## Facts

- DHS implemented the Migrant Protection Protocols (MPP) in January 2019 for certain non-Mexican asylum seekers arriving at the U.S.–Mexico border.
- Under MPP, DHS returned covered individuals to Mexico to await U.S. immigration proceedings, rather than keeping them in the United States during expedited or regular removal processes.
- DHS principally relied on 8 U.S.C. § 1225(b)(2)(C), the contiguous-territory return provision, as authority for the returns.
- Eleven individual plaintiffs, non-Mexican asylum seekers from Central and South America who arrived without valid entry documents and expressed fear of returning to their home countries, were processed under MPP and returned to Mexico.
- The individual plaintiffs alleged serious risks in Mexico (including violence and kidnapping) and practical barriers to obtaining counsel and attending U.S. hearings.
- Six nonprofit organizations providing immigration-related legal services challenged MPP alongside the individual plaintiffs.
- Plaintiffs sought declaratory and injunctive relief, and the court treated their requested temporary restraining order as a motion for a preliminary injunction.
- DHS acknowledged a legal obligation not to return noncitizens to a territory where their life or freedom would be threatened (non-refoulement), and the case centered on statutory authority and adequacy of safeguards.

## Issues

1. Whether the Immigration and Nationality Act authorizes DHS to return the plaintiffs and similarly situated non-Mexican asylum seekers to Mexico under MPP.
2. If some return authority exists, whether MPP includes sufficient procedures to prevent returns to territories where an individual’s life or freedom would be threatened.

## Decision

- The court granted a preliminary injunction prohibiting DHS from implementing or expanding MPP as to the individual plaintiffs and similarly situated non-Mexican asylum seekers returned to Mexico under § 1225(b)(2)(C).
- The court found plaintiffs likely to succeed on the merits that § 1225(b)(2)(C) did not authorize MPP for asylum seekers covered by § 1225(b)(1)’s expedited removal scheme.
- The court alternatively found plaintiffs likely to succeed that MPP, as implemented, lacked adequate protections against refoulement.
- The court found likely irreparable harm from return to Mexico, including threats to safety and impaired ability to pursue asylum claims.
- The balance of equities and the public interest favored ensuring compliance with statutory and non-refoulement obligations.

## Legal Principles

- Section 1225(b)(2)(C)’s contiguous-territory return authority applies only to applicants for admission described in § 1225(b)(2)(A) and does not extend to individuals governed by § 1225(b)(1).
- An agency may not reinterpret the statutory structure to shift § 1225(b)(1) expedited-removal arrivals into § 1225(b)(2) to trigger contiguous-territory return authority.
- Even where the government asserts authority to return a noncitizen to a third country pending proceedings, it must implement procedures sufficient to avoid returning individuals to places where their life or freedom would be threatened.
- A preliminary injunction may issue where plaintiffs show likely success on the merits, likely irreparable harm, and that equities and the public interest favor relief.

## Conclusion

The court preliminarily enjoined DHS’s MPP as applied to the plaintiffs and similarly situated non-Mexican asylum seekers, holding they were likely to prove DHS lacked statutory authority under § 1225(b)(2)(C) and, in any event, that MPP’s procedures were likely inadequate to prevent unlawful return to danger.


Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110 (N.D. Cal. 2019)