On July 16, 2019, the East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and the Central American Resource Center in Los Angeles challenged a new asylum policy of the federal government narrowing eligibility qualifications for asylum seekers. Specifically, the plaintiffs challenged an interim final rule, promulgated by the Attorney General and Acting Secretary of Homeland Security, that made ineligible for asylum noncitizens who transit through another country prior to reaching the southern border of the United States. The plaintiffs sued the Attorney General and Acting 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 Jon S. Tigar.

The complaint 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. The plaintiffs argued that the Rule jeopardizes the right of those fleeing dangerous conditions to non-refoulement, which prohibits the forced return of asylum seekers to a country where they are or could be subject to persecution. The plaintiffs further argued that the government failed to follow procedural steps required by the APA, which include providing notice and an opportunity to comment prior to the promulgation of the Rule.

On July 24, 2019, the court granted the plaintiffs’ motion for a preliminary injunction, preventing the government from taking any further action to implement the Rule. 385 F.Supp.3d 922. 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, but granted the stay (pending appeal) for all locations outside the 9th 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, Judge Jon S. Tigar 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 U.S. Supreme Court granted a stay pending disposition of the government's appeal to the Ninth Circuit. 140 S.Ct. 3.

The appeal is still pending in the Ninth Circuit; oral argument was heard in December 2019. The case is ongoing.

Hafsa Tout - 10/05/2019
Sam Kulhanek - 02/26/2020


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