Dueling Judges Issue Different Decisions on Third-Country Asylum Eligibility Rule

I got 99 judges – but all I need is one

By Andrew R. Arthur on July 29, 2019

Last month I explained an interim final rule (IFR) that would have limited asylum eligibility for aliens who had entered or attempted to enter the United States across the Southwest border without first seeking asylum (or protection under the Convention Against Torture) in a third country they passed through en route to the United States. I say "would have," because on July 24, 2019, U.S. District Court Judge Jon S. Tigar of the Northern District of California issued a preliminary injunction of that IFR in East Bay Sanctuary Covenant v. Barr. What is interesting is the fact that that same day, Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia issued a decision in which he refused to stop that policy. Those dueling opinions have people scratching their heads.

Judge Tigar’s order is not a surprise – he issued a nationwide temporary restraining order of a November 2018 mass migration presidential proclamation and asylum interim final rule issued by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) in East Bay Sanctuary Covenant v. Trump (not a misprint, same plaintiff), which I discussed in a November 20, 2018 post. I stated there: "That order is indicative of the problems associated with nationwide injunctions in the field of immigration." The new one is even more so.

As the Washington Post reported, Judge Kelly had "ruled that the groups" in his case "had failed to show how many of their clients would be affected by the change, saying that 'there is just nothing in the record to suggest how many individuals, if any, fall into that category.'" That did not stop Judge Tigar, who held that three of the four organizations that brought that suit had standing. Specifically, he found that they had "shown that the majority of the clients they serve would be rendered 'categorically ineligible for asylum,' and that they 'would lose a significant amount of business and suffer a concomitant loss of funding' as a result." You read that correctly.

In my November 2018 post, I stated:

The order in East Bay Sanctuary Covenant reflects the weaknesses in nationwide injunctions of immigration rules, proclamations, and orders. I have no doubt that Judge Tigar is a distinguished, and fair, jurist. Unfortunately, there is nothing that indicates that he has any particular expertise in the field of immigration, or that he fully appreciates the ramifications of his order, or totally comprehends the rationale behind the presidential proclamation and the Rule.

Rather, to the degree that Wikipedia is a reputable source, the vast majority of Judge Tigar's career (24 of 28 years) has been spent practicing "complex commercial litigation at the law firm Keker & Van Nest" and "as a judge on the Alameda County Superior Court." And yet, by dint of his unelected position as a federal judge, he has the authority to shut down a proclamation and interim final rule relating to immigration with foreign-policy, and human, consequences.

Inevitably, as with most of the president's immigration proposals, the Supreme Court will likely have the final word on the proclamation and rule. The Court would be wise at that time to heed the recommendation of Justice Thomas in [Trump v.] Hawaii, when he stated:

I am skeptical that district courts have the authority to enter universal injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. If their popularity continues, this Court must address their legality.

There is no time like the present, and no case like East Bay Sanctuary Covenant.

The issues are the same in these cases, and further underscore that fact. I don’t even need to change the name of the plaintiff in Judge Tigar's case.

I spent much of late last week explaining to reporters and radio hosts how it is that one judge can issue one decision allowing an administrative order to stand, while another judge can issue a completely different order and that one ties the government's hands. I refer to it as the "99 judges rule."

It goes like this: organizations could have gone to 100 different judges and asked for the same relief. Of those cases, 99 judges could have turned down the individual request, but all that it takes is one judge to accede to the demands of one of those organizations in order to issue a nationwide injunction. In essence, that one judge has veto authority over not only the administrative branch, but also the other 99 judges. Such is the state of the power of the judiciary (and the judge) in our democracy today.

It is no wonder that the administration expressed its frustration with Judge Tigar’s order:

The tyranny of a dysfunctional system that permits plaintiffs to forum shop in order to find a single district judge who will purport to dictate immigration policy to the entire Nation – even in the face of a contrary ruling by another Federal court – must come to an end. We intend to pursue all available options to address this meritless ruling and to defend this Nation’s borders.

Given the vehemence of the White House response, I expect that DOJ will quickly seek a stay of Judge Tigar's preliminary injunction. Given that preliminary injunction, I also expect the plaintiffs in Judge Kelly's case to quickly seek an appeal. At the end, I fully expect it will be the Supreme Court that will have to settle this immigration question, as so many others.

While the Court is at it, it may want to address the practice of nationwide preliminary injunctions, and if it doesn't restrict them, at least pump the brakes on them a little. Otherwise, the judiciary ends up looking like a laughingstock, and the people may begin to wonder where they can go and have standing.

Topics: Asylum