The following is a brief rundown of the temporary restraining order decision that shut down the new DOJ/DHS rule banning the application for asylum for people near the southern US border who enter the US within inspection.

1- Judge Tigar notes in East Bay Sanctuary Covenant v Trump at the outset that “Congress has clearly commanded in the INA that any alien who arrives in the United States, irrespective of that alien’s status, may apply for asylum – “whether or not at a designated port of arrival.”

2- The President ignores this command with his proclamation and DOJ and DHS have issued a rule allowing asylum to be granted only at ports of entry. The plaintiffs are asking the Court to stop the rule from going into effect.

3- The rule conflicts with the expressed intent of Congress. Despite the President’s authority, he can’t rewrite immigration laws to impose a condition Congress has expressly forbidden.

4- The Plaintiffs and the immigrants they represent will suffer irreparable injury since they will be put at increased risk of violence and many will be deprived of meritorious asylum claims.

5- INA 208(a)(1) is clear that anyone in the US may apply for asylum “irrespective of such alien’s status” if they meet the asylum requirements. The AG ultimately has discretion, but that discretion can’t be contrary to the law or otherwise abused.

6- The judge also notes that in addition to asylum, 2 other forms of relief are available – withholding of removal and relief under the Convention Against Torture. They have a higher standard than asylum. But if they are met, relief is mandatory, not discretionary.

7- The judge then outlined what the Trump did on 11/9 – the new DOJ/DHS rule allowing for a bar on applying for asylum for those crossing the southern border if the WH issues a proclamation and then the issuing of a WH proclamation doing just that.

8- They also note the Plaintiffs filed suit the same day and requested a temporary restraining order stopping the policy.

9 – The judge 1st looked at jurisdiction. WH argued they don’t have standing because they didn’t suffer an injury. The plaintiffs said this hurt funding, frustrated their missions and forced them to shift resources to deal with the new policy.

10- The judge held the plaintiffs met this test under the Havens Supreme Court case which allowed a civil rights organization to sue on behalf of victims of discrimination.

11- The plaintiffs also successfully argued they have 3rd-party standing to assert the rights of their clients. The Ct bought this bc the clients have suffered an “injury in fact”, have a close relationship to the plaintiffs & the clients will have difficulty suing on their own.

12- The WH also argued the Plaintiffs don’t come within the “zone of interests” of the statutes on which their claims are based. In short, this means a law only allows a lawsuit for plaintiffs whose interests fall within those protected by the law invoked.

13- The Plaintiffs are arguing the Administrative Procedures Act (APA). In the APA context, the courts are supposed to apply a “generous” review standard and the benefit of the doubt goes to the Plaintiffs.

14- The Court held the plaintiffs easily met the lenient test.

15- The court then moved on to the temporary restraining order consideration (TRO). 4 factors – likely to succeed on merits, likely to suffer irreparable harm absent preliminary relief, balance of equities tips in plaintiffs’ favor and the TRO is in the public interest.

16- Likelihood of success on the merits – the Ct 1st notes that the WH hasn’t banned all asylum claims and they aren’t addressing that question.

17-Rather, they’re looking at whether WH can adopt a categorical bar to asylum ELIGIBILITY based on a characteristic Congress said doesn’t impact a person’s ability to APPLY for asylum.

18- The test is the Chevron Supreme Court case – did Congress speak precisely to the question at issue or is the statute ambiguous? Otherwise, DOJ/DHS get latitude in their interpretation.

19- The Court held the language is precise on giving people the right to file for asylum regardless of where they enter and regardless of their status. (INA 208(a). And this is consistent with US treaty obligations (UN Protocol Relating to the Status of Refugees.)

20 – Thus, Congress’ intent is clear.

21- The WH argued that even if manner of entry doesn’t impact ability to apply for asylum, it can be the SOLE factor by which the person is rendered ineligible. Judge: “The argument strains credulity.” No reasonable way to take that view.

22- Congress permitting applications regardless of manner of entry implies a judgment that manner of entry shouldn’t be the basis for a categorical bar.

23- The WH next argued that because DOJ/DHS can give manner of entry SOME wait, it can give it CONCLUSIVE weight. This would represent an extreme departure from past agency practice and case law says manner of entry should be given little weight.

24- Finally, the WH suggested that even so, the violation of a Presidential proclamation is of “particularly grave consequence” and distinct from an “ordinary” entry violation. Ct: no evidence offered to support this.

25- Hawaii v Trump (the Travel Ban case) doesn’t give the WH authority to expressly override provisions of the Immigration Act.

26- This is important – The judge noted that the rule gives the WH the ability to issue even more restrictive proclamations that would then be given conclusive weight in the asylum context. i.e., the WH could soon bar all asylum claims (even at ports of entry).

27- Thus, the Ct held the plaintiffs were likely to win on the merits.

28- The Court also looked at the question of whether it was okay to issue the rule as a final one rather than allowing a public notice and comment process. Public interest in a rule is a factor. So is foreign affairs and that can be a basis for skipping comments.

29- The 9th Circuit says to meet the foreign affairs exception, public rulemaking should provoke “definitely undesirable international consequences.” Other courts have immigration law doesn’t necessarily = foreign affairs.

30- And WH hasn’t explained what “undesirable international consequences” come into play. So they lose on this one unless they produce more evidence.

31- There’s a “good cause” exception to notice & comment as well, but it’s a high bar to prove. WH argues that people will have an incentive to enter the US illegally while the rule is pending. The Ct has “serious questions” re this burden being met, but not yet clear.

32- The Plaintiffs must show irreparable harm is LIKELY (they do). Record show these harms – – asylum seekers experience extremely long waits at ports (plus they’re frequently victims of crime while waiting). – going home is risky – being deprived of the opportunity to comment

33- Balance of the Equities and the Public Interest – Ct: they favor granting a TRO. The risks of return, risks while waiting at ports of entry, etc. weigh in favor of Plaintiffs.

34- WH argued against a nationwide injunction and limiting the scope of the ruling to just the area of the court. BC the rule conflicts with the Immigration Act and applies to anyone, a nationwide injunction is appropriate.

35- The Ct held the TRO does not apply to the expedited removal provisions in the rule which were not applicable to the Plaintiffs APA claim.

36- The TRO is granted. WH given a hearing on 12/19 to show why they shouldn’t be enjoined from enforcing the rule and continuing processing asylum cases.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind
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