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, 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. 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. This lawsuit was filed in the United States District Court in the Northern District of California. The case was assigned to Jon S. Tigar.

The complaint for declaratory and injunctive relief argued that the Congress 8 U.S.C. § 1158(a)(1) to recognize that, with the exception of Mexican asylum seekers arriving at the southern border and Canadians at the northern border, many asylum seekers arriving in the United States necessarily transit through another country before reaching a port of arrival. 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. Plaintiffs argued that the Rule jeopardizes the right of those fleeing dangerous conditions to non-refoulement, which protects against forced return of asylum seekers to a country where they are or could be subject to persecution. Plaintiffs further argued that Defendants failed to follow procedural steps required by the APA, which include providing notice and opportunity to comment prior to the promulgation of regulations.

In the complaint, plaintiffs moved for a preliminary injunction preventing Defendants from moving forward with the Rule’s implementation.

On July 24, 2019, the court granted plaintiffs’ motion for a preliminary injunction, preventing Defendants from taking any further action to implement the Rule. Defendants requested a stay pending an appeal to the Ninth Circuit Court, arguing that the nationwide scope of the injunction was unwarranted and would serve to undermine the constitutional and statutory authority of the Executive Branch. The Ninth Circuit granted Defendants’ motion for stay pending appeal insofar as the injunction applied outside its jurisdiction. Plaintiffs sought restoration of the nationwide scope of injunction from the United States District Court.

On September 9, 2019, Judge Jon S. Tigar granted plaintiffs’ motion to reissue the nationwide scope of the injunction, viewing it as the only sufficient remedy to provide complete relief to Plaintiffs, as well as necessary to maintain uniform immigration policy.

The appeal is still pending. The case remains open.

Hafsa Tout - 10/05/2019


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