Summary
The Ninth Circuit amended its opinion and denied rehearing en banc in a challenge to the former federal metering policy at ports of entry on the U.S.-Mexico border. The court affirmed that the policy unlawfully withheld agency action under the Administrative Procedure Act because border officials had duties to inspect noncitizens stopped at the border and allow them to apply for asylum. The court largely upheld declaratory and injunctive relief concerning the Asylum Transit Rule but vacated the portion requiring the Government to reopen or reconsider prior asylum decisions on its own initiative.
Topics
Practice areas
Questions Presented
- Whether a noncitizen stopped by U.S. officials at the border, including one standing on the Mexican side, is eligible to apply for asylum under 8 U.S.C. § 1158(a)(1).
- Whether such a noncitizen is an applicant for admission whom border officials must inspect under 8 U.S.C. § 1225.
- Whether the metering policy unlawfully withheld agency action under APA § 706(1), rather than merely delaying agency action.
- Whether the appeal remained justiciable after the government rescinded the metering policy.
- Whether classwide declaratory and injunctive relief was barred by 8 U.S.C. § 1252(f)(1).
- Whether the district court's due process judgment should be vacated because the constitutional issue was unnecessary to the relief awarded.
Holdings
- A noncitizen stopped by U.S. officials at the border is eligible to apply for asylum under 8 U.S.C. § 1158(a)(1) because the phrase "arrives in the United States" encompasses a person who encounters officials at the border, regardless of which side of the border the person occupies.
- A noncitizen stopped at the border is an applicant for admission under 8 U.S.C. § 1225(a)(1), and border officials therefore have a mandatory duty to inspect that person under § 1225(a)(3) and refer the person for an asylum interview when the statutory conditions are met.
- The presumption against extraterritorial application of federal statutes does not alter the court's interpretation of §§ 1158(a)(1) and 1225(a)(1) because the challenged conduct constituted a domestic application of those statutes.
- When an agency refuses to accept, in any form, a request that it take a required action, the agency has withheld that action under APA § 706(1). The metering policy therefore unlawfully withheld the government's mandatory duty to inspect and process covered asylum seekers, rather than merely delaying that duty.
- Rescission of the metering policy did not moot the appeal because the plaintiffs sought equitable relief addressing past and present harms and the judgment imposed continuing obligations that could be modified.
- Section 1252(f)(1) does not bar classwide declaratory relief concerning the lawfulness of the metering policy.
- Section 1252(f)(1) did not bar the injunction prohibiting application of the Asylum Transit Rule to class members or requiring the government to identify and notify possible class members, because those requirements directly concerned asylum eligibility under § 1158 or had only collateral effects on covered removal provisions. Section 1252(f)(1) did bar the portion requiring the government, on its own initiative, to reopen or reconsider prior removal-related determinations.
- The district court's judgment for plaintiffs on the constitutional due process claim was vacated without reaching the merits because the statutory APA claim independently supplied all relief plaintiffs sought.
Key quotations
“We hold that when an agency refuses to accept, in any form, a request that it take a required action, it has “withheld” that duty within the meaning of § 706(1).” (36)
“But it is not mere delay to tell a person requesting an action that her current request will not be entertained but that she is welcome to make the request again another time.” (37)
“Because that interference cannot be categorized as a collateral effect under our precedents, we must narrow the district court’s injunction in the following way:” (47)
Factual background
Beginning in 2016, Customs and Border Protection implemented a metering policy under which officials turned away people lacking valid travel documents whenever a port of entry was deemed at capacity. The policy ultimately directed officials to stop asylum seekers at the physical border, without maintaining a government waitlist, issuing appointments, or allowing them to initiate asylum applications. Many asylum seekers remained in Mexico for extended periods while exposed to inadequate shelter, food, persecution, crime, and other dangers. After the Asylum Transit Rule took effect, the rule threatened to render many people previously turned away under metering ineligible for asylum.
Procedural history
The Southern District of California denied the government's motion to dismiss, provisionally certified a class, and issued preliminary injunctions concerning the Asylum Transit Rule. It later certified an additional class, granted plaintiffs summary judgment on their APA section 706(1) and due process claims, entered final declaratory and injunctive relief, and entered judgment for the government on the INA and Alien Tort Statute claims. The Ninth Circuit affirmed the APA judgment and most of the relief, vacated the due process judgment, and narrowed the affirmative injunction.
Remand instructions
The district court's judgment was affirmed on the APA § 706(1) claim and classwide declaratory relief. The due process judgment was vacated. The permanent injunction was affirmed except that it may not require the government, on its own initiative, to reopen or reconsider, or move to reopen or reconsider, asylum officer, immigration judge, or Board of Immigration Appeals decisions in removal proceedings.