This case is about the ability of the U.S. Department of Homeland Security (DHS) to issue new guidelines on asylum application procedures and whether DHS is allowed to issue a rule that asylum seekers must first apply for asylum in another country before applying in the U.S..
On July 16, 2019, four advocacy organizations -- the East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and the Central American Resource Center -- challenged a new asylum policy of the Trump administration narrowing eligibility qualifications for asylum seekers. The rule blocked asylum for noncitizens who transited through another country prior to reaching the southern U.S. border. The plaintiffs sued the U.S. Attorney General and Secretary of Homeland Security under the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq., and the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq. The plaintiffs sought declaratory and injunctive relief. This lawsuit was filed in the United States District Court in the Northern District of California and assigned to Judge Jon S. Tigar.
The complaint had three key arguments. First, plaintiffs argued that Congress made clear that noncitizens may apply for asylum regardless of where they enter the U.S., and that many necessarily transit through another country before reaching a U.S. port of entry. U.S.C. § 1158(a)(1). The complaint emphasized the distinction between firm resettlement barring eligibility for asylum under 8 U.S.C. § 1158(b)(2)(A), and temporary transit through another country. Second, plaintiffs argued that the rule jeopardized the international law principle of non-refoulment which prohibits the forcible return of asylum seekers to countries where they would be persecuted. Third, plaintiffs argued that the government failed to follow procedural steps required by the APA, including providing notice and an opportunity to comment prior to enacting the Rule.
On July 24, 2019, the Court granted the plaintiffs’ motion for a preliminary injunction, preventing the government from implementing the rule due to the government’s failure to comply with notice and comment procedures of the APA and the balance of public interests. 385 F.Supp.3d 922.
On July 29, 2019, the government requested a stay of the injunction pending an appeal to the Ninth Circuit, arguing that the nationwide scope of the injunction was unwarranted and would serve to undermine the constitutional and statutory authority of the Executive Branch. On August 16, 2019, the Ninth Circuit denied a stay for application of the injunction inside its boundaries. The Ninth Circuit granted the stay pending appeal for all locations outside the Ninth Circuit, finding that the nationwide scope of the injunction was not supported by the record in the district court. 934 F.3d 1026. The plaintiffs then moved in the district court to restore the nationwide scope of the injunction, supplementing the record the appeals court had found inadequate.
On September 9, 2019, the district court granted the plaintiffs’ motion to restore the nationwide scope of the injunction, viewing it as the only sufficient remedy to provide complete relief to the plaintiffs, as well as necessary to maintain uniform immigration policy. 391 F.Supp.3d 974. The government again appealed to the Ninth Circuit and filed an emergency motion for a stay. While the stay issue was being briefed, the Supreme Court granted a stay pending disposition of the government's appeal to the Ninth Circuit (140 S.Ct. 3). The government again appealed the injunction to the Ninth Circuit on July 6, 2020.
While the injunction was on appeal, but before the change of administration, the Department of Homeland Security issued a separate “final rule” on the asylum issue that was substantially similar to the one the district court had preliminarily enjoined. On January 28, 2021, the plaintiffs filed an amended complaint seeking to enjoin the government from implementing this new rule as well. The district court granted that injunction on February 16, 2021.
On January 21, 2021, the plaintiffs moved for a preliminary injunction and stay of the final rule's effective date. Judge Tigar granted the preliminary injunction and stay of the effective date on February 16.
In in April 2021, the Ninth Circuit upheld the original injunction and found that the rule change was arbitrary and capricious because the government did not take the evidence in front of the agency into account when making the rule change, and that the balance of harms favored upholding the injunction (994 F. 3d 962). The Ninth Circuit also found that the district court did not abuse its discretion by applying the injunction along the four states bordering Mexico.
The case is ongoing, but is likely to terminate soon due to the inauguration of the Biden Administration. There has been no movement on the trial court docket since the court of appeals mandate in April.
Hafsa Tout - 10/05/2019
Sam Kulhanek - 02/26/2020
John Duffield - 06/30/2021
compress summary
