U.S. District Judge Jon S. Tigar, an Obama administration appointee in the Northern District of California, temporarily halted the policy on July 24, saying a “mountain” of evidence showed it endangered migrants.
But the appeals court ruled that Tigar had not sufficiently analyzed the need for a nationwide injunction, and it narrowed his injunction to Arizona and California — which are under the Ninth Circuit’s jurisdiction — effectively splitting the nearly 2,000-mile border. Thousands of Central Americans and other migrants are waiting in high-crime Mexican cities to seek asylum in the United States, many of them just across the border with Texas.
The Justice Department, which had asked the federal appeals court to overturn Tigar’s injunction entirely, did not immediately comment on the decision Friday.
White House press secretary Stephanie Grisham said officials “strongly disagree” with the court’s decision to leave the partial injunction in place, but she said they were “glad” to move forward with the policy along other parts of the border.
“We look forward to having the injunction lifted in its entirety on appeal so that we can protect legitimate asylum seekers, preserve resources for addressing their claims, and prevent illegal migrants who bypass regional asylum opportunities from overwhelming our asylum system,” she said in a statement.
The majority judges, both Republican appointees, said in the ruling that the Justice Department lawyers have not made the required “strong showing” that they are likely to prevail on the merits of the case. But the judges said the scope of an injunction is a “separate question.”
“Here, the district court failed to discuss whether a nationwide injunction is necessary to remedy Plaintiffs’ alleged harm,” the judges, Milan D. Smith Jr., an appointee of President George W. Bush, and Mark J. Bennett, one of several judges President Trump has appointed to the Ninth Circuit, wrote in the 2-1 decision. “The district court clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs’ alleged harms. And, based on the limited record before us, we do not believe a nationwide injunction is justified.”
The judges left open the possibility that the American Civil Liberties Union, which filed the case on behalf of several nonprofit organizations, could submit additional evidence and ask Tigar for a new nationwide injunction. The ACLU said it plans to do so immediately.
“We’re extremely pleased that the court denied the government’s request for a stay,” said ACLU lawyer Lee Gelernt. “We have ample evidence to justify a nationwide injunction.”
In a strongly worded dissent, Judge A. Wallace Tashima, a Clinton administration appointee, said the majority’s “split-the-baby approach” will lead to confusion on the border and in the courts.
“Should asylum law be administered differently in Texas than in California?” he wrote, saying the injunction should extend borderwide.
Trump’s asylum policy is one of the administration’s most significant efforts to deter asylum seekers at the southern border, and it is one of multiple tools federal immigration officials have deployed to prevent families and other asylum seekers from entering the United States.
A record number of Central American families have sought asylum during the past year, and most have been released to await court hearings, thwarting Trump’s efforts to curb illegal immigration.
The White House has said the asylum policy and others are needed to close legal “loopholes” that encourage smugglers to funnel families toward the border.