A federal judge in California just ignored Bill Barr’s heartfelt warning that nationwide injunctions by unelected judges threaten our very democracy.
Barr scolded both parties for doing it so this is not a partisan issue. That said, the Obama appointed U.S. District Judge Jon Tigar just reinstituted a nationwide injunction blocking the Trump administration’s rules for migrants seeking asylum at the southern border.
Tigar mandated a nationwide injunction because the organizations challenging the new rule have “presented sufficient evidence that they will suffer organizational and diversion of resource harms unless the rule is enjoined outside of, as well as within, the 9th Circuit.”
From the ruling:
“The need to provide complete relief to the Plaintiffs, standing alone, is sufficient reason for the re-issuance of the nationwide injunction. In addition to that factor, however, three other factors support such relief.
First, a nationwide injunction is supported by the need to maintain uniform immigration policy. See East Bay II, 932 F.3d at 779 (collecting cases and stating that “[i]n immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis”);
Regents of the Univ. of Cal., 908 F.3d at 511 (affirming nationwide injunction against the government’s rescission of the Deferred Action for Childhood Arrivals (DACA) program based in part on “the need for uniformity in immigration policy”).
While this factor may not, by itself, support the issuance of a nationwide injunction, it weighs in its favor. Second, nationwide relief is supported by the text of the Administrative Procedure Act (APA), which requires the “reviewing court,” “[t]o the extent necessary and when presented,” to “hold unlawful and set aside agency action, findings, and conclusions” found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law . . . .” 5 U.S.C. § 706. The Ninth Circuit has cited this language in upholding a nationwide injunction of regulations that conflicted with the governing statute.
Lastly, anything but a nationwide injunction will create major administrability issues. Although the Government’s recently-issued guidance with regard to the Rule is intended to allow the Court’s injunction to be applied within the Ninth Circuit, problems in administration would remain. For one thing, ambiguities within the guidance documents will lead to uneven enforcement. See ECF No. 67 at 12 (comparing the Government’s description of the injunction as covering those “whose adjudications and proceedings occur in the Ninth [C]ircuit” to the EOIR Guidance’s instruction that the Rule does not apply to those whose “interview or adjudication” occurs in the Ninth Circuit).
For another, it is not clear what effect the guidance will have on an asylum applicant who transits between circuits. For example, an applicant who crosses the border and has a credible fear interview outside the Ninth Circuit would, in the absence of a nationwide injunction, be subject to the Rule and thus (barring an exception) eligible only for withholding of removal or CAT. Id. If that individual’s removal proceedings were later moved to the Ninth Circuit, it is unclear whether the immigration judge would be bound by the original denial of credible fear or, since the Rule is enjoined within the Ninth Circuit, able to allow the individual to apply for asylum.
CONCLUSION While nationwide injunctions are not the “general rule,” they are appropriate “where such breadth [is] necessary to remedy a plaintiff’s harm.” East Bay V, 2019 WL 3850928, at *2. This is such a case. Accordingly, and for the reasons set forth above, the Court grants the Organizations’ motion to restore the nationwide scope of the injunction.”