis of the motions panel and expressed the
hope that the merits panel, with the benefit of full briefing
and argument, would decide the legal questions differently.
B. Questions on the Merits
Plaintiffs challenge two aspects of the MPP. First, they
challenge the requirement that asylum seekers return to
Mexico and wait there while their applications for asylum are
adjudicated. They contend that this requirement is
inconsistent with the INA, as amended in 1996 by the Illegal
Immigration Reform and Immigrant Responsbility Act
(“IIRIRA”). Second, in the alternative, they challenge the
failure of asylum officers to ask asylum seekers whether they
fear being returned to Mexico. They contend that this failure
is inconsistent with our treaty-based non-refoulement
obligations. They contend, further, that with respect to non-
refoulement, the MPP should have been adopted only after
notice-and-comment rulemaking.
We address these challenges in turn. We conclude that
plaintiffs have shown a likelihood of success on their claim
that the return-to-Mexico requirement of the MPP is
inconsistent with 8 U.S.C. § 1225(b). We further conclude
that plaintiffs have shown a likelihood of success on their
claim that the MPP does not comply with our treaty-based
non-refoulement obligations codified at 8 U.S.C. § 1231(b).
We do not reach the question whether they have shown a
likelihood of success on their claim that the anti-refoulement
INNOVATION LAW LAB V. WOLF 21
aspect of the MPP should have been adopted through notice-
and-comment rulemaking.
1. Return to Mexico
The essential feature of the MPP is that non-Mexican
asylum seekers who arrive at a port of entry along the United
States’ southern border must be returned to Mexico to wait
while their asylum applications are adjudicated. Plaintiffs
contend that the requirement that they wait in Mexico is
inconsistent with 8 U.S.C. § 1225(b). The government
contends, to the contrary, that the MPP is consistent with
§ 1225(b).
The relevant text of § 1225 is as follows:
(a) Inspection
(1) Aliens treated as applicants for
admission
An alien present in the United States
who has not been admitted . . . shall be
deemed for purposes of this chapter an
applicant for admission.
...
(b) Inspection of applicants for admission
(1) Inspection of aliens arriving in the
United States and certain other
aliens who have not been admitted
or paroled
22 INNOVATION LAW LAB V. WOLF
(A) Screening
(i) In general
If an immigration officer
determines that an alien . . . who is
arriving in the United States . . . is
inadmissible under section
1182(a)(6)(C) or 1182(a)(7) of this
title, the officer shall order the
alien removed from the United
States without further hearing or
review unless the alien indicates
either an intention to apply for
asylum under section 1158 of this
title or a fear of persecution.
(ii) Claims for asylum
If an immigration officer
determines that an alien . . . is
inadmissible under section
1182(a)(6)(C) or 1182(a)(7) of this
title and the alien indicates either
an intention to apply for asylum
under section 1158 of this title or
a fear of persecution, the officer
shall refer the alien for an
interview by an asylum officer
under subparagraph (B).
...
(B) Asylum interviews
INNOVATION LAW LAB V. WOLF 23
...
(ii) Referral of certain aliens
If the [asylum] officer
determines at the time of the
interview that an alien has a
credible fear of persecution . . . ,
the alien shall be detained for
further consideration of the
application for asylum.
...
(2) Inspection of other aliens
(A) In general
Subject to subparagraphs (B) and
(C), in the case of an alien who is an
applicant for admission, if the
examining immigration officer
determines that an alien seeking
admission is not clearly and beyond a
doubt entitled to be admitted, the alien
shall be detained for a proceeding
under section 1229a of this title.
(B) Exception
Subparagraph (A) shall not apply
to an alien —
(i) who is a crewman
24 INNOVATION LAW LAB V. WOLF
(ii) to whom paragraph (1)
applies, or
(iii) who is a stowaway.
(C) Treatment of aliens arriving
from contiguous territory
In the case of an alien described in
subparagraph (A) who is arriving on
land (whether or not at a designated
port of arrival) from a foreign territory
contiguous to the United States, the
Attorney General may return the alien
to that territory pending a proceeding
under section 1229a of this title.
There are two categories of “applicants for admission”
under § 1225. § 1225(a). First, there are applicants described
in § 1225(b)(1). Second, there are applicants described in
§ 1225(b)(2).
Applicants described in § 1225(b)(1) are inadmissible
based on either of two grounds, both of which relate to their
documents or lack thereof. Applicants described in
§ 1225(b)(2) are in an entirely separate category. In the
words of the statute, they are “other aliens.” § 1225(b)(2)
(heading). Put differently, again in the words of the statute,
§ (b)(2) applicants are applicants “to whom paragraph
[(b)](1)” does not apply. § 1225(b)(2)(B)(ii). That is,
§ (b)(1) applicants are those who are inadmissible on either
of the two grounds specified in that subsection. Section
(b)(2) applicants are all other inadmissible applicants.
INNOVATION LAW LAB V. WOLF 25
Section (b)(1) applicants are more numerous than § (b)(2)
applicants, but § (b)(2) is a broader category in the sense that
§ (b)(2) applicants are inadmissible on more grounds than
§ (b)(1) applicants. Inadmissable applicants under § (b)(1)
are aliens traveling with fraudulent documents
(§ 1182(a)(6)(C)) or no documents (§ 1182(a)(7)). By
contrast, inadmissable applicants under § (b)(2) include, inter
alia, aliens with “a communicable disease of public health
significance” or who are “drug abuser[s] or addict[s]”
(§ 1182(a)(1)(A)(i), (iv)); aliens who have “committed . . . a
crime involving moral turpitude” or who have “violat[ed] . . .
any law or regulation . . . relating to a controlled substance”
(§ 1182(a)(2)(A)(i)); aliens who “seek to enter the United
States . . . to violate any law of the United States relating to
espionage or sabotage,” or who have “engaged in a terrorist
activity” (§ 1182(a)(3)(A), (B)); aliens who are “likely . . . to
become a public charge” (§ 1182(a)(4)(A)); and aliens who
are alien “smugglers” (§ 1182(a)(6)(E)).
The Supreme Court recently distinguished § (b)(1) and
§ (b)(2) applicants, stating unambiguously that they fall into
two separate categories:
[A]pplicants for admission fall into one of two
categories, those covered by § 1225(b)(1) and
those covered by § 1225(b)(2). Section
1225(b)(1) applies to aliens initially
determined to be inadmissible due to fraud,
misrepresentation, or lack of valid
documentation. . . . Section 1225(b)(2) is
broader. It serves as a catchall provision that
applies to all applicants for admission not
covered by § 1225(b)(1).
26 INNOVATION LAW LAB V. WOLF
Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018) (emphasis
added) (citations omitted).
Even more recently, the Attorney General of the United
States, through the Board of Immigration Appeals, drew the
same distinction and briefly described the procedures
applicable to the two categories:
Under section 235 of the Act [8 U.S.C.
§ 1225], all aliens “arriv[ing] in the United
States” or “present in the United States
[without having] been admitted” are
considered “applicants for admission,” who
“shall be inspected by immigration officers.”
INA § 235(a)(1), (3). [8 U.S.C. § 1225(a)(1),
(3).] In most cases, those inspections yield
one of three outcomes. First, if an alien is
“clearly and beyond a doubt entitled to be
admitted,” he will be permitted to enter, or
remain in, the country without further
proceedings. Id. § 235(b)(2)(A). [8 U.S.C.
§ 1225(b)(2)(A).] Second, if the alien is not
clearly admissible, then, generally, he will be
placed in “proceeding[s] under section 240
[8 U.S.C. § 1229a]” of the Act—that is, full
removal proceedings. Id. Third, if the alien is
inadmissible on one of two specified grounds
and meets certain additional criteria, DHS
may place him in either expedited or full
proceedings. Id. § 235(b)(1)(A)(i) [8 U.S.C.
§ 1225(b)(1)(A)(i)]; see Matter of E-R-M- &
L-R-M-, 25 I&N Dec. 520, 524 (BIA 2011).
INNOVATION LAW LAB V. WOLF 27
Matter of M-S-, 27 I. & N. Dec. 509, 510 (BIA April 16,
2019).
The procedures specific to the two categories of
applicants are outlined in their respective subsections. To
some extent, the statutorily prescribed procedures are the
same for both categories. If a § (b)(1) applicant passes his or
her credible fear interview, he or she will be placed in regular
removal proceedings under 8 U.S.C. § 1229a. See 8 C.F.R.
§ 208.30(f). A § (b)(1) applicant may also be placed directly
into regular removal proceedings under § 1229a at the
discretion of the Government. See Matter of E-R-M- & L-R-
M-, 25 I. & N. Dec. 520, 522 (BIA 2011). A § (b)(2)
applicant who is “not clearly and beyond a doubt entitled to
be admitted” is automatically placed in regular removal
proceedings under § 1229a. See § 1225(b)(2)(A).
Both § (b)(1) and § (b)(2) applicants can thus be placed
in regular removal proceedings under § 1229a, though by
different routes. But the fact that an applicant is in removal
proceedings under § 1229a does not change his or her
underlying category. A § (b)(1) applicant does not become
a § (b)(2) applicant, or vice versa, by virtue of being placed
in a removal proceeding under § 1229a.
However, the statutory procedures for the two categories
are not identical. Some of the procedures are exclusive to one
category or the other. For example, if a § (b)(1) applicant
fails to pass his or her credible fear interview, he or she may
be removed in an expedited proceeding without a regular
removal proceeding under § 1229a. See § 1225(b)(1)(A), (B).
There is no comparable procedure specified in § (b)(2) for
expedited removal of a § (b)(2) applicant. Further, in some
circumstances a § (b)(2) applicant may be “returned” to a
28 INNOVATION LAW LAB V. WOLF
“territory contiguous to the United States” pending his or her
regular removal proceeding under § 1229a. See
§ 1225(b)(2)(C). There is no comparable “return” procedure
specified in §1225(b)(1) for a § (b)(1) applicant.
The statutory question posed by the MPP is whether a
§ (b)(1) applicant may be “returned” to a contiguous territory
under § 1225(b)(2)(C). That is, may a § (b)(1) applicant be
subjected to a procedure specified for a § (b)(2) applicant? A
plain-meaning reading of § 1225(b)—as well as the
Government’s longstanding and consistent practice up until
now—tell us that the answer is “no.”
There is nothing in § 1225(b)(1) to indicate that a § (b)(1)
applicant may be “returned” under § 1225(b)(2)(C). Section
(b)(1)(A)(i) tells us with respect to § (b)(1) applicants that an
“officer shall order the alien removed . . . without further
hearing or review unless the alien indicates either an intention
to apply for asylum . . . or a fear of persecution.” Section
(b)(1)(A)(ii) tells us that § (b)(1) applicants who indicate an
intention to apply for asylum or a fear of persecution “shall”
be referred by the immigration officer to an “asylum officer”
for an interview. The remainder of § 1225(b)(1) specifies
what happens to a § (b)(1) applicant depending on the
determination of the asylum officer—either expedited
removal or detention pending further consideration.
§ 1225(b)(1)(B)(ii)–(iii). There is nothing in § 1225(b)(1)
stating, or even suggesting, that a § (b)(1) applicant is subject
to the “return” procedure of § 1225(b)(2)(C).
Nor is there anything in § 1225(b)(2) to indicate that a
§ (b)(1) applicant may be “returned” under § 1225(b)(2)(C).
Taking § 1225(b)(2) subparagraph by subparagraph, it
provides as follows. Subparagraph (A) tells us that unless a
INNOVATION LAW LAB V. WOLF 29
§ (b)(2) applicant is “clearly and beyond a doubt entitled to
be admitted,” she or he “shall be detained” for a removal
proceeding under § 1229a. § 1225(b)(2)(A). Subparagraph
(A) is “[s]ubject to subparagraphs (B) and (C).” Id.
Subparagraph (B) tells us that subparagraph (A) does not
apply to three categories of aliens—“crewm[e]n,” § (b)(1)
applicants, and “stowaway[s].” § 1225(b)(2)(B). Finally,
subparagraph (C) tells us that a § (b)(2) applicant who arrives
“on land . . . from a foreign territory contiguous to the United
States,” instead of being “detained” under subparagraph (A)
pending his or her removal proceeding under § 1229a, may be
“returned” to that contiguous territory pending that
proceeding. § 1225(b)(2)(C). Section (b)(1) applicants are
mentioned only once in § 1225(b)(2), in subparagraph (B)(ii).
That subparagraph specifies that subparagraph (A)—which
automatically entitles § (b)(2) applicants to regular removal
proceedings under § 1229a—does not apply to § (b)(1)
applicants.
The “return-to-a-contiguous-territory” provision of
§ 1225(b)(2)(C) is thus available only for § (b)(2) applicants.
There is no plausible 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.
The Government nonetheless contends that § (b)(2)(C)
authorizes the return to Mexico not only of § (b)(2)
applicants, but also of § (b)(1) applicants. The Government
makes essentially three arguments in support of this
contention. None is persuasive.
30 INNOVATION LAW LAB V. WOLF
First, the Government argues that § (b)(1) applicants are
a subset of § (b)(2) applicants. Blue Brief at 35. Under the
Government’s argument, there are § (b)(1) applicants, defined
in § (b)(1), and there are § (b)(2) applicants, defined as all
applicants, including § (b)(2) and § (b)(1) applicants. The
Government argues that DHS, in its discretion, can therefore
apply the procedures specified in § (b)(2) to a § (b)(1)
applicant. That is, as stated in its brief, the Government has
“discretion to make the initial ‘determin[ation]’ whether to
apply section 1225(b)(1) or section 1225(b)(2) to a given
alien.” Blue Brief at 30.
The Government’s argument ignores the statutory text,
the Supreme Court’s opinion in Jennings, and the opinion of
its own Attorney General in Matter of M-S-. The text of
§ 1225(b) tells us that § (b)(1) and § (b)(2) are separate and
non-overlapping categories. In Jennings, the Supreme Court
told us explicitly that § (b)(1) and § (b)(2) applicants fall into
separate and non-overlapping categories. In Matter of M-S-,
the Attorney General wrote that applicants are subject to
different procedures depending on whether they are § (b)(1)
or § (b)(2) applicants.
Second, the Government argues that § (b)(2)(B)(ii) allows
DHS, in its discretion, to “apply” to a § (b)(1) applicant either
procedures described in § (b)(1) or those described in
§ (b)(2). The Government’s second argument is necessitated
by its first. To understand the Government’s second
argument, one must keep in mind that § (b)(2)(A)
automatically entitles a § (b)(2) applicant to a regular removal
hearing under § 1229a. But we know from § (b)(1) that not
all § (b)(1) applicants are entitled to a removal hearing under
§ 1229a. Having argued that § (b)(2) applicants include not
only § (b)(2) but also § (b)(1) applicants, the Government
INNOVATION LAW LAB V. WOLF 31
needs some way to avoid giving regular removal proceedings
to all § (b)(1) applicants. The best the Government can do is
to rely on § (b)(2)(B)(ii), which provides: “Subparagraph (A)
shall not apply to an alien . . . to whom paragraph [(b)](1)
applies.” § 1225(b)(2)(B)(ii) (emphasis added). The
Government thus argues that § (b)(2)(B)(ii) allows DHS, in
its discretion, to “apply,” or not apply, § (b)(2)(A) to a
§ (b)(1) applicant.
The Government misreads § (b)(2)(B)(ii). Subparagraph
(B) tells us, “Subparagraph (A) shall not apply to an alien —
(i) who is a crewman, (ii) to whom paragraph [(b)](1) applies,
or (iii) who is a stowaway.” The function of § (b)(2)(B)(ii)
is to make sure that we understand that the automatic
entitlement to a regular removal hearing under § 1229a,
specified in § (b)(2)(A) for a § (b)(2) applicant, does not
apply to a § (b)(1) applicant. However, the Government
argues that § (b)(2)(B)(ii) authorizes the Government to
perform an act. That act is to “apply” the expedited removal
procedures of § (b)(1) to some of the aliens under § (b)(2), as
the Government defines § (b)(2) applicants.
There is a fatal syntactical problem with the
Government’s argument. “Apply” is used twice in the same
sentence in § (b)(2)(B)(ii). The first time the word is used, in
the lead-in to the section, it refers to the application of a
statutory section (“Subparagraph (A) shall not apply”). The
second time the word is used, it is used in the same manner,
again referring to the application of a statutory section (“to
whom paragraph [(b)](1) applies”). When the word is used
the first time, it tells us that subparagraph (A) shall not apply.
When the word is used the second time, it tells us to whom
subparagraph (A) shall not apply: it does not apply to
applicants to whom § (b)(1) applies. The word is used in the
32 INNOVATION LAW LAB V. WOLF
same manner both times to refer to the application of
subparagraph (A). The word is not used the first time to refer
to the application of a subparagraph (A), and the second time
to an action by DHS.
The Government’s third argument is based on the
supposed culpability of § (b)(1) applicants. We know from
§ (b)(2)(A) that § (b)(2) applicants are automatically entitled
to full removal proceedings under § 1229a. However,
§ (b)(2) applicants may be returned to Mexico under
§ (b)(2)(C) to await the outcome of their removal hearing
under § 1229a. It makes sense for the Government, in its
discretion, to require some § (b)(2) applicants to remain in
Mexico while their asylum applications are adjudicated, for
some § (b)(2) applicants are extremely undesirable
applicants. As discussed above, § (b)(2) applicants include
spies, terrorists, alien smugglers, and drug traffickers.
When the Government was before the motions panel in
this case, it argued that § (b)(1) applicants are more culpable
than § (b)(2) applicants and therefore deserve to be forced to
wait in Mexico while their asylum applications are being
adjudicated. In its argument to the motions panel, the
Government compared § (b)(1) and § (b)(2) applicants,
characterizing § (b)(2) applicants as “less-culpable arriving
aliens.” The Government argued that returning § (b)(2), but
not § (b)(1), applicants to a contiguous territory would have
“the perverse effect of privileging aliens who attempt to
obtain entry to the United States by fraud . . . over aliens who
follow our laws.”
The Government had it exactly backwards. Section (b)(1)
applicants are those who are “inadmissible under section
1182(a)(6)(C) or 1182(a)(7)” of Title 8. These two sections
INNOVATION LAW LAB V. WOLF 33
describe applicants who are inadmissible because they lack
required documents rather than because they have a criminal
history or otherwise pose a danger to the United States.
Section 1182(a)(6)(C), entitled “Misrepresentation,” covers,
inter alia, aliens using fraudulent documents. That is, it
covers aliens who travel under false documents and who,
once they arrive at the border or enter the country, apply for
asylum. Section 1182(a)(7), entitled “Documentation
requirements,” covers aliens traveling without documents. In
short, § (b)(1) applies to bona fide asylum applicants, who
commonly have fraudulent documents or no documents at all.
Indeed, for many such applicants, fraudulent documents are
their only means of fleeing persecution, even death, in their
own countries. The structure of § (b)(1), which contains
detailed provisions for processing asylum seekers,
demonstrates that Congress recognized that § (b)(1)
applicants may have valid asylum claims and should therefore
receive the procedures specified in § (b)(1).
In its argument to our merits panel, the Government made
a version of the same argument it had made earlier to the
motions panel. After referring to (but not describing) § (b)(2)
applicants, the Government now argues in its opening brief:
Section 1225(b)(1), meanwhile, reaches,
among other classes of aliens, those who
engage in fraud or willful misrepresentations
in an attempt to deceive the United States into
granting an immigration benefit. See 8 U.S.C.
§ 1182(a)(6)(C). Plaintiffs have not explained
why Congress would have wanted that class
of aliens to be exempt from temporary return
to Mexico while their full removal
proceedings are ongoing.
34 INNOVATION LAW LAB V. WOLF
Blue Brief at 37–38 (emphasis in original).
We need not look far to discern Congress’s motivation in
authorizing return of § (b)(2) applicants but not § (b)(1)
applicants. Section (b)(2)(C) was added to IIRIRA late in the
drafting process, in the wake of Matter of Sanchez-Avila,
21 I. & N. Dec. 444 (BIA 1996). Sanchez-Avila was a
Mexican national who applied for entry as a “resident alien
commuter” but who was charged with being inadmissible due
to his “involvement with controlled substances.” Id. at 445;
see 8 U.S.C. § 1182(a)(2)(A)(i) (§ (b)(2) applicants include
aliens who have “violat[ed] . . . any law or regulation . . .
relating to a controlled substance”). In order to prevent aliens
like Sanchez-Avila from staying in the United States during
the pendency of their guaranteed regular removal proceeding
under § 1229a, as they would otherwise have a right to do
under § (b)(2)(A), Congress added § 1225(b)(2)(C).
Congress had specifically in mind undesirable § (b)(2)
applicants like Sanchez-Avila. It did not have in mind bona
fide asylum seekers under § (b)(1).
We therefore conclude that plaintiffs have shown a
likelihood of success on the merits of their claim that the
MPP is inconsistent with 8 U.S.C. § 1225(b).
2. Refoulement
Plaintiffs claim that the MPP is invalid in part, either
because it violates the United States’ treaty-based anti-
refoulement obligations, codified at 8 U.S.C.
§ 1231(b)(3)(A), or because, with respect to refoulement, the
MPP was improperly adopted without notice-and-comment
rulemaking. Our holding that plaintiffs are likely to succeed
on their claim that the MPP is invalid in its entirety because
INNOVATION LAW LAB V. WOLF 35
it is inconsistent with § 1225(b) makes it unnecessary to
decide plaintiffs’ second claim. We nonetheless address it as
an alternative ground, under which we hold the MPP invalid
in part.
Refoulement occurs when a government returns aliens to
a country where their lives or liberty will be threatened on
account of race, religion, nationality, membership of a
particular social group, or political opinion. The United
States is obliged by treaty and implementing statute, as
described below, to protect against refoulement of aliens
arriving at our borders.
Paragraph one of Article 33 of the 1951 United Nations
Convention Relating to the Status of Refugees, entitled,
“Prohibition of expulsion or return (‘refoulement’),”
provides:
No Contracting State shall expel or return
(“refouler”) a refugee in any manner
whatsoever to the frontiers of territories where
his life or freedom would be threatened on
account of his race, religion, nationality,
membership of a particular social group or
political opinion.
The United States is not a party to the 1951 Convention, but
in 1968 we acceded to the United Nations Protocol Relating
to the Status of Refugees, Jan. 31, 1967. INS v. Stevic,
467 U.S. 407, 416 (1984). “The Protocol bound parties to
comply with the substantive provisions of Articles 2 through
34 of the United Nations Convention Relating to the Status of
Refugees.” Id. Twelve years later, Congress passed the
Refugee Act of 1980, implementing our obligations under the
36 INNOVATION LAW LAB V. WOLF
1967 Protocol. “If one thing is clear from the legislative
history of the . . . entire 1980 Act, it is that one of Congress’
primary purposes was to bring United States refugee law into
conformance with the 1967 United Nations Protocol Relating
to the Status of Refugees.” INS v. Cardoza-Fonseca,
480 U.S. 421, 436 (1987). The 1980 Act included, among
other things, a provision designed to implement Article 33 of
the 1951 Convention. After recounting the history behind
8 U.S.C. § 1253(h)(1), part of the 1980 Act, the Supreme
Court characterized that section as “parallel[ing] Article 33,”
the anti-refoulement provision of the 1951 Convention. INS
v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999).
Section 1253(h)(1) provided, in relevant part, “The
Attorney General shall not deport or return any alien . . . to
a country if the Attorney General determines that such alien’s
life or freedom would be threatened in such country on
account of race, religion, nationality, membership of a
particular social group, or political opinion.” Id. at 419(emphasis added). The current version is § 1231(b)(3)(A):
“[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.” (Emphasis added.) The
words “deport or return” in the 1980 version of the section
were replaced in 1996 by “remove” as part of a general
statutory revision under IIRIRA. Throughout IIRIRA,
“removal” became the new all-purpose word, encompassing
“deportation,” “exclusion,” and “return” in the earlier statute.
See, e.g., Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1162 (9th
Cir. 2005) (“IIRIRA eliminated the distinction between
deportation and exclusion proceedings, replacing them with
a new, consolidated category—‘removal.’”).
INNOVATION LAW LAB V. WOLF 37
Plaintiffs point out several features of the MPP that, in
their view, provide insufficient protection against
refoulement.
First, under the MPP, to stay in the United States during
the pendency of removal proceedings under § 1229a, the
asylum seeker must show that it is “more likely than not” that
he or she will be persecuted in Mexico. More-likely-than-not
is a high standard, ordinarily applied only after an alien has
had a regular removal hearing under § 1229a. By contrast,
the standard ordinarily applied in screening interviews with
asylum officers at the border is much lower. Aliens subject
to expedited removal need only establish a “credible fear” in
order to remain in the United States pending a hearing under
§ 1229a. §§ 1225(b)(1)(A)(ii), 1225(b)(1)(B)(ii). Credible
fear requires only that the alien show a “significant
possibility” of persecution. § 1225(b)(1)(B)(v).
Second, under the MPP, an asylum seeker is not entitled
to advance notice of, and time to prepare for, the hearing with
the asylum officer; to advance notice of the criteria the
asylum officer will use; to the assistance of a lawyer during
the hearing; or to any review of the asylum officer’s
determination. By contrast, an asylum seeker in a removal
proceeding under § 1229a is entitled to advance notice of the
hearing with sufficient time to prepare; to advance notice of
the precise charge or charges on which removal is sought; to
the assistance of a lawyer; to an appeal to the Board of
Immigration Appeals; and to a subsequent petition for review
to the court of appeals.
Third, an asylum officer acting under the MPP does not
ask an asylum seeker whether he or she fears returning to
Mexico. Instead, asylum seekers must volunteer, without any
38 INNOVATION LAW LAB V. WOLF
prompting, that they fear returning. By contrast, under
existing regulations, an asylum officer conducting a credible
fear interview is directed “to elicit all relevant and useful
information bearing on whether the applicant has a credible
fear of persecution or torture.” 8 C.F.R. § 208.30(d). The
asylum officer is specifically directed to “determine that the
alien has an understanding of the credible fear determination
process.” § 208.30(d)(2).
The Government disagrees with plaintiffs based on two
arguments. The Government first argues briefly that
§ 1231(b)(3)(A) does not encompass a general anti-
refoulement obligation. It argues that the protection provided
by § 1231(b)(3)(A) applies to aliens only after they have been
ordered removed to their home country at the conclusion of
a regular removal proceeding under § 1229a. It writes:
Section 1231(b)(3) codifies a form of
protection from removal that is available only
after an alien is adjudged removable. See
8 U.S.C. § 1231(b)(3); 8 C.F.R. 1208.16(a).
Aliens subject to MPP do not receive a final
order of removal to their home country when
they are returned (temporarily) to Mexico, and
so there is no reason why the same procedures
would apply . . . .
Blue Brief at 41 (emphasis in original).
The Government reads § 1231(b)(3)(A) too narrowly.
Section 1231(b)(3)(A) does indeed apply to regular removal
proceedings under § 1229a, as evidenced, for example, by
8 C.F.R. § 1208.16(a) (discussing, inter alia, the role of the
Immigration Judge). But its application is not limited to such
INNOVATION LAW LAB V. WOLF 39
proceedings. As described above, and as recognized by the
Supreme Court, Congress intended § 1253(h)(1), and
§ 1231(b)(3)(A) as its recodified successor, to “parallel”
Article 33 of the 1951 Convention. Aguirre-Aguirre,
526 U.S. at 427. Article 33 is a general anti-refoulement
provision, applicable whenever an alien might be returned to
a country where his or her life or freedom might be
threatened on account of a protected ground. It is not limited
to instances in which an alien has had a full removal hearing
with significant procedural protections, as would be the case
under § 1229a.
The Government’s second argument is that the MPP
satisfies our anti-refoulement obligations by providing a
sufficiently effective method of determining whether aliens
fear, or have reason to fear, returning to Mexico. In its brief,
the Government contends that asylum seekers who genuinely
fear returning to Mexico have “every incentive” affirmatively
to raise that fear during their interviews with asylum officers,
and that Mexico is not a dangerous place for non-Mexican
asylum seekers. The Government writes:
[N]one of the aliens subject to MPP are
Mexican nationals fleeing Mexico, and all of
them voluntarily chose to enter and spend
time in Mexico en route to the United States.
Mexico, moreover, has committed to adhering
to its domestic and international obligations
regarding refugees. Those considerations
together strongly suggest that the great
majority of aliens subject to MPP are not
more likely than not to face persecution on a
protected ground or torture, in Mexico. In the
rare case where an MPP-eligible alien does
40 INNOVATION LAW LAB V. WOLF
have a substantial and well-grounded basis for
claiming that he is likely to be persecuted in
Mexico, that alien will have every incentive to
raise that fear at the moment he is told that he
will be returned.
Blue Brief at 45. However, the Government points to no
evidence supporting its speculations either that aliens,
unprompted and untutored in the law of refoulement, will
volunteer that they fear returning to Mexico, or that there is
little danger to non-Mexican aliens in Mexico.
The Government further asserts, again without supporting
evidence, that any violence that returned aliens face in
Mexico is unlikely to be violence on account of a protected
ground—that is, violence that constitutes persecution. The
Government writes:
[T]he basic logic of the contiguous-territory-
return statute is that aliens generally do not
face persecution on account of a protected
status, or torture, in the country from which
they happen to arrive by land, as opposed to
the home country from which they may have
fled. (International law guards against torture
and persecution on account of a protected
ground, not random acts of crime or
generalized violence.)
Blue Brief at 40–41 (emphasis in original).
Plaintiffs, who are aliens returned to Mexico under the
MPP, presented sworn declarations to the district court
INNOVATION LAW LAB V. WOLF 41
directly contradicting the unsupported speculations of the
Government.
Several declarants described violence and threats of
violence in Mexico. Much of the violence was directed at the
declarants because they were non-Mexican—that is, because
of their nationality, a protected ground under asylum law.
Gregory Doe wrote in his declaration:
I did not feel safe at Benito Juarez [a
migrant shelter] because the neighbors kept
trying to attack the migrant community. The
people who lived near the shelter tried to hurt
us because they did not want us in their
country. . . .
At El Barretal [another migrant shelter], I
felt a little more secure because we had a high
wall surrounding us. Even so, one night
someone threw a tear gas bomb into the
shelter. When I tried to leave the shelter,
people in passing cars would often yell insults
at me like “get out of here, you pinches
Hondurans,” and other bad words that I do not
want to repeat.
Alex Doe wrote:
I know from personal experience and from the
news that migrants have a bad name here and
that many Mexicans are unhappy that so many
of us are here. I have frequently been insulted
by Mexicans on the street. . . . [O]ther asylum
seekers and I had to flee Playas [a
42 INNOVATION LAW LAB V. WOLF
neighborhood in Tijuana] in the middle of the
night because a group of Mexicans threw
stones at us and more people were gathering
with sticks and other weapons to try to hurt
us.
Christopher Doe wrote:
The Mexican police and many Mexican
citizens believe that Central Americans are all
criminals. They see my dark skin and hear
my Honduran accent, and they automatically
look down on me and label me as a criminal.
I have been stopped and questioned by the
Mexican police around five or six times, just
for being a Honduran migrant. During my
most recent stop, the police threatened to
arrest me if they saw me on the street again.
...
I have also been robbed and assaulted by
Mexican citizens. On two occasions, a group
of Mexicans yelled insults, threw stones, and
tried to attack me and a group of other
Caravan members.
Howard Doe wrote:
I was afraid to leave the house [where I
was staying] because I had seen in the news
that migrants like myself had been targeted.
While I was in Tijuana, two young Honduran
men were abducted, tortured and killed.
INNOVATION LAW LAB V. WOLF 43
...
On Wednesday, January 30, 2019, I was
attacked and robbed by two young Mexican
men. They pulled a gun on me from behind
and told me not to turn around. They took my
phone and told me that they knew I was
Honduran and that if they saw me again, they
would kill me. Migrants in Tijuana are
always in danger[.]
Some of the violence in Mexico was threatened by
persecutors from the aliens’ home countries, and much of that
violence was on account of protected grounds—political
opinion, religion, and social group. Gregory Doe wrote:
I am also afraid the Honduran government
will find me in Mexico and harm me. Even
outside the country, the Honduran government
often works with gangs and criminal networks
to punish those who oppose their policies. I
am afraid that they might track me down.
Dennis Doe, who had fled the gang “MS-13” in Honduras,
wrote:
In Tijuana, I have seen people who I believe
are MS-13 gang members on the street and on
the beach. They have tattoos that look like
MS-13 tattoos . . . and they dress like MS-13
members with short sleeved button up shirts.
I know that MS-13 were searching for people
who tried to escape them with at least one of
the caravans. This makes me afraid that the
44 INNOVATION LAW LAB V. WOLF
people who were trying to kill me in
Honduras will find me here.
Alex Doe, who had fled Honduras to escape the gang
“Mara 18” because of his work as a youth pastor and
organizer, wrote:
I am also afraid that the Mara 18 will find me
here in Mexico. I am afraid that the Mara 18
might send someone to find me or get
information from someone in the caravan.
The Mara 18 has networks throughout Central
America, and I have heard that their power
and connections in Mexico are growing.
Kevin Doe, who fled MS-13 because of his work as an
Evangelical Christian minister, wrote:
[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 my
face might show up in the news. . . . I was
afraid that the MS-13 might see my face in the
news. They are a powerful, ruthless gang and
have members in Tijuana too.
Ian Doe wrote:
I am not safe in Mexico. I am afraid that the
people who want to harm me in Honduras will
find me here. I have learned from the news
that there are members of Central American
gangs and narcotraffickers that are present
here in Mexico that could find and kill me.
INNOVATION LAW LAB V. WOLF 45
Honduran migrants like me are very visible
because of our accents and the way that we
look, and it would not be hard for them to find
me here.
Several declarants described interviews by asylum
officers in which they were not asked whether they feared
returning to Mexico. Gregory Doe wrote, “The officer never
asked me if I was afraid of being in Mexico or if anything bad
had happened to me here [in Mexico].” Christopher Doe
wrote:
I don’t remember [the officer] asking if I was
afraid to live in Mexico while waiting for my
asylum hearing. If she had asked, I would
have told her about being stopped by the
Mexican police and attacked by Mexican
citizens. I would also have told her I am
afraid that the people who threatened me in
Honduras could find me in Mexico . . . .
Kevin Doe wrote:
The officer who was doing the talking
couldn’t understand me, and I could not
understand him very well because he was
rushing me through the interview and I didn’t
fully understand his Spanish. The interview
lasted about 4 or 5 minutes. . . . He never
asked me if I was afraid of returning to
Mexico.
46 INNOVATION LAW LAB V. WOLF
Two declarants wrote that asylum officers actively
prevented them from stating that they feared returning to
Mexico. Alex Doe wrote:
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 that I ask you,
nothing more.” This prevented me from
providing additional information in the
interview apart from the answers to the
questions posed by the officer.
Dennis Doe wrote:
I was not allowed to provide any information
other than the answers to the questions I was
asked. I expected to be asked more questions
and to have the opportunity to provide more
details. But the interview was fairly short,
and lasted only about 30 minutes. . . .
No one asked me if I was afraid to return to
Mexico, if I had received threats in Mexico, or
if I had felt safe in Mexico.
Two declarants did succeed in telling an asylum officer
that they feared returning to Mexico, but to no avail. Frank
Doe wrote:
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
INNOVATION LAW LAB V. WOLF 47
said that Honduras wasn’t safe, Mexico
wasn’t safe, and the U.S. isn’t safe either.
Howard Doe wrote:
I 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.
This evidence in the record is enough—indeed, far more
than enough—to establish that the Government’s speculations
have no factual basis. Amici in this case have filed briefs
bolstering this already more-than-sufficient evidence. For
example, Amnesty International USA, the Washington Office
on Latin America, the Latin America Working Group, and the
Institute for Women in Migration submitted an amicus brief
referencing many reliable news reports corroborating the
stories told by the declarants. We referenced several of those
reports earlier in our opinion.
Local 1924 of the American Federation of Government
Employees, a labor organization representing “men and
women who operate USCIS Asylum Pre-Screening
Operation, which has been responsible for a large part of
USCIS’s ‘credible fear’ and ‘reasonable fear’ screenings, and
48 INNOVATION LAW LAB V. WOLF
for implementing [the MPP],” also submitted an amicus brief.
Local 1924 Amicus Brief at 1. Local 1924 writes in its brief:
Asylum officers are duty bound to protect
vulnerable asylum seekers from persecution.
However, under the MPP, they face a conflict
between the directives of their departmental
leaders to follow the MPP and adherence to
our Nation’s legal commitment to not
returning the persecuted to a territory where
they will face persecution. They should not
be forced to honor departmental directives
that are fundamentally contrary to the moral
fabric of our Nation and our international and
domestic legal obligations.
Id. at 24.
Based on the Supreme Court’s conclusion that Congress
intended in § 1253(h)(1) (the predecessor to § 1231(b)(3)(B))
to “parallel” the anti-refoulement provision of Article 33 of
the 1951 Convention, and based on the record in the district
court, we conclude that plaintiffs have shown a likelihood of
success on the merits of their claim that the MPP does not
comply with the United States’ anti-refoulement obligations
under § 1231(b). We need not, and do not, reach the question
whether the part of the MPP challenged as inconsistent with
our anti-refoulement obligations should have been adopted
through notice-and-comment rulemaking.
VI. Other Preliminary Injunction Factors
In addition to likelihood of success on the merits, a court
must consider the likelihood that the requesting party will
INNOVATION LAW LAB V. WOLF 49
suffer irreparable harm, the balance of the equities, and the
public interest in determining whether a preliminary
injunction is justified. Winter, 555 U.S. at 20. “When the
government is a party, these last two factors merge.” Drakes
Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)
(citing Nken v. Holder, 556 U.S. 418, 435 (2009)).
There is a significant likelihood that the individual
plaintiffs will suffer irreparable harm if the MPP is not
enjoined. Uncontested evidence in the record establishes that
non-Mexicans returned to Mexico under the MPP risk
substantial harm, even death, while they await adjudication of
their applications for asylum.
The balance of equities favors plaintiffs. On one side is
the interest of the Government in continuing to follow the
directives of the MPP. However, the strength of that interest
is diminished by the likelihood, established above, that the
MPP is inconsistent with 8 U.S.C. §§ 1225(b) and 1231(b).
On the other side is the interest of the plaintiffs. The
individual plaintiffs risk substantial harm, even death, so long
as the directives of the MPP are followed, and the
organizational plaintiffs are hindered in their ability to carry
out their missions.
The public interest similarly favors the plaintiffs. We
agree with East Bay Sanctuary Covenant:
On the one hand, the public has a “weighty”
interest “in efficient administration of the
immigration laws at the border.” Landon v.
Plasencia, 459 U.S. 21, 34 (1982). But the
public also has an interest in ensuring that
“statutes enacted by [their] representatives”
50 INNOVATION LAW LAB V. WOLF
are not imperiled by executive fiat. Maryland
v. King, 567 U.S. 1301, 1301 (2012) (Roberts,
C.J., in chambers).
932 F.3d at 779 (alteration in original).
VII. Scope of the Injunction
The district court issued a preliminary injunction setting
aside the MPP—that is, enjoining the Government “from
continuing to implement or expand the ‘Migrant Protection
Protocols’ as announced in the January 25, 2018 DHS policy
memorandum and as explicated in further agency
memoranda.” Innovation Law Lab, 366 F. Supp. 3d at 1130.
Accepting for purposes of argument that some injunction
should issue, the Government objects to its scope.
We recognize that nationwide injunctions have become
increasingly controversial, but we begin by noting that it is
something of a misnomer to call the district court’s order in
this case a “nationwide injunction.” The MPP operates only
at our southern border and directs the actions of government
officials only in the four States along that border. Two of
those states (California and Arizona) are in the Ninth Circuit.
One of those states (New Mexico) is in the Tenth Circuit.
One of those states (Texas) is in the Fifth Circuit. In practical
effect, the district court’s injunction, while setting aside the
MPP in its entirety, does not operate nationwide.
For two mutually reinforcing reasons, we conclude that
the district court did not abuse its discretion in setting aside
the MPP.
INNOVATION LAW LAB V. WOLF 51
First, plaintiffs have challenged the MPP under the
Administrative Procedure Act (“APA”). Section 706(2)(A)
of the APA provides that a “reviewing court shall . . . hold
unlawful and set aside agency action . . . not in accordance
with law.” We held, above, that the MPP is “not in
accordance with” 8 U.S.C. § 1225(b). Section 706(2)(A)
directs that in a case where, as here, a reviewing court has
found the agency action “unlawful,” the court “shall . . . set
aside [the] agency action.” That is, in a case where
§ 706(2)(A) applies, there is a statutory directive—above and
beyond the underlying statutory obligation asserted in the
litigation—telling a reviewing court that its obligation is to
“set aside” any unlawful agency action.
There is a presumption (often unstated) in APA cases that
the offending agency action should be set aside in its entirety
rather than only in limited geographical areas. “[W]hen a
reviewing court determines that agency regulations are
unlawful, the ordinary result is that rules are vacated—not
that their application to the individual petitioners is
proscribed.” Regents of the Univ. of Cal. v. U.S. Dep’t of
Homeland Sec., 908 F3d 476, 511 (9th Cir. 2018) (internal
quotation marks omitted). “When a court determines that an
agency’s action failed to follow Congress’s clear mandate the
appropriate remedy is to vacate that action.” Cal. Wilderness
Coalition v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th
Cir. 2011); see also United Steel v. Mine Safety & Health
Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary
practice is to vacate unlawful agency action.”); Gen. Chem.
Corp. v. United States, 817 F.2d 844, 848 (D.C. Cir. 1987)
(“The APA requires us to vacate the agency’s decision if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law . . . .”).
52 INNOVATION LAW LAB V. WOLF
Second, cases implicating immigration policy have a
particularly strong claim for uniform relief. Federal law
contemplates a “comprehensive and unified” immigration
policy. Arizona v. United States, 567 U.S. 387, 401 (2012).
“In immigration matters, we have consistently recognized the
authority of district courts to enjoin unlawful policies on a
universal basis.” E. Bay Sanctuary Covenant, 932 F.3d
at 779. We wrote in Regents of the University of California,
908 F.3d at 511, “A final principle is also relevant: the need
for uniformity in immigration policy. . . . Allowing uneven
application of nationwide immigration policy flies in the face
of these requirements.” We wrote to the same effect in
Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on
other grounds, 138 S. Ct. 2392 (2018): “Because this case
implicates immigration policy, a nationwide injunction was
necessary to give Plaintiffs a full expression of their rights.”
The Fifth Circuit, one of only two other federal circuits with
states along our southern border, has held that nationwide
injunctions are appropriate in immigration cases. In
sustaining a nationwide injunction in an immigration case, the
Fifth Circuit wrote, “[T]he Constitution requires ‘an uniform
Rule of Naturalization’; Congress has instructed that ‘the
immigration laws of the United States should be enforced
vigorously and uniformly’; and the Supreme Court has
described immigration policy as ‘a comprehensive and
unified system.’” Texas v. United States, 809 F.3d 134,
187–88 (5th Cir. 2015) (emphasis in original; citations
omitted). In Washington v. Trump, 847 F.3d 1151 (9th Cir.
2017), we relied on the Fifth Circuit’s decision in Texas to
sustain the nationwide scope of a temporary restraining order
in an immigration case. We wrote, “[W]e decline to limit the
geographic scope of the TRO. The Fifth Circuit has held that
such a fragmented immigration policy would run afoul of the
INNOVATION LAW LAB V. WOLF 53
constitutional and statutory requirement for uniform
immigration law and policy.” Id. at 1166–67.
Conclusion
We conclude 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.
We lift the emergency stay imposed by the motions panel,
and we affirm the decision of the district court.
AFFIRMED.
FERNANDEZ, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion because
I believe that we are bound by the published decision in
Innovation Law Lab v. McAleenan (Innovation I), 924 F.3d
503 (9th Cir. 2019) (per curiam).
More specifically, we are bound by both the law of the
circuit and the law of the case. Of course, the rules that
animate the former doctrine are not the same as those that
animate the latter. See Gonzalez v. Arizona, 677 F.3d 383,
389 n.4 (9th Cir. 2012) (en banc).
54 INNOVATION LAW LAB V. WOLF
As we have said: “Circuit law . . . binds all courts within
a particular circuit, including the court of appeals itself.
Thus, the first panel to consider an issue sets the law not only
for all the inferior courts in the circuit, but also future panels
of the court of appeals.” Hart v. Massanari, 266 F.3d 1155,
1171 (9th Cir. 2001). Moreover: “Once a panel resolves an
issue in a precedential opinion, the matter is deemed resolved,
unless overruled by the court itself sitting en banc, or by the
Supreme Court.” Id. (footnote omitted). Published opinions
are precedential. See id. at 1177; see also Gonzalez, 667 F.3d
at 389 n.4. That remains true, even if some later panel is
satisfied that “arguments have been characterized differently
or more persuasively by a new litigant,”1 or even if a later
panel is convinced that the earlier decision was “incorrectly
decided” and “needs reexamination.”2 And those rules are
not mere formalities to be nodded to and avoided. Rather,
“[i]nsofar as there may be factual differences between the
current case and the earlier one, the court must determine
whether those differences are material to the application of
the rule or allow the precedent to be distinguished on a
principled basis.” Hart, 266 F.3d at 1172. In this case, there
are no material differences — in fact, the situation before this
panel is in every material way the same as that before the
motions panel. Furthermore, there is no doubt that motions
panels can publish their opinions,3 even though they do not
generally do so.4 Once published, there is no difference
1
United States v. Ramos-Medina, 706 F.3d 932, 939 (9th Cir. 2013).
2
Naruto v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018).
3
See 9th Cir. Gen. Order 6.3(g)(3)(ii); see also id. at 6.4(b).
4
See Haggard v. Curry, 631 F.3d 931, 933 n.1 (9th Cir. 2010) (per
curiam).
INNOVATION LAW LAB V. WOLF 55
between motions panel opinions and other opinions; all are
entitled to be considered with the same principles of
deference by ensuing panels. Thus, any hesitation about
whether they should be precedential must necessarily come
before the panel decides to publish, not after. As we held in
Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015):
Lair contended at oral argument that a
motions panel’s decision cannot bind a merits
panel, and as a result we are not bound by the
motions panel’s analysis in this case. Not so.
We have held that motions panels can issue
published decisions. . . . [W]e are bound by a
prior three-judge panel’s published opinions,
and a motions panel’s published opinion binds
future panels the same as does a merits
panel’s published opinion.
Id. at 747 (citations omitted). Therefore, the legal
determinations in Innovation I are the law of the circuit.
We have explained the law of the case doctrine as “a
jurisprudential doctrine under which an appellate court does
not reconsider matters resolved on a prior appeal.” Jeffries v.
Wood, 114 F.3d 1484, 1488–89 (9th Cir. 1997) (en banc),
overruled on other grounds by Gonzalez, 677 F.3d at 389 n.4.
While we do have discretion to decline application of the
doctrine, “[t]he prior decision should be followed unless:
(1) the decision is clearly erroneous and its enforcement
would work a manifest injustice, (2) intervening controlling
authority makes reconsideration appropriate, or
(3) substantially different evidence was adduced at a
subsequent trial.” Id. at 1489 (internal quotation marks and
56 INNOVATION LAW LAB V. WOLF
footnote omitted).5 We have also indicated that, in general,
“our decisions at the preliminary injunction phase do not
constitute the law of the case,”6 but that is principally because
the matter is at the preliminary injunction stage and a further
development of the factual record as the case progresses to its
conclusion may well require a change in the result.7 Even so,
decisions “on pure issues of law . . . are binding.” Ranchers
Cattlemen, 499 F.3d at 1114. Of course, the case at hand has
not progressed beyond the preliminary injunction stage. It is
still at that stage, and the factual record has not significantly
changed between the record at the time of the decision
regarding the stay motion and the current record. Therefore,
as I see it, absent one of the listed exceptions, which I do not
perceive to be involved here, the law of the case doctrine
would also direct that we are bound by much of the motions
panel’s decision in Innovation I.
Applying those doctrines:
(1) The individuals and the organizational plaintiffs are
not likely to succeed on the substantive claim that the
Migrant Protection Protocols directive (the MPP) was not
5
The majority seems to add a fourth exception, that is, motions panel
decisions never constitute the law of the case. That would be strange if
they can constitute the law of the circuit, which they can.
6
Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am.
v. U.S. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007); see also
Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1074, 1076 n.5 (9th Cir. 2015);
Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1090 (9th Cir.
2013).
7
See Ctr. for Biological Diversity, 706 F.3d at 1090.
INNOVATION LAW LAB V. WOLF 57
authorized by 8 U.S.C. § 1225(b)(2)(C). Innovation I,
924 F.3d at 506–09.
(2) The individuals and organizational plaintiffs are not
likely to succeed on their procedural claim that the MPP’s
adoption violated the notice and comment provisions of the
Administrative Procedure Act. See 5 U.S.C. § 553(b), (c);
Innovation I, 924 F.3d at 509–10.
(3) As the motions panel determined, due to the errors in
deciding the issues set forth in (1) and (2), the preliminary
injunction lacks essential support and cannot stand. Thus, we
should vacate and remand.
(4) I express no opinion on whether the district court
could issue a narrower injunction targeting the problem
identified by Judge Watford, that is, the dearth of support for
the government’s unique rule8 that an alien processed under
the MPP must spontaneously proclaim his fear of persecution
or torture in Mexico. See Innovation I, 924 F.3d at 511–12
(Watford, J., concurring)
Thus, I respectfully dissent.
8
Cf. 8 C.F.R. § 235.3(b)(2)(i). That regulation describes information
which must be provided to an alien facing expedited removal, including
a Form I-867AB; the A portion of the pair of forms explains that the
United States provides protection for those who face persecution or torture
upon being sent home, and the B portion requires asking specific
questions about whether the alien fears that kind of harm. See U.S.
Immigration & Naturalization Serv., Forms I-867A & I-867B, reprinted
in 9 Charles Gordon et al., Immigration Law & Procedure app. B,
at 102–05 (2019).