Written by: Taher Kameli, Esq.
The U.S. federal governmental system is based on 3 branches of government – the executive (the President), the legislative (the Congress), and the judicial (the federal courts). On immigration issues, during the Trump administration, with Congress taking little action, it generally has been the executive branch (President Trump) vs. the judicial branch (federal judges). This “executive vs. judicial” battle has arisen on the issue of asylum, with the latest development being that a District Court judge has reinstated a nationwide injunction blocking the Trump administration’s new asylum restrictions.
On July 16, the Trump administration published a new rule that generally makes migrants ineligible for asylum protection in the United States if they passed through another country while traveling to the United States, but failed to apply for asylum protection in such other country. On July 24, U.S. District Court Judge Jon S. Tigar in San Francisco, California issued a nationwide preliminary injunction against this anti-asylum new rule of the Trump administration.
On August 16, the U.S. Court of Appeals for the Ninth Circuit limited Judge Tigar’s preliminary injunction to only apply within the Ninth Circuit, and not nationally, but also ordered that Judge Tigar “retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit”.
Judge Tigar exercised this “jurisdiction” on September 9 (in East Bay Sanctuary Covenant v. Barr, Case No. 19-cv-04073-JST (N.D. Cal. 2019)), and stated, “The Court previously found that the Organizations [the plaintiffs in the case] had ‘established a sufficient likelihood of irreparable harm through ‘diversion of resources and the non-speculative loss of substantial funding from other sources.’ ‘ . . . The question now before the Court is whether those harms can be addressed by any relief short of a nationwide injunction.
The answer is that they cannot. . . . The need to provide complete relief to the Plaintiffs, standing alone, is sufficient reason for the re-issuance of the nationwide injunction. In addition to that factor, however, three other factors support such relief. First, a nationwide injunction is supported by the need to maintain uniform immigration policy. . . . Second, nationwide relief is supported by the text of the Administrative Procedure Act . . . Lastly, anything but a nationwide injunction will create major administrability issues. . . . While nationwide injunctions are not the ‘general rule,’ they are appropriate ‘where such breadth [is] necessary to remedy a plaintiff’s harm.’ . . . This is such a case. Accordingly, and for the reasons set forth above, the Court grants the Organizations’ motion to restore the nationwide scope of the injunction”.
Judge Tigar’s ruling was praised by immigration advocacy groups. Melissa Crow, senior supervising attorney at the Southern Poverty Law Center’s Immigrant Justice Project, stated, “This ruling levels the playing field for all the vulnerable individuals and families seeking refuge in the United States. With this decision, regardless of where they cross the border, these people should be able to seek asylum. Sadly, while this ruling removes a major hurdle, far too many obstacles remain, as this administration’s war on asylum-seekers appears to know no bounds”.
Baher Azmy, legal director of the Center for Constitutional Rights, stated, “We are gratified the court recognized the reality on the ground, which is that Trump’s asylum ban is affecting thousands of asylum-seekers all across the border – just as it was unlawfully intended to do – and not just at California ports of entry”. ACLU attorney Lee Gelernt stated, “The court recognized there is grave danger facing asylum-seekers along the entire stretch of the southern border”.
On the other hand, on September 10, the Trump administration asked the U.S. Supreme Court to stay Judge Tigar’s nationwide injunction, as Solicitor General Noel Francisco stated that “[t]he district court’s injunction greatly impairs the government’s and the public’s interest in maintaining the integrity of the border, in preserving a well-functioning asylum system, and in conducting sensitive diplomatic negotiations”.
Judge Tigar’s ruling evidences the importance of litigation in protecting immigrant rights. To be successful in immigration litigation, immigrants need to be represented by effective immigration litigation counsel, such as Kameli Law, which for years has been successful in court on many immigration issues. If you need assistance on any asylum or other immigration issue, please contact the Kameli Law, at firstname.lastname@example.org or 312-233-1000, for help.