Update, In East Bay Sanctuary III: Team Trump’s Ninth Circuit Brief, Now On File…

Here is the 42 page offering. It is the government’s opening brief, on whether any permanent nationwide injunction should [re-]issue — to prevent Trump’s latest insanely cruel and unlawful border “rules”; it was filed overnight.

But rather than quote from this gibberish, I will restate the ably-argued ACLU position, as largely adopted by the Ninth Circuit — when this issue was last before it — in this same case:

. . . .The need to provide complete relief to the Plaintiffs, standing alone, is sufficient reason for the re-issuance of the nationwide injunction. In addition to that factor, however. . . other factors support such relief.

. . .[A]nything but a nationwide injunction will create major administrability issues. Although the Government’s recently-issued guidance with regard to the Rule is intended to allow the Court’s injunction to be applied within the Ninth Circuit, problems in administration would remain. For one thing, ambiguities within the guidance documents will lead to uneven enforcement. See ECF No. 67 at 12 (comparing the Government’s description of the injunction as covering those “whose adjudications and proceedings occur in the Ninth [C]ircuit” to the EOIR Guidance’s instruction that the Rule does not apply to those whose “interview or adjudication” occurs in the Ninth Circuit).

For another, it is not clear what effect the guidance will have on an asylum applicant who transits between circuits. For example, an applicant who crosses the border and has a credible fear interview outside the Ninth Circuit would, in the absence of a nationwide injunction, be subject to the Rule and thus (barring an exception) eligible only for withholding of removal or CAT. Id. If that individual’s removal proceedings were later moved to the Ninth Circuit, it is unclear whether the immigration judge would be bound by the original denial of credible fear or, since the Rule is enjoined within the Ninth Circuit, able to allow the individual to apply for asylum. . . .

Okay — now you know. onward, toward finding taco trucks on foot, at late-lunch. . . grin.


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