MEMORANDUM AND ORDER In December 2018, the Department of Homeland Security (“DHS”) announced the Migrant Protection Protocols (“MPP”). The MPP states that certain migrants who arrive into the United States on land without proper documentation may be returned to Mexico for the duration of their immigration proceedings. In this action, four sets of migrants and their family members in New York City sue to have such return orders rescinded. Plaintiffs contend that they were not statutorily eligible to be returned to Mexico because they were not “arriving on land” when apprehended. See 8 U.S.C. § 1225(b)(2)(C). They also contend that federal regulations barred their returns, because they did not cross into the United States at designated ports of entry. In addition, plaintiffs bring claims under the Administrative Procedures Act (“APA”), Rehabilitation Act, and Due Process Clause of the Fifth Amendment. Defendants have moved to stay this action until the Supreme Court decides a pending case in which other plaintiffs are challenging the MPP under the APA. See Wolf v. Innovation Law Lab, cert. granted., No. 19-1212 (Oct. 19, 2020). I stay proceedings regarding the claims that are squarely implicated by Innovation Law Lab. But I decline to stay litigation over plaintiffs’ other claims. Plaintiffs have moved for a preliminary injunction that would permit the migrants to re-enter the United States for the duration of their removal proceedings. I conclude that plaintiffs are not entitled to a preliminary injunction on their un-stayed claims, because they have not demonstrated that those claims are likely to succeed on the merits. BACKGROUND A. Legal Background When a migrant is apprehended after unlawful entry, he is ordinarily detained for the duration of his removal proceedings in the United States, see DHS, Assessment of the Migrant Protection Protocols (MPP) at 1 (Oct. 28, 2019) (Dkt. #19-1 Ex. 6) (“MPP Assessment”); 8 U.S.C. §§ 1225(b)(1)(A)(i), 1225(b)(1)(B)(ii), 1225(b)(2)(A); Jennings v. Rodriguez, 138 S. Ct. 830, 837 (2018), or released on bond or parole into the United States, see 8 U.S.C. §§ 1182(d)(5)(A), 1226(a)(2); Jennings, 138 S. Ct. at 837. But immigration officials have long returned some migrants to Canada or Mexico to await proceedings instead. See Inspection and Expedited Removal of Aliens; Detention and Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed. Reg. 444, 445 (Jan. 3, 1997). Congress statutorily authorized such returns in 1996 as part of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), which amended the Immigration and Nationality Act (“INA”). See IIRIRA, Pub. L. 104-208, § 302, 110 Stat. 3009 (1996). As relevant here, that statute provides: In the case of an alien…who is arriving on land (whether or not at a designated port of arrival) from a foreign territory contiguous to the United States, the Attorney General may return the alien to that territory pending a proceeding under section 1229a of this title. 8 U.S.C. § 1225(b)(2)(C). Soon after, the Immigration and Naturalization Service (“INS”) authorized agents to “require any alien who appears inadmissible and who arrives at a land-border port-of entry from Canada or Mexico, to remain in that country while awaiting a removal hearing.” 8 C.F.R. § 235.3(d). That authority was later transferred to DHS. See Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005). The INS issued regulations defining various terms appearing in the INA but did not enact a regulation defining the term “alien…who is arriving on land.” See 8 C.F.R § 1001.1. In December 2018, DHS announced the MPP. See DHS, Secretary Kirstjen M. Nielsen Announces Historic Action to Confront Illegal Immigration (Dec. 20, 2018) (Dkt. #14-8 Ex. A) (“MPP Press Release”). To address a “migration crisis along [the] southern border,” these protocols declare that certain migrants who arrive by land from Mexico “illegally or without proper documentation…may be returned to Mexico…for the duration of their…removal proceedings.” Kirstjen M. Nielsen, DHS, Policy Guidance for Implementation of the Migrant Protection Protocols (Jan. 25, 2019) (Dkt. #14-8 Ex. B.) (“Nielsen Memo”). The protocols apply to migrants who arrive at a port of entry as well as migrants apprehended between ports of entry. See Customs and Border Patrol, MPP Guiding Principles (Jan. 28, 2019) (Dkt. #14-8 Ex. D) (“MPP Guiding Principles”); Customs and Border Patrol, Muster Guiding Principles for Migrant Protection Protocols (MPP) (Dkt. #14-8 Ex. E) (“Muster Memo”). Alongside the protocols, the Government of Mexico announced that it would “authorize the temporary entrance of certain foreign individuals coming from the United States who…have received a notice to appear before an immigration judge.” Nielsen Memo at 2. These individuals could “remain in [Mexico],” and they “would be able to enter and leave [Mexico] multiple times.” Id. at 3. Further, the Government of Mexico committed to “ensur[ing] that foreigners who have received their notice to appear have all the rights and freedoms recognized” by Mexican law, and declared that these foreigners would “be entitled to equal treatment with no discrimination whatsoever and due respect [would] be paid to their human rights.” Ibid. Under the protocols, agents generally “retain discretion to process aliens for MPP…on a case-by-case basis.” MPP Guiding Principles at 1. But only “aliens arriving from Mexico who are amenable to the process” are to be “transferred to await proceedings in Mexico.” Ibid. Aliens who “are not amenable to MPP” include, for example, “[u]naccompanied alien children”; “[c]itizens or nationals of Mexico”; “[a]liens processed for expedited removal”; “[a]ny alien who is more likely than not to face persecution or torture in Mexico”; and “[a]liens in special circumstances,” including aliens with “[k]nown physical/mental health issues.” Ibid.; see Muster Memo at 1. The protocols direct agents to make determinations about these categories “based on the facts and circumstances presented by a particular case.” Muster Memo at 1. A migrant who is returned to Mexico may still pursue a claim for asylum in the United States, but he must do so from across the border. See MPP Press Release at 2. The migrant is issued a notice to appear for immigration proceedings at a port of entry on a later date. See MPP Guiding Principles at 1. The migrant is transported from the port of entry to the hearing site and then returned to Mexico after the hearing. See id. at 2. This continues for as many hearings as necessary to conclude the migrant’s removal proceedings. See ibid. B. Factual Background This lawsuit concerns four sets of migrants who crossed into the United States between ports of entry, requested asylum, and were returned to Mexico to await further immigration proceedings. Leimariana del Valle Petit Romero fled Venezuela to seek asylum in the United States. See Decl. of Leimariana del Valle Petit Romero
1-4 (Dkt. #14-2) (“Romero Decl.”). She crossed the U.S.-Mexico border on foot in September 2019. Id. 4. She was apprehended “several hours” after crossing and then returned to Mexico to await her immigration hearing. Id.
