SAN DIEGO (CN) – The Ninth Circuit on Thursday refused to lift a federal judge’s block of the so-called asylum ban from applying to people who had arrived at ports of entry along the U.S.-Mexico border before the ban took effect last summer, guaranteeing thousands of asylum seekers can’t be deemed ineligible before they’re even interviewed by federal agents.
U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee, declined the Justice Department’s request for an emergency administrative stay pending appeal of U.S. District Judge Cynthia Bashant’s finding the “Third Country Transit Rule” cannot apply to people who were waiting their turn at ports of entry before the ban was enacted by the Trump administration in July 2019.
The 31-page ruling means that while Bashant’s order is on appeal, an estimated 26,000 people cannot be deemed ineligible to seek asylum for failing to first do so in a third country before arriving at a port of entry along the U.S.-Mexico border.
Melissa Crow of the Southern Poverty Law Center – who represents legal services nonprofit Al Otro Lado and the subclass of asylum seekers – said in a statement the order was an important decision for the thousands of asylum seekers who followed the “rules” by waiting their turn after being metered at ports of entry.
“These vulnerable individuals, many of whom waited for months to apply for asylum, deserve an opportunity to have the merits of their asylum claims heard,” Crow said.
Berzon, writing on behalf of herself and Chief U.S. Circuit Judge Sidney Thomas – also a Clinton appointee – found the government had failed to show how it was harmed in the three weeks between Bashant’s order and its request for a stay from the Ninth Circuit.
“Rather than submitting evidence of actual burdens and delays it has experienced since the injunction issued, the government’s declarations contain only estimates, assumptions and projections,” Berzon wrote.
Parsing out which class members are not subject to the asylum ban by asking asylum seekers additional questions about their arrival date and if it was before the asylum ban went into effect does not constitute an irreparable harm, Berzon found.
“We are dubious that taking the time necessary to make fairly simple factual determinations for a few months constitutes the sort of irreparable harm that can support the grant of a stay pending appeal,” Berzon wrote.
“Any harm suffered is largely the result of the government’s own failure to keep records of asylum seekers who have been metered or to provide the asylum seekers with documentation of their attempt to seek asylum,” she added.
The Ninth Circuit also found the federal government is unlikely to prevail on its appellate argument that Bashant was wrong in finding people metered at ports of entry had “arrived” in the U.S. and could not be subjected to the asylum ban.
“The district court’s underlying statutory analysis is sufficiently sound and persuasive as to both the meaning of ‘arriving in the United States’ and the legal significance of an arrival,” Berzon wrote.
In a 69-page dissent, U.S. Circuit Judge Daniel Bress, a Donald Trump appointee, found the denial of the federal government’s request for a stay “forces immigration officials to undertake an effectively impossible mission at our already overwhelmed border with Mexico.”
“Regrettably, both the district court’s injunction and today’s decision reflect cascading legal error, wreaking further havoc on a southern border already in crisis,” Bress wrote.
He argued the asylum ban should have never been enjoined from applying to the 26,000 class members metered at ports of entry, a move by the trial court he said “greatly exceeded its powers” considering the Supreme Court had allowed the asylum ban to remain in effect while other lawsuits challenged its legality.
The appeal on Bashant’s finding on the merits of the case has been expedited and will be heard at the next available Ninth Circuit oral argument panel.