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Tuesday, November 20, 2018

Universal injunction in asylum-point-of-entry (corrected)

These are coming too quickly to process. The District Court for the Northern District of California issued a universal preliminary injunction (styled a TRO, but done adversarially and scheduled to last more than 14 days) prohibiting the government from enforcing new regulations denying asylum to any persons who present themselves at places other than lawful points of entry.

Unlike the Ninth Circuit in the DACA case, which Sam Bray analyzed, the court did not explain its scope ruling, other than by pointing to three things: facial unconstitutionality; the cert grant in the second travel ban case that allowed the preliminary injunction to stand as to people "similarly situated" to the plaintiffs (before the whole thing became moot); and the relevance of the APA. Sam discusses (with links) the third point and whether the APA really demands universality. The first point relies on Califano v. Yamasaki's "extent of the violation" language, ignoring that Califano involved a nationwide class (and thus a violation of the rights of the class), not the permissible scope of an injunction in an action brought by an individual. The second point continues to get far too much mileage out of loose language in a decision on a stay and granting cert. I have been accused of undervaluing that language, and perhaps I have. But courts are treating it as SCOTUS precedential imprimatur for universal injunctions, which is wait it cannot bear.

Sam argues that courts are close to making universal injunctions the default remedy in cases under APA, immigration cases, and cases with entity plaintiffs. This case supports that position.

Posted by Howard Wasserman on November 20, 2018 at 11:20 AM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink


I'm confused about the "irreparable harm" here. The court wrote that the asylum seekers will have to wait for a long time at the points of entry and are at risk of violence and threat of deportation (by Mexico?) while waiting. But the order didn't ban them from crossing illegally, Congress did. If the harm is that they are less likely to cross the border where they are not allowed to cross (because of this order's rule denying asylum if they do so), how is that a harm inflicted by the order? In other words, can preventing one from breaking the law be considered a harm?

Posted by: Biff | Nov 20, 2018 2:23:37 PM

Why does that court have jurisdiction over this case? Does any district court have?

Posted by: Biff | Nov 20, 2018 2:06:54 PM

But assuming the plaintiff organization has standing on a Havens Realty theory (which is what the court concludes), isn't a universal injunction necessary in order to provide full relief to the plaintiff itself?

Posted by: Marty Lederman | Nov 20, 2018 1:29:57 PM

Well , default or not , doesn't matter . For it is the inherent duty of a federal judge , to block it , all over the nation . The rewriting of ruling ( in that presidential proclamation) is prima facie unconstitutional and illegal ( sometimes , illegal is worse than unconstitutional ) . The president couldn't do it whatsoever . It wouldn't matter anymore , who are further the potential litigants .

Here I quote from the ruling :

Congress has clearly commanded in the INA that any alien who arrives in the United States, irrespective of that alien’s status, may apply for asylum – “whether or not at a designated port of arrival.” 8 U.S.C.§ 1158(a)(1).

And more :

The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden. Defendants’ claims that the rule can somehow be harmonized with the INA are not persuasive.


Posted by: El roam | Nov 20, 2018 12:08:02 PM

Northern District of California, not DDC

Posted by: AP | Nov 20, 2018 11:35:44 AM

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