U.S. Court of Appeal for the Ninth Circuit. Photo: Jason Doiy/ALM

In the waning moments of oral arguments in a pair of legal challenges to Trump administration changes to asylum procedures, DOJ lawyer Scott Stewart sparked a disagreement with two of the Ninth Circuit judges considering the cases.

Stewart at Tuesday's argument was tasked with defending the administration's moves to limit asylum for those entering the country outside designated ports of entry and policy changes that force Central American migrants to return to Mexico while their requests for asylum are considered. Ninth Circuit motions panels had previously upheld a district court injunction barring the port-of-entry restrictions and stayed a separate ruling blocking the return-to-Mexico policy.

In the closing moments of argument in the latter case, Stewart seemed to irk Judges Richard Paez and William Fletcher on a definitional matter: What, exactly, constitutes an injunction?

Both judges earlier in arguments had raised concerns that the government didn't question migrants about any reasonable fear they might have about being returned to Mexico to wait for their asylum cases to be heard. The lack of such screening, they said, could cause the U.S. to run afoul of its treaty obligations to avoid putting refugees at risk of harm. Stewart, in closing, asked if the judges found that the government should be required to ask such a question that they remand the case with instructions that government officials be forced to ask it. But he asked the court to do so without an injunction.

"You would just be telling the government to ask the question," Stewart said.

The suggestion prompted Paez to say he didn't think that any district court judge "would be anxious to do that." Paez said an injunction could be put in place until the government had shown that it had incorporated such a question into its procedures.

"That just improperly requires the executive to go begging to an Article III judge," Stewart said.

"No it doesn't. What do you mean begging?" Paez said. "The district court is just ensuring that the [government] is complying with its treaty and legal obligations."

Fletcher later added, "If the district judge says 'Ask the question' that sounds like an injunction." A district court asking the government to do something, he added, is "the very definition of an injunction."

Stewart, for his part, asked the judges to consider the balance of harms before issuing an injunction. At this point, he said, the government has been operating for months with the return-to-Mexico policies in place. Any injunction would result in major disruptions.

The third member of Tuesday's Ninth Circuit panel, Judge Ferdinand Fernandez, didn't ask a question during either argument.

In the prior case regarding restrictions on asylum for those arriving in the U.S. outside designated border crossing sites, American Civil Liberties Union lawyer Lee Gelernt said that the district judge below—U.S. District Judge Jon Tigar—had been correct to block the policy on a nationwide basis. Gelernt said his clients, a group of legal nonprofits who provide support to immigrants and pro bono attorneys who seek to represent them, have clients outside the Ninth Circuit.

"At the end of the day, there is a lot of focus on scope of injunction," Gelernt said. "But no court that I know of has ever said that a nationwide injunction is not appropriate where it is necessary to provide plaintiffs with full relief and I think that's the situation here."

The ACLU's Judy Rabinovitz, representing a similar group of clients in the second case, urged the court to block the change in policy as a whole, but asked in the alternative that the government at least be forced to ask questions about whether Central American migrants fear a return to Mexico.

"We also think that an injunction that went to the procedures would provide meaningful relief," Rabinovitz said.

Watch the hearing: