Summary
The Ninth Circuit addressed an appeal from a district court order under Administrative Procedure Act § 705 staying the 2025 reimplementation of the Migrant Protection Protocols, also known as the Remain in Mexico policy. The court denied the plaintiffs’ motion to dismiss for lack of appellate jurisdiction and granted the government’s emergency motion for a stay pending appeal in part. During the appeal, the § 705 stay was limited to exempting Immigrant Defenders Law Center’s current and future clients from MPP.
Topics
Practice areas
Questions Presented
- Whether the district court's nationwide § 705 stay had the practical effect of an injunction and was immediately appealable under 28 U.S.C. § 1292(a)(1).
- Whether the government satisfied the irreparable-harm and immediate-review requirements of the Carson test.
- Whether Immigrant Defenders Law Center had organizational standing to challenge the reimplementation of Remain in Mexico.
- Whether 8 U.S.C. § 1252(f)(1) barred the district court from issuing relief under 5 U.S.C. § 705.
- Whether the 2025 reimplementation of Remain in Mexico constituted final agency action reviewable under the APA.
- Whether the government was entitled to a stay pending appeal under the Nken factors.
- Whether the reimplementation of Remain in Mexico likely violated the APA by infringing statutory rights to seek asylum and obtain representation by counsel.
- What scope of interim relief was necessary to preserve the parties' status and rights pending appeal.
Holdings
- A district court's § 705 stay is immediately appealable under 28 U.S.C. § 1292(a)(1) when it has the practical effect of granting or denying an injunction, threatens serious and potentially irreparable consequences, and can be effectively challenged only by immediate appeal. The challenged order satisfied all three Carson factors.
- Immigrant Defenders Law Center sufficiently alleged organizational standing because the reimplementation of Remain in Mexico directly interfered with its core business activities of providing representation, counseling, and legal assistance to noncitizens in removal proceedings, requiring it to undertake substantial cross-border activities and divert resources.
- 8 U.S.C. § 1252(f)(1) does not bar a district court from issuing a stay under 5 U.S.C. § 705 to postpone agency action or preserve status and rights pending APA review.
- The 2025 reimplementation of Remain in Mexico constituted final agency action subject to APA review.
- ImmDef demonstrated a strong likelihood that the reimplementation of Remain in Mexico violated the APA by infringing statutory rights to apply for asylum with the assistance of counsel and to be represented by counsel of choice.
- The government satisfied the requirements for a partial stay pending appeal, but ImmDef demonstrated a strong likelihood of success on at least its APA claims, making a complete stay inequitable at this preliminary stage.
Key quotations
“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.”” (25)
“This privilege cannot be made illusory by the government’s own actions.” (31)
“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.”” (38-39)
Factual background
The Migrant Protection Protocols, commonly known as Remain in Mexico, required certain noncitizens arriving by land from Mexico to remain in Mexico while removal proceedings proceeded in the United States. During its initial implementation, nearly 70,000 asylum seekers were returned to Mexico, where the record described unsafe and unsanitary conditions, difficulty obtaining counsel, and substantially lower rates of relief and higher rates of in absentia removal orders. Immigrant Defenders Law Center alleged that the policy impaired its ability to represent noncitizens by requiring cross-border travel, additional staff and facilities, international communications, and other resources.
Procedural history
Plaintiffs challenged the Remain in Mexico policy in the Central District of California under the First Amendment, Fifth Amendment, and Administrative Procedure Act. The district court certified a class and later issued a nationwide § 705 stay postponing the policy's reimplementation during the litigation. The Ninth Circuit denied the motion to dismiss, held that the order was immediately appealable, and granted the government's stay motion in part by limiting the district court's stay to ImmDef's current and future clients during the appeal.
Remand instructions
The appeal was not finally resolved on the merits. The district court's § 705 stay remains in effect during the appeal only as to ImmDef's current and future clients; no such client may be enrolled in MPP during the pendency of the appeal. The court directed that an expedited merits briefing schedule be set.