SAN FRANCISCO (CN) – A Ninth Circuit panel on Friday upheld two nationwide injunctions against Trump administration policies aimed at shrinking the number of immigrants who can apply for asylum or stay in the United States while their asylum applications are pending.
One policy, enacted in November 2018, limits asylum eligibility to those who enter the U.S. at official ports of entry. Another policy, enacted in January 2019, allows the government to make asylum seekers wait in Mexico while their asylum applications are pending. A different Ninth Circuit panel in May 2019 stayed the “wait in Mexico” policy injunction, allowing that rule to take effect pending appeal.
In two opinions – one by U.S. Circuit Judge William Fletcher and the other by U.S. Circuit Judge Richard Paez, both Bill Clinton appointees – the panel found both rules impermissibly conflict with international treaties and immigration laws passed by Congress that guarantee right to apply for asylum and the need to ensure refugees are not sent to places where they will face threats and violence.
Addressing the Migrant Protection Protocols (MPP) that force asylum seekers to wait in Mexico, Fletcher cited declarations by several asylum seekers who described being robbed, assaulted and targeted near the U.S. border in Mexico because of their nationality.
“Uncontested evidence in the record establishes that non-Mexicans returned to Mexico under the MPP risk substantial harm, even death, while they await adjudication of their applications for asylum,” Fletcher wrote in a 57-page opinion.
On the November 2018 rule that makes migrants ineligible for asylum unless they enter the U.S. at official points of entry, Paez found that policy blatantly contradicts a provision in the Immigration Nationality Act that requires immigrants be allowed to apply for asylum regardless of where they enter the country.
The Trump administration argued the rule complies with the law because asylum seekers who cross the border illegally could still apply for asylum; their applications would simply be denied. Paez described that position as absurd, finding it unlikely Congress intended to guarantee asylum seekers the right to submit “futile” applications.
“Explicitly authorizing a refugee to file an asylum application because he arrived between ports of entry and then summarily denying the application for the same reason borders on absurdity,” Paez wrote.
Senior U.S. Circuit Judge Ferdinand Fernandez, a George H.W. Bush appointee, disagreed with his colleagues’ decision on the “wait in Mexico” policy because a different Ninth Circuit panel had stayed an injunction against that rule, finding the Trump administration was likely to prevail on appeal.
“I respectfully dissent from the majority opinion because I believe that we are bound by the published decision in Innovation Law Lab v. McAleenan (Innovation I),” Fernandez wrote, referring to a three-judge panel’s April 2019 decision to stay the injunction pending appeal.
Fletcher disagreed with the notion that a Ninth Circuit panel is bound by a prior panel’s conclusions on legal questions in the same case. Fletcher wrote the prior opinion was issued without oral argument and “spoke in terms of doubt and likelihood, rather than in terms of definitive holdings.”
In a concurring opinion on the “points of entry” policy, Fernandez agreed with the decision to enjoin that rule because a prior Ninth Circuit panel came to the same conclusion.
“Circuit law . . . binds all courts within a particular circuit, including the court of appeals itself. Thus, the first panel to consider an issue sets the law not only for all the inferior courts in the circuit, but also future panels of the court of appeals,” Fernandez wrote, quoting the Ninth Circuit’s 2001 opinion in Hart v. Massanari.
ACLU attorney Lee Gelernt, who argued against the “points of entry” rule in October last year, welcomed the decision to uphold the injunction.
“Once again the courts have recognized there is tremendous danger facing asylum seekers along the entire southern border, and that the administration cannot unilaterally rewrite the laws,” Gelernt said in a statement.
A Justice Department spokesperson used the ruling to tout a recent Republican talking point: the supposed overuse of nationwide injunctions.
“Today’s decision out of the Ninth Circuit once again highlights the consequences and impropriety of nationwide injunctions,” the spokesperson said. “The Trump administration has acted faithfully to implement a statutory authority provided by Congress over two decades ago and signed into law by President Clinton. The Ninth Circuit’s decision not only ignores the constitutional authority of Congress and the administration for a policy in effect for over a year, but also extends relief beyond the parties before the court.”
Despite the pair of stinging defeats for President Donald Trump’s immigration agenda from the Ninth Circuit Friday, the administration won a major victory earlier this week when the Second Circuit authorized the Justice Department to withhold grants from states and local governments that refuse to help federal agents detain and deport undocumented immigrants.
A separate challenge to the sanctuary city funding cuts is currently pending in the Ninth Circuit, along with another policy that seeks to cut off asylum to migrants arriving at the southern border unless they applied for and were denied refugee status in a country they passed through on their way to the United States.
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