Two nationwide injunctions at issue in 9th Circuit argument session

Two immigration-related nationwide injunctions -- one in effect and one stayed by the Supreme Court -- will be considered by a 9th U.S. Circuit Court of Appeals panel in San Francisco Monday, giving the court fresh opportunities to develop a nascent and nebulous jurisprudence.

Circuit Judges William A. Fletcher and Eric D. Miller and Senior Circuit Judge Richard Clifton will hear arguments over whether the Department of Justice may condition congressionally authorized law enforcement grants upon a local government's willingness to cooperate with immigration authorities, and regarding a new Department of Homeland Security rule that blocks asylum seekers at the southern border who didn't apply for protection from countries along their migration route.

MILLER

The regulation at issue in the latter challenge took effect when the Supreme Court in September stepped in to temporarily settle intra-circuit tumult over the propriety of universal relief U.S. District Judge Jon S. Tigar in San Francisco rendered to block the government's new policy. In August a motions panel trimmed the reach of Tigar's initial injunction but the judge quickly availed himself of an equivocal opening the panel order left and restored his nationwide remedy. East Bay Sanctuary Covenant v. Barr, 19-CV-04073 (N.D. Cal, Sept. 9, 2019).

Tigar's renewed injunction elicited swift rebuke from Washington, as two days later seven justices voted to stay the judge's orders, though none wrote to explain the appropriate context for national injunctions. Barr v. East Bay Sanctuary Covenant, 2019 DJDAR 8005 (U.S. Sept. 11, 2019). Parties challenging immigration policies of President Donald Trump and former President Barack Obama have argued uniform, nationwide rulings are needed to avoid chaos at the border and in removal adjudications.

The Supreme Court stay made no reference to the case's merits, leaving the possibility open that Monday's panel may reinstate a block against the new asylum protocol, potentially on a universal basis. The underlying plaintiffs contend the rule "is patently unlawful under the Immigration and Nationality Act," because it provides no process to ensure asylum systems of in-transit countries are adequate. And because the legal non-profit challengers aid asylum-seekers around the country, they argue, a nationwide resolution to the matter is warranted.

Government briefs argue the new provision is a valid exercise of the president's asylum authority, and describe Tigar's relief as "vastly over broad and ... far beyond what is necessary to remedy the alleged harms in this case."

Judges on Monday will also consider a permanent nationwide injunction U.S. District Judge William H. Orrick issued last October, which remains in force and which prevents the Department of Justice from withholding certain congressional grants from localities unwilling to assist immigration enforcement.

Orrick's order came in response to a challenge brought by San Francisco, but expressly blocks the government from conditioning Edward Byrne Memorial Justice Assistance Grants on "any" municipality's cooperation in locating and apprehending potentially-deportable immigrants. The injunction followed a summary judgment favoring San Francisco, which left less procedural opportunity for the sort of temporary stay that holds Tigar's remedy in abeyance. City and County of San Francisco v. Barr, 17-CV-04642 (N.D. Cal, Oct. 5, 2018).

FLETCHER

The government argues its proposed Byrne grant conditions -- that applicants notice the Department of Homeland Security and give it access to immigrants leaving state custody -- are "entirely proper" because the executive branch has "long relied on [its] authority ... to impose a variety of special conditions not otherwise authorized by statute." Orrick's universal remedy, the government further contends, was "broader than necessary" and ignored 9th Circuit instruction that such relief should come "only in exceptional cases." City and County of San Francisco v. Barr, 18-17308.

San Francisco argues the government's "attempt to co-opt the [grant] program to coerce state and local governments to enforce federal immigration law" violates statutory and constitutional limits.

A panel in October credited similar arguments Los Angeles made in a separate challenge to the now-blocked policy, though Circuit Judge Sandra S. Ikuta's majority opinion seemed to leave opportunity for the Department of Justice to fashion narrower, locality-specific conditions that would yield comparable results, Concurring Circuit Judge Kim M. Wardlaw wrote Ikuta's approach allowed the attorney general "limitless power." City of Los Angeles v. Barr, 2019 DJDAR 10164 (9th Cir. Oct. 31, 2019).

San Francisco cited that ruling in a recent letter to the circuit, noting the panel "considered and rejected the same arguments DOJ offers" in the case being heard this week. Importantly, though, Los Angeles was the lone plaintiff and sole recipient of relief in its challenge, meaning discussion Monday may turn more centrally to the universal nature of Orrick's remedy.