OAKLAND, Calif. (CN) – A federal judge insisted Thursday that he can restore a nationwide block of a rule that makes most immigrants arriving at the southern border ineligible for asylum, despite the government’s position that he lacks power to do so.
“I do think that I have the authority to make a clear ruling in favor of my prior injunction as it was issued if I believe that the record supports that ruling,” U.S. District Judge Jon Tigar said during a hearing on an emergency motion to restore the nationwide injunction.
When the Ninth Circuit limited the injunction to apply to only nine western states last month, U.S. Justice Department lawyer Scott Stewart argued Tigar lost his power to revive the nationwide effect of his order.
“We think the Ninth Circuit did not remand or indicate restoration or expansion of the injunction,” Stewart said.
In its Aug. 16 ruling, a three-judge Ninth Circuit panel wrote that while the appeal is pending, Tigar “retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit.”
Jurisdiction to develop a record is not the same as authority to expand the scope of the injunction, Stewart insisted.
“What would be the purpose of me developing a record on a nationwide injunction if I didn’t have authority to issue one,” Tigar asked.
The dispute involves a Trump administration rule, enacted July 16, which makes all noncitizens arriving at the southern border ineligible for refugee status unless they applied for and were denied asylum in a country they passed along the way.
In court Thursday, ACLU attorney Lee Gelernt argued the immigrant advocacy groups he represents serve clients all over the country, not just in the Ninth Circuit, and that irreparable harm to those clients will persist without a nationwide block of the policy.
“The harms are still obvious to our plaintiffs outside the Ninth Circuit,” Gelernt told the judge.
Stewart called those claims “speculative,” noting the four plaintiff organizations failed to identify specific clients whom they are helping seek asylum outside the Ninth Circuit.
“It would not be an enormous burden to say, ‘Here are the clients we represent. Don’t subject them to the rule,’” Stewart said.
Tigar previously found in this case – and another lawsuit involving a contested asylum policy – that harms to immigrant advocacy groups are not confined to any particular client.
“That finding has been affirmed twice,” Tigar said in court Thursday. “They haven’t been required to show specific organizational harm for standing.”
After about 40 minutes of debate, Tigar took the arguments under submission. He said he will issue a ruling within the next few days, possibly over the weekend.
The judge said he will make his ruling take full effect, but the Ninth Circuit may decide his decision is merely indicative rather than authoritative.
“The indicative ruling is a backup position,” Tigar said. “I’d be inviting the Ninth Circuit to treat it that way if they find the authority they gave me is lesser than that.”
Plaintiffs who sued to block the asylum rule include East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab and Central American Resource Center.
Tigar first issued an injunction against the policy on July 24, the same day a different judge in Washington D.C. rejected a request for a temporary restraining order to block the asylum rule.