Ninth Circuit Splits the Baby on Safe Third Country Asylum Rule

By Andrew R. Arthur on August 19, 2019

On Friday the Court of Appeals for the Ninth Circuit issued an order limiting the scope of an injunction that had been issued on July 24, 2019, by U.S. District Court Judge Jon S. Tigar of the Northern District of California in East Bay Sanctuary Covenant v. Barr. That case (about which I have written previously) involved an interim final rule (IFR) that would have required aliens who enter or arrive in the United States across the southern border to apply for asylum in a third country through which those aliens passed before seeking that protection in the United States. Although it implicitly denies doing so, that decision "splits the baby" as it relates to that IFR, barring its enforcement in the Ninth Circuit (and especially in the border states of Arizona and California), while allowing it to proceed in the rest of the United States, and in particular the other two states on the Southwest border (New Mexico and Texas).

According to the complaint and motion for injunctive relief that they filed in the district court, the plaintiffs are all "nonprofit organizations that provide assistance to asylum seekers, including those who came to the United States after transiting through another country". They asserted that the IFR would cause each of them "significant harm".

East Bay Sanctuary Covenant is located in Berkeley, Calif. It asserts that it provides services to immigrants and refugees within the jurisdiction of U.S. Citizenship and Immigration Service's (USCIS) San Francisco Asylum Office, and in particular to applicants in California, Oregon, and Washington. Funding for the organization's affirmative asylum program is based in part on the number of cases it handles each year, and the number of clients it anticipates serving. Its affirmative asylum program accounts for nearly half of its budget.

Al Otro Lado is incorporated in California, and operates primarily out of Southern California and Tijuana, Mexico. It asserts that the IFR would force it to restructure its service model and "jeopardizes some of its most critical funding streams", among other arguments.

Innovation Law Lab "has projects in multiple states, including an office in Oakland, California." It contends that the IFR would require it to "to significantly divert its limited resources". In addition to other points, it states that the IFR would also force it "to deploy expensive and limited engineering resources to recode its software to create new analytical modeling."

Central American Resource Center ("CARECEN") is located in Los Angeles and incorporated in California. It argues: "Funding for CARECEN's asylum cases is based in part on the number of cases it handles per year, and the number of clients it anticipates serving." Consequently, it argues, the IFR "will seriously harm CARECEN in multiple respects, and frustrate CARECEN's mission and divert organizational resources."

Judge Tigar found that the IFR would cause them to suffer "diversion of resources injury", and cause three of them to lose business and a concomitant loss of funding, in finding that they were entitled to injunctive relief. With respect to the scope of that injunction, he held: "[T]he Ninth Circuit has consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis." That was, more or less, the basis of his reasoning.

The circuit court found that the government had not made the "strong showing" of likelihood of success on the merits to justify a stay pending appeal. It noted, however, that Judge Tigar "failed to discuss whether a nationwide injunction is necessary to remedy Plaintiffs' alleged harm."

Instead, in conclusory fashion, the district court stated that nationwide relief is warranted simply because district courts have the authority to impose such relief in some cases and because such relief has been applied in the immigration context.

It held therefore: "The district court clearly erred by failing to consider whether nationwide relief is necessary to remedy plaintiffs alleged harms. And, based on the limited record before us, we do not believe a nationwide injunction is justified."

For that reason, it limited the scope of the injunction to the states covered by the Ninth Circuit, stating: "In sum, our decision to partially grant the stay simply upholds the law of our circuit by ensuring that injunctive relief is properly tailored to the alleged harm." It noted, however, that the district court retained the jurisdiction to develop the record further "in support of a preliminary injunction extending beyond the Ninth Circuit."

Judge Tashima, in dissent, questioned "the majority's split-the-baby approach", and would have sustained the nationwide injunction. While I disagree with his arguments and conclusions, I agree that it is, in fact, a "split-the-baby" order.

I believe, as I have previously stated, that the Supreme Court's July 26, 2019, order in Trump v. Sierra Club, staying a permanent injunction that had been issued on the use of military funding for border-wall construction, was "a warning to lower courts to avoid twisting the law to intervene in political questions". Similarly, I read the circuit court's decision in East Bay Sanctuary Covenant as an attempt by that court to avoid similar rebukes by the Supreme Court, and to rein in its district court judges in their use of injunctive relief, at least on a nationwide basis.

That said, it is not clear why the circuit court did not limit its application of that order to the state of California. No reference was made to the applicability of the injunction to Arizona in either Judge Tigar's order or in the circuit court's. More likely than not, however, the circuit court wanted its decision allowing that injunction to remain in effect to be as broad as possible while remaining strictly within the boundaries of the circuit court's jurisdiction.

It remains to be seen whether Judge Tigar will again attempt to apply that injunction on a nationwide basis, or whether the government will ask the Supreme Court for a stay of that injunction as limited by the circuit court. In the interim, however, the IFR can proceed outside the Ninth Circuit, and in particular in New Mexico and Texas.