Patterico's Pontifications

8/16/2019

9th Circuit lifts Asylum Injunction in Texas and New Mexico

Filed under: Immigration,Law — DRJ @ 5:07 pm



[Headlines from DRJ]

9th Circuit lifts nationwide injunction against Trump plan to limit asylum.

Court: US can reject asylum along parts of Mexico border:

A federal appeals court on Friday cleared the way for the U.S. government to forbid Central American immigrants from seeking asylum at the two busiest stretches of the southern border in a partial legal victory for the Trump administration.

The ruling from the 9th U.S. Circuit Court of Appeals allows President Donald Trump to enforce the policy in New Mexico and Texas, rejecting asylum seekers who cross from Mexico into either state. Under Friday’s ruling, U.S. District Judge Jon Tigar’s July 24 order stopping the policy would apply only in California and Arizona, which are covered by the 9th Circuit.

The two busiest areas for unauthorized border crossings are in South Texas’ Rio Grande Valley and the region around El Paso, Texas, which includes New Mexico. Nearly 50,000 people in July crossed the U.S. border without permission in those two regions, according to the U.S. Border Patrol.

In theory and maybe in reality, this will cause asylum-seekers to travel to Arizona and California.

— DRJ

14 Responses to “9th Circuit lifts Asylum Injunction in Texas and New Mexico”

  1. It is weird to see a 9th Circuit case involving Texas and New Mexico. I want to see the opinion. I wonder if the Court decided it doesn’t have jurisdiction to issue a nationwide injunction? That would be even bigger news than an asylum win.

    DRJ (15874d)

  2. The report has bern updated and apparently not:

    The appeals court ruled that Tigar’s order hadn’t considered whether a nationwide order was necessary and that there wasn’t enough evidence presented yet to conclude that it was. The court instructed Tigar to “further develop the record in support of a preliminary injunction” extending nationwide.

    Judges Mark Bennett and Milan Smith voted to limit Tigar’s order. Judge A. Wallace Tashima dissented.

    DRJ (15874d)

  3. It sounds like the court is splitting the baby. Was there enough evidence for an injunction in 2 states but not in 4? Maybe, if the only evidence concerned Arizona and California.

    DRJ (15874d)

  4. most interesting that the 9th actually said the DJ didn’t consider if a nationwide was appropriate. “Take a hint DJs, and enough with the 50 state bans.”

    Harcourt Fenton Mudd (0c349e)

  5. The AP article says this

    The appeals court ruled that Tigar’s order hadn’t considered whether a nationwide order was necessary and that there wasn’t enough evidence presented yet to conclude that it was. The court instructed Tigar to “further develop the record in support of a preliminary injunction” extending nationwide.

    Kishnevi (083e7a)

  6. This is getting insane. We did not elect obscure district court judges to enforce and make the immigration and asylum laws. Nor does any district court have the power to stop the Federal Government from doing anything outside its small jurisdiction. But now we have the 9th circus, saying the injunction can apply in Calf and Arz – but not elsewhere.

    There should be NO bi-state injunctions. And district courts should have ZERO power to issue these injunctions. And there were none prior to 1961. But I’m just dreaming. No one cares. Its all about power. And you can’t even get conservatives to understand the difference between state judges and Federal district judges! Some people thought the “Hawaiian Judge” was actually a Hawaiian in Hawaii.

    rcocean (1a839e)

  7. The old joke of the lawyer starting his argument in the US Supreme Court: “Your honors, I’m here after losing my case before the 9th circuit, and if really needed, I have other good arguments as well.”

    Harcourt Fenton Mudd (0c349e)

  8. Lawfare’s take is here. The 9th Circuit is staying away from a nationwide injunction and giving space for other cases to work through, although they’re confident enough to lift the injunction in their jurisdiction.

    Paul Montagu (a2342d)

  9. I hate hate hate hate hate press reports on legal issues. That article doesn’t even provide the name of the case!

    The kind people at Axios put the opinion up at https://assets.documentcloud.org/documents/6283252/8-16-19-9th-Circuit-Opinion-East-Bay-Asylum.pdf

    aphrael (e0cdc9)

  10. * district court ruled that the rule doesn’t comply with the notice-and-comment and 30-day grace period requirements of the APA (because the administration didn’t adequately support invocation of the ‘good cause’ and ‘foreign affairs’ exemptions)

    * appeals court panel concludes that the administration has not made the required ‘strong showing’ that they are likely to succeed on the merits

    * so the motion for stay pending appeal is denied insofar as the injunction applies within the ninth circuit

    * the nationwide scope of the injunction is not supported by the record as it stands

    * so the motion for stay pending appeal is *granted* outside the ninth circuit, but the district court can revisit the issue

    ————

    why is the nationwide scope not supported?

    * an injunction must be narrowly tailored to remedy the specific harm shown

    * nationwide injunctions must be NECESSARY to remedy the harm

    * allowing nationaide injunctions as a general rule, would prevent the rise of circuit splits and the resultant robust debate

    * the district court did not discuss whether a nationwide injunction is *necessary*

    —————

    the district court retains jurisdiciton to develop a record in favor of a nationwide injunction

    aphrael (e0cdc9)

  11. rcocean — the point is the injunction pending appeal is valid throughout the region covered by the 9th circuit. since the 9th circuit is hearing the appeal, that seems reasonable.

    aphrael (e0cdc9)

  12. also, if a district court has concluded that the government is violating the law, and it doesn’t have the power to enforce an injunction, what remedy is available to make the government stop violating the law?

    note that the entire argument in this case is basically: “when Congress passed the Administrative Procedures Act, it required administrative agencies to use a particular process to make its decisions, and this decision was made without following that process.”

    do you agree that Congress has the power to require administrative agencies to use the process Congress prefers? when an administrative agency doesn’t follow that process, what should the remedy be?

    aphrael (e0cdc9)

  13. I hate hate hate hate hate press reports on legal issues.

    As a former court reporter, I would read the press accounts and say, along with all my colleagues, “Were they even in the room??”

    Patricia (3363ec)

  14. Well its not like they have any understanding of any other fact pattern, theyre better off explaining why the 90210 reboot is failing

    Narciso (50a424)


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