[U @ Midday] Unsurprisingly, Judge Tigar Holds That Congress Meant What It Said -- In 8 U.S.C. § 1158(a)(1). TRO Granted.

Noon UPDATE: I certainly wish some of the WH stenographers (like Washington Times and Fox -- cough!) could get it through their thick skulls that 8 U.S.C. § 1158(a)(1) means "WHEREVER" a would be asylee enters (at a port, or not). . . means the entry IS LAWFUL. Asylum seekers who swim / raft / walk across the Rio Grande -- even in the middle of nowhere, are LEGALLY allowed to claim asylum. They DID NOT enter "illegally." That is the plain text of 8 U.S.C. § 1158(a)(1). So, all these nut-job "Illegals" headlines. . . are simply fake news. End, updated portion.

Next full hearing in two weeks. The entire well written thirty seven pager is here, as a PDF.

Onward -- as I am off to court, myself, I will only add a bit for now. But this is a win. From the overnight opinion:

. . . .The Immigration and Naturalization Act (“INA”) “deals with one of the oldest and most important themes in our Nation’s history: welcoming homeless refugees to our shores,” and it “give[s] statutory meaning to our national commitment to human rights and humanitarian concerns.” 125 Cong. Rec. 23231-32 (Sept. 6, 1979). As part of that commitment, Congress has clearly commanded in the INA that any alien who arrives in the United States, irrespective of that alien’s status, may apply for asylum – “whether or not at a designated port of arrival.” 8 U.S.C. § 1158(a)(1).

Notwithstanding this clear command, the President has issued a proclamation, and the Attorney General and the Department of Homeland Security have promulgated a rule, that allow asylum to be granted only to those who cross at a designated port of entry and deny asylum to those who enter at any other location along the southern border of the United States. Plaintiff legal and social service organizations, Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center of Los Angeles (collectively, the “Immigration Organizations”), now ask the Court to stop the rule from going into effect. ECF No. 8. The Court will grant the motion. . . .

Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden. . . .

Onward. Trump is one viciously ill-informed idiot.

नमस्ते

East Bay Sanctuary Covenant's Fine Brief, On Asylum, Is Available Now.

It makes a very solid, muscular argument that (once again!) 45's team is unable, as a matter of law, to attempt to ban asylum seekers, or demand that they present only at designated ports of entry. [Just one of my prior notes on this issue, here.]

Only an Act of the full Congress (including the now-Democrat controlled House!) may make such a change (i.e., not happening). And so, this is all so much. . . impotent kabuki theatre, by the Tangerine Mussolini. Condor predicts it will -- as soon as Monday night -- be enjoined. From the fine 22 page PDF file brief then:

. . . .[Team Trump] concede[s]. . . that it is only the regulation, and not the Proclamation, that bars asylum. But the Attorney General has no authority to ignore Congress’s clear statutory language permitting asylum “whether or not” one enters at a port. 8 U.S.C. § 1158(a)(1). . . .

[The Immigration and Nationality Act, as amended] specifically forbids the government from imposing the rule at issue in this case. As the Ninth Circuit has repeatedly explained, an agency’s authority to make categorical discretionary decisions cannot justify violating the terms set by Congress in the statute. Toor v. Lynch, 789 F.3d 1055, 1064 (9th Cir. 2015) (“Lopez applies only when Congress has not spoken to the precise issue . . . .”) (quoting Rodriguez v. Smith, 541 F.3d 1180, 1188 (9th Cir.2008)). Thus, “[t]he agency cannot get in through the back door of the relief stage what it cannot do at the eligibility stage.” Succar v. Ashcroft, 394 F.3d 8, 29 n.28 (1st Cir. 2005) (“because eligibility is explicit in this statute, the Attorney General cannot categorically refuse to exercise discretion favorably for classes deemed eligible by the statute”).

The government further contends that the Attorney General has broad authority to establish new bars to asylum, brushing aside that Congress authorized the Attorney General to adopt only limitations “consistent with this section.” 8 U.S.C. § 1158(b)(2)(C). The Attorney General cannot establish a rule inconsistent with the clear command of § 1158(a)(1). Indeed, the Ninth Circuit previously rejected a similar attempt to eliminate an immigration provision by regulation. See Bona v. Gonzales, 425 F.3d 663, 668 (9th Cir. 2005) (“because the ‘regulation redefines certain aliens as ineligible to apply for adjustment of status. . . whom a statute, 8 U.S.C. § 1255(a), defines as eligible to apply[,]’ the regulation is invalid”) (quoting Succar, 394 F.3d at 9). . . .

For a complete record only -- but not as any example of what the law in this area really is -- here is the Trump brief.

Onward, to a videoed argument on Monday. Smile -- that ought to be very. . . droll. . . .

नमस्ते

[U: Video On Monday!] The Government Must Answer The TRO Motion, In East Bay Sanctuary v. Trump In Under Two Days...

. . .and then the plaintiffs, including the ACLU, East Bay Sanctuary Covenant and Innovation Law Lab, will have an opportunity to reply by this Friday. Expect then that one Donald "Dotard" Trump will be eviscerated, in prose, and in perpetuity -- in the able court's written recorded orders (yet again!), no less.

UPDATE @ 2 PM CST -- 11.14.18: I forgot to mention that this is one of only a handful of trial level federal courts participating (on an experimental basis) with video feeds of the proceedings. And so, I will stream it all, right here -- come Monday. Prepare to see a particularly bad version of "Apprentice Lawyers for 45" -- and do pop the popcorn. His team will be pinned, right out of the gate. [End updated portion.]

The full-on TRO argument will be heard on Monday -- on the "rocket docket". Excellent. Bring it on -- this was just entered a few hours ago, in San Francisco's federal District courthouse:

. . . .SCHEDULING ORDER re [8] MOTION for Temporary Restraining Order filed by East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center, Al Otro Lado. Responses due by 11/15/2018.

Replies due by 11/16/2018. Motion Hearing set for 11/19/2018 at 9:30 AM in San Francisco, Courtroom 9, 19th Floor before Judge Jon S. Tigar.

Signed by Judge Jon S. Tigar on November 13, 2018. . . .

Now you know -- wow. . . this is light-speed law practice. And. . . I (for one) love it.

नमस्ते