We mentioned this renewed East Bay IV class litigation a few weeks ago when USDC Judge Tigar correctly ruled that the new order is simply a… rehashing of the older Tangerine order, already stricken as invalid.

Nothing in our laws or international treaties permits a presumption against a person at any border claiming and invoking putative asylee status. To the extent that Mr. Biden tried to create such a presumption from whole cloth, or require that putative asylees must cross at a recognized port of entry… it is… unenforceable. So ruled the able Judge Tigar — and he has now ended the short time-out, on invalidating Mr. Biden’s measures. They are now… gone — until the appeals are decided, at a minimum.

Here is that wise four page opinion, and a bit:

“. . .The first factor, likelihood of success on the merits, is the most important.” Mi Familia Vota v. Hobbs, 977 F.3d 948, 952 (9th Cir. 2020). In their motion for stay, Defendants do not articulate on what basis they believe they are likely to succeed on the merits of their appeal. ECF No. 190 at 7. Defendants simply state that, “as [they] explained in their briefing and at argument, the Rule is consistent with the asylum statute, is not arbitrary and capricious, and satisfies all applicable procedural requirements.” Id. For the reasons articulated in the Court’s order granting summary judgment to Plaintiffs, however, the Court concludes that Defendants have not made a strong showing that they are likely to succeed or shown a substantial case for relief on the merits….

While the Court is mindful of the Executive’s unique role in the conduct of foreign policy, “[o]ur precedents, old and new, make clear that concerns of national security and foreign relations do not warrant abdication of the judicial role.” Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010). And while “[t]he [G]overnment’s interest in efficient administration of the immigration laws at the border is… weighty,” “control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature.” Landon v. Plasencia, 459 U.S. 21, 34 (1982) (emphasis added) ; see Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“[O]ver no conceivable subject is the legislative power of Congress more complete than it is over the admission of [noncitizens].”)….

Here, Congress has expressly provided that certain noncitizens may apply for asylum and has constrained the agencies’ discretion to impose additional conditions or limitations on asylum eligibility. Judicial review of such conditions to ensure fidelity to the express will of Congress is an appropriate exercise of judicial authority. And the Court notes that vacating the Rule does not affect the agencies’ discretion to deny any or all individual applications for asylum — Congress vested the agencies with that broad discretion by statute. Congress’ grant of authority to promulgate additional conditions and limitations on asylum eligibility, however, was circumscribed. The Executive Branch retains the full extent of the lawful tools it has available to address irregular migration and manage the border. . . .

Now you know — out, grinning. This is the right result — and it pains me, personally, that Mr. Biden seemingly chose pandering politics, over principles of statutory construction — in this matter. Onward, just the same. Our system is messy and slow. . . but in the main, it works (see mine of this morning, on that score).

नमस्ते