Metropolitan News-Enterprise


Monday, August 19, 2019


Page 1


Ninth Circuit Limits Order Blocking New Asylum Policy

Majority of Three-Judge Panel Stays Preliminary Injunction in Border States Outside Circuit,

Leaving It in Effect Only in California, Arizona; Tashima Argues for Total Denial of Stay


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday, by a 2-1 vote, partially stayed a District Court order that blocks implementation of a Trump Administration policy limiting eligibility for refugee status, with the stay applying except as to the border states of California and Arizona.

The action gives the green light to rendering ineligible for asylum those seeking to cross the border between Mexico and Texas or New Mexico—states outside the Ninth Circuit—who passed through some other nation without seeking sanctuary there. Behind the policy is the desire to reduce the number of Central American migrants applying for admittance here rather than some “safe third country” which they had traversed.

District Court Judge Jon Tigar of the Northern District of California on July 24 held that the policy “is likely invalid because it is inconsistent with the existing asylum laws.” He preliminarily enjoined the Department of Justice and the Department of Homeland Security from enforcing the new rule.

Friday’s action was taken by Circuit Judges Milan D. Smith Jr., placed on the bench by President George W. Bush, and Michael Bennett, an appointee of President Donald Trump. There was a vigorous dissent by Circuit Judge A. Wallace Tashima, who was given his judgeship by President Jimmy Carter.

Majority’s View

The majority said, in its order:

“Here, the district court failed to discuss whether a nationwide injunction is necessary to remedy Plaintiffs’ alleged harm. Instead, in conclusory fashion, the district court stated that nationwide relief is warranted simply because district courts have the authority to impose such relief in some cases and because such relief has been applied in the immigration context. The district court clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs’ alleged harms. And, based on the limited record before us, we do not believe a nationwide injunction is justified.”

Briefing on an expedited basis was ordered, with argument to be heard in December.

Tashima’s Opinion

Tashima protested:

“Acting as a motions panel, all we have before us is the government’s motion for a stay. I do not believe that it is within a motions panel’s province to parse the record for error at this stage, which is what the majority does in concluding that ‘the nationwide scope of the injunction is not supported by the record as it stands.’…But the majority then goes beyond the recognized authority of a motions panel by concluding that ‘[t]he district court clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs’ alleged harms,’ and, on that basis ‘grant[s] the motion for stay pending appeal insofar as the injunction applies outside the Ninth Circuit.’ ”

He said the need did not exist for detailed findings by Tigar because it was “obvious” that a nationwide injunction had to be issued because the policy affects all states at the southern border of the continental United States. Tashima asked, rhetorically:

“Should asylum law be administered differently in Texas than in California?”

Smith, Bennett Respond

Smith and Bennett responded, in a footnote:

“First, we did not have to “parse” the record for error. Appellants’ stay motion specifically argues that the district court erred in imposing a nationwide injunction. Moreover, the three sentences that the district court provided to support the imposition of a nationwide injunction—none of which explains why it believed a nationwide injunction was necessary in this case—make clear that it failed to undertake the analysis necessary before granting such broad relief.

“Second, other motions panels of our court have reviewed the scope of injunctive relief granted by district courts….We think these decisions illustrate that it is indeed within our province—our duty, even—to review whether the district court abused its discretion in granting a nationwide injunction.”

The majority said in the body of its order that injunctions must be narrowly tailored, scoffing:

“Indeed, were we to adopt the dissent’s view, a nationwide injunction would result any time an enjoined action has potential nationwide effects. Such an approach would turn broad injunctions into the rule rather than the exception.”

The case is East Bay Sanctuary Covenant v. Barr, 19-16487.


Copyright 2019, Metropolitan News Company