Bench Memos

Law & the Courts

Ninth Circuit Madhouse on Asylum

Back in the office for the first time in months, I’ve had time to dig into an amazing Ninth Circuit opinion that’s been sitting on my desk. In Al Otro Lado v. Wolf, a divided panel denied the Department of Homeland Security’s motion for a stay pending appeal of a district court’s preliminary injunction. That injunction barred DHS from enforcing its “Third Party Transit Rule” against a supposed class of some 26,000 asylum seekers.

Okay, your eyes are glazing over. So let me jump to the opening of Judge Daniel Bress’s tour de force dissent:

In a case that does not challenge it, the district court below partially enjoined an asylum rule that the Supreme Court just months ago ordered could go into effect pending appeal. See Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019). How could this even happen?

As Bress explains, the plaintiffs in Al Otro Lado challenge DHS’s “metering” policy, which limits the number of aliens who can gain access to U.S. ports of entry at any particular time. They don’t challenge the Third Party Transit Rule, which generally bars asylum for persons who did not previously seek asylum in a third country through which they traveled on their way to the United States. What’s more, in a separate lawsuit (East Bay Sanctuary Covenant v. Barr) in another district court—the wild Judge Jon Tigar in the Northern District of California—that actually does challenge the Third Party Transit Rule, the Supreme Court intervened to block the Tigar’s preliminary injunction from taking effect while the government seeks certiorari.

But somehow none of this stopped Judge Cynthia Bashant from granting the preliminary injunction against the Third Party Transit Rule in Al Otro Lado.

Bress objects that “courts cannot go around enjoining immigration rules in cases that do not challenge them, particularly where the Supreme Court has just allowed the rule to go into effect.” Beyond the minor detail that plaintiffs aren’t challenging the Third Party Transit Rule, Bashant’s injunction rests on her “unprecedented” holding that “our asylum laws apply not only to persons physically ‘in’ the United States, but to persons outside the United States who are ‘in the process of arriving into it.”

Bress further charges that the injunction “forces immigration officials to undertake an effectively impossible mission at our already overwhelmed border with Mexico.” The 26,000-person class “consists of aliens from all over the world who sought entry over a period of years at numerous points of entr[y] at the United States-Mexico border.” “Requiring the government to now apply different rules to this subclass, and even figuring out who such persons are, will be an enormous and arduous task, made only more difficult by the lack of documentation and the incredible strain under which our immigration system already labors.”

There’s much, much more in Bress’s compelling dissent.

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