Ignoring circuit, US judge reissues nationwide order for asylum seekers

When it trimmed back last month the nationwide reach of an injunction blocking new Trump administration immigration policy, a 9th U.S. Circuit Court of Appeals motions panel cautioned district judges to only issue such broad relief where absolutely necessary, lest other parties and courts be unduly prevented from considering and developing case law on vital legal issues.

Undeterred, U.S. District Judge Jon S. Tigar concluded Monday a universal remedy was indeed essential to protect the plaintiffs before him -- a collection of immigrant-supporting organizations -- and reissued the national injunction that motions panel pared back in August.

Monday's decision, for now, halts a new rule that would require an immigrant seeking asylum in the United States to have requested such state-sanctioned refuge from nations he passed through en route. Tigar's order also suggests an uncertain standard governing nationwide injunctions and the acute salience of the issue as to which the Supreme Court has thus far reserved concerted guidance.

August's motions panel order itself contained countervailing elements. Judges Milan D. Smith and Mark J. Bennett voted to limit the reach of Tigar's injunction to the circuit's borders, stressing the need for jurisprudential percolation in other lower and appellate federal courts, but they also expressly left Tigar jurisdiction to "further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit." Senior Circuit Judge A. Wallace Tashima, voted to maintain the injunction's nationwide application. East Bay Sanctuary Covenant v. Barr, 2019 DJDAR 7840 (9th Cir. Aug. 16).

"The plaintiffs will argue the court of appeal order invited -- not just that it did not foreclose but actively invited -- this procedure from the district court," said University of Pittsburgh School of Law professor Arthur D. Hellman, who studies the 9th Circuit. "The government will respond that the court went on [in the August order] to invoke reasons to reject national injunctions that were not dependent on this particular record."

"To some extent, I do think there were mixed signals [in the August order]." Hellman added.

Tigar saw less ambiguity in the appellate order. Shortly after it issued he invited parties to submit supplementary evidence and briefing that might substantiate a re-extension of the court's original injunction. And in Monday's order the judge asserted the authority to grant that relief.

"Here, although the Ninth Circuit did not provide instructions as to what action the Court should take if it finds that the supplemented record supports a nationwide injunction, the most plausible reading of [the order]'s language is that it grants the Court jurisdiction to consider the augmented record in its totality and, based on that record, affirm or disaffirm the nationwide scope of its prior order," Tigar's Monday ruling read.

Reasoning the plaintiff organizations counseled asylum applicants both within and without the 9th Circuit's boundaries, Tigar decided only an injunction with similar reach qualified as a suitable remedy. East Bay Sanctuary Covenant v. Barr, 19-cv-04073-JST (N.D. Cal., filed Sept. 9, 2019).

"The organizations have presented sufficient evidence that they will suffer organizational and diversion of resources harms unless the Rule is enjoined outside of, as well as within, the Ninth Circuit," the order continued. "A nationwide injunction is thus necessary to give prevailing parties the relief to which they are entitled."

Scholarly debate surrounding the propriety of broad injunctive relief has intensified over the past several years as lower courts have repeatedly stymied immigration policies of both Donald Trump and Barack Obama. Howard Wasserman, a professor at Florida International University College of Law whose scholarship has advocated against universal injunctions, suggested Monday's decision illustrates an issue that has become increasingly muddled and said while a court may grant relief beyond its geographic borders, it generally can't help parties not before it,

"This whole case is an example of being confused about what we're really talking about," Wasserman said in a phone conversation Monday. "The district court found that the plaintiffs worked in a bunch of different states, so to give them complete relief it had to extend beyond the 9th Circuit. So when the 9th Circuit limited the injunction that never really made sense to begin with because the injunction should protect the plaintiffs wherever they go."

"But that's why there's confusion on the entire question -- are they talking about nationwide injunctions protecting the plaintiffs, or are they talking about national, universal injunctions that apply to more than just the plaintiffs?" Wasserman continued. "I don't really understand what the court means; I don't think [the court] fully understands what it means."

Michael T. Morley, a professor at Florida State University College of Law, agreed the potential harm threatening the organizations before Tigar did not merit relief to all other groups.

"These groups work with a tiny, minute fraction of asylum-seekers across the nation. There's no reason to say, 'OK, because these groups work with asylum-seekers in various states therefore these rules cannot be applied against anyone seeking asylum, anywhere, regardless of their connection with the plaintiff organizations,'" Morley said.

While Tigar's decision Monday effectively undoes the order from August, the government has challenged that appellate order before the Supreme Court, arguing no preliminary relief should have been granted whatsoever. While the high court will likely eventually weigh in with definitive guidance, Wasserman suggested Tigar's order would be addressed, and perhaps once more trimmed, by the 9th Circuit.

"For right now this is just a dispute between the 9th Circuit and the district court," Wasserman said.