Last October, I highlighted a divided Ninth Circuit panel decision (in Al Otro Lado v. Executive Office for Immigration Review) that broadly affirmed a district-court ruling that enjoins federal officials from enforcing the “Asylum Transit Rule” against a class of asylum seekers. Under the Asylum Transit Rule, persons traveling through a third country were required to apply for asylum in that third country before seeking asylum in the United States.

As I pointed out, a threshold question on which the majority (Judge Michelle Friedland, joined by Judge John Owens) and the dissenter, Judge Ryan Nelson, divided is whether an alien “arrives in the United States” for purposes of 8 U.S.C. § 1158(a)(1) when the alien is stopped at the border between Mexico and the United States without having stepped across it. The majority concluded that an alien “arrives in the United States,” and is thus eligible to apply for asylum in the United States, “whichever side of the border [the alien is] standing on.”

Last week, the Ninth Circuit panel issued an order denying rehearing en banc. (The panel also issued an amended opinion, but from what I can tell from a quick skim, any changes seem to have been trivial.)

On top of Judge Nelson’s excellent panel dissent, Judge Daniel Bress wrote a powerful opinion on behalf of twelve judges—including Clinton appointee Ronald Gould—that dissented from the denial of rehearing en banc. (The Ninth Circuit has 29 active judges, so 15 votes are needed to go en banc.)

Here is Judge Bress’s introduction (some citations omitted):

The panel majority in this case reached the remarkable conclusion that our asylum statute extends to undocumented aliens in Mexico ambiguously close to the United States border, “whichever side of the border they are standing on.” That holding violates clear statutory text, precedent, the presumption against extraterritoriality, and long-held understandings limiting application of the asylum and inspection laws to aliens “in” the United States—which aliens in Mexico of course are not. The panel’s serious misreading of the statutory text then led it to an extraordinary result: after extending asylum protections to aliens who are physically in Mexico, the panel upheld an unprecedented district court order severely limiting the government’s ability to manage the large flow of undocumented aliens trying to enter the United States at overrun ports of entry along the Mexican border. And that is surely only one of the many governmental efforts to manage the border that the panel’s precedential opinion will affect going forward.
This long-running case has now spanned three presidential administrations, all of whom have strenuously opposed the panel’s result and reasoning. I tried to head this off at the pass years ago, when the government sought emergency relief from the district court’s preliminary injunction. Judge R. Nelson in his panel dissent picked up where I left off, powerfully explaining why the majority’s decision is fundamentally mistaken.
The panel’s decision is clearly wrong and has created—and will continue to create—untold interference with the Executive Branch’s ability to manage the southern border. I respectfully but strongly dissent from our court’s decision not to rehear this matter en banc.