The Supreme Court just handed President Trump a massive win on immigration. The court, reacting at Bill Barr’s urging to take up the case, sided with the Trump administration and said they could begin enforcing the new asylum rules nationwide.
The asylum rules have been viciously fought over with nationwide injunctions being imposed and then removed and regional injunctions as well.
That all ends today. From NBC: The U.S. Supreme Court late Wednesday gave the Trump administration permission to enforce its toughest restriction yet on asylum seekers at the southern border, even though a lawsuit to stop the new policy is still working its way through the lower courts.
As a result, the government can now refuse to consider a request for asylum from anyone who failed to apply for it in another country after leaving home but before coming here. As a practical matter, it means that migrants from Honduras, Guatemala, and El Salvador cannot seek asylum in the U.S. if they didn’t first ask for it in Mexico.
Earlier Trump and Barr scored a win. From Politico: Acting at the request of the Trump administration, the 9th Circuit Court of Appeals issued an administrative stay Tuesday night that put on hold the injunction issued Monday by San Francisco-based U.S. District Court Judge Jon Tigar.
The temporary hold implemented while the appeals court considers a longer stay essentially restores the legal situation that existed prior to this week, with Trump’s policy blocked only in the Ninth Circuit, which includes the border regions of California and Arizona.
That allowed the administration to implement the new policy in New Mexico and Texas, barring rulings from other courts as litigation over the issue ricochets through various courts The Trump administration has asked the Supreme Court to step in on an emergency basis to allow officials to carry out the Trump policy as announced in July. The high court has yet to rule on that request
From the earlier and overturned ruling:
“The need to provide complete relief to the Plaintiffs, standing alone, is sufficient reason for the re-issuance of the nationwide injunction. In addition to that factor, however, three other factors support such relief.
First, a nationwide injunction is supported by the need to maintain uniform immigration policy. See East Bay II, 932 F.3d at 779 (collecting cases and stating that “[i]n immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis”);
Regents of the Univ. of Cal., 908 F.3d at 511 (affirming nationwide injunction against the government’s rescission of the Deferred Action for Childhood Arrivals (DACA) program based in part on “the need for uniformity in immigration policy”).
While this factor may not, by itself, support the issuance of a nationwide injunction, it weighs in its favor. Second, nationwide relief is supported by the text of the Administrative Procedure Act (APA), which requires the “reviewing court,” “[t]o the extent necessary and when presented,” to “hold unlawful and set aside agency action, findings, and conclusions” found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .” 5 U.S.C. § 706. The Ninth Circuit has cited this language in upholding a nationwide injunction of regulations that conflicted with the governing statute.
Lastly, anything but a nationwide injunction will create major administrability issues. Although the Government’s recently-issued guidance with regard to the Rule is intended to allow the Court’s injunction to be applied within the Ninth Circuit, problems in administration would remain. For one thing, ambiguities within the guidance documents will lead to uneven enforcement. See ECF No. 67 at 12 (comparing the Government’s description of the injunction as covering those “whose adjudications and proceedings occur in the Ninth [C]ircuit” to the EOIR Guidance’s instruction that the Rule does not apply to those whose “interview or adjudication” occurs in the Ninth Circuit).
For another, it is not clear what effect the guidance will have on an asylum applicant who transits between circuits. For example, an applicant who crosses the border and has a credible fear interview outside the Ninth Circuit would, in the absence of a nationwide injunction, be subject to the Rule and thus (barring an exception) eligible only for withholding of removal or CAT. Id. If that individual’s removal proceedings were later moved to the Ninth Circuit, it is unclear whether the immigration judge would be bound by the original denial of credible fear or, since the Rule is enjoined within the Ninth Circuit, able to allow the individual to apply for asylum.
CONCLUSION While nationwide injunctions are not the “general rule,” they are appropriate “where such breadth [is] necessary to remedy a plaintiff’s harm.” East Bay V, 2019 WL 3850928, at *2. This is such a case. Accordingly, and for the reasons set forth above, the Court grants the Organizations’ motion to restore the nationwide scope of the injunction.”