Immigrant Defenders Law Center v. Noem

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2025
• Docket: 25-2581
• Status: Published

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

IMMIGRANT DEFENDERS LAW No. 25-2581 CENTER, a California corporation; D.C. No. JEWISH FAMILY SERVICE OF SAN 2:20-cv-09893-JGB-SHKCentral DIEGO, a California corporation; LIDIA District of California, DOE; ANTONELLA DOE; CHEPO DOE; Los Angeles YESENIA DOE; SOFIA DOE; GABRIELA DOE; ARIANA DOE; FRANCISCO DOE; ORDER REINA DOE; CARLOS DOE; DANIA DOE, individually and on behalf of all others similarly situated,

Plaintiffs - Appellees,

v.

KRISTI NOEM, Secretary, Department of Homeland Security, in her official capacity; MICHAEL W. BANKS, Chief of U.S. Border Patrol, in his official capacity; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES CUSTOMS AND BORDER PROTECTION; PETE R. FLORES, Commissioner, U.S. Customs and Border Protection, in his official capacity; DIANE J. SABATINO, Acting Executive Assistant Commissioner, Office of Field Operations, U.S. Customs and Border Protection, in her official capacity; TODD M. LYONS, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity,

Defendants - Appellants.

Before: Mary H. Murguia, Chief Judge, and Ryan D. Nelson and Gabriel P. Sanchez, Circuit Judges.

MURGUIA, Chief Circuit Judge: Dissent by Judge R. Nelson

A noncitizen “arriving on land (whether or not at a designated port of

arrival) from a foreign territory contiguous to the United States,” may be returned

“to that territory pending a [removal] proceeding under section 1229a” of the

Immigration and Nationality Act (“INA”). 8 U.S.C. § 1225(b)(2)(C) (citation

modified). It is undisputed that the Executive Branch has the authority to enact

policies to implement this discretionary provision. Biden v. Texas, 597 U.S. 785,

806 (2022). But any policy implemented pursuant to this provision must comply

with constitutional and statutory constraints. See Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 391 (2024) (citing the Administrative Procedure Act

(“APA”), 5 U.S.C. § 706).

This case raises questions of whether the Trump administration’s “Remain

in Mexico” policy (also known as “Migrant Protection Protocols” or “MPP”)

issued pursuant to 8 U.S.C. § 1225(b)(2)(C), violates Plaintiffs’ constitutional

rights and violates the APA by infringing the statutory right to apply for asylum as

2 25-2581 codified in the INA. See 8 U.S.C. § 1158(a)(1). The first Trump administration

enacted Remain in Mexico in 2019. Immigrant Defs. L. Ctr. v. Noem, No. 20-

9893, 2025 WL 1172442, at *1 (C.D. Cal. Apr. 16, 2025). The Biden

administration terminated Remain in Mexico in 2021. Id. at *3. In 2022, the

Supreme Court held that the Biden administration’s recission of Remain in Mexico

did not violate the INA and reversed a court order enjoining this action. Biden v.

Texas, 597 U.S. 785. On remand, the Northern District of Texas stayed the Biden

administration’s termination memoranda pending final resolution of the merits of

an APA challenge, Texas v. Biden, 646 F. Supp. 3d 753, 762, 781 (N.D. Tex.

2022), but the government voluntarily dismissed its appeal of the stay in 2023.

Immigrant Defs. L. Ctr., 2025 WL 1172442, at *3 (citing Texas v. Biden, No. 23-

10143 (5th Cir. Jul. 17, 2023)). Given this tangled legal history and other

diplomatic logjams that arose with Mexico, Remain in Mexico became largely

defunct during the Biden administration.1

In January 2025, the second Trump administration moved to reimplement

Remain in Mexico. Immigrant Defs. L. Ctr., 2025 WL 1172442, at *2. On

February 11, 2025, Plaintiff Immigrant Defenders Law Center (“ImmDef”) filed an

1 The United States stated that “MPP could not be functionally operative for a period of time due to Mexico’s lack of cooperation.” Texas v. Biden, No. 21-cv-67 (N.D. Tex. Jan. 31, 2025) Joint Status Report on Reinstatement of Migrant Protection Protocols, [ECF No. 211].

3 25-2581 ex parte application for an emergency stay of the reimplementation of the policy

pursuant to § 705 of the APA. After a hearing in which both parties presented oral

argument, the district court granted ImmDef’s application and issued a nationwide

stay of the 2025 reimplementation of Remain in Mexico pursuant to § 705 of the

APA (“§ 705 Stay”).2 Id. at *25.

The government filed an immediate appeal of the § 705 Stay and moved on

an emergency basis for a stay pending appeal of the district court’s § 705 Stay.

ImmDef moved to dismiss the appeal for lack of appellate jurisdiction. For the

reasons discussed herein, we deny ImmDef’s motion to dismiss the appeal and

grant in part the government’s emergency motion for a stay pending appeal by

limiting the district court’s § 705 Stay order to ImmDef’s current and future

clients.

I. BACKGROUND AND PROCEDURAL HISTORY

From January 2019 to February 2021, Defendants’ Remain in Mexico policy

caused nearly 70,000 asylum seekers to remain in Mexico as they awaited

adjudication of their asylum proceedings. Remain in Mexico derived its authority

from the INA, which provides that, “[i]n the case of a[] [noncitizen] described in

[Section 1225)(b)(2)(A)] who is arriving on land (whether or not at a designated port

2 This Order will refer to the district court’s order as the “§ 705 Stay” to distinguish it from the government’s request for a stay pending appeal.

4 25-2581 of arrival) from a foreign territory contiguous to the United States, the [Secretary of

Homeland Security] may return the [noncitizen] to that territory pending a

proceeding under [8 U.S.C.] section 1229a of this title.” 8 U.S.C. § 1225(b)(2)(C).

On October 29, 2021, the Department of Homeland Security (“DHS”) issued

a memorandum (“2021 DHS Memo”) that analyzed data from the first Trump

administration’s implementation of Remain in Mexico beginning in January 2019.

The 2021 DHS Memo demonstrated numerous logistical, legal, and safety

challenges to migrants and U.S.-based organizations whose missions centered on

supporting migrants. The Trump administration placed nearly 70,000 asylum

seekers in the program and returned them to Mexico, where many experienced

unsanitary living conditions, human trafficking, and difficulties accessing counsel to

represent them in their asylum proceedings. The government concluded that Remain

in Mexico obstructed the ability of migrants to access legal services and hampered

the ability of various organizations whose mission it was to supply those legal

services to render them. The 2021 DHS Memo described “difficulties in accessing

counsel” as “endemic to the program’s design” and emphasized that “[o]pportunities

for attorneys to meet with their clients outside of those organized hearing locations

were limited due to, among other constraints, complications associated with cross-

border communication.”

5 25-2581 In October 2020, the Plaintiffs in this case—individual plaintiffs subjected to

Remain in Mexico and two organizational plaintiffs including ImmDef—filed a

lawsuit in the Central District of California challenging the implementation of

Remain in Mexico. Plaintiffs alleged that Remain in Mexico violated their rights

under the First Amendment, the Fifth Amendment Due Process Clause, and the

APA. 3 In February 2022, Plaintiffs filed their Second Amended Complaint

(“SAC”).4

In January 2021, DHS suspended new enrollments under Remain in Mexico,

and on June 1, 2021, terminated the policy. See Biden v. Texas, 597 U.S. at 793. In

response to Texas and Missouri’s challenge, the district court in the Northern District

3 ImmDef does not argue the Fifth Amendment claim in this appeal. 4 Another action challenging Remain in Mexico on alternative statutory grounds during the first Trump administration was filed in the Northern District of California, where the policy was enjoined. The Ninth Circuit affirmed the preliminary injunction, but the Supreme Court stayed the injunction. See Wolf v. Innovation L. Lab, 140 S. Ct. 1564 (2020); Innovation L. Lab v. Wolf, 951 F.3d 1073, 1095 (9th Cir. 2020). Due to the change in presidential administrations, that case was never resolved on the merits and the Ninth Circuit vacated its opinion affirming the preliminary injunction under United States v. Munsingwear, Inc., 340 U.S. 36, 71 (1950). See Innovation L. Lab v. Mayorkas, 5 F.4th 1099, 1100 (9th Cir. 2021). The government argues that we should similarly stay the district court’s order because the Supreme Court stayed the previous order enjoining implementation of the first Remain in Mexico policy, Wolf v. Innovation L. Lab, 140 S. Ct. at 1564. Gov. Mot. to Stay 1. But Innovation Law Lab involved statutory claims fundamentally distinct from the statutory and constitutional claims advanced by ImmDef here, so the likelihood-of-success-on-the-merits analysis differs and does not control.

6 25-2581 of Texas vacated the termination and directed the government to “enforce and

implement MPP in good faith until such a time as it has been lawfully rescinded in

compliance with the APA” and until the government could detain certain noncitizens

subject to mandatory detention. Id. at 794. DHS subsequently implemented a

different version of Remain in Mexico (which ImmDef refers to as MPP 2.0). After

the Supreme Court affirmed the government’s authority to end the original Remain

in Mexico policy, id. at 814, the Northern District of Texas’s injunction was vacated,

Texas v. Biden, No. 21-cv-00067, ECF No. 147 (N.D. Tex. Aug. 8, 2022). DHS then

ended implementation of the original Remain in Mexico (which ImmDef refers to

as MPP 1.0). In December 2022, the Northern District of Texas court stayed DHS’s

decision to terminate MPP pursuant to § 705 of the APA. Texas v. Biden, 646 F.

Supp. 3d 753, 764, 781 (N.D. Tex. 2022). The government initially appealed this

ruling but voluntarily dismissed the appeal. Texas v. Biden, No. 23-10143, 2023 WL

5198783 (5th Cir. May 25, 2023).

On March 15, 2023, the district court in this case denied in part the

government’s motion to dismiss and certified a class and three subclasses of

individuals subject to the original Remain in Mexico policy who remained outside

the United States. The district court found that the organizational plaintiffs,

including ImmDef, had standing because the original Remain in Mexico policy had

“perceptibly impaired their ability to perform the services they were formed to

7 25-2581 provide.” On October 2, 2024, the district court granted the parties’ joint stipulation

to stay the matter pending settlement discussions. Immigrant Defs. L. Ctr., 2025 WL

1172442, at *2.

On January 20, 2025, President Trump issued an executive order announcing

the reimplementation of Remain in Mexico based on the original 2019 policy

documents (“Reimplementation Order”). The next day, DHS announced that it

would “restart[] the Migrant Protection Protocols (MPP) immediately.” On

February 5, 2025, the parties filed a joint stipulation to lift the stay and modify the

scheduling order because settlement was no longer viable in the wake of the second

Trump administration’s 2025 Reimplementation Order. Id.

ImmDef then moved for emergency relief through an ex parte application for

a stay of Remain in Mexico’s reimplementation pending the conclusion of this

litigation. The district court granted the application and issued a nationwide stay of

the Reimplementation Order under 5 U.S.C. § 705, which postponed the effective

date of Remain in Mexico’s reimplementation during the pendency of this litigation.

On May 12, 2025, the district court denied a stay pending appeal of its § 705

Stay order. The district court ruled that reimplementation of Remain in Mexico

would lead ImmDef’s clients to “once again be subjected to violence, deprived of

their ability to access the asylum system, and stripped of their ability to access and

communicate with counsel.” Immigrant Defs. L. Ctr., No. 2:20-cv-9893 (C.D. Cal.

8 25-2581 May 12, 2025) Order Denying Defendants’ Ex Parte Application To Stay [ECF No.

413]. The district court concluded that the government faced no irreparable harm to

its executive authority because it “neither has the discretionary authority nor

legitimate reasons to enforce programs that violate the [C]onstitution or federal law.”

Id.

A. Procedural History of this Appeal

The government appealed the § 705 Stay order on April 22, 2025, and this

Court set a merits briefing schedule in line with a preliminary injunction appeal. On

May 7, 2025, the government filed a motion to expedite the appeal, “[b]ecause the

district court is preventing the Department of Homeland Security from using a

discretionary tool to secure the United States-Mexico border.” Concurrently, the

government filed an emergency motion for a stay pending appeal pursuant to Circuit

Rule 27–3, requested urgent designation under General Order 3.3.g, and asked that

the merits panel be drawn immediately under General Order 6.4.d. The Court

granted the request to expedite the appeal, to designate the case as urgent, and to

draw the merits panel immediately. Plaintiffs subsequently filed a motion to dismiss

the appeal.5 This Order resolves ImmDef’s motion to dismiss the appeal and the

government’s emergency motion for a stay pending appeal of the § 705 Stay.

5 When ImmDef filed its Motion to Dismiss the Appeal on May 19, 2025, that suspended the briefing schedule on the Merits appeal of the § 705 Stay pursuant to

9 25-2581 II. STANDARDS OF REVIEW

A. Motion to Dismiss Appeal

Non-injunctive orders may be appealed under § 1292(a)(1) only if the

appellant satisfies the three-part test established in Carson v. American Brands, Inc.,

450 U.S. 79 (1981) and applied by this court in United States v. El Dorado County,

704 F.3d 1261, 1263 (9th Cir. 2013). “[T]he appealing party must show that the

order (1) has ‘the practical effect of the grant or denial of an injunction’; (2) has

‘serious, perhaps irreparable consequences’; and (3) can be ‘effectively challenged

only by immediate appeal.’” Id. (quoting Thompson v. Enomoto, 815 F.2d 1323,

1326–27 (9th Cir. 1987)); see also Carson, 450 U.S. at 84.

B. Motion for Stay Pending Appeal

“A stay is an ‘intrusion into the ordinary processes of administration and

judicial review,’ and accordingly ‘is not a matter of right, even if irreparable injury

might otherwise result to the appellant.’” Nken v. Holder, 556 U.S. 418, 427 (2009)

(citations omitted). “It is instead ‘an exercise of judicial discretion,’ and ‘the

propriety of its issue is dependent upon the circumstances of the particular case.’”

Id. at 433 (citation modified) (quoting Virginian Ry. Co. v. United States, 272 U.S.

658, 672–73 (1926)). “The party requesting a stay bears the burden of showing that

Circuit Rule 27-11 (“Motions [to dismiss] . . . shall stay the schedule for . . . briefing pending the Court’s disposition of the motion.”).

10 25-2581 the circumstances justify an exercise of that discretion,” and our analysis is guided

by four factors:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

Id. at 433–34 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “The first

two factors . . . are the most critical,” and the “mere possibility” of success or

irreparable injury is insufficient to satisfy them. Id. at 434 (internal quotation marks

omitted). We consider the final two factors “[o]nce an applicant satisfies the first

two.” Id. at 435. Where the government is the opposing party, the balancing of the

harm and the public interest merge. Id.

III. ANALYSIS

A. Appellate Jurisdiction

The government has made a sufficient showing to satisfy the three Carson

factors required for immediate appellate review of the district court’s § 705 Stay

order.

As to the first factor, “[a]ppellate courts have jurisdiction to review

interlocutory orders that have ‘the practical effect of [granting or] refusing an

injunction.’” A. A. R. P. v. Trump, 145 S. Ct. 1364, 1367 (2025) (quoting Carson,

450 U.S. at 84) (citation modified). The parties do not dispute that the district court’s

11 25-2581 § 705 Stay has many of the same practical effects as a preliminary injunction would.

Here, the § 705 Stay pauses the reimplementation of Remain in Mexico during the

pendency of this litigation in a manner similar to a preliminary injunction. Indeed,

“stays” under the APA turn on the same factors as preliminary injunctions.

Colorado v. EPA, 989 F.3d 874, 883 (10th Cir. 2021) (stating that the preliminary

injunction “factors also determine when a court should grant a stay of agency action

under section 705 of the APA”) (citation omitted); Cook Cnty. v. Wolf, 962 F.3d 208,

221 (7th Cir. 2020) (same).

We have similarly treated a temporary restraining order as a preliminary

injunction where an adversarial hearing has been held and the district court’s basis

for issuing the order is strongly challenged. See, e.g., E. Bay Sanctuary Covenant v.

Trump, 932 F.3d 742, 762 (9th Cir. 2018) (“EBSC I”); Washington v. Trump, 847

F.3d 1151, 1158 (9th Cir. 2017); Serv. Emps. Int’l Union v. Nat’l Union of

Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010); Bennett v. Medtronic,

Inc., 285 F.3d 801, 804 (9th Cir. 2002). Here, the parties engaged in an adversarial

presentation preceding the district court’s issuance of the § 705 Stay. The district

court entered the Order after full briefing on the ex parte application, supplemental

briefing, and a hearing during which the parties presented arguments on jurisdiction

and the merits. Indeed, that the government pursued this interlocutory appeal further

demonstrates that the district court’s basis for issuing the Order was—and is—

12 25-2581 strongly challenged. See Sampson v. Murray, 415 U.S. 61, 87 (1974) (“In this case,

where an adversary hearing has been held, and the court’s basis for issuing the order

strongly challenged, classification of the potentially unlimited order as a temporary

restraining order seems particularly unjustified.”). Therefore, the first prong of the

Carson test is satisfied here.6

As to the second Carson factor, risk of irreparable harm, the government

argues that the nationwide § 705 Stay interferes with its ability to effectuate a statute

duly enacted by Congress, which is a cognizable “form of irreparable injury.” See

Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers) (citation

omitted); Trump v. CASA, Inc., No. 24A884, 2025 WL 1773631, at *15 (U.S. June

27, 2025). The government alleges that the nationwide § 705 Stay prohibits the

government from using a policy tool to address immigration challenges at the

6 Recently, the Supreme Court and this circuit have not hesitated to hear interlocutory appeals of orders labeled as 5 U.S.C. § 705 stays. See, e.g., Noem v. Nat’l TPS All., No. 25-2120, 2025 WL 1142444 (9th Cir. Apr. 18, 2025) (declining to stay a § 705 stay based on lack of irreparable harm); Noem v. Nat’l TPS All., No. 24A1059, 2025 WL 1427560 (S. Ct. May 19, 2025) (granting a stay of a § 705 stay). Other circuit courts have also construed certain § 705 stays as reviewable on an interlocutory basis. See, e.g., Wyoming v. DOI, Nos. 18-8027 & 18-8029, 2018 WL 2727031, at *1 (10th Cir. June 4, 2018) (unpub.) (stay of final rule under § 705 was appealable); Colorado, 989 F.3d at 879, 883 (reviewing a § 705 stay “under 28 U.S.C. § 1292”); All. for Hippocratic Med. v. FDA, No. 23-10362, 2023 WL 2913725, at *3 n.3 (5th Cir. Apr. 12, 2023) (unpub.) (stay of drug approval under § 705 was appealable).

13 25-2581 southern border and interferes with the Executive Branch’s ability to conduct foreign

affairs as it sees fit. See Arizona v. United States, 567 U.S. 387, 394–95 (2012).

ImmDef counters that the government’s claims of irreparable harm are

illusory because the government cannot point to anyone who has “been returned to

Mexico under the reinstated MPP 1.0 even though the policy had been reinstated

more than two months before.” Moreover, the government could not confirm at the

hearing before the district court that Mexico had agreed to accept asylum seekers

under the reimplementation of Remain in Mexico, which would mean the policy has

not actually gone into effect. When pressed by the district court on these questions,

counsel for the government was only willing to state that the government decided to

implement MPP based on “situations that have changed on the ground,” but counsel

declined to opine on what those situations entailed because counsel did not “have

that information.” In this appeal, counsel for the government largely repeated these

same general responses at oral argument and would not provide any further details.

The government’s evidence of concrete and irreparable harm is relatively

scant at this juncture in the litigation. It is well established that the mere existence

of the Executive Branch’s desire to enact a policy is not sufficient to satisfy the

irreparable harm prong. Doe #1 v. Trump, 957 F.3d 1050, 1059 (9th Cir. 2020) (“[I]f

we were to adopt the government’s assertion that the irreparable harm standard is

satisfied by the fact of executive action alone, no act of the executive branch asserted

14 25-2581 to be inconsistent with a legislative enactment could be the subject of a preliminary

injunction. That cannot be so.”). Nevertheless, “Article II of the Constitution

authorizes the Executive to engage in direct diplomacy with foreign heads of state

and their ministers,” Biden v. Texas, 597 U.S. at 805 (quoting Zivotofsky v. Kerry,

576 U.S. 1, 14 (2015) (citation modified)), and courts must take care “to avoid ‘the

danger of unwarranted judicial interference in the conduct of foreign policy.’” Id.

(quoting Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 115–16 (2013)).

Although counsel for the government mostly spoke in general terms and was unable

at this preliminary posture to articulate concrete evidence of irreparable harm to the

government, the district court’s nationwide § 705 Stay runs the “risk of ‘serious,

perhaps irreparable,’ consequences” to the Executive’s ability to implement

immigration policy and foreign affairs as it sees fit. See A. A. R. P., 145 S. Ct. at

1367 (quoting 16 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure

§ 3924.1, pp. 174, 180–81 (3d ed. 2012)). Accordingly, the Court finds that under

these circumstances and in this preliminary equitable posture, the government has

satisfied the second Carson factor.

The government’s satisfaction of the third Carson factor flows from the

second factor, because as the government phrases it, “[n]o final judgment can restore

to the Government the opportunity to exercise its discretionary authority to secure

the border now.” Remain in Mexico is a policy that requires negotiation with a

15 25-2581 foreign sovereign—Mexico—which is presumably a time- and labor-intensive

process. See Noem v. Abrego Garcia, 145 S. Ct. 1017, 1018 (2025). At this

preliminary stage, the government’s inability to fully enact an immigration policy

of its choice and to take steps to conduct foreign affairs with another sovereign as

part of that policy causes some measure of irreparable harm. The nationwide § 705

Stay in place for the duration of this litigation is likely to compound the harm to the

government over time. Accordingly, the government has made a sufficient showing

that the § 705 Stay can be effectively challenged “only by an immediate appeal.”

Carson, 450 U.S. at 90.

For the foregoing reasons, we have jurisdiction to hear an immediate appeal

of the district court’s § 705 Stay in this case and deny ImmDef’s motion to dismiss

the appeal.

We rely on the Nken factors when adjudicating a motion for a stay pending

appeal. Those are “(1) whether the stay applicant has made a strong showing that

he is likely to succeed on the merits; (2) whether the applicant will be irreparably

injured absent a stay; (3) whether issuance of the stay will substantially injure the

other parties interested in the proceeding; and (4) where the public interest lies.”

Nken, 556 U.S. at 434. While both parties have plausibly alleged some measure of

irreparable harm, ImmDef has demonstrated a strong likelihood of success on the

16 25-2581 merits of at least its APA claims. Nevertheless, at this stage in the litigation, we find

it more equitable “to preserve status [and] rights pending conclusion of the review

proceedings,” 5 U.S.C. § 705, and grant the government’s motion for a stay pending

appeal in part. During the pendency of this appeal, the district court’s § 705 Stay

order shall be limited to “exempting ImmDef’s [current and future] clients from

MPP.” Gov’t Supp. Br. 10 [Dkt. No. 40]. Therefore, no current or future clients of

ImmDef shall be enrolled in MPP during the pendency of this appeal.

1. Likelihood of Success on the Merits

Whether the government is likely to succeed on the merits turns on whether

the district court properly issued the § 705 Stay. The APA permits courts “[o]n such

conditions as may be required and to the extent necessary to prevent irreparable

injury” to “issue all necessary and appropriate process to postpone the effective date

of an agency action or to preserve status or rights pending conclusion of the review

proceedings” 5 U.S.C. § 705; see also Bakersfield City Sch. Dist. of Kern Cnty. v.

Boyer, 610 F.2d 621, 624 (9th Cir. 1979) (“The agency or the court may postpone

or stay agency action pending such judicial review.” (citing § 705)).

As the district court found, the factors considered in determining whether to

postpone agency action pursuant to § 705 “‘substantially overlap with the Winter

factors for a preliminary injunction.’” Immigrant Defs. L. Ctr., 2025 WL 1172442,

at *6 (quoting Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 520, 529 (N.D. Cal.

17 25-2581 2020)); see Colorado, 989 F.3d at 883 (stating that the preliminary injunction

“factors also determine when a court should grant a stay of agency action under

section 705 of the APA”); Cook Cnty., 962 F.3d at 221 (stating that the standard for

a stay under § 705 is “the same” as the standard for a preliminary injunction). We

have explained that “[a] party seeking a preliminary injunction must meet one of two

variants of the same standard.” All. for the Wild Rockies v. Pena, 865 F.3d 1211,

1217 (9th Cir. 2017).

Under the original Winter standard, a party must show “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.” Under the “sliding scale” variant of the Winter standard, “if a plaintiff can only show that there are ‘serious questions going to the merits’—a lesser showing than likelihood of success on the merits—then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.

Id. (first quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); and

then quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir.

2013)).

a. The Government’s Challenges

Before reaching the merits of Plaintiff’s claims, we address procedural

challenges raised by the government, which we conclude at this stage in the litigation

are without merit. The government argues against ImmDef’s likelihood of success

on the merits by challenging the district court’s organizational standing analysis;

18 25-2581 arguing that § 1252(f)(1) of the INA bars the district court from issuing a § 705 Stay

in these circumstances; and contending that the Remain in Mexico reimplementation

is not final agency action and is therefore nonjusticiable under the APA. We address

each contention in turn.

i. ImmDef’s Standing

To establish Article III standing, a plaintiff must demonstrate that: (1) she

suffered an injury in fact that is concrete, particularized, and actual or imminent (not

conjectural or hypothetical); (2) the injury is fairly traceable to the challenged

conduct; and (3) the injury is likely to be redressed by a favorable court decision.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). “[O]rganizations are

entitled to sue on their own behalf for injuries they have sustained.” Havens Realty

Corp. v. Coleman, 455 U.S. 363, 379 n.19 (1982); see also FDA v. All. for

Hippocratic Med., 602 U.S. 367, 369 (2024). Direct organization standing can be

satisfied if the organization alleges that a defendant's actions “affected and interfered

with [a plaintiff’s] core business activities.” Hippocratic Med., 602 U.S. at 395.

Moreover, we have further specified that an organization has direct standing to sue

where a defendant’s behavior has “frustrated its mission and caused it to divert

resources in response to that frustration of purpose.” East Bay Sanctuary Covenant

v. Trump, 993 F.3d 640, 663 (9th Cir. 2021) (“EBSC III”) (citing Fair Hous. of Marin

v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)).

19 25-2581 Like an individual, an organization may not establish standing simply based

on the “intensity of the litigant’s interest” or because of strong opposition to the

government’s conduct, Valley Forge Christian College v. Americans United for

Separation of Church and State, Inc., 454 U.S. 464, 486 (1982), “no matter how

longstanding the interest and no matter how qualified the organization,” Sierra Club

v. Morton, 405 U.S. 727, 739 (1972). A plaintiff must show “far more than simply

a setback to the organization’s abstract social interests.” Havens Realty, 455 U.S. at

379.

In Havens Realty, a fair housing organization claimed that the defendant’s

discriminatory housing practices “perceptibly impaired” the organization’s ability to

“provide counseling and referral services for low- and moderate-income

homeseekers,” forcing it “to devote significant resources to identify and counteract”

the alleged discriminatory practices. Id. The Supreme Court held that the

organization had standing to challenge the housing practices. As the Court

explained, “there [could] be no question that the organization . . . suffered injury in

fact” because it established a “concrete and demonstrable injury to the organization’s

activities—with the consequent drain on the organization’s resources—[that]

constitute[d] far more than simply a setback to the organization’s abstract social

interests.” Id.

20 25-2581 The government argues that ImmDef lacks standing to challenge the

reimplementation of Remain in Mexico because it has essentially spent its way into

standing contrary to Hippocratic Medicine and has not identified any harm flowing

from Remain in Mexico’s “reimplementation” in January 2025. The government’s

assertion is not supported by Hippocratic Medicine, which reinforced the holding in

Havens Realty. The Court in Hippocratic Medicine reiterated that when a

defendant’s actions “directly affect[] and interfere[] with” a plaintiff’s “core

business activities,” then the plaintiff may assert organizational standing. 602 U.S.

at 395.

Unlike the plaintiffs in Hippocratic Medicine, ImmDef is not “assert[ing]

standing simply because [it] object[s] to [the government’s] actions” or is gathering

information and advocating against Remain in Mexico. See 602 U.S. at 394 (“[A]n

organization that has not suffered a concrete injury caused by a defendant’s action

cannot spend its way into standing simply by expending money to gather information

and advocate against the defendant’s action.”). Rather, to continue advancing its

core business activities and longstanding mission of providing direct representation,

counseling, and legal assistance to noncitizens in removal proceedings in southern

California, ImmDef adopted several initiatives in 2020 to limit the adverse impacts

of MPP—by opening its San Diego Office, establishing its Cross-Border Initiative

(“CBI”), and engaging in international, cross-border travel to Mexico.

21 25-2581 ImmDef expanded its legal representation across the U.S.-Mexico border to

continue carrying out its core activities and longstanding mission. Prior to Remain

in Mexico, such core activities had never required cross-border work because

noncitizens seeking protection were not forced to remain in Mexico while their

removal proceedings were pending. To avoid abandoning a core constituency and

undermining its mission of universal representation of asylum seekers in California,

ImmDef had to expend resources to counteract and offset the barriers that MPP

imposed. See id. ImmDef cites to ample record evidence of how Remain in Mexico

caused “concrete and demonstrable injury” to its core activities, id., which was far

more extensive than the “issue-advocacy” work that was found insufficient in

Hippocratic Medicine, 602 U.S. at 395. Based on ImmDef’s experience with the

implementation of the 2019 Remain in Mexico, ImmDef will have to hire additional

staff, expand its office space, conduct additional fundraising efforts, increase travel

to Mexico, and divert staff resources away from other projects towards MPP-related

projects to continue carrying out its core business activities and longstanding

mission.

Accordingly, ImmDef has alleged a “concrete and demonstrable injury” to

these core activities, “which remain the same apart from, prior to, and after MPP’s

implementation.” ImmDef is thus similarly situated to the plaintiff organization in

Havens Realty, where the defendants’ racially discriminatory steering practices

22 25-2581 “directly affected and interfered with” the plaintiff’s “core business activities,”

Hippocratic Med., 602 U.S. at 395, of facilitating “equal access to housing through

counseling and other referral services,” Havens Realty, 455 U.S. at 379.

Furthermore, we reject the government’s contention that ImmDef’s harm is

speculative. ImmDef has submitted evidence drawn from the initial Remain in

Mexico implementation establishing imminent irreparable harm to its organization

from the reimplementation of Remain in Mexico. For example, dangerous

conditions in Mexico would impede ImmDef’s attorneys’ ability to provide

representation; ImmDef will have to expend additional resources to reach

individuals located in Mexico to adequately and ethically represent them; ImmDef

will once again have to hire additional staff, purchase international phone plans, and

rent confidential meetings spaces in Mexico; and ImmDef will have to contend with

the time limits and restrictions on when and how its staff can communicate with its

clients prior to court hearings pursuant to the Remain in Mexico policy guidance.

The 2019 directive establishing the one-hour time limit before a court hearing is a

component of Remain in Mexico that the government has confirmed is part of the

“current operative guidance” for its reimplementation. Immigrant Defs. L. Ctr.,

2025 WL 1172442, at *24.

As the district court concluded, the fact that Remain in Mexico was reinstated

using the same operative guidance from January 2019 is sufficient to find “that a

23 25-2581 threat to ImmDef’s concrete interest is imminent.” Id., at *23. Accordingly, we

hold that ImmDef has standing to challenge the Reimplementation Order.

ii. Section 1252(f)(1)’s Bar on Injunctive Relief

The government also argues that the district court’s § 705 Stay is

impermissible under 8 U.S.C. § 1252(f)(1) because the § 705 Stay restrains how

DHS will implement its discretionary authority under 8 U.S.C. § 1225(b)(2)(C) of

the INA. See Garland v. Aleman Gonzalez, 596 U.S. 543, 550 (2022). In Aleman

Gonzalez, the Supreme Court held that § 1252(f)(1) “generally prohibits lower

courts from entering injunctions that order federal officials to take or to refrain from

taking actions to enforce, implement, or otherwise carry out the specified statutory

provisions.” Id. The government argues that the § 705 Stay violates Aleman

Gonzalez because it has the same practical effect of the injunctive relief § 1252(f)(1)

prohibits.

The government’s argument fails for several reasons. First, there is a “strong

presumption . . . that the actions of federal agencies are reviewable in federal court.”

KOLA, Inc. v. United States, 882 F.2d 361, 363 (9th Cir. 1989) (citation omitted);

see also Sackett v. EPA, 566 U.S. 120, 128 (2012) (“The APA . . . creates a

presumption favoring judicial review of administrative action.” (citation modified)).

“[O]nly upon a showing of ‘clear and convincing evidence’ of a contrary legislative

intent should the courts restrict access to judicial review.” Abbott Lab’ys v. Gardner,

24 25-2581 387 U.S. 136, 141 (1967) (citation omitted), abrogated on other grounds by Califano

v. Sanders, 430 U.S. 99, 105 (1977).

Second, current Supreme Court jurisprudence indicates that § 705 stay relief

is permissible in cases involving these provisions of the INA. See Biden v. Texas,

597 U.S. at 800–01; Nken 556 U.S. at 428–29. In Biden v. Texas, the Supreme Court

clarified that “Section 1252(f)(1) deprives courts of the power to issue a specific

category of remedies: those that ‘enjoin or restrain the operation of’ the relevant

sections of the statute.” 597 U.S. at 798 (citation omitted). The Supreme Court

emphasized that Section 1252(f)(1)’s language and “title—‘Limit on injunctive

relief’—makes clear the narrowness of its scope.” Id. Indeed, the Supreme Court

has long emphasized the narrowness of § 1252(f)(1), stating that “[b]y its plain

terms, and even by its title, [Section 1252(f)] is nothing more or less than a limit on

injunctive relief.” See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,

481 (1999) (citation modified); see also Biden v. Texas, 597 U.S. at 800–01.

The Supreme Court has also distinguished stays from injunctive relief. An

injunction “is a means by which a court tells someone what to do or not to do.” Nken

556 U.S. at 428. “When a court employs ‘the extraordinary remedy of injunction,’

it directs the conduct of a party, and does so with the backing of its full coercive

powers.” Id. at 428 (internal citation omitted). “It is true that in a general sense,

every order of a court which commands or forbids is an injunction; but in its accepted

25 25-2581 legal sense, an injunction is a judicial process or mandate operating in personam.”

Id. (citation modified). “This is so whether the injunction is preliminary or final; in

both contexts, the order is directed at someone, and governs that party’s conduct.”

Id. A stay, by contrast, “achieves this result by temporarily suspending the source

of authority to act—the order or judgment in question—not by directing an actor’s

conduct.” Id. at 429. A stay “simply suspend[s] judicial alteration of the status quo.”

Id. (alteration in original).

The Fifth Circuit recently rejected the argument that § 1252(f)(1) bars relief

under the APA. Texas v. United States, 40 F.4th 205, 219 (5th Cir. 2022) (“There

are meaningful differences between an injunction, which is a drastic and

extraordinary remedy, and vacatur, which is a less drastic remedy.”) (citation

modified); id. at 220 (“[A] vacatur does nothing but re-establish the status quo absent

the unlawful agency action . . . . We decline to extend Aleman Gonzalez to such

judicial orders . . . .”). We agree with the Fifth Circuit here.

Lastly, § 1252(f)(1) expressly identifies injunctive relief but makes no

mention of stays nor other forms of relief under the APA. Congress knows, however,

how to limit relief under the APA in other statutory schemes such as the Magnuson-

Stevens Act and the Clean Air Act. See Anglers Conservation Network v. Pritzker,

809 F.3d 664, 668 n.4 (D.C. Cir. 2016) (“The review provision of the Magnuson–

Stevens Act also expressly makes § 705 of the APA ‘not applicable.’” (quoting 16

26 25-2581 U.S.C. § 1855(f)(1)(A)); Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 562

n. 1 (D.C. Cir. 2015) (Kavanaugh, J., dissenting in part) (“The Clean Air Act

expressly provides that several provisions of the APA—5 U.S.C. §§ 553–557 and

706—‘shall not, except as expressly provided in this subsection, apply . . . .’”

(quoting 42 U.S.C. § 7607(d)(1)). Congress made no mention of limiting APA

claims in § 1252(f)(1) and instead only explicitly limits injunctive relief.

In sum, we hold that § 1252(f)(1) does not bar the district court’s stay pursuant

to § 705 of the APA pending further review of the merits of Plaintiffs’ APA

challenge.

iii. Final Agency Action

Lastly, the government argues that there is no legal basis for the district court

to have issued the § 705 Stay because the reimplementation of Remain in Mexico

does not constitute a discrete and final agency action reviewable under the APA. An

agency action is deemed final if two conditions are met. First, the action “must mark

the consummation of the agency’s decisionmaking process” and “must not be of a

merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177–78

(1997) (internal quotation marks and citation omitted). “And second, the action must

be one by which rights or obligations have been determined, or from which legal

consequences will flow.” Id. at 178 (internal quotation marks omitted).

27 25-2581 The 2019 version of MPP and its 2025 reimplementation each constituted

final agency action. The district court correctly concluded that legal consequences

flowed or will flow from MPP’s 2019 implementation and its 2025

reimplementation because those actions had an “actual or immediately threatened

effect” on both ImmDef and the population it serves. Lujan, 497 U.S. at 894. The

district court also correctly concluded that “the implementation of MPP marked the

consummation of the current DHS’s decisionmaking process,” as “DHS staff were

bound to implement MPP across the southern border.” Immigrant Defs. L. Ctr., No.

2:20-cv-9893 (C.D. Cal. May 12, 2025) Order Denying Defendants’ Ex Parte

Application To Stay [ECF No. 413]; ONRC Action v. Bureau of Land Mgmt., 150

F.3d 1132, 1137 (9th Cir. 1998) (citing cases that a final agency action is established

by a “conscious decision arrived at by the agency” or a “deliberate decision . . . to

act”).

The reimplementation of Remain in Mexico similarly constituted the

consummation of DHS’s decisionmaking process as distinguished from the policy

decisions of the prior administration’s DHS. On January 20, 2025, the Trump

administration issued an executive order announcing its decision to reimplement

Remain in Mexico based on the original 2019 policy documents. The next day, DHS

announced that it would “restart[] the Migrant Protection Protocols (MPP)

immediately.” These actions “mark[ed] the consummation of the agency’s

28 25-2581 decisionmaking process.” Spear, 520 U.S. at 178 (internal quotation marks and

citation omitted). Moreover, before the Trump administration’s reimplementation

of Remain in Mexico, the last effective agency action had been the Biden

administration’s recission of Remain in Mexico. The Supreme Court held that the

government’s rescission memoranda constituted “final agency action” and did not

violate section 1225 of the INA. Biden v. Texas, 597 U.S. at 814. On remand, the

Northern District of Texas issued a § 705 stay pending review of the merits of an

APA challenge, but a stay order under § 705 did not set aside or vacate the final

agency action. See Texas v. Biden, 646 F. Supp. 3d at 762, 781.

Accordingly, the second Trump administration’s reimplementation of MPP

constituted a reversal of the previous final administrative action and was a deliberate

decision to reinstitute Remain in Mexico. As discussed, this agency action will

cause new legal and practical effects to flow from it that have not been in effect for

years. See id. Under these circumstances, we conclude that the reimplementation

of Remain in Mexico is a final agency action subject to APA review.

b. ImmDef’s Statutory APA Claims

ImmDef has shown that the Remain in Mexico reimplementation likely

violates the APA by infringing the right to apply for asylum with the assistance of

counsel as codified in the INA. ImmDef has shown a strong likelihood of success

on the merits of these claims.

29 25-2581 The APA provides for judicial review of final agency actions. 5 U.S.C.

§§ 702, 706. A 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 . . . [and] in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right[.]” 5 U.S.C.

§ 706(2)(A). Agency action is arbitrary and capricious where the agency “relied on

factors which Congress has not intended it to consider” or “entirely failed to consider

an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983).

The agency must examine relevant data and articulate a satisfactory

explanation for its action, including a “rational connection between the facts found

and the choice made.” Id. (quoting Burlington Truck Lines v. United States, 371

U.S. 156, 168 (1962)). The agency must also “be cognizant that longstanding

policies may have ‘engendered serious reliance interests that must be taken into

account.’” Dep’t of Homeland Sec. v. Regents of Univ. of Cal., 591 U.S. 1, 30 (2020)

(citation omitted). In the immigration context, the agency’s “approach must be tied,

even if loosely, to the purposes of the immigration laws or the appropriate operation

of the immigration system.” Judulang v. Holder, 565 U.S. 42, 55 (2011). Merely

saying something “was considered is not enough to show reasoned analysis.” State

v. Biden, 10 F.4th 538, 555 (5th Cir. 2021).

30 25-2581 The district court correctly concluded that § 1225(b)(2)(C), which provides

that an asylum applicant arriving by land from a contiguous country may be returned

to that territory, does not permit the government to abrogate “the legal rights

bestowed upon asylum seekers by Congress.” Immigrant Defs. L. Ctr., 2025 WL

1172442, at *20. The INA mandates that “the Attorney General shall . . . advise the

[noncitizen] of the privilege of being represented by counsel . . . .” 8 U.S.C.

§ 1158(d)(4)(A) (emphasis added). Moreover, the INA provides noncitizens the

right to have counsel of their choice. 8 U.S.C. § 1229a(b)(4)(A) (“[T]he [noncitizen]

shall have the privilege of being represented, at no expense to the Government, by

counsel of the [noncitizen]’s choosing who is authorized to practice in such

proceedings.” (emphasis added)); id. § 1362 (“In any removal proceedings . . . , the

person concerned shall have the privilege of being represented (at no expense to the

Government) by such counsel, authorized to practice in such proceedings, as he shall

choose.” (emphasis added)). This privilege cannot be made illusory by the

government’s own actions. It would be “the hollowest of rights that [a noncitizen]

must be allowed to apply for asylum” with the assistance of counsel if the

government enacts policies such that, irrespective of the merits of their claims for

protection, a noncitizen’s application has virtually no chance of success. EBSC I,

932 F.3d at 771.

31 25-2581 The government resists this conclusion and argues that there can be no

violation of 8 U.S.C. § 1158(a)(1) because Remain in Mexico does not “bar

[noncitizens] from applying for asylum.” The record does not bear this out. Indeed,

DHS’s October 2021 rescission memo underscored that “the key predicate on which

the statutory authority underlying [Remain in Mexico] is built—that noncitizens stay

in Mexico and continue to participate in their removal proceedings—was upended

by reality in too many cases.” The government found that “insecurity in Mexico and

inadequate notice about court hearings” likely caused the disproportionate increase

in in absentia orders of removal and terminations of proceedings for noncitizens

enrolled in [Remain in Mexico], with their rate of in absentia orders and terminations

“three-and-a-half times higher than the in absentia rate for comparable noncitizens

not enrolled in [Remain in Mexico].” Moreover, DHS’s data reflected that

noncitizens enrolled in Remain in Mexico were also significantly less likely to

receive relief, with a “remarkably low 1.1 percent grant rate for MPP cases,”

approximately two-fifths the rate of comparable non-MPP cases. The record at this

stage of the proceedings firmly supports Plaintiff’s claims. The burdens imposed

upon the right to apply for asylum with the assistance of counsel are severe and have

the effect of barring swaths of noncitizens from exercising their statutory right to

apply for asylum.

32 25-2581 The government also disputes the district court’s ruling that 8 U.S.C. § 1229

mandates “the right to contact counsel and the time, space, and ability to consult

with counsel safely and confidentially.” Immigrant Defs. L. Ctr., 2025 WL 1172442,

at *21. But the government fails to acknowledge that noncitizens’ “fundamental”

right to counsel “must be respected in substance as well as in name” and the

unprecedented difficulty for ImmDef to provide representation in the United States

to respondents who are only allowed to consult with their attorneys for one hour

prior to their hearing. Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th

Cir. 1990) (citation modified). Similarly, in Orantes-Hernandez, we found that “the

provisions of the district court’s injunction designed to ensure access to counsel were

appropriate remedies for a pattern of practices which severely impeded class

members from communicating with counsel.” Id. at 566–67.

In Orantes-Hernandez, noncitizens “were frequently detained far from where

potential counsel or existing counsel were located,” noncitizens experienced

“limited attorney visitation hours at several detention centers,” “inadequate efforts

to ensure the privacy of both in-person and telephonic attorney-client interviews

interfered with the attorney-client relationship,” and detained noncitizens

“experienced difficulty reaching counsel when using collect call telephones” and

“the system of informing detainees of attorneys’ phone calls was not reliable.” Id.

at 565–66. These are the same types of improper restrictions ImmDef alleges here.

33 25-2581 For example, ImmDef alleges that “[i]n-person attorney-client consultations were

limited to an illusory one-hour window before a scheduled hearing.” SAC at 24.

“Even when these meetings could take place, legal representatives were forced to

meet with their clients in a public setting, where they could not speak confidentially.”

Id. Moreover, “[u]nrepresented individuals were prohibited even from approaching

legal representatives present in the immigration court to discuss possible

representation.” Id. at 24, 47. Moreover, as the district court aptly observed, “the

[g]overnment cannot actively facilitate a breakdown in ongoing or potential

attorney-client relationships, and then claim no responsibility or control over it.”

Immigrant Defs. L. Ctr., 2025 WL 1172442, at *22. Thus, the government’s

reimplementation of Remain in Mexico likely will violate the APA by impermissibly

disregarding the INA’s right to apply for asylum with the assistance of counsel.

Finally, the government’s argument that the district court has made an “effort

to read the contiguous-territory return authority out of the INA,” is unlikely to

succeed. ImmDef does not challenge the legality of contiguous-territory return in

general. Rather, it specifically challenges the government’s reimplementation of

this policy—Remain in Mexico—because such reimplementation will likely violate

procedural rights enshrined in the INA. The district court correctly concluded that

the government’s authority under 8 U.S.C. § 1225(b)(2)(C) must be exercised in

accordance with the INA’s other provisions, including 8 U.S.C. §§ 1158(d)(4)(A),

34 25-2581 1229a(b)(4)(A), 1362. Id., at *20 (citing Epic Sys. Corp. v. Lewis, 584 U.S. 497,

502 (2018) (requiring courts to interpret statutes as a “harmonious whole rather than

at war with one another”)). ImmDef has shown a likelihood of success on the merits

of its APA claims.

2. Irreparable Harm

The irreparable harm to the government discussed above applies here as well.

While the evidence is somewhat scant, we acknowledge the harms involved in

denying the duly elected branches the policies of their choice. See Trump v. CASA,

Inc., 2025 WL 1773631, at *15. The government has made a showing of irreparable

harm, albeit a weak one at this juncture in the litigation.

3. Public Interest and Balancing of the Harms

Where the government is the opposing party, balancing of the harms and the

public interest merge. See Nken, 556 U.S. at 435. Thus, the Court here must balance

the public’s interest in “prompt execution” of the immigration laws with potential

harms to ImmDef. Id. at 436.

The government argues that challenges to DHS’s discretion on how best to

enforce immigration law implicate an inherent executive power. Trump v. Hawaii,

585 U.S. 667, 684 (2018) (explaining that 8 U.S.C. § 1182(f) “exudes deference to

the President” and “vests the President with ample power to impose entry restrictions

35 25-2581 in addition to those elsewhere enumerated in the INA” (citation modified)). For the

government, the § 705 Stay prevents DHS from reinstating a discretionary program

and would thus interfere with a core constitutional power conferred on the Executive

Branch, inflicting irreparable injury to the interests of the government and the public.

For ImmDef, the Remain in Mexico reimplementation would inflict many, if

not all, of the same harms the organization faced during the initial roll out of the

policy in 2019. ImmDef’s “MPP 1.0 clients faced extraordinary risks to their

personal safety,” and some were “kidnapped, tortured, or assaulted in Mexico while

waiting for their hearings.” The harms suffered by ImmDef’s clients correspond to

those reported by Human Rights Watch, which found that asylum seekers returned

under MPP 1.0 were subjected to “rape, kidnapping, sexual exploitation, assault, and

other violent crimes.” These dangerous conditions impeded ImmDef’s attorneys’

ability to provide representation, as it was “impossible to know” whether certain

clients “had given up and left Mexico, whether they were alive, or whether they

would get in touch with me after being released by a cartel.” Because of these

conditions, ImmDef had to “divert even more resources to these cases.”

To reach these individuals and adequately and ethically represent them,

ImmDef will once again have to incur “significantly more expensive . . .[a]dditional

costs related to MPP representation,” such as “travel expenses,” “phones with

36 25-2581 international plans,” “salaries for staff in San Diego,” and “rental of space to meet

with clients in Tijuana.” SAC at 69–72.

Additionally, Remain in Mexico places time limits and restrictions on when

and how ImmDef staff can communicate with their clients prior to court hearings.

For instance, the 2019 directive establishing the one-hour limit before a court

hearing is a component of Remain in Mexico that the government has confirmed is

part of the “current operative guidance” for its reimplementation. Immigrant Defs.

L. Ctr., 2025 WL 1172442, at *24. According to ImmDef, “[i]n practice, [they] were

often given less than an hour for these meetings, during which an Immigration and

Customs Enforcement (ICE) officer was always present—making it impossible for

[them] to have private conversations with [their]clients.”

Between January 2019 and November 2020, ImmDef also spent

approximately $400,000 on costs associated with launching and sustaining its CBI

to provide legal services for MPP clients. In 2021, ImmDef’s funding for the CBI

was $210,000, a substantial portion of which was associated with representing MPP

clients. Since MPP effectively ended in the summer of 2021, ImmDef explains that

it “has reprioritized and expanded its legal representation programs for noncitizen

children and adults in and around southern California,” especially in San Diego.

ImmDef’s primary work in Mexico has been conducting “Know Your Rights”

presentations and providing legal consultations in migrant shelters. The

37 25-2581 reinstatement of the 2019 MPP policy threatens to undermine ImmDef’s existing

programs, force it to expend additional resources on carrying out its longstanding

mission, and diminish its overall capacity to provide removal defense assistance.

Havens Realty, 455 U.S. at 379.

At this stage, we find that the substantial and concrete harm that ImmDef will

suffer upon reimplementation of MPP likely outweighs the harm to the government

and public’s interest in the Executive Branch exercising its contiguous-territory

return authority without restriction in the form of the Remain in Mexico policy. For

ImmDef, these harms include impairment to its ability to provide meaningful legal

representation to clients in removal proceedings; the jeopardizing of the safety of its

staff; threats to its financial stability; and otherwise the undermining of its core

business activities.

IV. SCOPE OF STAY

Part of the government’s motion for a stay pending appeal asked this Court to

limit the nationwide scope of the district court’s § 705 Stay. The government

reemphasized this request in its supplemental briefing, stating that we should, “at

minimum, grant a partial stay limiting the district court’s order to exempting

ImmDef’s clients from MPP.” Gov’t Supp. Br. 10 [Dkt. No. 40]. At this stage in

the litigation, we agree that limiting the district court’s order to ImmDef’s current

38 25-2581 and future clients is the more equitable approach “to preserve status [and] rights

pending conclusion of the review proceedings,” 5 U.S.C. § 705.

Section 705 of the APA grants courts the power to issue all “necessary and

appropriate process” tailored to the circumstances of a particular case to “preserve

status or rights.” Id. Though the Supreme Court’s recent Trump v. CASA, Inc.

decision explicitly declined to extend its holding to the APA context, see 2025 WL

1773631, at *8 n.10, its complete-relief principle for crafting injunctive relief

provides some useful guidance for crafting interim equitable relief in this case, cf.

id., at *11. “Under this [complete-relief] principle, the question is not whether an

injunction offers compete relief to everyone potentially affected by an allegedly

unlawful act; it is whether an injunction will offer complete relief to the plaintiffs

before the court.” Id. (citation modified) (citing Califano v. Yamasaki, 442 U.S.

682, 702 (1979) (“[I]njunctive relief should be no more burdensome to the defendant

than necessary to provide complete relief to the plaintiffs.”)). This guidance is

informative here because the factors used to determine whether to issue a § 705 stay

under the APA are the same equitable factors used to consider whether to issue a

preliminary injunction. See Colorado, 989 F.3d at 883; Cook Cnty., 962 F.3d at 221.

Accordingly, we grant the government’s motion for a stay pending appeal in

part. During the pendency of this appeal, we limit the district court’s § 705 Stay

order to “exempting ImmDef’s [current and future] clients from MPP.” Gov’t Supp.

39 25-2581 Br. 10 [Dkt. No. 40]. As the government acknowledges, “ImmDef would receive

‘complete relief’ if the government were barred from applying MPP’s

‘reimplementation’ to its clients and only its clients.” Id. Therefore, no current or

future clients of ImmDef shall be enrolled in MPP during the pendency of this

appeal.

CONCLUSION

ImmDef’s motion to dismiss the appeal is DENIED and the government’s

motion for a stay pending appeal is GRANTED IN PART. The Court will set an

expedited briefing schedule for the merits appeal of the district court’s § 705 Stay in

due course.

40 25-2581 Immigrant Defenders Law Center, et al. v. Noem, et al., No. 25-2581 FILED JUL 18 2025 R. NELSON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS Yet again, a majority panel of our court resists direction from the Supreme

Court. Five years ago, a divided panel of our court affirmed a preliminary injunction

that blocked enforcement of the Migrant Protection Protocols (MPP). Innovation L.

Lab v. Wolf, 951 F.3d 1073 (9th Cir. 2020). The Supreme Court stayed that injunction

within weeks and then granted certiorari. Wolf v. Innovation L. Lab, 140 S. Ct. 1564

(2020); Wolf v. Innovation L. Lab, 141 S. Ct. 617 (2020). In Wolf, the plaintiffs raised

far stronger procedural and merits arguments. In granting a stay, the Supreme Court

concluded that the Government was likely to succeed on the merits. See Labrador

v. Poe, 144 S. Ct. 921, 929 & n.2 (2024) (Kavanaugh, J., concurring in the grant of

stay). We should follow that guidance. Faced with another order halting MPP, the

majority finds that the Government again is unlikely to prevail, despite Appellant’s

weaker arguments and the Supreme Court’s prior ruling. In doing so, the majority

further enshrines the Ninth Circuit’s reputation as the Sanctuary Circuit.

When it comes to the Trump Administration’s policies, the Supreme Court’s

rulings are often unfairly disparaged as rubber stamps for the Administration. One

Justice infamously called a recent Court decision an “existential threat to the rule of

law.” Trump v. CASA, Inc., No. 24A884, slip op. at 1 (U.S. June 27, 2025)

(Jackson, J., dissenting). But the real threat to our republic are lower courts like the

district court that, by placing policy ideals over judicial analysis in immigration

1 cases, force the Supreme Court to address poorly reasoned decisions of social and

political import in an emergency posture.

The majority does not defend the district court’s faulty First Amendment

holding and cabins the district court’s error by limiting the stay to Appellant. Still,

the majority affirms the district court’s policy-based reasoning on the Administrative

Procedure Act (APA) claims with little additional legal analysis. And the majority’s

decision is particularly troubling because an existing nationwide stay bars the

Government from terminating MPP. Texas v. Biden, 646 F. Supp. 3d 753, 781

(N.D. Tex. 2022). The majority thus subjects the Government to dueling stays: one

preventing the Government from using MPP and another from ending it. These court

orders sow confusion for the Government and its foreign relations. As such, the

majority’s order should have a short shelf life.

Time and again, the Supreme Court has held that the Constitution gives the

political branches near plenary authority over immigration. See Reno v. Flores, 507

U.S. 292, 305 (1993). The right to exclude aliens “is inherent in the executive

power.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). Yet

in denying a stay pending appeal, the majority strips the Executive of a statutory

authority to secure the southern border. See 8 U.S.C. § 1225(b)(2)(C). And it does

so at the request of an organizational plaintiff that cannot demonstrate standing, let

alone success on the merits. Worse yet, the majority largely relies on memoranda

2 from a prior Administration that a federal court has already determined are likely

arbitrary or capricious. See Texas, 646 F. Supp. 3d at 771–80, 781. Our Nation’s

immigration law—passed by bipartisan majorities in a democratic process—

demands more respect.

Given the emergency posture, I only address the issues as framed by the

parties. That said, the Government has carried its burden on all four Nken factors:

likelihood of success, irreparable harm, the balance of equities, and the public

interest. Nken v. Holder, 556 U.S. 418, 434 (2009). We should have granted a stay

pending appeal in full. 1 I dissent.

I

A

In 2019, the Department of Homeland Security (DHS) implemented MPP—

known as Remain in Mexico—to address a “humanitarian and border security crisis”

in which federal officials encountered up to 4,800 inadmissible aliens each day.

Texas v. Biden, 554 F. Supp. 3d 818, 831–32 (N.D. Tex. 2021). For years, DHS

lacked the resources to detain most aliens while their removal proceedings were

ongoing, even though the law typically requires detention. See 8 U.S.C.

§ 1225(b)(2)(A). As a result, DHS had to release thousands of undocumented aliens

into the United States and cross its fingers that they would appear voluntarily for

1 I agree that we have jurisdiction to hear this appeal. See Order at 11–16.

3 their removal proceedings. Texas v. Biden, 20 F.4th 928, 944 (5th Cir. 2021). That

was particularly troubling since most aliens (upwards of 80 percent) advanced bogus

asylum claims, see Texas, 554 F. Supp. 3d at 831, aided in their manipulation of the

process by groups such as the Immigrant Defenders Law Center (ImmDef). Legal

immigration—necessary for the country and legitimate asylum seekers—suffered.

MPP addresses this problem by requiring that certain aliens arriving by land

from Mexico be returned to Mexico while their removal proceedings are ongoing.

See Texas, 20 F.4th at 944. The policy spares DHS from detaining those aliens “at

considerable expense,” or else “allow[ing them] to reside in this country, with the

attendant risk that [they] may not later be found.” Dep’t of Homeland Sec. v.

Thuraissigiam, 591 U.S. 103, 108 (2020).

Congress expressly authorized MPP in the Immigration and Nationality Act

(INA). See Pub. L. No. 104-208, 110 Stat. 3009–583 (1996). The INA provides that

“[i]n the case of an alien . . . 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 [removal] proceeding under

section 1229a of this title.”2 8 U.S.C. § 1225(b)(2)(C). This contiguous-territory

return authority codifies the Government’s “long-standing practice” of requiring

2 The Attorney General’s authority has since been transferred to the Secretary of Homeland Security. See Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005).

4 some aliens to await removal proceedings abroad. Matter of M-D-C-V-, 28 I. & N.

Dec. 18, 25 (BIA 2020).

B

MPP is no stranger to the federal courts. In April 2019, a district court in our

circuit preliminarily enjoined MPP nationwide. Innovation L. Lab v. Nielsen, 366

F. Supp. 3d 1110, 1114, 1130 (N.D. Cal. 2019). After we affirmed in a divided

opinion, the Supreme Court stayed the district court’s injunction. Wolf, 140 S. Ct. at

1564; see Innovation L. Lab, 951 F.3d at 1077; see also id. at 1095–97

(Fernandez, J., dissenting). The Court later granted certiorari to review our decision

affirming that injunction. Wolf, 141 S. Ct. at 617.

While briefing was underway, DHS—after President Biden took office—

announced that it would suspend new enrollments in MPP pending further review.

Texas, 554 F. Supp. 3d at 836; see also Exec. Order No. 14010, 86 Fed. Reg. 8267,

8269 (2021) (directing the DHS Secretary to “promptly review and determine

whether to terminate or modify the [MPP] program”). In 2021, then-DHS Secretary

Mayorkas issued two memoranda officially terminating MPP. Texas, 20 F.4th at

945–46. The Supreme Court vacated our judgment and remanded with instructions

to direct the district court to vacate as moot its order enjoining MPP. Mayorkas v.

Innovation L. Lab, 141 S. Ct. 2842 (2021) (citing United States v. Munsingwear, Inc.,

340 U.S. 36 (1950)). The case was never litigated on the merits.

5 Still, DHS’s termination of MPP sparked its own litigation. Texas and

Missouri sued in the Northern District of Texas and, after a bench trial, the district

court entered judgment for the States. Texas, 554 F. Supp. 3d at 828. The district

court concluded that terminating MPP violates the INA. Id. at 852. And it reasoned

that DHS’s explanation for getting rid of MPP was arbitrary or capricious. Id. at

847–51 (DHS discounted its own findings about MPP’s benefits, including that

“aliens without meritorious claims . . . [were] beginning to voluntarily return

home”). The district court vacated the first termination memorandum and entered a

nationwide permanent injunction ordering DHS to “enforce and implement MPP in

good faith until such a time as it has been lawfully rescinded in compliance with the

APA” and until the Government could detain certain aliens subject to mandatory

detention. Id. at 857. The Fifth Circuit affirmed. Texas, 20 F.4th at 943–44.

The Supreme Court reversed. Biden v. Texas, 597 U.S. 785, 814 (2022). On

remand, the district court lifted its original injunction. Texas, 646 F. Supp. 3d at 764.

It kept the status quo, however, by staying DHS’s second termination memorandum

under 5 U.S.C. § 705 while litigation on the merits continued. Id. at 781. The

Government voluntarily dismissed its appeal from the district court’s stay, thus

keeping MPP in legal effect. Texas v. Biden, No. 23-10143, 2023 WL 5198783 (5th

Cir. May 25, 2023). To this day, the termination memorandum remains stayed. And

the Texas litigation is still ongoing.

6 This complex history leads to a simple point: MPP has never been rescinded.

That said, the policy has not been widely applied for several years. Though the

Mexican government at first cooperated with MPP, Texas, 554 F. Supp. 3d at 832, it

later withdrew consent for the United States to unilaterally return aliens to Mexico,

see Defendants’ Supplemental Response Brief in Support of Summary Judgment at

4, Texas v. Biden, No. 21-cv-0067 (N.D. Tex. Oct. 6, 2023), Dkt. 205. According to

the Government’s representation in the Texas litigation, Mexico’s “withdrawal of

consent render[ed] restarting MPP impossible.” Id.

Earlier this year, DHS announced that the “situation at the border has changed

and the facts on the ground are favorable to resuming implementation of the 2019

MPP Policy.” DHS Reinstates Migrant Protection Protocols, Allowing Officials to

Return Applicants to Neighboring Countries, U.S. Dep’t of Homeland Sec. (Jan. 21,

2025), https://perma.cc/6VST-YCA8. DHS immediately began reinstating the

policy in line with the President’s day-one directive: “[T]ake all appropriate action

to resume the Migrant Protection Protocols in all sectors along the southern border

of the United States.” Exec. Order No. 14165, 90 Fed. Reg. 8467, 8468 (Jan. 20,

2025). So began the “reimplementation” of MPP.

C

ImmDef is a nonprofit law firm that provides immigration-related services to

clients in southern California. In MPP’s early days, ImmDef—along with several

7 other Plaintiffs—challenged the policy in the Central District of California.

Immigrant Defs. L. Ctr. v. Noem, No. 20-cv-9893, 2025 WL 1172442, at *1

(C.D. Cal. Apr. 16, 2025). Plaintiffs filed a second amended complaint in December

2021, after the Texas district court’s injunction requiring DHS to enforce MPP in

good faith. Id.; see Texas, 554 F. Supp. 3d at 857. Five of the six claims addressed

the Trump Administration’s initial implementation of MPP, while one targeted

actions by the Biden Administration in stopping its wind-down of the policy.

Immigrant Defs. L. Ctr., 2025 WL 1172442, at *1. Among other claims, Plaintiffs

alleged that MPP violates the First Amendment and the APA by, for example,

burdening the statutory right to apply for asylum and depriving asylum seekers of

their right to counsel. Id.

The litigation picked up speed after the new Administration revived its earlier

efforts to secure the border. ImmDef—alone among Plaintiffs—moved for an ex

parte emergency order staying MPP’s reimplementation while this litigation plays

out. Id. at *2. ImmDef asserted that it would suffer irreparable harm without

immediate relief, that it is likely to succeed on the merits, and that the balance of

equities and public interest “tip sharply in its favor.” Id. at *6.

The district court granted ImmDef’s motion, issuing a nationwide stay under

§ 705 of the APA that blocks MPP’s reimplementation for the rest of this case. Id.

at *25. The district court concluded that ImmDef had standing to challenge MPP’s

8 reimplementation.3 Id. at *7–10. The court also determined that a § 705 stay would

comply with 8 U.S.C. § 1252(f)(1)—which generally bars lower courts from

ordering class-wide relief that enjoins or restrains the operation of specific

provisions in the INA, including the statutory authority for MPP. Id. at *13–15; see

Garland v. Aleman Gonzalez, 596 U.S. 543, 550 (2022).

As for ImmDef’s likelihood of success on the merits, the district court

reasoned that MPP violates the First Amendment by imposing barriers on ImmDef’s

ability to advise current and future clients. Immigrant Defs. L. Ctr., 2025 WL

1172442, at *17–19. It also found that MPP impeded asylum seekers’ access to

counsel, and that “trapping” individuals in Mexico makes it harder for them to apply

for asylum. Id. at *20–22. On the remaining stay factors, the district court noted

that ImmDef would suffer irreparable harm without a stay, and that the equities and

public interest cut in ImmDef’s favor. Id. at *22–25.

The Government asked the district court to put its decision on hold pending

appeal. When the district court refused, the Government moved for an emergency

stay from our court, which we agreed to consider on an expedited basis.

3 The district court addressed other arguments not raised in the pending stay motion, like whether ImmDef’s claims are ripe. See, e.g., Immigrant Defs. L. Ctr., 2025 WL 1172442, at *11–13. The parties are free to address those arguments in their merits briefing.

9 II

Four factors dictate whether to grant a stay pending appeal: “(1) whether the

stay applicant has made a strong showing that [it] is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay; (3) whether

issuance of the stay will substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies.” Nken, 556 U.S. at 434 (quotation

omitted). Though the “first two factors . . . are the most critical,” id., the

Government wins on all four. Because we are reviewing legal questions, our review

is de novo. See Where Do We Go Berkeley v. Cal. Dep’t of Transp., 32 F.4th 852,

857 (9th Cir. 2022).

The Government is likely to succeed on appeal. 4 For one, ImmDef lacks

Article III standing. And even if ImmDef did have standing, its First Amendment

and APA claims have no merit.

4 I take no position at this stage on whether the district court’s § 705 stay is barred by 8 U.S.C. § 1252(f)(1) or whether the reimplementation of MPP is final agency action for purposes of APA review. See Order at 24–29. Assuming § 1252(f)(1) does not apply and that the reimplementation is final, the Government is still likely to succeed as explained.

10 1

Article III of the Constitution gives us the power to decide only genuine

“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. That power demands

that we ask a critical question, posed to the plaintiff in every case: “What’s it to

you?” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (quoting A. Scalia,

The Doctrine of Standing as an Essential Element of the Separation of Powers, 17

Suffolk U. L. Rev. 881, 882 (1983)). The doors to the federal courthouse are shut if

the plaintiff cannot show a “personal stake in the case—in other words, standing.”

Id. (internal quotation marks omitted). The standing requirement guards against

those who wish to use the courts for “general complaints about the way in which

government goes about its business.” Allen v. Wright, 468 U.S. 737, 760 (1984).

The principle is no less important for organizational plaintiffs, whose “standing is

not measured by the intensity of the litigant’s interest or the fervor of his advocacy.”

Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454

U.S. 464, 486 (1982).

To establish standing, a plaintiff must show that it has “(1) suffered an injury

in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and

(3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.

11 Robins, 578 U.S. 330, 338 (2016). Without these showings, “there is no case or

controversy for [us] to resolve.” TransUnion, 594 U.S. at 423 (quotation omitted).

The usual requirements also govern organizational plaintiffs, who may have

standing “to sue on their own behalf for injuries they have sustained.” Havens Realty

Corp. v. Coleman, 455 U.S. 363, 379 n.19 (1982).5 The organization, however, is

held to the “usual standards for injury in fact, causation, and redressability that apply

to individuals.” FDA v. All. for Hippocratic Med., 602 U.S. 367, 393–94 (2024)

(citing Havens, 455 U.S. at 378–79). No less applicable are black letter standing

principles governing plaintiffs who are not themselves “the object of the

[challenged] government action or inaction.” Lujan v. Defs. of Wildlife, 504 U.S.

555, 562 (1992). Though standing “is not precluded” in such cases, “it is ordinarily

‘substantially more difficult’ to establish.” Id. (quoting Allen, 468 U.S. at 758).

The Supreme Court’s recent decision in Hippocratic Medicine marked a sea

change in the doctrine of organizational standing. There, several pro-life medical

associations challenged actions by the Food and Drug Administration (FDA) that

facilitated access to mifepristone, an abortion drug. 602 U.S. at 376–77. According

5 This form of direct organizational standing is distinct from another doctrine— sometimes called associational standing—that permits an organization to assert “standing solely as the representative of its members,” at least one of whom meets the requirements of Article III. Warth v. Seldin, 422 U.S. 490, 511 (1975). That doctrine is inapplicable here.

12 to the medical associations, FDA’s actions “‘impaired’ their ‘ability to provide

services and achieve their organizational missions.’” Id. at 394. “That argument,”

the Court held, “does not work to demonstrate standing.” Id. Just as an individual

may not establish standing because of “strong opposition to the government’s

conduct,” an organization “must show ‘far more than simply a setback to [its]

abstract social interests.’” Id. (quoting Havens, 455 U.S. at 379). That remains true

“no matter how longstanding the interest and no matter how qualified the

organization.” Id. (quoting Sierra Club v. Morton, 405 U.S. 727, 739 (1972)). This

is the first takeaway from Hippocratic Medicine: an organization is not injured for

purposes of standing simply because the challenged action frustrates its mission.

Putting aside their organizational mission, the medical associations also

claimed standing “based on their incurring costs to oppose FDA’s actions.” Id. In

their view, FDA “caused” them to conduct their own studies to better inform their

members and the public about the risks of mifepristone. Id. They also alleged that

FDA “forced” them to “expend considerable time, energy, and resources” drafting

petitions and engaging in other advocacy efforts. Id. All these activities, the medical

associations maintained, required the expenditure of “‘considerable resources’ to the

detriment of other spending priorities.” Id.

None of that mattered to the Court’s standing analysis. In the Court’s words,

“an organization that has not suffered a concrete injury caused by a defendant’s

13 action cannot spend its way into standing simply by expending money to gather

information and advocate against the defendant’s action.” Id. “An organization

cannot manufacture its own standing in that way.” Id.; see Clapper v. Amnesty Int’l

USA, 568 U.S. 398, 416 (2013) (no standing where plaintiffs “inflict[ed] harm on

themselves” by “incurr[ing] certain costs” in response to defendant’s actions). The

second takeaway from Hippocratic Medicine is as clear as the first: an organization

cannot establish standing by diverting resources to counter the challenged action,

even if it means taking away resources from other organizational priorities.

In reaching this conclusion, the Court cabined Havens, which the medical

associations understood as endorsing a diversion-of-resources theory. Hippocratic

Med., 602 U.S. at 395. The defendant company in Havens owned and operated two

apartment complexes—one predominately occupied by whites, and another racially

integrated. Havens, 455 U.S. at 367–68 & n.4. The plaintiffs—three individuals

and a nonprofit organization, Housing Opportunities Made Equal (HOME)—sued

the company under the Fair Housing Act. Id. at 366–67. They claimed that the

company engaged in “racial steering” by diverting non-whites to the integrated

complex, even when units were available in the mostly white complex. Id. at 366–

68 & nn.1 & 4. The company allegedly lied to black prospective renters, including

a HOME employee, by saying that there were no vacancies in the mostly white

complex. Id. at 368.

14 The Supreme Court held that HOME had organizational standing to challenge

the company’s racial steering practices. Id. at 379. HOME alleged in its complaint

that those practices “frustrated” the organization’s “efforts to assist equal access to

housing through counseling and other referral services,” and required the

organization “to devote significant resources to identify and counteract” the

practices. Id. HOME suffered an injury in fact, the Court reasoned, because the

company’s steering practices “perceptibly impaired HOME’s ability to provide

counseling and referral services for low- and moderate-income homeseekers.” Id.

The Court concluded that HOME alleged a “concrete and demonstrable injury to the

organization’s activities—with [a] consequent drain on [its] resources.” Id.

The medical associations in Hippocratic Medicine latched onto this language,

arguing that standing exists under Havens “when an organization diverts its

resources in response to a defendant’s actions.” Hippocratic Med., 602 U.S. at 395.

That reading, the Court explained, “is incorrect.” Id. Havens turned not on diversion

of resources, but on direct interference to HOME’s “core business activities.” Id.

“Critically, HOME not only was an issue-advocacy organization, but also operated

a housing counseling service.” Id. (citing Havens, 455 U.S. at 368). And when the

company inflicted an informational injury on HOME by giving its employee false

information about apartment vacancies, that injury “directly affected and interfered”

with the organization’s “core business activities”—namely, its counseling services

15 for prospective homeowners.6 Id. The Court characterized the direct-interference

standard as “not dissimilar to a retailer who sues a manufacturer for selling defective

goods to the retailer.” Id.

Viewed that way, Havens did not support the medical associations’ standing.

The associations had not alleged “the kind of injury” at issue in Havens, and FDA’s

actions did not “impose[] any similar impediment to [their] advocacy businesses.”

Id. “At most,” the Court continued, the medical associations alleged that “FDA

[was] not properly collecting and disseminating information about mifepristone.”

Id. But at no point had the medical associations “claimed an informational injury,”

nor had they suggested that FDA had a statutory obligation to publicly release

information about mifepristone upon request. Id. at 395–96 (citing FEC v. Akins,

524 U.S. 11 (1998)). Thus, the medical associations had not alleged an adequate

basis for organizational standing—whether direct interference with its core business

activities, an informational injury, or something similar. The Court closed with a

6 An informational injury occurs when a “plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998). The Fair Housing Act, at issue in Havens, vested HOME with a legal right to truthful, nondiscriminatory housing information. See 42 U.S.C. §§ 3602(d), 3604(d) (“[I]t shall be unlawful . . . [t]o represent to any person,” including an organization, “because of race, color, religion, sex, handicap, familial status, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.”).

16 warning: “Havens was an unusual case, and [the] Court has been careful not to

extend the Havens holding beyond its context.” 7 Id. at 396.

That brings us to the third takeaway from Hippocratic Medicine. If a plaintiff

organization alleges standing under Havens, it must show that the challenged action

“directly affect[s] and interfere[s]” with its “core business activities.” Id. at 395.

That could take the form of an informational injury, like in Havens. Or it could be

another injury that similarly interferes with the organization’s core activities. In

every case, though, courts must hold the organization’s feet to the fire to ensure that

Havens’ holding about “core business activities” is not extended “beyond its

context.” Id. at 395–96.

Hippocratic Medicine also leaves open the possibility that an organization

could establish standing without relying on Havens. While not relevant to ImmDef’s

alleged injury, the Court suggested that the medical associations may have had

standing if they adequately alleged an informational injury apart from Havens’ “core

business activities” test. See id. at 395–96. And nothing in Hippocratic Medicine

suggests that an organization would not be injured if it was, say, the “object” of a

government regulation that does not interfere with the organization’s core business

activities. See Diamond Alt. Energy, LLC v. EPA, 145 S. Ct. 2121, 2135 (2025)

7 The majority declares that Hippocratic Medicine “reinforced the holding in Havens.” Order at 21. That assertion ignores the Supreme Court’s reluctance to greenlight Havens-based claims of organizational standing. See 602 U.S. at 396.

17 (quoting Lujan, 504 U.S. at 561). Because the Court had no reason to address these

questions in Hippocratic Medicine, we must await future guidance on the full

contours of the organizational standing doctrine. Still, as other circuits have

recognized, Hippocratic Medicine significantly clarified the field, making clear that

an organization cannot rely on frustration of mission or diversion of resources to

establish Article III standing. 602 U.S. at 394; see, e.g., Deep S. Ctr. for Env’t Just.

v. EPA, 138 F.4th 310, 317–20 (5th Cir. 2025).

That poses a problem for our precedent. For years, we understood Havens as

endorsing the framework that Hippocratic Medicine rejected. See, e.g., Sabra v.

Maricopa Cnty. Cmty. Coll. Dist., 44 F.4th 867, 879 (9th Cir. 2022) (“We have ‘read

Havens to hold that an organization has direct standing to sue where it establishes

that the defendant’s behavior has frustrated its mission and caused it to divert

resources in response to that frustration of purpose.’” (quoting E. Bay Sanctuary

Covenant v. Biden, 993 F.3d 640, 663 (9th Cir. 2021))); Fair Hous. Council of San

Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012). And

we doubled down on that interpretation of Havens despite repeated warnings that

our organizational standing cases were out of step with modern standing doctrine. 8

8 See, e.g., Nielsen v. Thornell, 101 F.4th 1164, 1181 (9th Cir. 2024) (Collins, J., dissenting) (“[M]ere advocacy against a policy, and spending resources on such advocacy, is not enough under Havens Realty and its progeny.”); Sabra, 44 F.4th at 895 (VanDyke, J., concurring) (“[O]ur court’s [organizational standing] jurisprudence is at ‘loggerheads’ with Supreme Court precedent.” (quotation

18 No more. After Hippocratic Medicine, we are not bound by our prior cases

interpreting Havens. Those precedents are “clearly irreconcilable” with Hippocratic

Medicine, and have therefore been “effectively overruled.” Miller v. Gammie, 335

F.3d 889, 900 (9th Cir. 2003) (en banc); see also Ariz. All. for Retired Ams. v. Mayes,

117 F.4th 1165, 1176–78 (9th Cir. 2024), reh’g en banc granted, vacated, 130 F.4th

1177 (9th Cir. 2025). This is particularly important since the majority invokes our

overruled precedent. See Order at 19 (quoting E. Bay Sanctuary Covenant, 993 F.3d

at 663). Since the en banc court in Arizona Alliance will decide and likely control

these issues, we normally would have held this order pending the en banc decision.

Given the urgency here and that this is an interim decision on standing, it makes

sense to move forward. Still, the analytical framework for this case comes from

Hippocratic Medicine.

Against that backdrop, ImmDef lacks Article III standing. Start with its

allegations. According to ImmDef’s second amended complaint, its “primary focus”

omitted)); E. Bay Sanctuary Covenant, 993 F.3d at 694 (Bumatay, J., dissenting from denial of rehearing en banc) (“We should have . . . review[ed] this case en banc and articulat[ed] a clear organizational standing doctrine grounded in Article III and the standing principles respected by our courts since the Founding.”); Rodriguez v. City of San Jose, 930 F.3d 1123, 1135 n.10 (9th Cir. 2019) (Friedland, J.) (“We share many of these concerns [about our organizational standing cases] but are bound to apply current precedent regardless.”); Roommate.com, 666 F.3d at 1224 (Ikuta, J., concurring in part and dissenting in part) (“[H]ow can an organization have a legally protected interest in not spending money to advance its core mission?”).

19 before MPP was representing individuals in immigration court proceedings in the

Greater Los Angeles and Orange County areas. See Second Amended Complaint for

Injunctive Relief and Declaratory Relief (SAC) at 69, Immigrant Defs. L. Ctr. v.

Noem, No. 20-cv-9893 (C.D. Cal. Dec. 22, 2021), Dkt. 175. Later, “[i]n response to

Defendants’ implementation of [MPP],” ImmDef shifted focus by establishing “its

Cross Border Initiative (CBI), which focuses on providing direct representation, pro

se assistance, and advocacy to individuals subjected to MPP.” Id. “To represent

individuals subjected to [MPP],” ImmDef had to “undertake two new ventures.” Id.

First, it began “representing individuals in the San Diego immigration court.” Id.

Second, it initiated “cross-border travel and communication.” Id. Both ventures,

ImmDef alleged, “required new infrastructure, staff, materials, and funding.” Id.

ImmDef also clarified that it “diverted substantial resources” from other

projects “to support the expansion of MPP-related work.” Id. at 70. ImmDef’s

February 2025 stay motion described how, because of MPP, the organization began

“to reallocate staff time, expend significant time and financial resources, send its

staff to Mexico, and [] rent a new office, all at the expense of its core programs.”

Plaintiff Immigrant Defenders Law Center’s Memorandum of Points and Authorities

in Support of Ex Parte Application for a Stay of Agency Action Under 5 U.S.C.

§ 705 (Memorandum) at 21, Immigrant Defs. L. Ctr. v. Noem, No. 20-cv-9893

(C.D. Cal. Feb. 11, 2025), Dkt. 371-1. As ImmDef summarized in its second

20 amended complaint: “[T]he manner in which Defendants implemented

[MPP] . . . frustrate[s] [the] Organizational Plaintiffs’ missions and require[s] them

to expend resources they otherwise would invest in other programs.” SAC at 68–

69.

That theory of harm is untenable after Hippocratic Medicine. No longer can

an organizational plaintiff rely on a frustration-of-mission or diversion-of-resources

theory to support its standing. Hippocratic Med., 602 U.S. at 394. Yet ImmDef

claims that it was harmed by MPP because it “diverted substantial resources” to

support MPP-related initiatives, all of which it created “[i]n response to” MPP. SAC

at 69–70. An organization “cannot spend its way into standing” in that way.

Hippocratic Med., 602 U.S. at 394. The harms alleged in the second amended

complaint, and which the majority relies on, have been expressly rejected as bases

for standing under Hippocratic Medicine.

ImmDef’s disconnect on alleging harms is understandable. ImmDef filed its

second amended complaint in December 2021, over two years before Hippocratic

Medicine. See SAC at 98. It reasonably believed that it had standing under our

frustration-of-mission and diversion-of-resource cases, which are now effectively

overruled. See, e.g., Sabra, 44 F.4th at 879; see also Miller, 335 F.3d at 900. That

tells you something about ImmDef’s standing theory after Hippocratic Medicine.

21 ImmDef cannot have standing to challenge the reimplementation of MPP when it

clearly framed its injuries in light of precedents that are no longer good law.

Recognizing the conundrum, ImmDef and the majority refashion the

allegations as interference with ImmDef’s core business activities. See Order at 21–

22. In their telling, ImmDef had to divert resources in response to MPP to continue

carrying out its core activities—which ImmDef characterizes in its briefing on

appeal as “providing direct representation, counseling, and legal assistance to

noncitizens in removal proceedings in and around southern California, with the goal

of providing universal representation.” See id.

Two problems there. First, ImmDef twists the facts. The organization’s post-

MPP initiatives are not mere extensions of its core business activities; they are new

activities altogether. ImmDef concedes that its pre-MPP core activities never

required cross-border work. SAC at 69. Nor did those activities involve

representing clients before the San Diego immigration court. Id. In other words,

ImmDef changed its business activities in response to MPP. That cannot support

standing under Havens or Hippocratic Medicine, both of which analyzed the

interference with the organization’s core activities as they existed at the time of the

challenged conduct. See Hippocratic Med., 602 U.S. at 395 (citing Havens, 455 U.S.

at 379). And in any case, ImmDef cannot seem to get its story straight on what

exactly its core activities are. In its stay motion before the district court, ImmDef

22 alleged that “in order to represent its clients competently and serve asylum seekers

subjected to MPP,” it was forced to reallocate resources to its MPP-related

initiatives, “all at the expense of its core programs.” Memorandum at 21 (emphasis

added). Apparently, such “core programs” do not include responding to MPP.

The majority’s own description of ImmDef’s injuries makes my point.

ImmDef, the majority explains, “had to expend resources to counteract and offset

the barriers that MPP imposed.” Order at 22. The majority further notes that, to

reach MPP clients, ImmDef will allegedly have to “hire additional staff, expand its

office space, conduct additional fundraising efforts, increase travel to Mexico, and

divert staff resources away from other projects towards MPP-related projects.” Id.

The majority relies on the exact theory of injury that the Supreme Court just rejected

as a basis for organizational standing. See Hippocratic Med., 602 U.S. at 394 (“[A]n

organization . . . cannot spend its way into standing simply by expending money to

gather information and advocate against the defendant’s action.”). Inexplicably, the

majority asserts that ImmDef is “similarly situated” to HOME. Order at 22. But

ImmDef, unlike HOME, does not claim an informational injury. Nor does ImmDef

allege a similarly direct interference with its pre-existing core business activities.

ImmDef’s alleged injuries look nothing like the injuries claimed in Havens; they

resemble the exact harms rejected in Hippocratic Medicine.

23 Instead of faithfully applying the Supreme Court’s instructions, the majority

shoehorns ImmDef’s outdated allegations into Hippocratic Medicine’s “core

business activities.” Hippocratic Med., 602 U.S. at 395. But harms that have

otherwise been rejected as grounds for organizational standing are definitionally not

“core business activities” under Hippocratic Medicine.

These fundamental errors are made worse because ImmDef and the majority

frame the organization’s core business activities at too high a level of generality. See

Order at 21–22. Even before Hippocratic Medicine, we advised that “an

organization cannot manufacture standing merely by defining its mission with

hydra-like or extremely broad aspirational goals.” Nielsen v. Thornell, 101 F.4th

1164, 1170 (9th Cir. 2024). The same goes for an organization’s core activities.

Without a sufficiently discrete definition, an organization can assert that virtually

any challenged action interferes with its broadly defined “activities.” And if courts

hew to the majority’s tactic and allow organizations to reconceptualize their core

business activities in response to government action, organizational standing will

devolve into exactly what the Supreme Court cautioned against in Hippocratic

Medicine: a loophole for vindicating “general legal, moral, ideological, or policy

objection[s]” without the kind of injury required to satisfy Article III. See 602 U.S.

at 381. The majority sanctions ImmDef’s end-run around such a basic constitutional

principle.

24 To sum up, the Government is likely to prevail on appeal based on standing

alone. Though ImmDef’s frustration-of-mission and diversion-of resource theories

may have worked in a bygone era, we are operating today with a new conception of

organizational standing. Under Hippocratic Medicine, ImmDef has not met the

constitutional requirements to challenge the reimplementation of MPP.

The Government is likely to prevail for another reason: even if ImmDef had

standing, its First Amendment and APA claims fail.

ImmDef alleges that MPP violates its First Amendment right to advise

potential and existing clients. See In re Primus, 436 U.S. 412, 432 (1978) (“The

First and Fourteenth Amendments require a measure of protection for ‘advocating

lawful means of vindicating legal rights . . . .’” (quoting NAACP v. Button, 371 U.S.

415, 437 (1963))). Specifically, ImmDef contends that MPP “trap[s]” its clients in

Mexico and requires “nearly all meaningful legal communication” to take place

outside the United States. SAC at 94. MPP therefore violates ImmDef’s speech

rights, the organization claims, by restricting its efforts “to provide comprehensive

advice regarding the legal issues surrounding their clients’ asylum claims.” Id.

But here’s the thing: MPP does not regulate speech. It regulates pure, non-

expressive conduct—whether aliens may stay in the United States pending their

25 removal proceedings. At most, the policy results in “incidental burdens on speech,”

which “the First Amendment does not prevent.” Sorrell v. IMS Health Inc., 564 U.S.

552, 567 (2011). Instead of restricting attorney speech or expressive conduct, MPP

places individuals in a different country from the ImmDef attorneys who wish to

speak with them. In that sense, MPP is like an ordinance prohibiting outdoor fires,

a conduct-focused regulation that does not violate the First Amendment despite

having the incidental effect of restricting expressive flag burning. See id. (citing

R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992)); see also Texas v. Johnson, 491

U.S. 397, 404–06 (1989). Just because MPP incidentally burdens ImmDef’s speech

“hardly means” that the policy should be analyzed as a regulation of speech and not

conduct. Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 62 (2006).

With that in mind, ImmDef focuses on MPP’s implementing guidance. It

singles out a requirement that the Government bring MPP aliens from Mexico to a

federal courthouse in the United States at least one hour before their immigration

hearing. See SAC at 24, 71, 94. ImmDef is allowed to advise its clients during this

one-hour window. Yet, in ImmDef’s view, one hour is too short. See id. Combined

with a lack of “viable alternative channels” to advise MPP asylum seekers while they

are in Mexico, the one-hour limit allegedly violates ImmDef’s First Amendment

rights to solicit and consult its clients. Id. at 94.

26 The district court credited ImmDef’s argument, held that MPP’s burdens on

protected speech fail intermediate or strict scrutiny, and stayed MPP in its entirety.

Immigrant Defs. L. Ctr., 2025 WL 1172442, at *17–19. As the majority implicitly

acknowledges, that was wrong.

Assuming MPP’s implementing guidance has anything to do with speech, it

does no more than impose content-neutral time, place, and manner restrictions on

ImmDef’s communications with existing and prospective clients. Such restrictions

do not violate the First Amendment so long as they are “narrowly tailored to serve a

significant governmental interest” and “leave open ample alternative channels for

communication.” Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 858 (9th Cir. 2004)

(quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

The one-hour limit satisfies both conditions. The district court discounted the

Government’s strong interest in protecting the country’s borders. See Plyler v. Doe,

457 U.S. 202, 225 (1982) (“The obvious need for delicate policy judgments has

counseled the Judicial Branch to avoid intru[ding] into” matters involving

“admission to our Nation and status within our borders.”). And, in any event,

ImmDef has no explanation for why the one-hour limit is not narrowly tailored.

Moreover, ImmDef’s point about alternative communication channels holds little

water: MPP and its implementing guidance do not restrict attorney-client

communications in the days and weeks before a client’s hearing. See Defendants’

27 Opposition to Plaintiff Immigrant Defenders Law Center’s Ex Parte Application for

a Stay of Agency Action Under 5 U.S.C. § 705 at 19 & n.7, Immigrant Defs. L. Ctr.

v. Noem, No. 20-cv-9893 (C.D. Cal. Feb. 25, 2025), Dkt. 378; see also Oral Arg. at

38:49–39:00 (ImmDef conceding that MPP does not prevent its lawyers from

traveling to Mexico to meet with clients).

ImmDef counters that it is not a “meaningful” alternative to communicate

with MPP clients outside of a federal courthouse—whether because “health, safety,

and resource constraints” prevent ImmDef attorneys from traveling to Mexico, or

because “[c]ommunication by telephone or internet” is “unreliable.” SAC at 92.

Even so, it does not follow that MPP or its implementing guidance violate the First

Amendment. A content-neutral regulation is not invalid simply because “the

government’s interest could be adequately served by some less-speech-restrictive

alternative.” TikTok Inc. v. Garland, 145 S. Ct. 57, 71 (2025) (quoting Ward, 491

U.S. at 800). Here, as in other First Amendment cases, we must recognize the

Government’s “‘latitude’” to “design regulatory solutions to address content-neutral

interests.” Id. (quoting Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 213 (1997)).

And even if the one-hour limit were somehow an impermissible restriction on

ImmDef’s First Amendment rights, the remedy would be to strike the limit—not the

entire MPP.

28 The district court also suggested that MPP violates the First Amendment

because the Government “forbade” ImmDef from providing “Know Your Rights”

presentations to asylum seekers. Immigrant Defs. L. Ctr., 2025 WL 1172442, at *19.

It is unclear where the district court got this. ImmDef’s own complaint confirms

that it “continues to conduct virtual Know Your Rights presentations” and, “as of

September 28, 2021,” had “resumed in-person presentations.” SAC at 72. Maybe

the district court confused ImmDef with the other organizational plaintiff, Jewish

Family Service (JFS), which did allege that the Government denied its request to

conduct a Know Your Rights session for potential MPP clients. Id. at 75. But

ImmDef makes no mention of its standing to challenge that denial on behalf of JFS.

And ImmDef does not explain why the First Amendment requires the Government

to open courthouses for legal presentations. See U.S. Postal Serv. v. Council of

Greenburgh Civic Ass’ns, 453 U.S. 114, 129 (1981) (“[T]he First Amendment does

not guarantee access to property simply because it is owned or controlled by the

government.”). This First Amendment argument, like ImmDef’s challenge to the

one-hour limit, fails on multiple grounds.

Next, ImmDef claims that MPP violates the right to apply for asylum,

rendering the policy “arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law” under the APA. Fejes v. FAA, 98 F.4th 1156, 1159 (9th Cir.

29 2024) (quoting 5 U.S.C. § 706(2)(A)). 9 By “stranding” asylum seekers in Mexico,

MPP—in ImmDef’s telling—“obstructs access to all components of the U.S. asylum

system.” SAC at 85. This argument fails too.

The INA permits an alien “who is physically present in the United States or

who arrives in the United States” to apply for asylum. 8 U.S.C. § 1158(a)(1). The

statutory right, however, may be exercised only “in accordance with this section or,

where applicable, section 1225(b) of this title.” Id. (emphasis added). And

§ 1225(b) provides the express authority for MPP. See id. § 1225(b)(2)(C). It

follows that Congress limited an alien’s right to apply for asylum when the

Government is exercising its contiguous-territory return authority under

§ 1225(b)(2)(C). See Thuraissigiam, 591 U.S. at 140 (“[A]n alien . . . has only those

rights regarding admission that Congress has provided by statute.”). In such cases,

an alien can apply for asylum during the § 1229a removal proceedings referenced in

the statute. See 8 U.S.C. § 1225(b)(2)(C) (“[T]he Attorney General may return the

alien to [a contiguous] territory pending a proceeding under section 1229a of this

title.”).

That is the only way to make sense of the statutory scheme. The INA confers

a right to apply for asylum. See 8 U.S.C. § 1158(a)(1). But it also authorizes

9 The majority collapses its analysis of both APA claims. But the asylum claim is distinct from the right to counsel claim. See SAC at 83, 85.

30 expulsion to contiguous countries while removal proceedings play out. Id.

§ 1225(b)(2)(C). On ImmDef’s view, the former swallows the latter.

Courts do not read statutes to clash in that way. We have a “duty” to interpret

the INA “as a harmonious whole rather than at war with [itself].” Epic Sys. Corp. v.

Lewis, 584 U.S. 497, 502 (2018). Here, the right to apply for asylum and the

contiguous-territory return authority “are capable of co-existence.” See County of

Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 265

(1992) (quotation omitted). Aliens physically present in the United States and sent

back to Mexico under § 1225(b)(2)(C) can apply for asylum in their pending

removal proceedings. At the same time, the Government need not surrender its

express contiguous-territory return authority and shelter aliens in the United States

while their removal proceedings are ongoing.

While the majority recognizes § 1225(b)(2)(C), it effectively reads the

provision out of the statutory scheme. Under the majority’s interpretation,

§ 1225(b)(2)(C) cannot be implemented if an alien’s ability to seek asylum is

impeded. But access to the asylum process from Mexico will always be incidentally

affected by MPP. Congress knew as much when it enacted § 1225(b)(2)(C).

Interpreting the INA as the majority does puts one section—authorizing MPP—on

an unnecessary collision course with another—permitting applications for asylum.

31 What’s more, ImmDef’s accusations about how MPP affects the asylum

process are, at best, overblown. We have held (wrongly) that an alien may apply for

asylum while standing on Mexican soil. Al Otro Lado v. Exec. Off. for Immigr. Rev.,

138 F.4th 1102, 1115–18 (9th Cir. 2025); see also id. at 1128–29 (R. Nelson, J.,

dissenting); id. at 1169–71 (Bress, J., dissenting from the denial of rehearing en

banc). So it is not true that MPP aliens are excluded from “all components of” the

asylum process because they are somehow “trapp[ed]” in a foreign country. SAC at

84–85. In fact, ImmDef’s hyperbole contradicts its own complaint; at least some of

the individual Plaintiffs applied for asylum despite being subject to MPP. See SAC

at 44–45, 47. It is hard to see how an MPP alien’s asylum application “has virtually

no chance of success.” Order at 31.

Ultimately, Congress authorized contiguous-territory return as part of the

INA. See 8 U.S.C. § 1225(b)(2)(C). The Government does not violate the statute

by exercising that authority while still allowing aliens to apply for asylum.

ImmDef’s remaining APA claim is just as meritless. ImmDef alleges that

MPP violates the statutory right to counsel because, again, it “trap[s] individuals in

conditions that obstruct their access to legal representation.” SAC at 86. Like its

First Amendment claim, ImmDef contends that MPP makes it harder for asylum

seekers to obtain meaningful legal assistance by, for example, requiring them to stay

32 in Mexico where there are “barriers to communication.” See, e.g., id. at 38. That is

not enough to show a statutory violation.

In removal proceedings, Congress gave aliens “the privilege of being

represented (at no expense to the Government) by such counsel . . . as [the alien]

shall choose.” 8 U.S.C. § 1362; see id. § 1229a(b)(4)(A). The alien is also entitled

by regulation to a list of organizations, referral services, and attorneys qualified to

provide pro bono services in immigration proceedings. 8 C.F.R. § 1003.61(b).

But that is as far as the right goes, at least with respect to aliens returned to

Mexico under MPP. See United States v. Valdivias-Soto, 112 F.4th 713, 723 (9th Cir.

2024) (“To the extent a respondent can secure a pro bono attorney, the right to

counsel entitles them to be represented by that attorney in their removal proceedings

or on appeal.”). Contrary to ImmDef’s assertions, besides authorizing the

Government to return aliens to a contiguous foreign territory pending their removal

proceedings, Congress did not require the Government to facilitate an alien’s access

to counsel while they are residing in that foreign territory. See SAC at 38. So there

is no basis to treat MPP’s incidental burdens on the INA’s right to counsel as

inconsistent with the statute.

The majority repeats ImmDef’s mistake. It asserts that MPP violates the

statutory right to counsel because it causes “unprecedented difficulty for ImmDef to

provide representation in the United States” to aliens required to remain in Mexico.

33 Order at 33. Putting the majority’s policy preferences aside, nothing requires the

Government to pave the way for ImmDef to represent clients inside our borders.

Similarly, the majority cannot fall back on the principle that the right to counsel

“must be respected in substance as well as in name.” Id. at 32 (quoting Orantes-

Hernandez v. Thornburgh, 919 F.2d 549, 554 (9th Cir. 1990)). The majority relies

on a case about aliens who were allegedly deprived of their right to counsel while

detained inside the United States under conditions the Government controlled. See

Orantes-Hernandez, 919 F.2d at 554–55. Contrast that with the situation here: the

Government imposes no restrictions (and has no control over) an MPP alien’s access

to counsel while he awaits his removal proceedings in Mexico. Cf. Agency for Int’l

Dev. v. All. for Open Soc’y Int’l Inc., 591 U.S. 430, 434 (2020) (“[T]he Court has not

allowed foreign citizens outside the United States or such U.S. territory to assert

rights under the U.S. Constitution.”). The majority points to no legal authority

suggesting that the Government must streamline an alien’s communications with

counsel while residing in a foreign country.

The most the majority can muster are citations to October 2021 memoranda

laying out the Biden Administration’s rationale for terminating MPP, which included

purported concerns about access to counsel. See Order at 31–32; see also id. at 5.

For starters, the memoranda were issued by a prior Administration that had its own

vested interest in terminating MPP. And as the majority recognizes, the Biden

34 Administration partly justified the termination as a matter of policy, not based on a

judgment about MPP’s legality. See id. at 5. Even more, the majority fails to

mention that the Texas district court stayed the memoranda in 2022, concluding that

Texas and Missouri were likely to succeed on their claims that the memoranda’s

reasoning was arbitrary or capricious under the APA. Texas, 646 F. Supp. 3d at 771–

80, 781. In that court’s words, the October 2021 termination memoranda

“abandoned statistic-based decisionmaking for intuitional decisionmaking.” Id. at

777. The majority’s policy-driven analysis falls into the same trap.

ImmDef and the majority ignore that inconveniencing the right to counsel is

different from depriving an alien of that right. Though MPP may make it harder for

an alien to coordinate with a lawyer while they are abroad, it does not follow that

the individual’s statutory right to counsel is violated when the Government exercises

return authority that the same statute expressly allows. See 8 U.S.C.

§ 1225(b)(2)(C). The Government must only permit MPP aliens to be represented

by a lawyer should they find one. See id. § 1362. The INA requires no more.

* * *

There is an easy way to decide this case: ImmDef lacks Article III standing.

Putting standing aside, though, ImmDef’s merits arguments are still likely to fail.

The first Nken factor—likelihood of success on appeal—therefore points in the

Government’s direction. See 556 U.S. at 434.

35 B

The remaining factors also favor the Government. Take irreparable harm.

The district court’s stay “‘improper[ly] intru[des]’ on ‘a coordinate branch of the

Government’” by preventing the Executive from enforcing statutes duly enacted by

the People’s elected representatives. CASA, Inc., slip op. at 24 (maj. op.) (quoting

INS v. Legalization Assistance Project of L.A. Cnty. Fed’n of Lab., 510 U.S. 1301,

1306 (1993) (O’Connor, J., in chambers)); see also Maryland v. King, 567 U.S.

1301, 1303 (2012) (Roberts, C.J., in chambers) (“[A]ny time a State is enjoined by

a court from effectuating statutes enacted by representatives of its people, it suffers

a form of irreparable injury.” (quotation omitted)). The Government’s injury is

particularly acute when it involves “a fundamental sovereign attribute”—like

immigration—that is “exercised by the Government’s political departments largely

immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quotation

omitted).

For MPP specifically, the Supreme Court has recognized that the policy’s

“foreign affairs consequences” implicate authority that the Constitution vests

exclusively in the Executive, like “‘direct diplomacy with foreign heads of state and

their ministers.’” Biden, 597 U.S. at 805 (quoting Zivotofsky v. Kerry, 576 U.S. 1,

14 (2015)). The district court’s stay is an “unwarranted judicial interference” with

that authority; the reimplementation of MPP requires direct coordination with

36 Mexican officials. Id. (quoting Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108, 115–

16 (2013)); see also Arizona v. United States, 567 U.S. 387, 397 (2012) (“The

dynamic nature of relations with other countries requires the Executive Branch to

ensure that [immigration] enforcement policies are consistent with this Nation’s

foreign policy . . . .”); Order at 15. At bottom, the Government suffers irreparable

harm whenever it is barred from enforcing duly enacted immigration statutes that

implicate foreign relations.

Indeed, the Supreme Court has recently stayed several lower court orders that

prevented the Government from enforcing immigration laws. See Dep’t of

Homeland Sec. v. D.V.D., 145 S. Ct. 2153 (2025); Noem v. Doe, 145 S. Ct. 1524,

1524 (2025); Noem v. Nat’l TPS All., No. 24A1059, 2025 WL 1427560, at *1 (U.S.

May 19, 2025). The Court found in each case that the Government would be

irreparably harmed absent a stay. See Hollingsworth v. Perry, 558 U.S. 183, 190

(2010) (per curiam) (“To obtain a stay pending the filing and disposition of a petition

for a writ of certiorari, an applicant must show . . . a likelihood that irreparable harm

will result from the denial of a stay.”). This case should be added to the list.

Without intervention, the Government’s contiguous-territory return authority

will suffer a significant blow. In fairness, the majority scales back the district court’s

nationwide stay. See Order at 38–39. But the majority’s reasoning still discounts

the fact that MPP is authorized by statute. See 8 U.S.C. § 1225(b)(2)(C). And never

37 mind that the Supreme Court determined five years ago that an injunction against

MPP irreparably harmed the Government’s sovereign authority. 10 See Wolf, 140

S. Ct. at 1564. It is unclear when this case will make it to final judgment—it has

been ongoing for close to five years, and discovery alone is set to continue well into

the fall. In the meantime, the district court’s stay will “compound the harm to the

[G]overnment over time,” Order at 16, depriving federal officials of a critical tool

for enhancing border security and facilitating legal immigration. As the majority

recognizes, that harm is irreparable. See Order at 14–15, 35.

The last two factors (balance of equities and public interest) also favor the

Government. To date, ImmDef has struggled to identify clients impacted by MPP.

ImmDef told the district court that it has been “looking out for” a fully

operationalized MPP, which it has “not yet seen.” And it concededly “does not

currently have clients subjected to the reimplementation of MPP.” The equities thus

favor the Government, which is being deprived of a critical authority for responding

to the ever-changing dynamics along the southern border.

As for the public interest, we have recognized that the Government’s interests

tend to track those of the public. That is because ‘‘‘responsible public

10 According to the majority, the Supreme Court’s stay in Wolf is irrelevant because that case involved different statutory claims. See Order at 6 n.4. Different, yes. Weaker, no. Again, the plaintiffs in Wolf had stronger claims than what ImmDef presses here. And yet the Court still stayed the district court’s injunction. The majority treats this case differently despite ImmDef’s comparatively weaker claims.

38 officials . . . have already considered’ the public interest in enacting the policy at

issue.” Doe #1 v. Trump, 957 F.3d 1050, 1091 (9th Cir. 2020) (Bress, J., dissenting)

(quoting Golden Gate Rest. Ass’n v. City & County of S.F., 512 F.3d 1112, 1127 (9th

Cir. 2008)). The public benefits from the Government’s efforts to disincentivize

meritless asylum claims. Aliens permitted to stay in the United States despite

meritless claims for relief “compet[e] with citizens and legal resident aliens for jobs,

and generat[e] extra demand for social services.” See United States v. Brignoni-

Ponce, 422 U.S. 873, 878–79 (1975). MPP also diminishes the “evil effects of illegal

immigration,” Arizona, 567 U.S. at 431 (Scalia, J., concurring in part and dissenting

in part), as aliens with weak claims will (according to DHS) voluntarily return home

rather than cross the border illegally, Texas, 554 F. Supp. 3d at 833. All these

considerations warrant a stay.

III

The Government makes a compelling showing on each Nken factor. ImmDef

lacks standing and raises facially implausible claims. The Government’s strong

likelihood of success on appeal, combined with the irreparable harm being inflicted

on the Government’s border security efforts, warrants a stay pending appeal.

Because the majority rejects that straightforward conclusion and intrudes on the

Executive’s sovereign prerogatives, I dissent.