US judge says he can restore nationwide injunction

OAKLAND -- A federal judge indicated Thursday he will likely restore the nationwide scope of his prior ruling temporarily blocking the Trump administration from enforcing an immigration policy barring almost all asylum applications at the Mexican border.

In response to an appellate court finding last month limiting the reach of his injunction, U.S. District Judge Jon S. Tigar said he has the authority to revive his previous decision if it is justified over arguments from the Department of Justice disputing his powers.

A final ruling will be issued Friday or over the weekend, according to the judge.

In July, Tigar halted nationwide new rules requiring immigrants seeking asylum to first apply for protection in another country they passed through on their way to the United States.

But the 9th U.S. Circuit Court of Appeals a month later restricted Tigar's injunction to California and Arizona -- two of the nine states in which it has jurisdiction. The partial reversal allowed the government to enforce the policy in two other states along the Mexican border, Texas and New Mexico.

The appellate court reasoned nationwide injunctions should be limited to "exceptional cases." It found the district court's universal remedy was "not supported by the record as it stands" but also that it could be appropriate if it is further justified.

"To permit such broad injunctions as a general rule, without an articulated connection to a plaintiff's harm, would unnecessarily stymie novel legal challenges and robust debate arising in different judicial districts," the appellate opinion reads.

Pundits have argued the 9th Circuit's finding was a reaction to U.S. President Donald Trump's criticism of district courts, namely in the Northern District, that have curtailed the administration's attempts to curb immigration -- particularly for asylum seekers from Central America through the use of nationwide injunctions. The Trump administration has maintained courts are improperly interfering with its authority to establish policy.

In response to the appellate finding, Tigar said he interpreted it as a recommendation to clarify the record to further justify his injunction. East Bay Sanctuary Covenant v. Barr, 19-CV04073 (N.D. Cal., filed July 16, 2019).

"I want to be very respectful, but I also think the law on this point is very clear," he said. "I might be wrong whichever way I go. I think I need to give them the option of [interpreting] what it is they said, because they're the ones who said it."

Lee Gelernt of the American Civil Liberties Union argued nationwide relief is necessary -- and permitted -- because the plaintiff immigration advocacy groups represent asylum seekers across the country, not just within the 9th Circuit's jurisdiction. They would receive less money and resources because their funding is dependent on the number of asylum cases they file, among other harms, he continued.

"Because of the strain imposed on [East Bay Sanctuary Covenant] if the rule remains in effect outside of the 9th Circuit, [it] will either have to significantly cut its affirmative asylum program and staff, or overhaul its program to provide types of assistance it is not currently equipped or trained to provide," a supplemental court filing reads.

Piggybacking off of the appellate court finding, Department of Justice attorney Scott Stewart disputed Tigar's authority to restore his prior decision. The 9th Circuit never formally sent the case back to the lower, district court, he said.

"In this case, granting plaintiffs' motion would sweep the rug from under the 9th Circuit, as it would dramatically expand the only subject of the appeal -- the injunction -- while the 9th Circuit is simultaneously and expeditiously considering the propriety of the much narrower injunction currently in place," a court filing reads.

Stewart also argued the appellate court was aware the plaintiffs operated across the country, but it still found the harms insufficient to support a nationwide injunction.

Tigar clarified his position on the scope of the case and his powers at the end of the hearing.

"I do think that I have the authority to make a clear ruling in favor of my prior injunction as it was issued if I believe that the record supports that ruling," he said.

Legal experts have noted the Supreme Court may have to weigh in on the standard for employing such universal remedies. Justice Clarence Thomas remarked last year in a separate case, "If federal courts continue to issue them, this court is duty-bound to adjudicate their authority to do so."