The Ninth Circuit Court of Appeals on May 7, 2019, has reversed a preliminary injunction issued by a lower court that would have prevented United States Customs and Border Patrol Enforcement officers from holding asylum-seeking migrants on the Mexican side of the border while awaiting judicial decisions about the validity of individual claims for refugee status.

At issue is a policy instituted by the Department of Homeland Security (DHS) in January, 2019 known as the Migrant Protection Protocol (MPP). Through the application of a specific subset of law, DHS officers were granted the authority to remove from the US migrants who were not immediately identified to be in danger in Mexico while determination is made by immigration courts to permit legal entry to the US.

Prior policy allowed DHS only the options of state-side detention or parole in the US for those migrants deemed to be in little to no danger. The MPP specifically prohibits DHS from removing unaccompanied minors, citizens of Mexico and any individual who is “more likely than not to face persecution or torture in Mexico.”

A preliminary injunction meant to stay DHS from instituting the MPP on a border-wide scale as intended was issued by the San Francisco-based United States District Court, Northern District of California. In that ruling, Judge Richard Seeborg determined that the MPP likely violated constitutional protections and established law and approved a preliminary injunction. However, Judge Seeborg withheld implementation of the stay order to allow DHS the opportunity to appeal.

Judge Seeborg determined that the government’s claim that immigrants who are not determined to be in immediate harm in Mexico can be returned there was erroneous and not supported by precedent. Further, Judge Seeborg was at odds with the interpretation of classes of migrants used by DHS officials to determine who could be removed.

The Ninth Circuit found the conclusions of the lower court to be in error, and in the opinion written by a panel of three judges, invalidated the injunction issued by the lower court. The Ninth Circuit used a four prong question to determine the validity of the policy, and determined that the government was likely to prevail. Notably, the higher court is at odds with Judge Seeborg’s opinion that DHS officials acting under the MPP remove asylum seekers prior to allowing application for entry.

Instead, the appeals court ruled the interview process DHS officials use to determine the status of immigrants constitutes application, and the removal to Mexico amounts to post-application administration, an area of law fully recognized to be within the scope of DHS authority.

The Ninth Circuit determined “irreparable harm” would be done to DHS by preventing the application of the MPP and that invalidating the policy would work against the “public interest.”

Of the three justices that heard the governments appeal, Ninth Circuit Judge William Fletcher concurred in the result- that the stay is inappropriate and the lower court must rule on the merits of the matter- but dissented over the interpretation of legal statutes used to determine the eligibility of immigrants seeking entry to the US.

Plaintiffs, whom include 11 Central American migrants and several not-for-profit agencies that provide assistance to immigrants seeking entry to the US, intend to appeal the ruling, and the matter is likely to be heard by the Supreme Court of the United States.