Block of Trump Asylum Rule Holds, but Only in California & Arizona

(CN) – The Ninth Circuit thwarted the Trump administration Friday by denying its request to stay a lower court’s block of a rule making all asylum seekers at the U.S.-Mexico border ineligible for refugee status unless they applied for and were denied protection in a country they passed along the way.

However, the Ninth Circuit’s denial only applies to the border states within its jurisdiction – California and Arizona.

“The district court clearly erred by failing to consider whether nationwide relief is necessary to remedy plaintiffs’ alleged harms,” U.S. Circuit Judges Michael Bennett and Milan Smith held. “And, based on the limited record before us, we do not believe a nationwide injunction is justified.”

Smith and Bennett were both appointed by Republican presidents: Smith by George W. Bush, Bennett by Donald Trump.

U.S. Circuit Judge A. Wallace Tashima, a Jimmy Carter appointee, wrote a blistering dissent stating the majority overstepped its authority by probing for errors in the lower court’s decision for a nationwide block of the rule.

“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,’” Tashima wrote.

He blasted the majority for turning a “motions panel” into a “merits panel.”

Then he took issue with the Ninth Circuit-specific stay ordered by the majority.

“Perhaps, the district court did not make detailed findings in support of a nationwide injunction because the need for one in the circumstances of this case is obvious,” Tashima wrote, adding later: “Should asylum law be administered differently in Texas than in California? These issues and problems illustrate why tinkering with the merits on a limited stay motion record can be risky.”

For its part, the majority justified its decision by saying that allowing cases in other circuits to move forward fosters “the development of the law and the percolation of legal issues in the lower courts.”

The case bodes ill for those who believe the courts are apolitical.

In this case alone, Democratic and Republican appointees have issued contrary rulings regarding the legality of the rule that prevents people who have passed through other countries on the way to the U.S. border to make an asylum claim in the United States.

U.S. District Court Judge Jon Tigar – appointed by Barack Obama – ruled the Trump administration failed to consider evidence that asylum seekers in Mexico are subjected to violence and abuse, denied rights under Mexican and international law, and wrongly returned to the countries from which they fled persecution.

Tigar’s ruling came hours after U.S. District Judge Timothy Kelly in Washington – a Trump appointee – rejected a request for a temporary restraining order, finding immigrant advocates failed to show asylum seekers would suffer irreparable harm without court intervention.

This split along partisan lines arose again at the Ninth Circuit, despite the panel keeping the block of the rule in place in California and Arizona.


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