“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Ninth Circuit judge Daniel Bress tried to stop an injunction against a Trump administration practice that threatened to permanently deprive more than 25,000 immigrants of any right to seek asylum in the United States. The Ninth Circuit majority rejected Bress’ arguments and denied the request for a stay in its March 2020 decision in Al Otro Lado v. Wolf.
A challenge is now pending in the federal courts to the Trump administration’s dangerous rule that made all people ineligible for asylum if they arrived at the U.S. southern border after July 15, 2019 and had not applied for asylum in another country they had traveled through, such as Mexico, on their way to the U.S. That policy also creates additional problems for more than 25,000 individuals who properly applied for asylum at the southern border before July 16, 2019 but were instead denied and told to “wait in line” for another opportunity later to apply for asylum—the so-called “metering” policy.
These individuals include, for example, one man who “fled Nicaragua after the police threatened to kill him and burn down his business for participating in a strike against the government,” and another man who “fled Cameroon after his father was burned to death and he was imprisoned and tortured” by officials who “accused him of being a separatist.” These and thousands of others wanted to “do things the right way” and fled to Mexico, where they promptly applied for asylum at the U.S. border and were told to wait and apply later, as earlier asylees had done.
As a result of the new July 16 rule, these individuals were put into a bizarre Catch-22. Because that rule did not exist at the time they applied for asylum, they did not have any reason to apply for asylum in Mexico first. As a result, if the new rule is applied to them, as the government seeks to do, they have “unintentionally and irrevocably” given up their right to apply for asylum in Mexico, which requires asylum applications to be submitted within 30 days of entry. If the new rule is applied to them, they have now lost any opportunity to “claim asylum in the United States.”
Al Otro Lado, an organization that helps people obtain asylum in the United States, had filed suit on behalf of the two men described above and the 25,000 others, challenging the metering policy. When it was clear that the government intended to apply its new rule to immigrants uniquely harmed by it because of previous attempts to get asylum in the U.S., the organization sought a preliminary injunction against application of the new rule to those who were hurt by the metering policy while the litigation was pending. A district court granted a preliminary injunction in their favor and the government appealed. It also tried to get the Ninth Circuit to stay the injunction so it could continue to apply the rule to these 25,000 individuals and stop them from applying for asylum.
A 2-1 majority of the Ninth Circuit denied the stay application. The majority explained that the government had failed to meet its burden of showing irreparable injury if the stay was not granted, since the only real burden on the government was identifying particular immigrants who had sought asylum prior to July 16, and any costs were “largely self-inflicted” by the government’s failure to keep good records at the time of asylum applications. Al Otro Lado and the 25,000 immigrants would suffer significant harm if the stay was granted, the majority went on, and the government had failed to meet its burden of proving that it would likely succeed on its appeal of the district court’s preliminary injunction.
Trump judge Bress dissented. His primary claim was that since the Supreme Court had ruled in a different case that the overall rule could “go into effect pending appeal,” a stay should similarly be granted in this case. He also maintained that the challenge to the “metering” policy was wrong on the merits and that under those circumstances, the government should not be put to the burden of determining which immigrants seeking asylum the injunction would apply to.
The majority strongly disagreed with Bress’ claims. The Supreme Court order, the majority explained, concerned the overall validity of the rule, not its application to the asylum applicants in the “particular circumstances of this case.” Even if the rule is shown to be “substantively valid” overall, the majority went on, the plaintiffs had made a strong showing that it would be invalid as applied to them. The majority also criticized Bress for trying to decide the merits of the preliminary injunction and the challenge to the metering policy in the context of a stay motion. As the majority explained based on previous precedent, Bress’ approach would “defeat the purpose” of a stay, which is to give the appeals court time to consider the substantive issues carefully, “rather than doling out justice on the fly.”
The ultimate fate of the Trump administration’s restrictive immigration rule and its application to the 25,000 immigrants in this case, as well as many other harmful Trump immigration policies, remains uncertain. But at the very least, the new rule concerning asylum applications at the Mexican border will not apply to the 25,000 immigrants in this case until the issue is fully considered on the merits.