SAN FRANCISCO (CN) – Defending two key immigration policies before a Ninth Circuit panel Monday, a Trump administration lawyer struggled to explain why the safety of migrants was not considered in a rule that makes most immigrants arriving at the southern border ineligible for asylum.
The rule requires those arriving at the southern border to have applied for protection in another country they passed on the way as a precondition for seeking asylum in the United States. Exceptions apply for victims of human trafficking.
U.S. Circuit Judge Richard Clifton, a George W. Bush appointee, asked why information on dangers faced by migrants in Mexico was absent from the rationale for the asylum rule.
"Safety is not the primary point of the rule," Justice Department lawyer Scott Stewart said.
"It's the primary point of asylum," Clifton replied.
Clifton was one of three judges hearing arguments on two cases involving a pair of stayed nationwide injunctions against the asylum rule and another Trump administration policy that seeks to limit grant funds for "sanctuary" jurisdictions that refuse to help federal authorities catch undocumented immigrants.
Defending the asylum rule, Stewart explained it was meant to prioritize urgent asylum claims while curbing bogus ones. He said the failure to seek asylum in another country before coming to the U.S. demonstrates a "lack of urgency" as to that person's need for protection.
ACLU attorney Lee Gelernt strongly disagreed, saying people don't apply for protection in Mexico and Guatemala because those countries are unsafe. He added the government failed to produce evidence supporting its claim that not seeking asylum in a third country means one's asylum claim is invalid.
"This rule effectively eliminates asylum except for wealthy people who have the ability to fly here," Gelernt said.
Because asylum is not a right and the attorney general has unfettered discretion in granting or denying it, Stewart argued the administration can impose whatever limits it wants on the process.
U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, questioned how imposing the new restriction is consistent with the statute, especially when Congress passed the law to ensure compliance with international pacts on accepting refugees.
"Why should we interpret this so broadly when this whole statute is meant to implement our treaty obligations?" Fletcher asked.
While the panel appeared to favor arguments against the asylum rule, it also voiced skepticism toward granting a nationwide injunction.
U.S. District Judge Jon Tigar issued a nationwide injunction on July 24, the same day a judge in Washington D.C. rejected a request to block the asylum rule. The Ninth Circuit later limited the injunction's scope to California and Arizona before the Supreme Court stayed the injunction in its entirety.
U.S. Circuit Judge Eric Miller, a Donald Trump appointee, said he was not persuaded a nationwide injunction is justified when different bodies of immigration case law exist in each circuit.
But Gelernt told the panel immigrant advocacy groups that sued to block the asylum rule represent clients across the country, not just in the Ninth Circuit. That argument failed to win over Judge Clifton.
"Just telling me, 'Well, it's going to make it harder for my clients in other parts of the country,' is kind of thin soup," Clifton said.
Turning to another case over sanctuary city grant funding, Justice Department lawyer Mark Stern acknowledged most issues in the case were already resolved by prior Ninth Circuit decisions. A Ninth Circuit panel ruled in July that the Trump administration could withhold funding from the city of Los Angeles for refusing to open their jails to immigration officials or provide information on detained immigrants. A request for an en banc rehearing in that case is pending.
The Ninth Circuit also previously held that Section 1373 of Title 8 of the U.S. Code of Laws, which bars local governments from prohibiting their employees from sharing an individual’s immigration status with federal agents, does not mandate sharing any other information, such as addresses or release dates from jail.
In October 2018, U.S. District Judge William Orrick III issued a permanent injunction blocking the Department of Justice from imposing immigration-related conditions on policing grants on California and San Francisco. He enjoined the grant conditions nationwide but stayed the nationwide scope of his injunction pending appeal.
The judge also ruled that Section 1373 is unconstitutional because it compels local and state governments to help enforce federal laws, which he found violates the separation of powers principle in the Tenth Amendment.
On Monday, Stern told the panel that if it agrees with Orrick's view that compliance with Section 1373 cannot be used a condition for grant funding, then it need not reach the issue of whether the law is constitutional.
"We think the court was really wrong in all of those respects," Stern said.
He argued that because immigration enforcement is related to law enforcement, the Justice Department should be allowed to tie grant funding to compliance with the law.
San Francisco Deputy City Attorney Aileen McGrath asked the panel to find the Justice Department can only deny grant funding based on the city's performance and administration of a grant, not based on its compliance with unrelated laws.
Addressing the nationwide scope of Orrick's decision, the panel voiced the same skepticism about endorsing a court order that impacts jurisdictions outside the Ninth Circuit.
Miller said he was struggling to see why a nationwide injunction is necessary in this case.
"Suppose Cleveland wants to adopt policies similar to yours," Miller said. "Why do you care whether they will be eligible for a grant if they do that?"
McGrath acknowledged the city and state of California will suffer no harm if Cleveland is denied grant funding, but she insisted the court has authority to issue nationwide injunctions and "set aside unlawful agency actions in their entirety."
The panel did not indicate when it would rule on the cases.