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Immigration Law

The Ninth Circuit’s Asylum Ban Ruling is a Message to Trump - Peter Margulies

Peter Margulies, Dec. 10, 2018 - "In an important order issued late on Friday, Nov. 7, the U.S. Court of Appeals for the Ninth Circuit denied the government’s request for a stay of the temporary restraining order (TRO) issued by U.S. District Court Judge Jon Tigar of the Northern District of California against a new Department of Homeland Security (DHS) interim final rule implementing President Trump’s proclamation limiting access to asylum for entrants at the U.S.-Mexico border. Judge Jay Bybee, joined by Judge Andrew Hurwitz, wrote the Ninth Circuit order, relying heavily on the text, structure, and plan of the Immigration and Nationality Act (INA) and on past practice interpreting the INA; Judge Edward Leavy dissented. The denial of a stay leaves Judge Tigar’s TRO intact.

Judge Bybee is a conservative jurist, generally inclined to defer to the executive on matters of foreign policy and national security.

... Judge Bybee’s analysis in the Ninth Circuit’s stay denial provides a valuable template for future adjudication regarding Trump’s asylum ban. Judge Bybee did nothing fancy or exotic. Instead, he merely applied the statute as written. His opinion should signal the government that it risks defeat as it attempts to persuade Judge Tigar not to replace his TRO with a preliminary injunction and ponders asking the Supreme Court to stay the current TRO. Unless Judge Bybee’s lucid opinion persuades the government to alter its course, the Supreme Court is the likely final destination for adjudication of the asylum ban."

Peter Margulies is a professor at Roger Williams University School of Law, where he teaches Immigration Law, National Security Law and Professional Responsibility.