Asylum Transit Rule Enforcement Stays Blocked for Now: 9th Cir.

The Ninth Circuit declined to pause an injunction blocking the enforcement of the U.S. government’s “Third Country Transit Rule” on Thursday, finding that the government’s claims of imminent and irreparable harm was just speculation.

Under the rule, an individual seeking asylum at a port of entry along the southern border after July 16, 2019, is generally ineligible for asylum status if that person has traveled through at least one other country besides their own country of citizenship on their route to the U.S. Asylum status is only available for those who have applied for asylum in another country and been denied.

The U.S. Supreme Court’s recent decision to stay a preliminary injunction of the rule didn’t dictate the outcome here, Judge Marsha S. Berzon said for the U.S. Court of Appeals for the Ninth Circuit. The September order from the high court wasn’t a definitive resolution on the merits, and the motion before the justices involved the substantive validity of the rule, not its application, she said.

The Ninth Circuit was only deciding whether to issue a stay of the injunction pending appeal, not whether the injunction will be ultimately upheld on its merits.

The problem is that a number of asylum seekers missed a time-sensitive window to apply for asylum in Mexico, according to the lead plaintiff in the case, Al Otro Lado. The legal services organization helps displaced individuals navigate the American asylum process.

The U.S. government represented to the asylum seekers that they only needed to “wait in line” at a U.S. port of entry, only to then issue the Transit Rule, Al Otro Lado said. Many of the plaintiffs had already been in Mexico longer than the 30-day application window enforced by the Mexico Commission to Assist Refugees.

The government argued that a stay of the injunction was needed because the additional time it would take to identify individuals in the case’s conditionally certified class—those asylum seekers who arrived at a port of entry prior to July 16, 2019—would heavily burden the administrative process at the border.

But the government failed to present evidence that extra time and questions had been tacked onto any actual asylum interview to determine if an interviewee was indeed part of the class, much less that the extra time had a negative effect on the time it takes to determine whether an interviewee held credible fear of persecution.

Judge Sidney R. Thomas joined Brezon’s opinion. Judge Daniel A. Bress argued in a dissent that the rule wasn’t a part of the original complaint against the government, and that the Supreme Court’s September order should have led the Ninth Circuit to grant the request for a stay pending appeal.

Mayer Brown LLP and the Southern Poverty Law Center represent Al Otro Lado and the plaintiffs. The Justice Department represents the government.

The case is Al Otro Lado v. Wolf, 9th Cir., No. 19-56417, 3/5/20.