In August, the United States Court of Appeals for the Ninth Circuit, in San Francisco, narrowed the geographic scope of Judge Tigar’s more recent ruling while it considered the administration’s appeal, saying it should apply only in the territorial jurisdiction of the Ninth Circuit, which includes two border states, California and Arizona. (Two other border states, Texas and New Mexico, are in the jurisdictions of other federal appeals courts.)
On Monday, however, Judge Tigar again imposed a nationwide injunction, saying he had been presented with additional evidence justifying one. “Anything but a nationwide injunction,” he wrote, “will create major administrability issues.” On Tuesday, the Ninth Circuit temporarily blocked the new injunction and ordered the two sides to submit briefs on whether it should issue a stay.
In an emergency application to the Supreme Court last month seeking a stay of Judge Tigar’s initial ruling while the case moved forward, Mr. Francisco argued that the administration was entitled to skip ordinary notice and comment requirements for new regulations because foreign affairs were at issue and because a delay after the announcement of the procedures “may prompt an additional surge of asylum seekers.”
In any event, Mr. Francisco wrote, the Ninth Circuit’s narrower injunction, covering only the states in its jurisdiction, was still too broad. At most, he wrote, the injunction should cover only clients of the four groups challenging the new policy — East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab and Central American Resource Center in Los Angeles.
In response, the American Civil Liberties Union, which represents the groups along with the Center for Constitutional Rights and the Southern Poverty Law Center, said the administration was trying to rewrite a federal immigration law enacted in 1980. There was no reason, the A.C.L.U. said, to alter “the 40-year-long status quo while this case is heard on an expedited basis in the court of appeals.”
“The current ban would eliminate virtually all asylum at the southern border, even at ports of entry, for everyone except Mexicans (who do not need to transit through a third country to reach the United States),” the A.C.L.U.’s brief said. “The court should not permit such a tectonic change to U.S. asylum law.”