BY ZACHARY STIEBER
A federal appeals court blocked a ruling by a federal judge who had re-issued a nationwide injunction despite being advised not to do so unless he re-evaluated his original ruling.
The 9th Circuit Court of Appeals said in an administrative order that a Sept. 9 ruling from U.S. District Court Judge Jon Tiger that Tigar’s ruling was too broad, striking down the injunction.
It was the latest clash between Tigar and the court.
Tigar initially ruled in July that a Trump administration policy denying asylum to applicants if they declined to apply for asylum in a country they passed through before reaching the United States was likely against the law, issuing a nationwide injunction to halt the policy across the nation. Since the policy dealt with migrants reaching the southern border, the injunction halted it in California, New Mexico, Arizona, and Texas.
But the appeals court said in a ruling in August that Tigar didn’t seem to weigh whether a nationwide injunction was actually necessary.
“The district court clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs’ alleged harms,” the ruling stated. “And, based on the limited record before us, we do not believe a nationwide injunction is justified.”
The ruling removed the injunction from New Mexico and Texas, which are not within the 9th Circuit.
It said that Tigar could restore the injunction if he “further develop the record in support of a preliminary injunction” stretching outside the 9th Circuit.
Tigar on Monday reimposed the nationwide injunction.
He wrote that, in his opinion, the appeals court ruling “did not provide instructions” for how he would go about developing the record but “the most plausible reading” of the ruling “is that it grants” him jurisdiction “to consider the augmented record in its totality and, based on that record, affirm or disaffirm the nationwide scope of its prior order.”
He said that without a nationwide injunction, the plaintiffs wouldn’t get complete relief.
One example he used was the Innovation Law Lab, a nonprofit focused on helping immigrants and refugees. If the injunction was not reimposed, the organization would “have to redesign its workshops and templates and ‘devote significant time to re-training … volunteers’” if its clients moved into and out of the 9th Circuit as their asylum cases work their way through the courts.
The group would also struggle to deal with the asylum policy in New Mexico and Texas because their clients would have to apply for withholding of removal or relief, not asylum, which “have a higher standard of proof than asylum,” making the cases more time-consuming.
In the order, the appeals court rolled back the nationwide injunction once again, meaning it will not apply for now to New Mexico and Texas.
Defendants in the case, which includes Attorney General William Barr, had filed an emergency motion to the appeals court for an administrative stay.
“Appellants’ request for an administrative stay is granted,” the appeals court stated (pdf). “The district court’s Sept. 9, 2019, order is stayed pending further order of the court.”
The 9th Circuit has shifted from being a liberal bastion to a more balanced court under President Donald Trump, who has successfully appointed seven judges to the circuit, making the composition of judges 16 appointed by Democrats and 12 appointed by Republicans.
The number of nationwide injunctions has skyrocketed in recent years as judges seek to block policies put into place by the administration of Trump.
Speaking to reporters on Tuesday, Trump reacted to Tigar’s reimposition of the injunction, calling it “very unfair.”
“I don’t think it should be allowed,” he said.
White House Press Secretary Stephanie Grisham said in a statement that one judge making a decision for the entire country shouldn’t happen, noting that the administration’s request for the Supreme Court to block the injunction was still pending. Supreme Court Justice Clarence Thomas said last year that the court would have to address the legality of such injunctions if they continued to be such a popular tool among federal judges.
