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Alejandro N. Mayorkas, Secretary of Homeland Security, et al. v. Innovation Law Lab, et al.

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 19-15716 · judgment February 28, 2020

Set for argument · March 1, 2021
Pre-decision estimate: 51% cert probability (95% interval 39%–63%)

Before the decision, about 12.2× the 4.1% base rate. The model weighted this up for a federal-government petitioner, a petition filed soon after the judgment below, and a Ninth Circuit decision below.

Questions presented

This case concerns a Department of Homeland Security (DRS) policy, known as the Migrant Protection Protocols (MPP), which applies to aliens who have no legal entitlement to enter the United States but who depart from a third country and transit through Mexico to reach the United States land border. MPP is an exercise of DHS's express authority under the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., to return those aliens temporarily to Mexico during the pendency of their removal proceedings. See 8 U.S.C. 1225(b)(2)(C). The district court issued a universal preliminary injunction barring DHS from implementing MPP. The court of appeals affirmed. The courts concluded that MPP likely violates the INA and the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., 5 U.S.C. 701 et seq. The questions presented are:

  1. Whether MPP is a lawful implementation of the statutory authority conferred by 8 U.S.C. 1225(b)(2)(C).

  2. Whether MPP is consistent with any applicable and enforceable non- refoulement obligations.

  3. Whether MPP is exempt from the APA requirement of notice-and-comment rulemaking.

  4. Whether the district court's universal preliminary injunction is impermissibly overbroad. ORDER OF FEBRUARY 3, 2021: THE MOTIONS TO HOLD FURTHER BRIEFING IN ABEYANCE AND TO REMOVE THE CASES FROM THE FEBRUARY 2021 ARGUMENT CALENDAR ARE GRANTED.

Counsel of record

For petitioner
Brian H. Fletcher
Acting Solicitor General

For respondent
Judy Rabinovitz
American Civil Liberties Union

Case

Conference history
Distributed for 3 conferences

Amicus briefs
12 merits
(12 respondent)

Proceedings

  1. Jul 23 2021
    JUDGMENT ISSUED.
  2. Jun 21 2021
    Motion for leave to intervene filed by States of Texas, Missouri, and Arizona dismissed as moot.
  3. Jun 21 2021
    The motion to vacate the judgment is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit with instructions to direct the District Court to vacate as moot the April 8, 2019 order granting a preliminary injunction. See United States v. Munsingwear, Inc., 340 U. S. 36 (1950).
  4. Jun 18 2021
    Supplemental reply of petitioners on motion to vacated filed.
  5. Jun 16 2021
    Reply of States of Texas, Missouri, and Arizona on motion to intervene filed.
  6. Jun 15 2021
    Reply of petitioners on motion to vacate filed.
  7. Jun 11 2021
    Response to motion to vacate from respondents filed.
  8. Jun 01 2021
    Response to motion to intervene from respondents filed. (Distributed)
  9. Jun 01 2021
    Response to motion to intervene from petitioners filed. (Distributed)
  10. Jun 01 2021
    Suggestion of mootness and motion to vacate the judgment of the court of appeals filed by petitioners. (Distributed)
  11. May 18 2021
    Motion for leave to intervene filed by States of Texas, Missouri, and Arizona. (Distributed)
  12. Feb 03 2021
    Motion to hold further briefing in abeyance and remove the case from the February 2021 argument calendar GRANTED.
  13. Feb 01 2021
    Motion to hold further briefing in abeyance and remove the case from the February 2021 argument calendar filed by petitioners. (Distributed)
  14. Jan 28 2021
    Record from the U.S.C.A. 9th Circuit electronic and located on Pacer.
  15. Jan 25 2021
    Record requested from the U.S.C.A. 9th Circuit.
  16. Jan 22 2021
    CIRCULATED
  17. Jan 22 2021
    Brief amici curiae of Nongovernmental Organizations and Law School Clinics filed. (Distributed)
  18. Jan 22 2021
    Brief amicus curiae of Mila Sohoni filed. (Distributed)
  19. Jan 22 2021
    Amicus brief of American Statistical Association not accepted for filing. (January 27, 2021 - to be reprinted and resubmitted)
  20. Jan 22 2021
    Brief amicus curiae of American Statistical Association filed. (Distributed)
  21. Jan 22 2021
    Brief amicus curiae of United Nations High Commissioner for Refugees filed. (Distributed)
  22. Jan 22 2021
    Brief amicus curiae of Constitutional Accountability Center filed. (Distributed)
  23. Jan 22 2021
    Brief amici curiae of Immigration and International Law Scholars filed. (Distributed)
  24. Jan 22 2021
    Brief amici curiae of The Laredo Project and the National Immigrant Justice Center filed. (Distributed)
  25. Jan 22 2021
    Brief amici curiae of Young Center for Immigrant Children’s Rights, et al., filed. (Distributed)
  26. Jan 22 2021
    Brief amicus curiae of National Citizenship and Immigration Services Council 119 filed. (Distributed)
  27. Jan 22 2021
    Brief amici curiae of United States Conference of Catholic Bishops, Catholic Legal Immigration Network, Inc., and Catholic Charities USA filed. (Distributed)
  28. Jan 21 2021
    Brief amicus curiae of American Bar Association filed. (Distributed)
  29. Jan 20 2021
    Brief amici curiae of Professors of Civil Procedure and Federal Courts filed. (Distributed)
  30. Jan 15 2021
    Brief of respondents Innovation Law Lab, et al. filed. (Distributed)
  31. Jan 07 2021
    Motion to extend the time to file respondents' brief on the merits is granted and the time is extended to and including January 15, 2021.
  32. Jan 05 2021
    Motion for a further extension of time to file respondents' brief on the merits filed.
  33. Dec 31 2020
    SET FOR ARGUMENT on Monday, March 1, 2021.
  34. Dec 08 2020
    Joint appendix (two volumes) filed. (Statement of costs filed 5/12/21).
  35. Dec 08 2020
    Brief of petitioners Chad Wolf, Acting Secretary of Homeland Security, et al. filed.
  36. Nov 24 2020
    Motion to extend the time to file the briefs on the merits granted. The time to file the joint appendix and petitioners' brief on the merits is extended to and including December 8, 2020. The time to file respondents' brief on the merits is extended to and including January 13, 2021.
  37. Nov 23 2020
    Motion for an extension of time to file the briefs on the merits filed.
  38. Oct 19 2020
    Petition GRANTED.
  39. Oct 13 2020
    DISTRIBUTED for Conference of 10/16/2020.
  40. Oct 05 2020
    DISTRIBUTED for Conference of 10/9/2020.
  41. Jul 29 2020
    DISTRIBUTED for Conference of 9/29/2020.
  42. Jul 29 2020
    Reply of petitioners Chad Wolf, Acting Secretary of Homeland Security, et al. filed. (Distributed)
  43. Jul 15 2020
    Brief of respondents Innovation Law Lab, et al. in opposition filed.
  44. May 07 2020
    Motion to extend the time to file a response from June 15, 2020 to July 15, 2020, submitted to The Clerk.
  45. May 07 2020
    Motion to extend the time to file a response is granted and the time is further extended to and including July 15, 2020.
  46. Apr 24 2020
    Motion to extend the time to file a response is granted and the time is extended to and including June 15, 2020. See Rule 30.1.
  47. Apr 23 2020
    Motion to extend the time to file a response from May 14, 2020 to June 13, 2020, submitted to The Clerk.
  48. Apr 22 2020
    Application of Innovation Law Lab, et al. for a further extension of time not accepted for filing. (April 23, 2020 - Corrected response extension request to be filed)
  49. Apr 10 2020
    Petition for a writ of certiorari filed. (Response due May 14, 2020)
  50. Mar 11 2020
    Application (19A960) referred to the Court.
  51. Mar 11 2020
    Application (19A960) granted by the Court. The application for stay presented to Justice Kagan and by her referred to the Court is granted, and the district court’s April 8, 2019 order granting a preliminary injunction is stayed pending the timely filing and disposition of a petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Justice Sotomayor would deny the application.
  52. Mar 10 2020
    Reply of applicants Chad Wolf, Acting Secretary of Homeland Security, et al. filed.
    Proof of ServiceReply
  53. Mar 09 2020
    Response to application from respondents Innovation Law Lab, et al. filed.
    Main DocumentProof of Service
  54. Mar 09 2020
    Motion for leave to file amicus brief and motion for leave to file brief in compliance with Rule 33.2 filed by Immigration Reform Law Institute.
    Main Document
  55. Mar 06 2020
    Application (19A960) for a stay pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Kagan.
    Main DocumentLower Court Orders/OpinionsProof of Service
  56. Mar 06 2020
    Response to application (19A960) requested by Justice Kagan, due Monday, March 9, by 4 p.m. ET.