Tuesday, July 7, 2020

Ninth Circuit Finds Trump Administration's Third Country Asylum Rule "Arbitrary and Capricious"



The U.S. Court of Appeals for the Ninth Circuit has upheld a block on the Trump administration’s attempt to make noncitizens who traveled through a third country en route to the United States before arriving at the southern border generally ineligible for asylum.


The lawsuit, East Bay Sanctuary Covenant v. Barr, was filed by the Southern Poverty Law Center, American Civil Liberties Union, and Center for Constitutional Rights.


Yesterday, the Ninth Circuit ruled that the asylum rule is inconsistent with the U.S. asylum laws and is arbitrary and capricious. The Supreme Court stayed the injunction in the case. The Ninth Circuit decision and background about the case can be found here.


Judge William Fletcher, a Bill Clinton appointee, wrote the opinion for the panel.  Judge Richard Clifton, a George Bush appointee, filed a concurrence.


Judge Eric Miller, a Trump appointee, filed a partial concurrence and partial dissent; he agreed with the majority that the proposed rule was arbitrary and capricious and disagreed with the majority on the appropriate scope of the injunction.  He found "particularly troubling" the administration's "deficient explanation" of, in adopting the rule, it disregarded the evidence that the asylum seekers are not safe in Mexico.   Judge Miller acknowledged that the rule was "the most significant change to asylum policy in a generation."  (bold added).  Given that he is a Trump appointee, his criticism of the administration's approach to the rule has attracted attention.  See this Law 360 article (registration required).

The decision in East Bay Sanctuary Convenant v. Trump comes on the heels of a ruling from a federal district court in Washington, D.C., which also struck down the asylum rule. 

UPDATE (July 8):  Karina Brown for Courthouse News summarizes the Ninth Circuit ruling.

UPDATE (July 9):  Peter Margulies on Lawfare offers his analysis of the Ninth Circuit's ruling and its impacts.



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