NOI 47: Nationwide Injunctions and Remain in Mexico

Today we discuss the national court battle over immigration, and how the courts have begun to tailor decisions in light of supreme court guidance and commentary about the use of injunctions.

Jacob Tingen: Hello Nation of Immigrants. Thank you for tuning in. It’s been a couple of weeks since we’ve been able to hop on and discuss what’s going on in the world of immigration today. But I’m excited to talk to you about the Remain in Mexico program, and a recent injunction that was issued, and how it’s different from injunctions that have been issued on immigration issues in the recent past. More after the break.

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President Obama: America is a nation of immigrants.

Announcer: A podcast about U.S. immigration law with your host, Jacob Tingen.

Jacob Tingen: Okay. As promised, we’re first going to touch base on the Remain in Mexico program, also known as the Migrant Protection Protocols. Basically, this was a program that was instituted by the Trump Administration where they said, “You know what? We’re not going to let additional migrants, immigrants, into the country when they come and request asylum. They’re going to have to wait outside in Mexico, and be heard in these tent immigration courts.” This is an issue we’ve talked about quite a bit. It stems from this decision last year when Trump issued an executive order and said, “You know what? I’m fine if people come legally, but they need to come and knock on the door, come through a port of entry.”

Jacob Tingen: Then when people started coming to a port of entry, the Trump Administration said, “Okay. Thank you for waiting in line. Now wait in line outside of the United States.” Keep in mind that these are asylum seekers, many of whom aren’t from Mexico, who have claimed asylum in the United States, and are having to wait outside of the United States for a decision on their case. So it’s one of those programs that I’m not a huge fan of. A lot of these people are in known danger, well-documented danger. They have limited access to attorneys, limited opportunity to really take advantage of due process in our nation’s courts. It’s just not, in my view, a very humane thing.

Jacob Tingen: Now, there’s been a lot of back and forth in courts recently on different immigration issues. One of the biggest examples that we can talk about is the issue of public charge in the United States. We saw that several courts issued temporary nationwide injunctions to prevent the public charge rule from going into effect. The reasoning behind those nationwide injunctions varied, but the reason behind making them nationwide was, “Well hey, immigration is a federally preempted area of law. I’m a federal judge. I’m making a decision about this thing that impacts lots of different people in lots of different scenarios, and so in order to make sure the law is applied consistently, this injunction has to be nationwide.”

Jacob Tingen: But as issues have percolated up to the Supreme Court, and they’ve percolated quickly because lawyers in the Trump administration have requested a fast track to the Supreme Court, which has been criticized recently even by Justice Sotomayor, that these decisions on Trump’s immigration initiatives have been fast tracked to the Supreme Court and largely been decided in the favor of the Trump administration. No matter how you feel about the laws, it is a fact currently under our current system of laws that the executive branch of government has a huge amount of control over the interpretation and implementation of our nation’s immigration laws. That’s just a fact, and so I can see how a court would rule that, “Hey, the Trump Administration can do this.”

Jacob Tingen: I could see for example, the Supreme Court is looking at DACA, I could see how the Supreme Court could rule, “Hey. There’s really nothing to prevent this president from taking away Deferred Action for Childhood Arrivals, and then there’s nothing to prevent the next president from reimplementing it.” I mean, frankly, there’s just nothing to prevent these actions because of so much power on the issue that’s been given to the president.

Jacob Tingen: Anyway, these issues have percolated up to the Supreme Court, and one of the interesting criticisms that has come out recently was from Judge Gorsuch who said, “Nationwide injunctions, that’s …” Basically, he indicated, and Justice Thomas agreed with his concurrence, that indicated that they would look with a little more scrutiny on these nationwide injunctions. So that has raised this question of whether the courts can issue nationwide injunctions on some of these immigration issues.

Jacob Tingen: So what we see here today, in the case we’re looking at, is that the Ninth Circuit has been active and involved as cases have come before them on immigration issues. They’ve got states that are on the border between the U.S. and Mexico, Arizona and California, and so some lawsuits have come in the Ninth Circuit. What’s interesting is, they issued an injunction to stop the Migrant Protection Protocols or the Remain in Mexico program. Okay?

Jacob Tingen: So people who now approach the border of Arizona and California pursuant to this order aren’t going to be told that they have to wait outside. But they are allowed to come on through under the previous scheme of where, “Oh, you get a Credible Fear Interview, and then you’re released into the interior of the country.” I think that’s a good thing, and we can talk about reasons about why that’s a good thing.

Jacob Tingen: But right now what I want to focus on is, what’s interesting about this injunction is that it’s limited to the Ninth Circuit. So when the prior case was appealed up, Judge Gorsuch said, “Well, hey look. Why is this a nationwide thing? Why isn’t it just limited to this certain geographic area?” Again, I think there are compelling arguments for why injunctions on immigration issues should be nationwide. Again, because these are federal areas of law, and it would lead to inconsistent adjudication of different immigration issues in cases. But I also get that, that judges shouldn’t wield wide federal power just willy-nilly. They should do that carefully, and so I can see both sides, and there’s a balance.

Jacob Tingen: I of course would have loved if this injunction had spread further and said, “You know what? nationwide injunction,” and frankly I would agree with that. I think this is a terrible program. I think it does terrible things to immigrants. I think it says terrible things about our country that we would tell people, “Oh please come knock on our door. Oh wait, nevermind. Wait outside.” I just think that it’s a very insincere and not very genuine way of telling people, “Come through our legal system, request asylum,” and then deny them actually the rights and the ability to do so is what this program does.

Jacob Tingen: I’ve talked about tent courts. I’ve talked about the lack of transparency, and the limited access to justice through tent courts, and other mechanisms and things that are happening at the border. So I don’t think that the Migrant Protection Protocol or the Remain in Mexico program is a good idea, and so I would have loved for this injunction to be nationwide. But the judges, I’m reading here on NPR, it says, “Judges were not certain however about the scope of their injunction because such a legal question is a matter of intense and active controversy. They said the program can continue in regions outside the geographical boundaries of the Ninth Circuit.”

Jacob Tingen: So basically they said, “Hey look. We hear you Supreme Court. We understand your concern. It seems that this is an area or a matter of intense and active controversy. So we’re not going to fight you on this. We’re going to let this move forward just within the confines of this circuit.” So we’ll see if the Trump Administration again tries to take this decision and fast track it to the Supreme Court, and try to overturn it, even though it’s limited in geographic scope.

Jacob Tingen: But what’s interesting is that that’s a big chunk of our border. Technically, if somebody tries to come across through Texas and then they hear, “Well hey. I can go through Arizona,” why wouldn’t you? Right? So we’ll have to wait and see how this plays out. But hopefully this is just one of a beginning of many actions that could lead to better outcomes for people who are applying for asylum.

Jacob Tingen: Yesterday I had an asylum case and I was very, very glad we won asylum for a family of six. It’s just so wonderful when things work out that way for your clients and a judge determines that, “Yes, you were persecuted in your country, and you came here for a good reason, and we’re going to give you legal status in the United States.” It’s a good moment. It’s good to see families, and to see how excited and happy they are that things have worked out.

Jacob Tingen: I’d like to see that happen for more clients. For many of these people who are fleeing persecution in their country, it seems to me to be immoral to tell them, “Hey. Come knock on the door. We love it when people come legally,” and then when they play by the rules, they get punished. That more than anything would incentivize violating our laws or illegal immigration as some people like to phrase it.

Jacob Tingen: So let’s watch this decision. Let’s watch the response from the administration and the response from other courts as they look at these not nationwide injunctions but still injunctions fighting against these aspects of the Trump Administration immigration policy, but more limited in geographic scope. Let’s see if they hold legal weight. Let’s see how they turn out, and applaud the Ninth Circuit on their decision in helping immigrants as much as possible. Thanks for listening, and as always, if you like Nation of Immigrants, you can go and donate and support the podcast at jacobtingen.com. We’ve got a page for the podcast, and we’re going to use those funds to help pay off the bills of immigrants. Thank you for coming again, and we’ll see you next time on Nation of Immigrants.

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