AL OTRO LADO V. AMAYORKAS, No. 22-55988 (9th Cir. 2024) (2024)

Court Description: Immigration. The panel affirmed in part and vacated in part the district court’s permanent injunction relating to the application of the “Asylum Transit Rule”—which generally required persons traveling through a third country to apply for asylum there before seeking asylum in the United States—to noncitizens turned away at the border between Mexico and the United States under the policy of “metering.” Under the metering policy, whenever border officials deemed a port of entry to be at capacity, they turned away all people lacking valid travel documents. The district court entered a permanent injunction prohibiting application of the Asylum Transit Rule to members of a class of asylum seekers who were turned away under the metering policy before the Asylum Transit Rule took effect. The court also ordered the Government to unwind past denials of asylum to such individuals.

The panel affirmed the district court’s conclusion that the metering policy violated section 706(1) of the Administrative Procedure Act (“APA”), which provides that a court shall “compel agency action unlawfully withheld or unreasonably delayed.” The Government contended that officials lack any duty to noncitizens who have not stepped across the border.

Rejecting that argument, the panel held that a noncitizen stopped at the border is eligible to apply for asylum under 8 U.S.C. § 1158(a)(1), which provides that a noncitizen may apply for asylum if she is “physically present in the United States” or “arrives in the United States.” The panel concluded that the latter encompasses those stopped at the border, whichever side they are standing on.

The panel also held that such a noncitizen is an “applicant for admission” under 8 U.S.C. § 1225, which sets out the responsibilities of officials with respect to noncitizens at the border. Accordingly, border officials have a mandatory duty to inspect them. The panel explained that the presumption against extraterritorial application of statutes did not change its interpretation of § 1158 or § 1225.

As to § 706(1) of the APA, the panel held that when an agency refuses to accept, in any form, a request that it take a required action, it has “withheld” that duty. Explaining that officials turned away noncitizens without taking any steps to keep track of them or otherwise allow them to open asylum applications, the panel concluded that the metering policy constituted withholding of action, not delay.

The panel wrote that it need not reach Plaintiffs’ cross- appeal of the district court’s denial of their other claims. The panel also vacated the district court’s entry of judgment for Plaintiffs on their due process claim, explaining that when a constitutional holding is unnecessary, the court may simply vacate that portion of the judgment without discussing the merits.

Next, the panel affirmed the district court’s entry of classwide declaratory relief. As the Government conceded, precedent foreclosed its argument that classwide declaratory relief is barred by 8 U.S.C. § 1252(f)(1), which provides that “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation” of specified immigration statutes on a classwide basis.

The panel affirmed the grant of negative injunctive relief, which prohibits the Government from applying the Asylum Transit Rule to class members. The panel concluded that this relief was not barred by § 1252(f)(1) because it concerns § 1158, which is not covered by § 1252(f)(1).

The panel concluded that § 1252(f)(1) does not bar the components of the district court’s affirmative relief requiring the Government to identify possible class members and notify them about their class membership and the significance of the injunction. However, the panel held that § 1252(f)(1) barred the portion requiring the Government, on its own initiative, to reopen or reconsider a prior decision.

Dissenting, Judge R. Nelson concluded that an alien “arrives in the United States” only when she crosses the border into it and that the majority’s interpretation of that phrase twists the statutory language, ignores history, flips multiple presumptions, and ignores common-sense English usage. In doing so, the majority imposes on the federal government—for the first time—an obligation to interview asylum seekers who are still in Mexico.

Judge R. Nelson also wrote that the majority erroneously concluded that the government “withheld” a statutory duty (rather than merely delaying it) by telling aliens to come back later. In his view, the panel should have rejected Plaintiffs’ claims, including those that the majority saved for another day.

AL OTRO LADO V. AMAYORKAS, No. 22-55988 (9th Cir. 2024) (2024)
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