The U.S. Court of Appeals for the Ninth Circuit temporarily stayed a lower court order on Friday that had blocked President Donald Trump’s asylum policy. The stay lasts only until the court can decide the next steps of the latest ongoing legal challenge to the crisis on the Mexican border.
To deal with the growing humanitarian crisis on the southern border, President Trump’s Department of Homeland Security (DHS) implemented Migrant Protection Protocols, a policy requiring applicants for asylum to stay in Mexico while U.S. immigration courts consider their asylum claims.
Immigration law at 8 U.S.C. § 1225(b)(2) authorizes the secretary of DHS to return aliens who crossed the Mexican border back to Mexico while their asylum claims are processed. DHS is using that statutory authority.
Left-wing legal groups sued, and a federal district judge in California issued a preliminary injunction blocking the policy nationwide, ordering the federal government to allow those aliens into this country before deciding their asylum applications.
The U.S. Department of Justice (DOJ) filed a motion for an emergency stay at the Ninth Circuit. A three-judge panel of that court is yet to rule on that stay because the court briefs have not yet all been filed. But the appellate court has granted a temporary stay to keep the president’s Migrant Protection Protocols in effect until that emergency stay can be decided.
The panel specified that the plaintiffs must file their brief opposing an emergency Tuesday morning. The court is likely to rule on the request for an emergency stay by the end of this week.
If the stay is granted, it will likely last while DOJ appeals the preliminary injunction to the Ninth Circuit, an appeal that the court will probably rule on in the second half of 2019. Regardless of the outcome at the San Francisco-based appeals court, the case could well end up before the Supreme Court for a decision in early 2020.
The case is Innovation Law Jab v. Nielsen, No. 19-15716 in the U.S. Court of Appeals for the Ninth Circuit, and 3:19-cv-807 in the U.S. District Court for the Northern District of California.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.