FILED FOR PUBLICATION MAR 4 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT INNOVATION LAW LAB; CENTRAL No. 19-15716 AMERICAN RESOURCE CENTER OF NORTHERN CALIFORNIA; CENTRO D.C. No. 3:19-cv-00807-RS LEGAL DE LA RAZA; UNIVERSITY Northern District of California, OF SAN FRANCISCO SCHOOL OF San Francisco LAW IMMIGRATION AND DEPORTATION DEFENSE CLINIC; AL OTRO LADO; TAHIRIH JUSTICE ORDER CENTER, Plaintiffs-Appellees, v. CHAD F. WOLF, Acting Secretary of Homeland Security, in his official capacity; U.S. DEPARTMENT OF HOMELAND SECURITY; KENNETH T. CUCCINELLI, Director, U.S. Citizenship and Immigration Services, in his official capacity; ANDREW DAVIDSON, Chief of Asylum Division, U.S. Citizenship and Immigration Services, in his official capacity; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; TODD C. OWEN, Executive Assistant Commissioner, Office of Field Operations, U.S. Customs and Border Protection, in his official capacity; U.S. CUSTOMS AND BORDER PROTECTION; MATTHEW ALBENCE, Acting Director, U.S. Immigration and Customs Enforcement, in his official capacity; US IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants-Appellants. Before: FERNANDEZ, W. FLETCHER, and PAEZ, Circuit Judges. This court issued its opinion in Innovation Law Lab v. Wolf, No. 19-15716, on Friday, February 28, 2020, affirming the district court’s injunction against implementation and expansion of the Migrant Protection Protocols (“MPP”). That same day, the Government filed an emergency motion requesting either a stay pending disposition of a petition for certiorari to the Supreme Court or an immediate administrative stay. That evening, we granted an administrative stay, along with an accelerated schedule for briefs addressing the request for a longer- lasting stay. We received a brief from Plaintiffs-Appellants on Monday, March 2; we received a reply brief from the Government on Tuesday, March 3. For the reasons that follow, we grant in part and deny in part the requested stay. With respect to the merits of our holding that the MPP violates federal law, we deny the requested stay. With respect to the scope of injunctive relief, we grant in part and deny in part the requested stay. 2 I. Merits The MPP requires that all asylum seekers arriving at our southern border wait in Mexico while their asylum applications are adjudicated. The MPP clearly violates 8 U.S.C. §§ 1225(b) and 1231(b). A. 8 U.S.C. § 1225(b) Section 1225(b) divides aliens applying for asylum into two categories: “[A]pplicants for admission fall into one of two categories, those covered by § 1225(b)(1) and those covered by § 1225(b)(2).” Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018). Section (b)(1) applicants are those who have no documents or fraudulent documents. In fleeing persecution in their home countries, typical bona fide asylum seekers have either fraudulent documents or no documents at all. Section (b)(2) applicants are “all other” applicants. Section (b)(2) applicants include spies, terrorists, alien smugglers, and drug traffickers. Section 1225 specifies different procedures for the two categories of applicants. Section (b)(1) applicants who have expressed a “credible fear” of persecution have a right to remain in the United States while their applications are adjudicated. Section (b)(2) applicants ...
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