A federal appeals court will not allow immigration authorities to enforce President Trump’s ban on asylum-seekers from entering the US, but has limited the order to apply only to the nine western states covered by the 9th Circuit.
An order issued Friday, extended until at least December 19 an injunction barring Trump from excluding immigrants who seek asylum outside normal ports of entry. But the 9th US Circuit Court of Appeals refused to require enforcement nationwide, instead limiting it its nine-state jurisdiction of California, Arizona, Nevada, Idaho, Montana, Oregon, Washington, Alaska and Hawaii.
The majority, Judges Milan Smith and Mark Bennett, found the nationwide injunction originally issued by the lower court was not justified by the current record in the case.
The vote on rejecting a nationwide injunction was 2-1, with Judge Wallace Tashima dissenting. He argued it should apply nationwide.
“Should asylum law be administered differently in Texas than in California?” Tashima asks.
“There is also a glaring inconsistency – a contradiction – in the majority’s split-the-baby approach,” he said. If the majority agrees that the government failed to meet the standard of “likelihood of success on the merits” and the injunction cannot be lifted in the 9th Circuit, “it is perplexing to me why that failure does not infect the balance of its stay motion and require that a stay of the nationwide aspect of the injunction also be denied.”
The panel did leave open the door for Judge Jon Tigar in San Francisco to “further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit.”
The lawsuit grew out of a coalition of civil liberties groups that sued to block Trump’s 2018 proclamation that would have barred entry to the US to all people crossing a border anywhere except a legal port of entry.
The appeals court said the Justice Department failed to show it had a strong likelihood of winning the claim and thus the injunction could remain in place until the appeal is heard and decided. The hearing is set for December 19.
Federal law specifically guarantees that any alien who is physically present in the US or who arrives in the US, whether at a designated port of entry or not, may apply for asylum, according to the ACLU, which filed the lawsuit.
The new limited injunction will not cover entry across the southern border through New Mexico or Texas.
Plaintiffs are led by the East Bay Sanctuary Covenant.
Case: East Bay Sanctuary Covenant v. Barr, No. 19=-16487