USCIS Asylum Division Guidance Email — Ninth Circuit Injunction Update (Dkt. 65-2)

Summary

Document 65-2 filed 08/29/19 in Case 4:19-cv-04073-JST, an email dated Saturday, August 17, 2019 from Ashley Caudill-Mirillo, Deputy Chief, Asylum Division, to RAIO Asylum staff, with the subject Court Action Related to the Interim File Regulation - 9th Circuit Injunction Update. The email says the Ninth Circuit on August 16, 2019 partially granted and partially denied the Government's motion to stay the district court's preliminary injunction of the third country transit asylum bar IFR, 84 Fed. Reg. 33,829 (July 16, 2019). It states that the IFR remains preliminarily enjoined in the Ninth Circuit and is effective for credible fear screenings pending after August 16, 2019 outside the Ninth Circuit. It lists the Ninth Circuit jurisdictions for credible fear determinations.

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From:
Caudill-Mirillo, Ashley B
To:
RAIO - Asylum HQ; RAIO - Asylum Field Office Staff
Cc:
RAIO - Asylum HQ Leadership; RAIO - Asylum Field Office Managers; RAIO - Executive Leadership;
RefugeeAffairsTDY
Subject:
Court Action Related to the Interim File Regulation - 9th Circuit Injunction Update
Date:
Saturday, August 17, 2019 5:52:11 AM
Attachments:
9 East Bay Covenant (Aug 16 2019).pdf
Importance:
High
FOR INTERNAL USE ONLY
Asylum Division Staff,
Yesterday the Ninth Circuit issued the attached decision in East Bay v. Barr, No. 19-16487
(9th Cir. Aug. 16, 2019) (East Bay II) partially granting and partially denying the
Government’s motion to stay the district court’s preliminary injunction of the DOJ/DHS joint
interim final rule, “Asylum Eligibility and Procedural Modifications,” 84 Fed. Reg. 33,829
(July 16, 2019), i.e., the third country transit asylum bar IFR.  The Ninth Circuit denied the
motion for a stay pending appeal insofar as the injunction applies within the Ninth Circuit, but
granted the motion for a stay pending appeal insofar as the injunction applies outside the Ninth
Circuit. 
Accordingly, the third country transit asylum bar IFR remains preliminarily enjoined in the
Ninth Circuit and therefore USCIS personnel still cannot rely on the third country transit
asylum bar IFR when conducting credible fear screening interviews for cases arising in the
Ninth Circuit, or when adjudicating asylum applications within the Ninth Circuit.  USCIS
personnel should continue to follow the processes in place prior to implementation of the IFR
for credible fear screenings and asylum adjudications in the Ninth Circuit.  However, because
the court granted a stay of the preliminary injunction outside of the Ninth Circuit, the third
country transit asylum rule is effective as to:
(1)   All credible fear screenings that are conducted or remain pending after August 16,
2019, for cases arising outside the Ninth Circuit, and
(2)   All asylum applications filed on or after July 16, 2019, that remain pending after
August 16, 2019, outside of the Ninth Circuit. 
For purposes of determining whether the injunction applies to a credible fear screening, until
further notice, the IFR should not apply to any CF determination in which: (1) the alien was
apprehended in the jurisdiction of the Ninth Circuit (California, Arizona, Nevada, Oregon,
Washington, Idaho, Montana, Alaska, Hawaii, Guam, Northern Mariana Islands); (2) the alien
is detained in the jurisdiction of the Ninth Circuit; or (3) the interview itself occurs in the
jurisdiction of the Ninth Circuit.
Should you have any questions or concerns, please direct through your chain of command.  It
is also recommended you consult the guidance attached to the e-mail from Asylum Division
Chief John Lafferty on July 15, 2019 entitled Interim Final Rule – Asylum Eligibility and
Procedural Modifications.
Sincerely,
Ashley
 
Ashley Caudill-Mirillo
Deputy Chief
Asylum Division
Refugee, Asylum, and International Operations
 
Case 4:19-cv-04073-JST   Document 65-2   Filed 08/29/19   Page 1 of 1

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