Judge Jon Tigar, United States District Court for the Northern District of California Judge Jon Tigar, U.S. District Court for the Northern District of California (Photo: Jason Doiy / ALM)

The federal judge who previously issued an injunction barring new Trump administration rules regarding asylum seems poised to revive his prior ruling's nationwide scope—despite appellate pushback.

Judge Jon Tigar of the U.S. District Court for the Northern District of California in July issued a nationwide injunction blocking new Trump Administration rules that barred asylum for the vast majority of migrants who did not apply for protection in a country they transited through before reaching the U.S.—a policy directed at stemming the tide of Central American migrants arriving at the nation's southern border via Mexico.

The U.S. Court of Appeals for the Ninth Circuit last month limited the reach of Tigar's earlier injunction to block the administration's new policy only within the Ninth Circuit's own geographic reach. The Ninth Circuit motions panel held that the plaintiffs—nonprofit groups that provide advocacy to migrants entering the country and training to lawyers representing them—were likely to succeed on the merits. However, two members of the three-judge panel found that the plaintiffs needed more evidence connecting the scope of relief with the plaintiffs' injuries.

Tigar, at a hearing on the plaintiffs' motion to supplement the record in support of a nationwide injunction Thursday, said he read the Ninth Circuit's order largely as a request for him to connect the dots between the plaintiffs' harms and the scope of the injunction. But he also grappled with arguments from a lawyer at the Department of Justice who said that the Ninth Circuit hadn't remanded the injunction back to him for a further decision. DOJ lawyer Scott Stewart contended the appellate court had only authorized Tigar to further develop the record while the nationwide portion of his injunction is stayed and the appellate court considers the underlying merits.

"I do think that I have the authority to make a clear ruling in favor of my prior injunction as it was issued if I believe the record supports my ruling," said Tigar late in Thursday's hearing. But the judge added that he would likely note that the Ninth Circuit could read his ruling as "indicative" if they hadn't intended on granting him jurisdiction to reconsider the injunction's scope.

"I want to be very respectful of them but I also think the law on this point is very clear," Tigar said of the appellate court. "I might be wrong whichever way I go. I think I need to give them the option of [interpreting] what it is they said because they're the ones who said it."

Lee Gelernt, of the American Civil Liberties Union, said that the plaintiffs' supplemental declarations would be "more than ample" to show the nationwide harms that his clients are suffering. If the Ninth Circuit-only injunction were to stay in place, he said, the organizations have clients who are being held or having their cases heard in other jurisdictions where the injunction does not apply and the administration's rules are still in place. He said they would have to develop training for pro bono lawyers that would encompass the varying rules.

The DOJ's Stewart, however, contended that the organizational harms were not enough to justify the nationwide injunction. The government would be willing to work with the plaintiffs regarding their individual clients, he said, but the plaintiffs have so far refused to name their clients. Stewart said that the Ninth Circuit motions panel knew that the plaintiffs' operations were "nationwide" but still deemed the harms they had lined out "insufficient" to support a nationwide injunction.

"They have not carried their burden to show that a nationwide injunction is needed to address their harms," Stewart said.

Tigar indicated that he plans to issue an order on the matter Friday or over the weekend.

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