A federal appeals court on Friday handed the Trump administration a partial victory in its quest for an asylum ban, appearing to clear the way for imposing it along the border in New Mexico and Texas, at least temporarily.
While the three-judge panel of the U.S. Court of Appeals for the 9th Circuit upheld a lower court’s decision to block the ban, it narrowed the nationwide injunction to the 9th Circuit, which encompasses district courts in the border states of Arizona and California.
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But the panel also said in a related order that the asylum ban, implemented in July, likely violated federal regulatory law because it was issued without an adequate period for public comment.
President Donald Trump and his top aides have argued that many asylum seekers arriving at the border lack valid claims to protection. As a result, the administration has sought to restrict access to asylum through a range of experimental policies.
The latest asylum clampdown came in the form of a fast-track regulation issued in mid-July that barred migrants from seeking asylum in the U.S. if they first passed through another nation without seeking protection.
The American Civil Liberties Union challenged the regulation in the Northern District of California, arguing it violated domestic asylum law and international treaties.
U.S. District Judge Jon Tigar, the judge hearing the ACLU lawsuit, issued a nationwide injunction July 24 that temporarily blocked the ban. He found the regulation was likely invalid because it conflicted with federal asylum laws.
On the same day Tigar ruled to block the policy, a Trump-appointed federal judge hearing a separate legal challenge in Washington, D.C., declined to take similar action.
In the ruling Friday, all three judges on the 9th Circuit panel agreed to uphold Tigar’s temporary freeze on the ban’s implementation. However, the panel split 2-1 on the issue of limiting the scope of the injunction.
Judges Milan Smith and Mark Bennett — appointees of George W. Bush and Trump, respectively — ruled to apply the injunction only to the 9th Circuit. The pair said in the majority-penned order that the district court “clearly erred” when it blocked the asylum ban across the country. They added that the relief should be “properly tailored to the alleged harm“ and not overly broad.
Judge Wallace Tashima, a Clinton appointee, would have kept the nationwide injunction in place. In a partial dissent, Tashima wrote that the asylum ban should be blocked across the country because it would be applied throughout the U.S.
“Should asylum law be administered differently in Texas than in California?” he wrote. “These issues and problems illustrate why tinkering with the merits on a limited stay motion record can be risky.”
ACLU attorney Lee Gelernt praised the decision to keep the asylum ban blocked in the 9th Circuit, but said in a written statement that his organization would “continue fighting to end the ban entirely.”
The nationwide injunction issued in July was the second time Tigar had halted a Trump attempt to restrict asylum access. In November, the Obama appointee also blocked an earlier Trump asylum ban that barred asylum seekers who cross the border between ports of entry.