(CN) – A Ninth Circuit panel heard debate Thursday on whether to stay a federal judge’s injunction barring immigration officials from enforcing a so-called asylum ban on an estimated 26,000 people who arrived at ports of entry before the rule was issued last summer.
Justice Department attorney Scott Stewart asked the three-judge panel to issue an emergency administrative stay pending the government’s appeal of a federal judge's order last year blocking officials from withholding asylum access to immigrants who had been metered at ports of entry before the ban went into effect.
But U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, pointed out the Supreme Court had not considered the issue of metering – where asylum seekers are turned away at ports of entry along the U.S.-Mexico border and added to lengthy waiting lists – or the subclass of asylum seekers challenging the practice.
“Their harm is quite different,” Berzon said, adding, “It’s not that the rule is being applied as a rule, but that it’s being applied unfairly and in a way they can’t comply with.”
When Chief U.S. Circuit Judge Sidney Thomas, also a Clinton appointee, asked Stewart to walk him through the current asylum process, Stewart confirmed it can take “many months” for a single individual’s claim to be adjudicated.
“What’s the irreparable harm?” Thomas asked. “What’s the harm of allowing them to go through the system which is going to take months?”
According to Stewart, parsing through the thousands of migrants seeking asylum to determine which ones are class members who’d be subject to U.S. District Judge Cynthia Bashant’s injunction undermines the government’s ability to apply its immigration laws.
“We don’t want to cavalierly or willy-nilly apply the rule. We need to take a rigorous approach to identify class members,” Stewart said.
But Thomas suggested the only additional burden on immigration agents would be requiring them to ask additional questions to determine if asylum seekers had arrived and attempted to seek entrance into the U.S. before the issuance of the asylum ban.
Stewart said it’s not that simple.
He said agents want to “make sure they were not coached,” suggesting immigrants may lie about their arrival date at the U.S.-Mexico border to avoid being subject to the asylum ban.
Stewart disputed the government could determine who had arrived at the U.S.-Mexico border and when by consulting the waiting lists being kept by Mexican officials at ports of entry.
Attorney Ori Lev of Mayer Brown, representing legal services nonprofit Al Otro Lado and the subclass of asylum seekers, said the government failed to show it would suffer irreparable harm absent a stay of the injunction since it didn’t seek to the block the injunction until three weeks after it was issued.
“One would expect the government’s evidence would include actual harm that occurred during those three weeks,” Lev said, pointing out the government had not submitted any evidence showing asylum processing at the border had been hindered in any way by Bashant’s ruling.
“The only conclusion can be those harms did not come to pass in those three weeks,” Lev said.
Lev also disputed immigration officials could not practically comply with the injunction order by taking “basic steps” to determine which asylum seekers were members of the subclass.
He pointed out asylum hearings last one to three hours, and officials could ask individuals questions about when they arrived and cross-reference their names on the waitlists being maintained at the border.
“The whole asylum process is built to discover facts about the individual seeking asylum. This isn’t a difficult fact to ascertain,” Lev said.
Melissa Crow of the Southern Poverty Law Center also argued on behalf of the plaintiffs.
U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, rounded out the panel.