Ninth Circuit Considers Undoing Block of Asylum Ban

A U.S. Customs and Border Protection officer gives instructions to migrants who are on their way to apply for asylum in the United States, on International Bridge 1 as they depart Nuevo Laredo, Mexico, last year. (AP Photo/Fernando Llano)

(CN) — The Ninth Circuit Friday considered whether the Trump administration’s asylum ban could apply to those “metered” at ports of entry and waiting their turn to enter the United States when the ban went into effect last year, a decision which could determine whether an estimated 26,000 people will get their day in Immigration Court.

Friday’s court hearing came less than a week after the same appellate court tossed Trump’s “Third Country Transit Rule” which went into effect in July 16, 2019, and required people fleeing persecution and seeking refuge in the United States must have first sought asylum in a third country they passed through on their way to the U.S. border.

In a separate order out of the District of Columbia earlier this month, another federal judge found the rule had not gone through the required rule-making process before going into effect last summer.

But when prodded by a Ninth Circuit panel in a virtual hearing Friday, both the Justice Department and attorneys for the asylum seekers agreed those cases don’t bear on the metering case out of the Southern District of California because they aren’t challenging the legality of the asylum ban, but whether it could be applied to the class members in the first place.

Those asylum seekers challenging the federal government’s practice of metering — or limiting the amount of asylum seekers accepted at ports of entry — claim they had already “arrived” at the United States and couldn’t be subjected to the new asylum rule because they were following the federal government’s instructions to “wait their turn” across the border in Mexico to be called for their asylum case to be heard.

The estimated 26,000 asylum seekers are caught in the crosshairs of the two Trump administration immigration policies advocates say were enacted to eviscerate the United Nations-guaranteed right.

U.S. District Judge Cynthia Bashant agreed, finding last fall the federal government couldn’t employ bait-and-switch tactics to apply new restrictions to block migrants from making humanitarian claims at U.S. ports of entry, noting the class members “did exactly what the government told them to do.”

Bashant preliminarily enjoined the government from applying the asylum rule to those who had arrived at ports of entry before the rule went into effect last July.

The Ninth Circuit refused the Justice Department’s request to block the lower court’s injunction, pending the hearing Friday on the Justice Department’s appeal.

In its brief, the Justice Department claimed the asylum rule was created to “screen out” those who don’t really have urgent persecution claims, with the logic being if they truly were in fear for their life, asylum seekers would have sought refuge in other countries they passed through before making it to the U.S. border.

But thanks to the ruling out of Washington D.C., the government isn’t currently enforcing the rule, Justice Department attorney Scott Stewart told a Ninth Circuit panel Friday, reiterating even though the asylum ban isn’t being applied, that doesn’t moot out the injunction issued in the metering case.

The panel was concerned issuing an order would waste court resources considering the broader asylum ban cases being litigated at the same time across the country.

“I understand why this case is not technically moot, but why would it be a good use of judicial resources to decide this case right now when there are two other opinions that are broader than this one that would prevent the kind of activity these plaintiffs are trying to challenge?” U.S. Circuit Judge Michelle T. Friedland, a Barack Obama appointee, asked Stewart.

“Why would we write a whole opinion on this complicated issue when we’re kind of being superseded by these other cases?” she added.

Stewart said the injunction challenge needed to be decided because “it’s hard to know when those developments could be complete” and a decision in favor of the federal government on one of the other cases could put the rule back into effect.

U.S. Circuit Judge Ryan D. Nelson, a Donald Trump appointee, questioned whether the court needed to expedite the order if the government plans to enforce the rule, pushing back against Stewart’s reasoning, saying, “If that’s the position the government is taking, it does undermine our need to push forward quickly.”

But Stewart confirmed: “We’re not saying we don’t want to enforce this rule, we’re saying we need to be careful in light of a court order saying the rule is vacated.”

Stewart called it a “double-barreled problem” Bashant enjoined the federal government from enforcing the asylum ban against class members in a collective action where the asylum ban isn’t at issue, metering is.

But on rebuttal, Friedland pointed out the asylum seekers Stewart claims are now subjected to the asylum rule because they had not “arrived” at ports of entry were only waiting in Mexico “because the government told them to.”

Arguing for the asylum seekers, Mayer Brown attorney Ori Lev said they weren’t arguing against their own interest by challenging the status quo set out in the other asylum ban orders because the government could still try to use the rule against the class of asylum seekers.

“We would be happy if the government would not appeal, if the government conceded that the rule would not be applied to any of our class members,” Lev said.

Lev said if the preliminary injunction was vacated, even though the asylum ban was currently put on hold, his clients could be at risk of harm should the rule be revived in one of the cases challenging it.

U.S. Circuit Judge John B. Owens, an Obama appointee, rounded out the panel.

The case was taken under submission.

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