The Ninth Circuit has declared unlawful the government’s metering policy, which turned asylum seekers back from ports of entry and told them to return at a later time.
“[A] noncitizen stopped by U.S. officials at the border is eligible to apply for asylum under § 1158(a)(1).” “[A] noncitizen stopped by officials at the border is an “applicant for admission” under § 1225(a)(1) because she “arrives in the United States.”
“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).” “We accordingly conclude that the metering policy constituted withholding of agency action, not delay. Under the metering policy, border officials turned away noncitizens without taking any steps to keep track of who was being turned away or otherwise allowing them to open asylum applications. Such a wholesale refusal to carry out a mandatory duty—leaving the responsibility to try again in each noncitizen’s hands—cannot be called delay within the meaning of § 706(1). Nor did the Government’s informal and sporadic coordination with Mexican government officials or nonprofits keeping waitlists transform the metering policy into delay rather than withholding. Organizing by interested third parties did not satisfy the Government’s obligation to inspect asylum seekers. If anything, it indicates that the Government was not fulfilling its obligations.”
“Even minimal steps by the Government, such as implementing and following a waitlist system or initiating the asylum process, would shift the § 706(1) analysis of any challenge from the withholding category into the delay category. But because the Government in this case did not take any such steps, we need not (and cannot) reach the question whether any delay would have been reasonable. Sections 1158 and 1225 require border officials to inspect noncitizens seeking asylum at the border, and the metering policy withheld that duty.“
The Ninth Circuit modified the District Court’s injunction, as it applies to reopening the already denied asylum applications of class members. “The injunction may not require the Government, on its own initiative, to reopen or reconsider (or to move to reopen or reconsider) an asylum officer, IJ, or BIA decision in a removal proceeding. That said, the negative injunctive relief properly prohibits the Government from applying the Asylum Transit Rule to a P.I. class member, even if it permissibly applied the Rule to that person in the past. For instance, if an IJ has denied a P.I. class member’s asylum application on the basis of the Asylum Transit Rule, and the P.I. class member moves for reconsideration by the IJ, the negative injunctive relief prohibits the IJ from relying on the Asylum Transit Rule to deny the motion (although the IJ may deny the motion if there is a different valid ground). Likewise, if that P.I. class member appeals to the BIA, the BIA may not use the Asylum Transit Rule to affirm the IJ’s decision (although the BIA may affirm if there is a different valid ground). And if the BIA reverses the IJ’s decision and remands, the IJ may not apply the Asylum Transit Rule on remand. The same principle applies if a P.I. class member moves to reopen her removal proceeding: The IJ or the BIA may not use the Asylum Transit Rule to deny the motion (although they may deny the motion on a different valid ground).”
The full text of Al Otro Lado v. Mayorkas can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/23/22-55988.pdf
