SAN FRANCISCO (CN) – Finding that the president may not “legislate” from the Oval Office, a Ninth Circuit panel on Friday denied an emergency motion to stay a court order that blocks the Trump administration’s limits on asylum eligibility.
Writing for the majority, U.S. Circuit Judge Jay Bybee found President Donald Trump’s Nov. 9 proclamation that limits asylum eligibility to those who enter the country at official ports of entry incompatible with international treaties and laws passed by Congress.
“The rule of decision enforced by the Government—that illegal entry, through Mexico specifically, will always be disqualifying—is inconsistent with the treaty obligations that the United States has assumed and that Congress has enforced,” Bybee wrote in a 65-page ruling.
The panel concluded that the temporary restraining order granted by U.S. District Judge Jon Tigar last month does not prevent the U.S. government from combating illegal entry into the United States, as the Trump administration claimed.
“Vague assertions” that the new asylum limits will “deter” unauthorized border crossings were not supported by evidence, Bybee wrote.
Bybee and Circuit Judge Andrew Hurwitz also found that the Trump administration failed to justify its decision to not provide a 30-day grace period and opportunity for public comment before enacting the new asylum restrictions.
But one member of the appeals court panel disagreed with that decision.
U.S. Circuit Judge Edward Leavy argued in a 5-page dissent that the government adequately articulated its need to act immediately in the interest of public safety and law enforcement.
Leavy also rejected the majority’s finding that the asylum limits are inconsistent with immigration laws passed by Congress. Leavy wrote that a “time-specific, area-specific limitation on an alien’s eligibility” is not the same as categorically barring an individual from applying for asylum.
The dissenting circuit judge concluded that because the balance of harm weighs in the government’s favor, he would have granted the Trump administration’s emergency motion to stay Tigar’s temporary restraining order pending appeal.
“The government has made a sufficient showing of irreparable harm, and the public has a significant interest in efficient border law administration,” Leavy wrote in his dissent.
Leavy was appointed by President Ronald Reagan. Bybee was appointed by President George W. Bush and Hurwitz was appointed by President Barrack Obama.
The Justice Department did not immediately return emails seeking comment Friday night.
ACLU attorney Lee Gelernt said he was happy with the decision.
“The Ninth Circuit’s decision to keep the asylum ban blocked is consistent with the decision Congress has made and will save lives,” Gelernt said.