Federal Judge restores nationwide injunction against Trump administration asylum rule

On September 9, Judge Jon S. Tigar of the U.S. District Court for the Northern District of California restored the nationwide scope of an injunction against a Trump administration asylum rule. He had originally issued a nationwide injunction against the rule in July, but the 9th Circuit Court of Appeals narrowed its scope to only those states within the 9th Circuit in an August ruling. The injunction prevents the Trump administration from enforcing the asylum rule until the courts resolve the legal challenges brought against it.
The rule, issued by the U.S. Department of Justice, U.S. Citizenship and Immigration Services, and the U.S. Department of Homeland Security on July 16, aims to deny asylum to people who travel through another country and fail to file for asylum there before applying in the United States.
Judge Tigar argued that he had to block the asylum rule nationwide. He said organizations that help asylum seekers with offices in several states would otherwise have to spend money and time figuring out whether a particular applicant was covered by a narrower injunction. He also argued that the rule failed the arbitrary-or-capricious test outlined by the Administrative Procedure Act (APA).
On August 26, U.S. Solicitor General Noel Francisco asked the U.S. Supreme Court to allow the Trump administration to go ahead with enforcement of the rule while the challenge works its way through the court system. In the government’s request for a stay from the Supreme Court, Francisco argued that the rule involved foreign affairs and was not subject to the notice and comment procedures required by the APA. The agencies that issued the asylum rule argued that immigration enforcement challenges on the southern border allowed them to issue the rule under the APA’s good cause exception to notice-and-comment procedures. The good cause exception allows agencies to issue rules without waiting for public comment if those procedures would be “impracticable, unnecessary, or contrary to the public interest.”
As of September 6, the Trump administration’s request to remove or narrow the injunction against the asylum rule was still pending before the U.S. Supreme Court.
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