Ninth Circuit Refuses to Stay Injunction of Trump “Metering” Rule for Asylum Seekers

In Al Otro Lado v. Wolf, the U.S. Court of Appeals for the Ninth Circuit issued the latest in a series of rulings on Trump administration asylum policies.  Judge Marsha S. Berzon, joined by Judge Sidney R. Thomas, refused to stay an injunction.  Judge Daniel Bress, a Trump appointee, dissented.

The introduction to the majority opinion:

“Plaintiff Al Otro Lado is an organization dedicated to helping individuals seek asylum in the United States.  Along with thirteen Individual Plaintiffs (collectively, “`Al Otro Lado’), Al Otro Lado originally challenged in this case the government’s policy of turning back asylum seekers at ports of entry on the southern border and telling them to return later to file for asylum, a policy the government refers to as `metering.’  Al Otro Lado’s complaint alleges that asylum seekers are turned back to deter and discourage individuals from seeking access to the asylum process, and not,as the government maintains, because each port of entry lacks capacity to process additional asylum seekers.

The current motion does not directly concern the validity of the policy requiring asylum seekers to wait at or near the border for some time before their asylum applications can be filed and processed. Rather, this motion stems from the impact of a separate regulation, promulgated while this litigation was pending, on a subgroup of metered asylum seekers.  That regulation, known variously as the`Third Country Transit Rule,’ `transit rule,’ and `asylum ban,’ (`the Rule’), provides, subject to narrow exceptions, that a noncitizen who `enters, attempts to enter, or arrives in the United States’ at the southern border on or after July 16, 2019 is not eligible for asylum in the United States unless they applied for asylum in another country, such as Mexico, that they passed through on their way to the southern border. 8 C.F.R.§ 208.13(c)(4).

The district court granted a preliminary injunction enjoining enforcement of the Rule against a provisionally certified class of plaintiffs who arrived at the southern border seeking asylum before July 16, 2019 but were denied entry and prevented from making an asylum claim under the metering policy. The government appealed and moved this court for a stay of the injunction pending appeal.  Because the government has not carried its burden of showing that a stay is warranted, we deny the motion.” (bold added).

Kate Morrissey for the San Diego Union Tribune briefly summarizes the ruling:  “Certain asylum seekers who crossed through other countries before reaching the United States will again be able to request asylum after a federal appeals court on Thursday blocked a Trump administration rule from affecting them.”

The case, Al Otro Lado v. Wolf, is a class action lawsuit brought by the Southern Poverty Law Center (SPLC), Center for Constitutional Rights, American Immigration Council and Mayer Brown LLP on behalf of individual asylum seekers and the legal services organization Al Otro Lado (AOL).

The administration’s asylum transit rule requires asylum seekers to have been previously denied protection in a country they traveled through en route to the United States in order to be eligible for asylum here. After the ban went into nationwide effect in September, the rights groups filed a motion to protect the thousands of asylum seekers who would have crossed into the United States before the ban’s effective date of July 16, 2019, but for the government’s illegal metering policy that forced them to wait in Mexico before being inspected and processed at ports of entry.

The Ninth Circuit’s ruling today prevents the application of the ban to categorically deny asylum to those vulnerable asylum seekers who should have been processed months ago until the court rules on the government’s appeal of the district court’s order. The district court’s order applies to a provisional class that the court certified as part of its decision.

Read more about the case on the Center for Constitutional Rights case page, SPLC’s website, and the American Immigration Council’s litigation site.

Today’s ruling can be viewed HERE.

KJ