Decision tosses out restriction on asylum

9th Circuit panel ruling blocks Trump maneuver

TUCSON — A panel of three judges from the 9th U.S. Circuit Court of Appeals upheld Monday a border-wide injunction blocking President Donald Trump’s rule barring asylum for migrants who didn’t first seek protection in Mexico or another third country.

The decision in the case East Bay Sanctuary Convenant v. Trump follows a ruling from a federal court in Washington, D.C., that also struck down the July 2019 rule because it violated U.S. immigration laws and unlawfully sidestepped a public comment period before taking effect.

Monday’s 9th circuit ruling went further, saying the Trump administration’s rule not only violated those laws, but that is was “arbitrary and capricious.”

The judges said the new policy did nothing to ensure that third countries like Mexico were indeed safe and offered “full and fair” processes for asylum seekers turned away by the U.S.

“First, evidence in the record contradicts the agencies’ conclusion that aliens barred by the Rule have safe options in Mexico,” U.S. Circuit Judge William Fletcher wrote in the court’s opinion. “Second, the agencies have not justified the Rule’s assumption that an alien who has failed to apply for asylum in a third country is, for that reason, not likely to have a meritorious asylum claim.”

In addition, the U.S. government “failed to adequately consider the ef

fect of the Rule on unaccompanied minors,” which are not exempt from this ban despite U.S. laws affording them greater protections, he added.

The other two circuit judges on the merits panel joined Fletcher — who was appointed by President Bill Clinton — in blocking the asylum ban. But they dissented on the scope of the injunction.

A district judge issued a nationwide injunction days after the rule took effect on July 16, 2019, but a motions panel from the 9th circuit limited it to the circuit court’s jurisdiction in California and Arizona.

U.S. District Judge Jon Tigar reinstated the nationwide injunction in September before the Supreme Court intervened and stayed the ruling pending an appeal. The stay remains in place despite Monday’s ruling from the 9th circuit.

Fletcher’s opinion said multiple courts had agreed on the need to implement uniform policies on immigration matters and affirmed the nationwide injunction that Tigar issued. The ruling impacts any asylum seeker who reaches any point along the U.S.-Mexico border, not just those in California and Arizona.

Circuit Judge Richard Clifton, appointed by President George W. Bush, concurred with Fletcher’s conclusion but not his reasoning, writing “there does not appear to me to be a sufficient distinction between this case and precedents that bind this panel” from previous decisions.

Circuit Judge Eric Miller, a Trump appointee, agreed with the court’s opinion about the validity of the rule, emphasizing in a separate opinion that Mexico and the other third countries that asylum seekers must travel through, such as Guatemala, are not safe options based on the evidence presented in court.

But Miller dissented in the borderwide scope of the injunction, saying that it should have been limited “only to asylum seekers who are bona fide clients of the plaintiff organizations.”

Several legal advocacy groups, lead by the American Civil Liberties Union, filed the lawsuit against the asylum ban on behalf of four organizations that work with asylum seekers along the U.S.-Mexico border: the East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and the Central American Resource Center in Los Angeles.

“The court recognized the grave danger facing asylum seekers and blocked the Trump administration’s attempt to make an end-run around asylum protections enacted by Congress,” said Lee Gelernt, an attorney with the ACLU who argued the case in court.