On September 11, the U.S. Supreme Court granted the Trump administration’s request to lift an injunction that was blocking the enforcement of a new rule dealing with asylum seekers. The court’s order allows the rule to go into effect while legal challenges against it come before the 9th Circuit Court of Appeals and, potentially, the U.S. Supreme Court.
Justice Sotomayor, joined by Justice Ginsburg, wrote a four-page dissent from the U.S. Supreme Court’s decision. The rule in question allows federal agencies to deny asylum applications made by those who traveled through a third country before arriving at the U.S. border after failing to apply for asylum in that third country first. Among the reasons Sotomayor would have left the injunction in place, she argued that the rule violated administrative procedures that give the public time to comment on proposed rules before they take effect. She also suggested that agency explanations of the rule might fail the arbitrary-or-capricious test, which requires courts to invalidate rules that are arbitrary, capricious, an abuse of discretion, or contrary to law.
In the government’s request for a stay from the Supreme Court, U.S. Solicitor General Noel Francisco argued that the rule involved foreign affairs and was not subject to the notice and comment procedures required by the Administrative Procedure Act (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.”
On September 9, Judge Jon S. Tigar of the U.S. District Court for the Northern District of California had restored the nationwide injunction against the 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.
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.