FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 7 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
INNOVATION LAW LAB; CENTRAL No. 19-15716 AMERICAN RESOURCE CENTER OF NORTHERN CALIFORNIA; CENTRO D.C. No. 3:19-cv-00807-RS LEGAL DE LA RAZA; UNIVERSITY OF SAN FRANCISCO SCHOOL OF LAW IMMIGRATION AND DEPORTATION OPINION DEFENSE CLINIC; AL OTRO LADO; TAHIRIH JUSTICE CENTER,
Plaintiffs-Appellees,
v.
KEVIN K. MCALEENAN, Acting Secretary of Homeland Security, in his official capacity; U.S. DEPARTMENT OF HOMELAND SECURITY; LEE FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services, in his official capacity; JOHN L. LAFFERTY, Chief of Asylum Division, U.S. Citizenship and Immigration Services, in his official capacity; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; TODD C. OWEN, Executive Assistant Commissioner, Office of Field Operations, U.S. Customs and Border Protection, in his official capacity; U.S. CUSTOMS AND BORDER PROTECTION; RONALD D. VITIELLO, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, Page 2 of 11
Defendants-Appellants.
Appeal from the United States District Court for the Northern District of California Richard Seeborg, District Judge, Presiding
Argued and Submitted April 24, 2019 San Francisco, California
Before: O’SCANNLAIN, W. FLETCHER, and WATFORD, Circuit Judges.
PER CURIAM:
In January 2019, the Department of Homeland Security (DHS) issued the
Migrant Protection Protocols (MPP), which initiated a new inspection policy along
the southern border. Before the MPP, immigration officers would typically
process asylum applicants who lack valid entry documentation for expedited
removal. If the applicant passed a credible fear screening, DHS would either
detain or parole the individual until her asylum claim could be heard before an
immigration judge. The MPP now directs the “return” of asylum applicants who
arrive from Mexico as a substitute to the traditional options of detention and
parole. Under the MPP, these applicants are processed for standard removal
proceedings, instead of expedited removal. They are then made to wait in Mexico
until an immigration judge resolves their asylum claims. Immigration officers
exercise discretion in returning the applicants they inspect, but the MPP is
categorically inapplicable to unaccompanied minors, Mexican nationals, applicants Page 3 of 11
who are processed for expedited removal, and any applicant “who is more likely
than not to face persecution or torture in Mexico.”
Eleven Central American asylum applicants who were returned to Tijuana,
Mexico, and six organizations that provide asylum-related legal services
challenged the MPP on several grounds in the district court. After concluding that
the MPP lacks a statutory basis and violates the Administrative Procedure Act
(APA), the district court enjoined DHS on a nationwide basis “from continuing to
implement or expand the [MPP].”
DHS has moved for a stay of the preliminary injunction pending its appeal to
this court. Our equitable discretion in ruling on a stay motion 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.” Nken v.
Holder, 556 U.S. 418, 434 (2009) (internal quotation marks omitted). We begin
with a discussion of the first factor, which turns largely on the plaintiffs’ likelihood
of success on their claim that the MPP lacks statutory authorization.
I
Some background is in order before addressing the merits of the plaintiffs’
statutory claim. Congress has established an exhaustive inspection regime for all Page 4 of 11
non-citizens who seek admission into the United States. See 8 U.S.C.
§ 1225(a)(3). Applicants for admission are processed either through expedited
removal proceedings or through regular removal proceedings. Section 1225(b)(1)
outlines the procedures for expedited removal and specifies the class of non-
citizens who are eligible for expedited removal:
If an immigration officer determines that an alien (other than an alien described in subparagraph (F)) who is arriving in the United States or is described in clause (iii) is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution.
§ 1225(b)(1)(A)(i). Simply put, an applicant is eligible for expedited removal only
if the immigration officer determines that the individual is inadmissible on one of
two grounds: fraud or misrepresentation (§ 1182(a)(6)(C)) or lack of
documentation (§ 1182(a)(7)).
All applicants for admission who are not processed for expedited removal
are placed in regular removal proceedings under § 1225(b)(2)(A). That process
generally entails a hearing before an immigration judge pursuant to § 1229a.
Section 1225(b)(2)(B) provides exceptions to § 1225(b)(2)(A), while
§ 1225(b)(2)(C) permits applicants processed under § 1225(b)(2)(A) to be returned Page 5 of 11
to the contiguous territory from which they arrived for the duration of their
removal proceedings. Section 1225(b)(2) provides in full:
(A) In general Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title.
(B) Exception Subparagraph (A) shall not apply to an alien— (i) who is a crewman, (ii) to whom paragraph (1) applies, or (iii) who is a stowaway. (C) Treatment of aliens arriving from contiguous territory In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.
DHS relies on the contiguous-territory provision in subsection (b)(2)(C) as
the statutory basis for the MPP. That provision authorizes DHS to return “alien[s]
described in subparagraph (A)” to Mexico or Canada. § 1225(b)(2)(C). The
phrase “described in” refers to the “salient identifying features” of the individuals
subject to this provision. Nielsen v. Preap, 139 S. Ct. 954, 965 (2019) (emphasis
and internal quotation marks omitted). Because the plaintiffs in this case are not Page 6 of 11
“clearly and beyond a doubt entitled to be admitted,” they fit the description in
§ 1225(b)(2)(A) and thus seem to fall within the sweep of § 1225(b)(2)(C).
As the district court interpreted the statute, however, the contiguous-territory
provision may not be applied to applicants for admission who could have been
placed in expedited removal under § 1225(b)(1), even if they were placed in
regular removal proceedings. The crux of this argument is § 1225(b)(2)(B)(ii),
which provides that “[s]ubparagraph (A) shall not apply to an alien . . . to whom
paragraph (1) applies.” So long as the applicant is eligible for expedited removal,
the district court reasoned, § 1225(b)(1) “applies” to that individual. On this
account, it is immaterial that the plaintiffs were not in fact processed for expedited
removal during their inspection at the border.
The primary interpretive question presented by this stay motion is
straightforward: Does § 1225(b)(1) “apply” to everyone who is eligible for
expedited removal, or only to those actually processed for expedited removal?
The interpretive difficulty arises mainly because the inadmissibility grounds
contained in subsections (b)(1) and (b)(2) overlap. A subset of applicants for
admission—those inadmissible due to fraud or misrepresentation, § 1182(a)(6)(C),
and those who do not possess a valid entry document, § 1182(a)(7)—may be
placed in expedited removal. § 1225(b)(1)(A)(i). But as we read the statute,
anyone who is “not clearly and beyond a doubt entitled to be admitted” can be Page 7 of 11
processed under § 1225(b)(2)(A). Section 1225(b)(2)(A) is thus a “catchall”
provision in the literal sense, and Congress’ creation of expedited removal did not
impliedly preclude the use of § 1229a removal proceedings for those who could
otherwise have been placed in the more streamlined expedited removal process.
See Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520, 522–24 (BIA 2011).
Because the eligibility criteria for subsections (b)(1) and (b)(2) overlap, we
can tell which subsection “applies” to an applicant only by virtue of the processing
decision made during the inspection process. Take first the procedures for
designating an applicant for expedited removal. When the immigration officer
“determines” that the applicant “is inadmissible” under § 1182(a)(6)(C) or (a)(7),
he “shall order the alien removed from the United States without further hearing”
unless the applicant requests asylum or expresses a fear of persecution, in which
case the officer “shall refer the alien for an interview by an asylum officer under
subparagraph (B).” 8 U.S.C. § 1225(b)(1)(A)(i)–(ii). In other words, the officer
decides inadmissibility on the spot without sending the matter to an immigration
judge. DHS’s regulations further explain that a § 1225(b)(1) determination entails
either the issuance of a Notice and Order of Expedited Removal or the referral of
the applicant for a credible fear screening. 8 C.F.R. § 235.3(b)(2)(i), (4); see also
id. § 208.30. And to “remove any doubt” on the issue, § 1225(b)(2)(B) clarifies Page 8 of 11
that applicants processed in this manner are not entitled to a proceeding under
§ 1229a. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008).
In contrast, § 1225(b)(2) is triggered “if the examining immigration officer
determines that an alien seeking admission is not clearly and beyond a doubt
entitled to be admitted.” 8 U.S.C. § 1225(b)(2)(A). Following this determination,
the officer will issue a Notice to Appear, which is the first step in a § 1229a
proceeding. 8 C.F.R. § 235.6(a)(1)(i); see also id. § 208.2(b). A Notice to Appear
can charge inadmissibility on any ground, including the two that render an
individual eligible for expedited removal. 8 U.S.C. § 1229a(a)(2). The officer
then sets a date for a hearing on the issue before an immigration judge. See
Pereira v. Sessions, 138 S. Ct. 2105, 2111 (2018).
The plaintiffs were not processed under § 1225(b)(1). We are doubtful that
subsection (b)(1) “applies” to them merely because subsection (b)(1) could have
been applied. And we think that Congress’ purpose was to make return to a
contiguous territory available during the pendency of § 1229a removal
proceedings, as opposed to being contingent on any particular inadmissibility
ground. Indeed, Congress likely believed that the contiguous-territory provision
would be altogether unnecessary if an applicant had already been processed for
expedited removal. The plaintiffs are properly subject to the contiguous-territory
provision because they were processed in accordance with § 1225(b)(2)(A). Page 9 of 11
Though the plaintiffs contend otherwise, our approach is consistent with the
subsections’ headings. Section 1225(b)(1) is titled “Inspection of aliens arriving in
the United States and certain other aliens who have not been admitted or paroled,”
and § 1225(b)(2) is labeled “Inspection of other aliens.” The plaintiffs interpret
§ 1225(b) to create two mutually exclusive pre-inspection categories of applicants
for admission; as explained above, we read the statute to create two mutually
exclusive post-inspection categories. In our view, those who are not processed for
expedited removal under § 1225(b)(1) are the “other aliens” subject to the general
rule of § 1225(b)(2).
Our interpretation is also consistent with Jennings v. Rodriguez, 138 S. Ct.
830 (2018), the principal authority on which the plaintiffs rely. There, the
Supreme Court explained that “applicants for admission fall into one of two
categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2).” Id.
at 837. As the Court noted, “Section 1225(b)(1) applies to aliens initially
determined to be inadmissible due to fraud, misrepresentation, or lack of valid
documentation.” Id. (emphasis added). “Section 1225(b)(2) is broader,” since it
“serves as a catchall provision that applies to all applicants for admission not
covered by § 1225(b)(1).” Id. We think our interpretation more closely matches
the Court’s understanding of the mechanics of § 1225(b), as it is attentive to the Page 10 of 11
role of the immigration officer’s initial determination under § 1225(b)(1) and to
§ 1225(b)(2)’s function as a catchall.
For the foregoing reasons, we conclude that DHS is likely to prevail on its
contention that § 1225(b)(1) “applies” only to applicants for admission who are
processed under its provisions. Under that reading of the statute, § 1225(b)(1) does
not apply to an applicant who is processed under § 1225(b)(2)(A), even if that
individual is rendered inadmissible by § 1182(a)(6)(C) or (a)(7). As a result,
applicants for admission who are placed in regular removal proceedings under
§ 1225(b)(2)(A) may be returned to the contiguous territory from which they
arrived under § 1225(b)(2)(C).
The plaintiffs have advanced only one other claim that could justify a
nationwide injunction halting the implementation of the MPP on a wholesale basis:
that the MPP should have gone through the APA’s notice-and-comment process.
DHS is likely to prevail on this claim as well, since “general statements of policy”
are exempted from the notice-and-comment requirement. 5 U.S.C. § 553(b)(A).
The MPP qualifies as a general statement of policy because immigration officers
designate applicants for return on a discretionary case-by-case basis. See Regents
of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 507 (9th Cir.
2018); Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1013 (9th Cir. 1987). Page 11 of 11
II
The remaining factors governing issuance of a stay pending appeal weigh in
the government’s favor. As to the second factor, DHS is likely to suffer
irreparable harm absent a stay because the preliminary injunction takes off the
table one of the few congressionally authorized measures available to process the
approximately 2,000 migrants who are currently arriving at the Nation’s southern
border on a daily basis. See East Bay Sanctuary Covenant v. Trump, 909 F.3d
1219, 1250–51 (9th Cir. 2018). DHS has therefore made a strong showing on both
the first and second factors, which are the “most critical.” Nken, 556 U.S. at 434.
The other two factors support the issuance of a stay as well. The plaintiffs
fear substantial injury upon return to Mexico, but the likelihood of harm is reduced
somewhat by the Mexican government’s commitment to honor its international-
law obligations and to grant humanitarian status and work permits to individuals
returned under the MPP. We are hesitant to disturb this compromise amid ongoing
diplomatic negotiations between the United States and Mexico because, as we have
explained, the preliminary injunction (at least in its present form) is unlikely to be
sustained on appeal. Finally, the public interest favors the “efficient administration
of the immigration laws at the border.” East Bay Sanctuary Covenant, 909 F.3d at
1255 (quoting Landon v. Plasencia, 459 U.S. 21, 34 (1982)).
The motion for a stay pending appeal is GRANTED. FILED Innovation Law Lab v. McAleenan, No. 19-15716 MAY 7 2019
WATFORD, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I agree that the Department of Homeland Security (DHS) is likely to prevail
on the plaintiffs’ primary claim, as 8 U.S.C. § 1225(b) appears to authorize DHS’s
new policy of returning applicants for admission to Mexico while they await the
outcome of their removal proceedings. But congressional authorization alone does
not ensure that the Migrant Protection Protocols (MPP) are being implemented in a
legal manner. As then-Secretary of Homeland Security Kirstjen Nielsen
recognized, the MPP must also comply with “applicable domestic and international
legal obligations.” One of those legal obligations is imposed by Article 33 of the
1951 Convention Relating to the Status of Refugees, which provides:
No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Protocol Relating to the Status of Refugees art. I, Jan. 31, 1967, 19 U.S.T. 6223,
6225, 6276 (binding the United States to comply with Article 33). Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment similarly provides:
No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. Page 2 of 5
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, at 20 (1988).
DHS’s stated goal is to ensure that the MPP is implemented in a manner that
complies with the non-refoulement principles embodied in these treaty provisions.
Specifically, Secretary Nielsen’s policy guidance on implementation of the MPP
declares that “a third-country national should not be involuntarily returned to
Mexico pursuant to Section 235(b)(2)(C) of the INA if the alien would more likely
than not be persecuted on account of race, religion, nationality, membership in a
particular social group, or political opinion . . . , or would more likely than not be
tortured, if so returned pending removal proceedings.”
In my view, DHS has adopted procedures so ill-suited to achieving that
stated goal as to render them arbitrary and capricious under the Administrative
Procedure Act. See 5 U.S.C. § 706(2)(A). Under DHS’s current procedures,
immigration officers do not ask applicants being returned to Mexico whether they
fear persecution or torture in that country. Immigration officers make inquiries
into the risk of refoulement only if an applicant affirmatively states that he or she
fears being returned to Mexico.
DHS’s policy is virtually guaranteed to result in some number of applicants
being returned to Mexico in violation of the United States’ non-refoulement
obligations. It seems fair to assume that at least some asylum seekers subjected to Page 3 of 5
the MPP will have a legitimate fear of persecution in Mexico. Some belong to
protected groups that face persecution both in their home countries and in Mexico,
and many will be vulnerable to persecution in Mexico because they are Central
American migrants. It seems equally fair to assume that many of these individuals
will be unaware that their fear of persecution in Mexico is a relevant factor in
determining whether they may lawfully be returned to Mexico, and hence is
information they should volunteer to an immigration officer. If both of those
assumptions are accurate, DHS will end up violating the United States’ treaty
obligations by returning some number of asylum seekers to Mexico who should
have been allowed to remain in the United States.
There is, of course, a simple way for DHS to help ensure that the United
States lives up to its non-refoulement obligations: DHS can ask asylum seekers
whether they fear persecution or torture in Mexico. I’m at a loss to understand
how an agency whose professed goal is to comply with non-refoulement principles
could rationally decide not to ask that question, particularly when immigration
officers are already conducting one-on-one interviews with each applicant. This
policy of refusing to ask seems particularly irrational when contrasted with how
DHS attempts to uphold the United States’ non-refoulement obligations in
expedited removal proceedings. In that context, immigration officers are required
to ask applicants whether they fear being removed from the United States and Page 4 of 5
returned to their home countries. See 8 C.F.R. § 235.3(b)(2)(i) (requiring
immigration officers to use Form I-867B). Since the same non-refoulement
principles apply to removal and return alike, DHS must explain why it
affirmatively asks about fear of persecution in the removal context but refrains
from asking that question when applying the MPP.
DHS has not, thus far, offered any rational explanation for this glaring
deficiency in its procedures. (One suspects the agency is not asking an important
question during the interview process simply because it would prefer not to hear
the answer.) As the record stands now, then, it seems likely that the plaintiffs will
succeed in establishing that DHS’s procedures for implementing the MPP are
arbitrary and capricious, at least in the respect discussed above.
Success on this claim, however, cannot support issuance of the preliminary
injunction granted by the district court. We explained recently that the “scope of
the remedy must be no broader and no narrower than necessary to redress the
injury shown by the plaintiff.” California v. Azar, 911 F.3d 558, 584 (9th Cir.
2018). Here, the plaintiffs’ injury can be fully remedied without enjoining the
MPP in its entirety, as the district court’s preliminary injunction currently does. I
expect that appropriate relief for this arbitrary and capricious aspect of the MPP’s
implementation will involve (at the very least) an injunction directing DHS to ask
applicants for admission whether they fear being returned to Mexico. The precise Page 5 of 5
scope of such relief would need to be fashioned after further proceedings in the
district court. In the meantime, the government is entitled to have the much
broader preliminary injunction currently in place stayed pending appeal. FILED Innovation Law Lab v. McAleenan, No. 19-15716 MAY 7 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
W. FLETCHER, Circuit Judge, concurring only in the result:
I strongly disagree with my colleagues.
The question of law in this case can be stated simply: The Government
relies on 8 U.S.C. § 1225(b)(2)(C) for authority to promulgate its new Migrant
Protection Protocols (“MPP”). If § 1225(b)(2)(C) provides such authority, the
MPP is valid. If it does not, the MPP is invalid. The question is thus whether
§ 1225(b)(2)(C) provides authority for promulgation of the MPP. The answer can
also be stated simply: The Government is wrong. Not just arguably wrong, but
clearly and flagrantly wrong. Section 1225(b)(2)(C) does not provide authority for
the MPP.
***
I begin with a short summary of established law. Under the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”),
arriving aliens applying for admission into the United States fall into two separate
and non-overlapping categories.
First, there are aliens described in 8 U.S.C. § 1225(b)(1). These are alien
applicants for admission who are traveling with fraudulent documents or no
documents. Immigration officers are required by regulation to ask whether these applicants fear persecution in their home country. If so, they are referred for a
“credible fear” interview with an asylum officer. If they are found to have a
credible fear of persecution in their home country, and are therefore potentially
eligible for asylum, they are placed in a regular removal proceeding under 8 U.S.C.
§ 1229a. In that proceeding, an Immigration Judge (“IJ”) can find them either
eligible or ineligible for asylum. Applicants who are referred to regular removal
proceedings are entitled to remain in the United States while their eligibility for
asylum is determined. Applicants found not to have a credible fear are subject to
expedited removal without any formal proceeding.
Second, there are aliens described in 8 U.S.C. § 1225(b)(2). These are all
alien applicants for admission not described in § 1225(b)(1). In the words of the
statute, they are “other aliens.” § 1225(b)(2) (heading). Section (b)(2) applicants
include aliens who are suspected of being, inter alia, drug addicts, convicted
criminals, terrorists, or alien smugglers, and who would therefore be inadmissible.
See 8 U.S.C. § 1182(a)(1)(A)(iv); (a)(2); (a)(3)(B); (a)(6)(E). Unlike § (b)(1)
applicants, § (b)(2) applicants are automatically referred to regular removal
proceedings under § 1229a. In those proceedings, an IJ can determine whether the
applicants are, in fact, inadmissible on a ground specified in § 1182(a). Also
unlike § (b)(1) applicants, § (b)(2) applicants are not entitled to remain in the
2 United States while their admissibility is determined. At the discretion of the
Government, they may be “returned” to a “contiguous territory” pending
determination of their admissibility. § 1225(b)(2)(C).
This statutory structure has been well understood ever since the passage of
IIRIRA in 1996, and until now the Government has consistently acted on the basis
of this understanding. The Government today argues for an entirely new
understanding of the statute, based on arguments never before made or even
suggested.
It is undisputed that plaintiffs are bona fide asylum applicants under § (b)(1).
Although it has long been established that § (b)(1) applicants are entitled to stay in
the United States while their eligibility for asylum is determined, the Government
is now sending § (b)(1) applicants back to Mexico. The Government refuses to
treat them as § (b)(1) applicants. Instead, the Government improperly treats them
under the MPP as § (b)(2) applicants who can be “returned” to Mexico under
§ 1225(b)(2)(C). The Government’s arguments in support of the MPP are not only
unprecedented. They are based on an unnatural and forced—indeed,
impossible—reading of the statutory text.
The relevant text of 8 U.S.C. § 1225 is as follows:
3 (a) Inspection (1) Aliens treated as applicants for admission An alien present in the United States who has not been admitted . . . shall be deemed for purposes of this chapter an applicant for admission. ... (b) Inspection of applicants for admission (1) Inspection of aliens arriving in the United States and certain other aliens who have not been admitted or paroled (A) Screening (i) In general If an immigration officer determines that an alien . . . who is arriving in the United States . . . is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title, the officer shall order the alien removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution. (ii) Claims for asylum If an immigration officer determines that an alien . . . is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B). ... (B) Asylum interviews ... (ii) Referral of certain aliens If the [asylum] officer determines at the time of the interview that an alien has a credible fear of persecution . . . , the alien shall be detained for further consideration of the application for asylum. ... (2) Inspection of other aliens (A) In general Subject to subparagraphs (B) and (C), in the case of an alien who is an applicant for admission, if the examining immigration
4 officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 1229a of this title. (B) Exception Subparagraph (A) shall not apply to an alien — (i) who is a crewman (ii) to whom paragraph (1) applies, or (iii) who is a stowaway. (C) Treatment of aliens arriving from contiguous territory In the case of an alien described in subparagraph (A) who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title.
The statutory text is unambiguous. There are two categories of “applicants
for admission.” § 1225(a). First, there are applicants described in § 1225(b)(1).
Second, there are applicants described in § 1225(b)(2).
Applicants described in § 1225(b)(1) are those who may be inadmissible
under § 1182(a)(6)(C) (applicants traveling with fraudulent documents) or under
§ 1182(a)(7) (applicants with no valid documents).
Applicants described in § 1225(b)(2) are distinct. In the words of the statute,
they are “other aliens.” § 1225(b)(2) (heading). Put differently, again in the
words of the statute, § (b)(2) applicants are applicants “to whom paragraph [b](1)”
does not apply. § 1225(b)(2)(B)(ii). That is, § (b)(1) applicants are those who may
be inadmissible on either of the two grounds specified in that subsection. Section
5 (b)(2) applicants are all other potentially inadmissible applicants.
Section (b)(1) applicants are more numerous than § (b)(2) applicants, but
§ (b)(2) is a broader category in the sense that applicants under § (b)(2) are
inadmissible on more grounds than applicants under § (b)(1). Applicants
inadmissible under § (b)(2) include, for example, aliens with “a communicable
disease of public health significance” or who are “drug abuser[s] or addict[s]”
(§ 1182(a)(1)(A)(i), (iv)); aliens who have “committed . . . a crime involving moral
turpitude” or who have “violat[ed] . . . any law or regulation . . . relating to a
controlled substance” (§ 1182(a)(2)(A)(i)); aliens who “seek to enter the United
States . . . to violate any law of the United States relating to espionage or
sabotage,” or who have “engaged in a terrorist activity” (§ 1182(a)(3)(A), (B));
aliens who are “likely . . . to become a public charge” (§ 1182(a)(4)(A)); and aliens
who are alien “smugglers” (§ 1182(a)(6)(E)).
Just last year, the Supreme Court distinguished between § (b)(1) and § (b)(2)
applicants, stating clearly that they fall into two separate categories:
[A]pplicants for admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2). Section 1225(b)(1) applies to aliens initially determined to be inadmissible due to fraud, misrepresentation, or lack of valid documentation. . . . Section 1225(b)(2) is broader. It serves as a catchall provision that applies to all applicants for admission not covered by § 1225(b)(1).
6 Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018) (emphasis added).
Less than a month ago, the Attorney General of the United States drew the
same distinction and briefly described the procedures applicable to the two
categories:
Under section 235 of the Act [8 U.S.C. § 1225], all aliens “arriv[ing] in the United States” or “present in the United States [without having] been admitted” are considered “applicants for admission,” who “shall be inspected by immigration officers.” INA § 235(a)(1), (3). [8 U.S.C. § 1225(a)(1), (3).] In most cases, those inspections yield one of three outcomes. First, if an alien is “clearly and beyond a doubt entitled to be admitted,” he will be permitted to enter, or remain in, the country without further proceedings. Id. § 235(b)(2)(A). [8 U.S.C. § 1225(b)(2)(A).] Second, if the alien is not clearly admissible, then, generally, he will be placed in “proceeding[s] under section 240 [8 U.S.C. § 1229a]” of the Act—that is, full removal proceedings. Id. Third, if the alien is inadmissible on one of two specified grounds and meets certain additional criteria, DHS may place him in either expedited or full proceedings. Id. § 235(b)(1)(A)(i) [8 U.S.C. § 1225(b)(1)(A)(i)]; see Matter of E-R-M- & L-R-M-, 25 I&N Dec. 520, 524 (BIA 2011).
Matter of M-S-, 27 I. & N. Dec. 509, 510 (BIA April 16, 2019).
The procedures specific to the two categories of applicants are given in their
respective subsections.
To some extent, the statutorily prescribed procedures are the same for both
categories. If a § (b)(1) applicant passes his or her credible fear interview he or she
will be placed in regular removal proceedings under 8 U.S.C. § 1229a. See 8
C.F.R. § 208.30(f). A § (b)(1) applicant may also be placed directly into regular
7 removal proceedings under § 1229a at the discretion of the Government. See
Matter of E-R-M- & L-R-M-, 25 I. & N. Dec. 520 (BIA 2011). A § (b)(2) applicant
who is “not clearly and beyond a doubt entitled to be admitted” will also be placed
in removal proceedings under § 1229a. See § 1225(b)(2)(A).
Both § (b)(1) and § (b)(2) applicants can thus be placed in regular removal
proceedings under § 1229a, though by different routes. But the fact that an
applicant is in removal proceedings under § 1229a does not change his or her
underlying category. A § (b)(1) applicant does not become a § (b)(2) applicant, or
vice versa, by virtue of being placed in a removal proceeding under § 1229a. A
homely analogy may help make the point. Dogs and cats can both be placed in the
pound. But they still retain their separate identities. Dogs do not become cats, or
vice versa.
However, the statutory procedures for the two categories are not identical.
Some of the procedures are exclusive to one category or the other. For example, if
a § (b)(1) applicant fails to pass his or her credible fear interview, he or she may be
removed in an expedited proceeding without a removal proceeding under § 1229a.
See § 1225(b)(1)(A), (B). There is no comparable procedure for expedited removal
of a § (b)(2) applicant. Further, in some circumstances a § (b)(2) applicant may be
“returned” to a “territory contiguous to the United States” pending his or her
8 removal proceeding under § 1229a. See § 1225(b)(2)(C). There is no comparable
procedure for a § (b)(1) applicant.
The precise question in this case is whether a § (b)(1) applicant may be
“returned” to a contiguous territory under § 1225(b)(2)(C). That is, may a § (b)(1)
applicant be subjected to a procedure specified for a § (b)(2) applicant? A plain-
meaning reading of § 1225(b)—as well as the Government’s longstanding and
consistent practice—tell us that the answer is “no.”
There is nothing in § 1225(b)(1) to indicate that a § (b)(1) applicant may be
“returned” under § 1225(b)(2)(C). Section (b)(1)(A)(i) tells us with respect to
§ (b)(1) applicants that an “officer shall order the alien removed . . . without further
hearing or review unless the alien indicates either an intention to apply for asylum
. . . or a fear of persecution.” Section (b)(1)(A)(ii) tells us that § (b)(1) applicants
who indicate an intention to apply for asylum or a fear of persecution “shall” be
referred by the immigration officer to an “asylum officer” for an interview. The
remainder of § 1225(b)(1) specifies what happens to a § (b)(1) applicant depending
on the determination of the asylum officer—either expedited removal or detention
pending further consideration. § 1225(b)(1)(B)(ii)-(iii). There is nothing in
§ 1225(b)(1) stating, or even suggesting, that a § (b)(1) applicant is subject to the
“return” procedure of § 1225(b)(2)(C).
9 Nor is there anything in § 1225(b)(2) to indicate that a § (b)(1) applicant
may be “returned” under § 1225(b)(2)(C). Taking § 1225(b)(2) subparagraph by
subparagraph, it provides as follows. Subparagraph (A) tells us that unless a
§ (b)(2) applicant is “clearly and beyond a doubt entitled to be admitted,” she or he
“shall be detained” for a removal proceeding under § 1229a. § 1225(b)(2)(A).
Subparagraph (A) is “[s]ubject to subparagraphs (B) and (C).” Id. Subparagraph
(B) tells us that subparagraph (A) does not apply to three categories of
aliens—“crewm[e]n,” § (b)(1) applicants, and “stowaway[s].” § 1225(b)(2)(B).
Finally, subparagraph (C) tells us that a § (b)(2) applicant who arrives “on land . . .
from a foreign territory contiguous to the United States,” instead of being
“detained” under subparagraph (A) pending his or her removal proceeding under
§ 1229a, may be “returned” to that contiguous territory pending that proceeding.
§ 1225(b)(2)(C). Section (b)(1) applicants are mentioned only once in
§ 1225(b)(2), in subparagraph (B)(ii). That subparagraph specifies that
subparagraph (A)—which tells us what happens to § (b)(2) applicants—does not
apply to § (b)(1) applicants.
The “return-to-a-contiguous-territory” provision of § 1225(b)(2)(C) is
available only for § (b)(2) applicants. There is no way to read the statute
otherwise. Under a plain-meaning reading of the text, as well as the Government’s
10 longstanding and consistent practice, the statutory authority upon which the
Government now relies simply does not exist.
In support of its motion to stay the order of the district court pending appeal,
the Government makes several arguments. None is persuasive.
The Government first argues that § (b)(1) applicants are included within the
category of § (b)(2) applicants. See Govt. Brief at 10. Under the Government’s
argument, there are two categories of applicants, but the categories are
overlapping. There are § (b)(1) applicants, who are defined in § (b)(1), and there
are § (b)(2) applicants, who are defined as all applicants, including, but not limited
to, § (b)(1) applicants.
For this argument, the Government relies on the phrase “an alien seeking
admission” in § 1225(b)(2)(A). The Government argues that because § (b)(1) and
§ (b)(2) applicants are both “aliens seeking admission,” subparagraph (A) of
§ (b)(2) refers to both categories of applicants. Then, because subparagraph (A) is,
by its terms, “[s]ubject to subparagraphs (B) and (C),” the Government argues that
a § (b)(1) applicant may be “return[ed]” to a “foreign territory contiguous to the
United States” under subparagraph (C).
The Government’s argument ignores the statutory text, the Supreme Court’s
11 opinion in Jennings last year, and the opinion of its own Attorney General in
Matter of M-S- less than a month ago.
The text of § 1225(b) tells us that § (b)(1) and § (b)(2) are separate and non-
overlapping categories. Section 1225(b) specifies that § (b)(1) applicants are
aliens who are inadmissible either under § 1182(a)(6)(C) or under § 1182(a)(7).
Section (b)(2) aliens are “other aliens.” See § 1225(b)(2) (heading) (“Inspection of
other aliens”) (emphasis added). That is, § (b)(2) covers applicants “other” than
§ (b)(1) applicants. In case a reader has missed the significance of the heading of
§ (b)(2), the statute makes the point again, this time in the body of § (b)(2).
Section (b)(2)(B)(ii) specifically provides that subparagraph (A) of § (b)(2) “shall
not apply to an alien . . . to whom paragraph [b](1) applies.”
In Jennings, the Supreme Court last year told us explicitly that § (b)(1) and
§ (b)(2) applicants fall into separate and non-overlapping categories. It wrote,
“[A]pplicants for admission fall into one of two categories, those covered by
§ 1225(b)(1) and those covered by § 1225(b)(2). . . . Section 1225(b)(2) . . .
applies to all applicants for admission not covered by § 1225(b)(1).” Jennings, 138
S. Ct. at 837 (emphasis added). Finally, in Matter of M-S-, the Attorney General
wrote on April 16 of this year that an applicant is subject to different procedures
depending on whether he or she is a § (b)(1) or § (b)(2) applicant. Matter of M-S-,
12 27 I. & N. Dec. at 510.
The Government’s second argument follows from its first. See Govt. Brief
at 10–13. For its second argument, the Government relies on subparagraph (B)(ii),
which provides: “Subparagraph (A) shall not apply to an alien . . . to whom
paragraph [b](1) applies.” § 1225(b)(2)(B)(ii) (emphasis added). The Government
argues that subparagraph (B)(ii) allows a government official to perform an act.
The act supposedly authorized is to “apply” the expedited removal procedures of
§ (b)(1) to some of the aliens under § (b)(2), as the Government defines § (b)(2)
applicants. (The Government needs to make this argument in order to avoid the
consequence of treating all § (b)(1) applicants as § (b)(2) applicants, who are
automatically entitled to regular removal proceedings.)
There is a fundamental textual problem with the Government’s argument.
“Apply” is used twice in the same sentence in § (b)(2)(B)(ii). The first time the
word is used, it refers to the application of a statutory section (“Subparagraph (A)
shall not apply”). The second time the word is used, it is used in the same manner,
again referring to the application of a statutory section (“to whom paragraph [b](1)
applies”). When the word is used the first time, it tells us that subparagraph (A)
shall not apply. When the word is used the second time, it tells us to whom
subparagraph (A) shall not apply: It does not apply to applicants to whom § (b)(1)
13 applies. Neither time does the word “apply” refer to an act performed by a
government official.
The Government’s third argument is disingenuous. The Government argues
that § (b)(1) applicants are more “culpable” than § (b)(2) applicants, and that they
therefore deserve to be forced to wait in Mexico while their asylum applications
are being adjudicated. The Government argues that returning § (b)(2), but not
§ (b)(1), applicants to a contiguous territory would have “the perverse effect of
privileging aliens who attempt to obtain entry to the United States by fraud . . .
over aliens who follow our laws.” Govt. Brief at 14. In its Reply Brief, the
Government compares § (b)(1) and § (b)(2) applicants, characterizing § (b)(2)
applicants as “less-culpable arriving aliens.” Govt. Reply Brief at 5. The
Government has it exactly backwards.
Section (b)(1) applicants are those who are “inadmissible under section
1182(a)(6)(C) or 1182(a)(7)” of Title 8. Section 1182(a)(6)(C), entitled
“Misrepresentation,” covers, inter alia, aliens using fraudulent documents. That is,
it covers aliens who travel under false documents and who, once they arrive at the
border or have entered the country, apply for asylum. Section 1182(a)(7), entitled
“Documentation requirements,” covers aliens traveling without documents. In
other words, § (b)(1) applies to bona fide asylum applicants, who commonly have
14 fraudulent documents or no documents. Indeed, for many applicants, fraudulent
documents are their only means of fleeing persecution, even death, in their own
countries. The structure of § (b)(1), which contains detailed provisions for
processing asylum seekers, demonstrates that Congress recognized that § (b)(1)
applicants may have valid asylum claims and should therefore receive the
procedures specified in § (b)(1).
The history of § 1225(b)(2)(C) confirms that Congress did not have § (b)(1)
applicants in mind. Section 1225(b)(2)(C) was added to IIRIRA late in the
drafting process, in the wake of Matter of Sanchez-Avila, 21 I. & N. Dec. 444 (BIA
1996). The petitioner in Sanchez-Avila was a Mexican national who applied for
entry as a “resident alien commuter” but who was charged as inadmissible due to
his “involvement with controlled substances.” Id. at 445. In adding
§ 1225(b)(2)(C) to what was to become IIRIRA, Congress had in mind § (b)(2)
applicants like the petitioner in Sanchez-Avila. It did not have in mind bona fide
asylum seekers who arrive with fraudulent documents or no documents at all.
Contrary to the Government’s argument, § (b)(1) applicants are not more
“culpable” than § (b)(2) applicants. Quite the opposite. The § (b)(1) applicants
targeted by the MPP are innocent victims fleeing violence, often deadly violence,
in Central America. In stark contrast, § (b)(2) applicants include suspected drug
15 addicts, convicted criminals, terrorists, and alien smugglers. See
§ 1182(a)(1)(A)(iv); (a)(2); (a)(3)(B); (a)(6)(E). Section (b)(2) applicants are
precisely those applicants who should be “returned” to a “contiguous territory,”
just as § 1225(b)(2)(C) provides.
Acting as a motions panel, we are deciding the Government’s emergency
motion to stay the order of the district court pending appeal. Because it is an
emergency motion, plaintiffs and the Government were severely limited in how
many words they were allowed. Our panel heard oral argument on an expedited
basis, a week after the motion was filed.
I regret that my colleagues on the motions panel have uncritically accepted
the Government’s arguments. I am hopeful that the regular argument panel that
will ultimately hear the appeal, with the benefit of full briefing and regularly
scheduled argument, will be able to see the Government’s arguments for what they
are—baseless arguments in support of an illegal policy that will, if sustained,
require bona fide asylum applicants to wait in Mexico for years while their
applications are adjudicated.