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The joint interim rule titled "Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims," 83 Fed. Reg. 55,934, is not in accordance with law. 5 U.S.C.S. § 706(2)(A). 8 U.S.C.S. § 1158(a) provides that migrants arriving anywhere along the United States's borders may apply for asylum. The Rule requires migrants to enter the United States at ports of entry to preserve their eligibility for asylum. It is effectively a categorical ban on migrants who use a method of entry explicitly authorized by Congress in § 1158(a). It would be hard to imagine a more direct conflict.
In November 2018, the Department of Justice and Department of Homeland Security adopted an interim final rule ("the Rule") that made immigrants who enter the United States in violation of a "a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico" categorically ineligible for asylum. The same day, President Trump issued a presidential proclamation ("the Proclamation") that suspended the entry of all migrants along the southern border of the United States for ninety days, except for any migrant who enters at a port of entry and properly presents for inspection. Legal services organizations that represent asylum-seekers ("the Organizations") sued to prevent enforcement of the Rule. The district court entered a temporary restraining order enjoining the Rule, concluding that it irreconcilably conflicted with the Immigration and Nationality Act ("INA"). The government appealed and sought an immediate stay of the district court’s order pending appeal. The government’s request for a stay was denied. The district court issued an injunction barring enforcement of the Rule, and the government appealed.
Did the district court err in issuing an injunction barring the enforcement of the Rule?
The orders granting preliminary injunctions were affirmed. Preliminarily, the court held that the immigrant assistant organizations had organizational standing to challenge a joint interim final rule which stripped asylum eligibility from every migrant who crossed into the United States between designated ports of entry, because the organizations established that the rule had perceptibly impaired their ability to perform the services they were formed to provide. The court also held that the rule was substantively invalid because it conflicted with the plain congressional intent instilled in 8 U.S.C.S. § 1158(a), which provided that migrants arriving anywhere along the United States's borders could apply for asylum, and was therefore not in accordance with law under 5 U.S.C.S. § 706(2)(A), and even if the text of § 1158(a) were ambiguous, the rule failed at the second step of Chevron because it was an arbitrary and capricious interpretation of that statutory provision.