Once Again, a Liberal Activist Judge Is Halting a Sensible Immigration Policy

If you look up the phrase “activist judge” in the liberal lexicon, one of the names that will no doubt appear at the top of the list is Richard Seeborg, a federal district court judge in San Francisco appointed by President Barack Obama. 

Earlier this month, Seeborg issued a nationwide preliminary
against the Trump administration’s sensible asylum policy.  This isn’t Seeborg’s first act of judicial
activism: he is also the judge who issued a similar injunction against
reinstating a citizenship question on the U.S. Census based on the claim that
to do so would violate the Constitution. That case is now before the U.S.
Supreme Court.. 

When it comes to judge shopping, it is no wonder liberal
advocacy groups keep going to his courtroom.

The Trump administration is now fighting Seeborg: A few days
after the injunction, the Justice Department appealed to the Ninth Circuit
Court of Appeals and filed an emergency motion asking for a stay of Judge
Seeborg’s order pending the appeal.

Seeborg’s Argument

In Innovation Law Lab v. Nielsen, Seeborg held that the
Department of Homeland Security (DHS) cannot enforce its “Migrant Protection
Protocols” (MPP).  The Protocols say that
non-Mexican asylum seekers – with certain exceptions – arriving in the U.S.
across our southern border will be returned to wait in Mexico until the
validity of their asylum claim is determined. 

Seeborg asserts that he is not making his decision based on whether
the Migration Protection Protocols “is a wise, intelligent, or humane policy,
or whether it is the best approach” because such policy decisions “remain for
the political branches” to make and implement. 
But then he proceeds to do exactly that, although he attempts to
disguise his judicial policymaking by claiming the Protocols isn’t authorized
by federal law and violates the Administrative Procedures Act, which governs
the issuance of new regulations by government agencies.

In essence, Seeborg is refusing to allow the Department of
Homeland Security to exercise the clear and unambiguous statutory authority it
is given by Congress under 8 U.S.C. §1225 (b)(2)(C). Former Homeland
Security Secretary Kirstjen Nielsen announced in December 2018 that the
department was “invoking” its authority under this immigration provision. 

Homeland Security’s

As the emergency motion filed with the Ninth Circuit says:

The United States and Mexico face a humanitarian and security crisis on their shared border.  In recent months, hundreds of thousands of migrants have left their home countries in Central America to journey through Mexico and then across the southern border of the United States, where they often make meritless claims for asylum and yet – because of strains on our resources – frequently secure release into our country.

In just the month of March, Homeland Security apprehended
more than 92,000 illegal border-crossers, “a pace of more than one million per
year and nearly double what it was just months ago.”  Homeland Security also reported “encountering
53,000 migrants as part of family units (many with children), a number never
before seen.”  The “extraordinary volume
of crossings has severely burdened DHS’s ability to control the southern

According to the Justice Department’s brief in the district
court, the Department of Homeland Security invoked its authority under this
statute, to “address the growing problems at the southern border resulting from
the number of aliens apprehended along the southern border who claim a fear of
return to their home country far exceeding the Executive’s ability to process
such aliens and capacity to detain them.” 
Many who would otherwise be detained are being “released into the United
States – to reside for years without establishing an entitlement to relief or
admission, and many of whom never show up for their immigration proceedings and
are ordered removed in absentia.”

The statute allows the secretary of Homeland Security to “return”
any aliens “arriving on land (whether or not at a designated port of arrival) from
a foreign territory contiguous to the United States…to that territory pending a

In other words, any aliens coming into the country across any
of our contiguous land borders who claim they have a legal right to be here,
can be returned across the border back into Canada or Mexico and forced to wait
there while their immigration proceeding is pending.    

There is an exception in the Department of Homeland Security guidance that provides that the alien will not be returned if there is a likelihood of harm in Mexico.  But the government says in its brief that the Mexican government has represented that aliens returned to Mexico under the Migration Protection Protocols would be afforded “‘all legal and procedural protection[s] provided for under applicable domestic and international law.’” 

Federal immigration law is often complex and hard to
understand.  But in essence, if the
government decides to use an expedited
removal process, the return provision does not apply.  However, if the government uses the full,
regular removal process outlined in federal law, the return provision does apply.  As part of the Protocols, Homeland Security is
exercising its prosecutorial discretion to apply the regular (not the
expedited) full removal process to all non-Mexicans apprehended along the
southern border who claim asylum. 

What Seeborg Gets

But Seeborg ignores this distinction and misreads the plain
text of the statute to conclude that the government cannot apply the return
provision to any aliens claiming
asylum.  As the Justice Department tells
the Ninth Circuit, Seeborg’s “interpretation is atextual and internally inconsistent.”  Essentially, Seeborg reads the return
authority of Homeland Security right out of the immigration statute.

By the way, Mexico has a very generous asylum law of its
own.  No non-Mexican aliens arriving at
our southern border who didn’t claim asylum under Mexican law the moment they
arrived in Mexico have a credible claim to asylum in the United States. According
to Homeland Security, four out of every five asylum claims made at the southern
border turn out not to be valid.  Aliens
are instead using fraudulent asylum claims as a passport into the U.S. and a get-out-of-detention-free
card to then disappear into the interior of the country.

Seeborg shouldn’t even be reviewing the Migration Protection
Protocols in his courtroom since, as the Justice Department’s brief pointed out,
another provision of federal immigration law, 8 U.S.C. §1252, bars judicial review of
decisions made by the secretary that are given to his discretion, which is
exactly what the alien return provision does. 
Yet Seeborg ignores this statutory limitation on his authority,

The government also argues that the Administrative
Procedures Act, which Seeborg relies on to override the explicit language of
the immigration provision on the return of aliens, can’t be used because the act
by its own language does not apply to “general statements of policy.”  Here, Homeland Security says it made a
general policy announcement that it would be applying the statutory provisions
of 8 U.S.C. §1225

Unfortunately, given the liberal make-up of the Ninth
Circuit, the Justice Department will likely have no success in its request for
a stay.  It will probably be up to the
Supreme Court once again, just as in the travel ban case, to eventually right
this miscarriage of justice.  But that
needs to happen quickly given the growing crisis at the border.  As the government says in its emergency filing:

The district court’s injunction
will impose immediate, substantial harm on the United States, including by diminishing
the Executive Branch’s ability to work effectively with Mexico to manage the
crisis on our shared border.  That harm
is exacerbated by the court’s decision to exceed limitations on its equitable
authority and issue a universal injunction.

Just another example of a single federal district court
judge going far beyond the bounds of his authority and interfering with the
president’s ability to deal with a national security and humanitarian crisis.