(L to R) Judges Wallace Tashima, Milan Smith and Mark James Bennett, United States Court of Appeals for the Ninth Circuit (Photo: Courtesy Photo)

A split panel for the U.S. Court of Appeals for the Ninth Circuit on Friday curbed a national injunction against the Trump administration’s new asylum restrictions, only blocking the new policy within its own jurisdiction.

The judges stated that they would not issue a stay of U.S. District Judge Jon Tigar’s order last month temporarily stopping the new asylum rule. But the court’s majority found that the case’s record wasn’t strong enough to block the rule across the nation.

In the majority opinion, Judges Milan Smith and Mark Bennett of the U.S. Court of Appeals for the Ninth Circuit found that the Justice Department didn’t make the “required ‘strong showing’ that they are likely to succeed on the merits on this issue” in order to receive a stay.

However, the pair found that “the nationwide scope of the injunction is not supported by the record as it stands.”

“To permit such broad injunctions as a general rule, without an articulated connection to a plaintiff’s particular harm, would unnecessarily ‘stymie novel legal challenges and robust debate’ arising in different judicial districts,” their order states. They said that Tigar “failed to discuss whether a nationwide injunction is necessary to remedy plaintiffs’ alleged harm.”

The judges wrote that the lower court “clearly erred by failing to consider whether nationwide relief is necessary to remedy plaintiffs’ alleged harms.”

They suggested that allowing the national order to remain in place could allow for further nationwide injunctions to become the norm, even if they aren’t necessarily needed.

“Indeed, were we to adopt the dissent’s view, a nationwide injunction would result any time an enjoined action has potential nationwide effects,” the majority wrote. “Such an approach would turn broad injunctions into the rule rather than the exception.”

And they said that limiting the injunction “allows other litigants wishing to challenge the rule to do so.”

In a dissenting opinion, Senior Judge A. Wallace Tashima wrote that he agrees a stay should not be granted. However, he questioned the decision to limit the scope of the injunction, calling the need for a national order “obvious.”

“Should asylum law be administered differently in Texas than in California? These issues and problems illustrate why tinkering with the merits on a limited stay motion record can be risky,” Tashima wrote.

The judges’ clash over the scope of the national injunction comes after the Trump administration has promised to seek to bring to an end the use of the nationwide orders, which have impacted many of the president’s policies.

The rule, announced by Trump officials in July, makes most migrants who pass through a third country before arriving at the U.S.-Mexico border ineligible for asylum.

Friday’s ruling has implications for a similar lawsuit filed in D.C. District Court, where U.S. District Judge Timothy Kelly of the District of Columbia decided not to issue a temporary restraining order against the rule. That lawsuit was brought by Hogan Lovells on behalf of immigration groups.

But just hours later, Tigar issued his own preliminary national injunction, finding in his July 24 order that the asylum rule violated the Administrative Procedure Act.

That ruling effectively overrode Kelly’s initial decision, but Friday’s ruling now opens the door for Hogan Lovells to again seek a preliminary injunction in D.C. court.

The Ninth Circuit’s order means that immigration officials can now begin enforcing the asylum restrictions outside of the circuit’s scope.

The American Civil Liberties Union, one of the plaintiffs in the California case, said it would keep challenging the new rule after the order was issued.

“The court properly refused to let the new asylum ban go into effect, though currently limited to the Ninth Circuit,” ACLU attorney Lee Gelernt said in a statement. “We will continue fighting to end the ban entirely.”

Read the ruling:

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