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Dissenters Decry Denial of En Banc Review in Asylum Case
12 Ninth Circuit Judges—All but One Appointees of GOP Presidents—Find Fault With Decision of Panel’s Majority
By Kimber Cooley, associate editor
Ninth U.S. Circuit Judge Daniel A. Bress penned a sharp dissent, joined in by 11 other judges, from an order denying a request for rehearing en banc in an immigration case dealing with whether noncitizens who were turned away at the U.S. border, under a now-defunct “metering rule,” qualify as having “arrive[d] in” the U.S. for purposes of a law requiring them to do so before applying for asylum.
Last October, in a divided opinion authored by Circuit Judge Michelle T. Friedland, and joined in by Circuit Judge John B. Owens, a panel concluded that “a noncitizen stopped by U.S. officials at the border” qualifies as a party who has “arriv[ed] in” the U.S. for purposes of the asylum statute.
An amended opinion was filed yesterday, concurrently with the order denying en banc review. Circuit Judge Ryan D. Nelson dissented from the panel’s opinion, as he did in October.
Friedland and Owens are appointees of Democratic President Barack Obama and Bress was placed on the court by Republican President Donald Trump. Voting to grant an en banc rehearing were Bress, 10 other nominees of Republican presidents, and one judge placed on the court by a Democratic president.
Same Result
The changes to the majority’s opinion do not alter the finding that noncitizens who are turned away at the border do qualify for asylum relief, and instead largely focus on an analysis of the presumption against extraterritoriality, a doctrine concerned with ensuring that federal laws are only applied with domestic reach.
In the original opinion, the majority found that the immigration sections at issue contain a “clear” indication of an intent for extraterritorial reach, but the amended decision declares that “the presumption against extraterritoriality has no role to play here” because the doctrine “just begs the question: is the conduct at issue in this case a domestic application?”
Senior Circuit Judge Carlos T. Bea noted that “[a]s a judge…in senior status, I cannot vote on calls for rehearing cases en banc or formally join a dissent from failure to rehear en banc,” but wrote separately to express agreement with “Judge Bress’s dissent from denial of rehearing en banc and with Judge R. Nelson’s dissent to the panel’s majority opinion.” Senior Circuit Judges J. Clifford Wallace and Diarmuid F. O’Scannlain—like Bea, appointees of Republican presidents—joined in Bea’s statement.
Statutory Interplay
The question of statutory interpretation arose based on an interplay between 8 U.S.C. §1158(a)(1)—which provides that “[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival)…may apply for asylum”—and a “metering” policy adopted in 2016 under which noncitizens arriving at the border to seek asylum may be turned away based on overcrowding at the port.
After an immigration rights group, Al Otro Lado Inc., and individual asylum seekers challenged the lawfulness of the metering policy in June 2017, the government rescinded the policy and adopted the Asylum Transit Rule. Under the new decree, anyone “who…attempt[ed] to enter…the United States…on or after July 16, 2019,” after passing through another nation, is ineligible for asylum unless that party first applied for protection in that other nation.
District Court Judge Cynthia A. Bashant of the Southern District of California provisionally certified a class consisting of “all non-Mexican asylum-seekers who were unable to make a direct asylum claim at a U.S.” port of entry “before July 16, 2019 because of the U.S. Government’s metering policy, and who continue to seek access to the U.S. asylum process.”
Bashant ordered permanent injunctive relief prohibiting the application of the Asylum Transit Rule to members of the class. On Aug. 23, 2022, judgment was entered in favor of the plaintiffs on a claim filed under 5 U.S.C. §706(1), which provides that a reviewing court shall “compel agency action unlawfully withheld or unreasonably delayed.”
The Ninth Circuit largely affirmed the judgment in favor of the plaintiffs on the §706(1) claim and “affirm[ed] the injunctive relief other than the requirement that the Government reopen or reconsider…past determinations on its own initiative.”
Bress’ Dissent
Bress’ dissent—which was joined by Judge Ronald M. Gould, an appointee of Democratic President Bill Clinton, and by Republican appointees Consuelo M. Callahan, Milan D. Smith Jr., Sandra S. Ikuta, Mark J. Bennett, Ryan D. Nelson, Bridget S. Bade, Daniel P. Collins, Kenneth K. Lee, Patrick J. Bumatay, and Lawrence VanDyke—bemoans the court’s decision not to reconsider the panel’s findings, saying:
“The panel majority in this case reached the remarkable conclusion that our asylum statute extends to undocumented aliens in Mexico ambiguously close to the United States border, ‘whichever side of the border they are standing on.’…That holding violates clear statutory text, precedent, the presumption against extraterritoriality, and long-held understandings limiting application of the asylum and inspection laws to aliens ‘in’ the United States—which aliens in Mexico of course are not.”
He added:
“The panel’s serious misreading of the statutory text then led it to an extraordinary result: after extending asylum protections to aliens who are physically in Mexico, the panel upheld an unprecedented district court order severely limiting the government’s ability to manage the large flow of undocumented aliens trying to enter the United States at overrun ports of entry along the Mexican border. And that is surely only one of the many governmental efforts to manage the border that the panel’s precedential opinion will affect going forward.”
Saying that “[t]his long-running case has now spanned three presidential administrations, all of whom have strenuously opposed the panel’s result and reasoning,” he argued that the decision has created “untold interference with the Executive Branch’s ability to manage the southern border.”
‘Manifestly Incorrect’
Bress said the majority’s opinion is “manifestly incorrect,” remarking:
“It is hard to overstate the radical nature of the majority and district court’s decisions. No other court has ever held that the asylum and inspection laws apply to persons who are not ‘in’ the United States.”
As to extraterritoriality, he wrote:
“If anything, and although the panel’s original extraterritoriality analysis was profoundly mistaken, its amended opinion is cause for equal if not greater concern. Whereas the original panel opinion exempted all immigration laws from the presumption against extraterritoriality by treating them as definitionally extraterritorial, the amended opinion treats the extraterritorial extension of immigration laws as definitionally domestic. On top of extending the asylum and inspection laws to aliens ‘in’ Mexico, the panel’s amended opinion is now a blueprint for avoiding the presumption against extraterritoriality, contrary to Supreme Court case law.”
The jurist noted that the plaintiffs in the case have “recently taken the highly unusual step of asking the district court to vacate its own injunction” regarding the Asylum Transit Rule and said:
“Given that plaintiffs fought vigorously for this injunction for years, it is hard to understand this strange maneuver as anything other than an attempt to forestall further review of the panel’s opinion.”
The case is Al Otro Lado v. Noem, 22-55988.
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