934 F.3d 1026

TASHIMA, Circuit Judge, concurring in part and dissenting in part:
I concur in the portion of the order denying the motion for stay pending appeal [Dkt. 3] insofar as the injunction applies within the Ninth Circuit, but dissent from the balance of the order.
Acting as a motions panel, all we have before us is the government's motion for a stay. I do not believe that it is within a motions panel's province to parse the record for error at this stage, which is what the majority does in concluding that "the nationwide scope of the injunction is not supported by the record as it stands." (Citation omitted.) But the majority then goes beyond the recognized authority of a motions panel by concluding that "[t]he district court clearly erred by failing to consider whether nationwide relief is necessary to remedy Plaintiffs' alleged harms," and, on that basis "grant[s] the motion for stay pending appeal insofar as the injunction applies outside the Ninth Circuit." It then, in the penultimate paragraph of the Order, in effect, remands the case to the district court for a partial do-over:
While this appeal proceeds, the district court retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit.
But vacating and remanding it to the district court for a more searching inquiry into whether this case justifies the breadth of the injunction is indubitably an action within the province of a merits panel-not a motions panel.
At the same time, the order places the merits briefing (of this appeal) on an expedited schedule for placement "on a December 2019 argument calendar." What issues are the parties expected to brief, assuming that parallel proceedings in the district court are still ongoing? And if the district court completes its second-look remand proceedings within the next few weeks or months and issues a modified injunction, or issues the same nationwide injunction, but one which is supported by supplemental findings of fact, should the parties seek to file supplemental briefs on the newly-raised and newly-decided issues in this appeal to the merits panel assigned to this appeal, or should a new notice of appeal be filed, giving rise to a new appeal? These are some of the new and difficult questions raised by the majority's split-decision.
While time does not permit a full exploration of the merits of the "nationwide" issue, some problems posed by the majority's Ninth Circuit-only injunction are apparent. Perhaps, the district court did not make detailed findings in support of a nationwide injunction because the need for one in the circumstances of this case is obvious. For starters, the joint interim final rule, "Asylum Eligibility and Procedural Modifications," will affect asylum applications across the breadth of the southern border. 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. And it is why such issues are reserved for the more deliberate examination that a merits panel can give them.
There is also a glaring inconsistency-a contradiction-in the majority's split-the-baby approach. If, as the majority and I agree, the government's failure to meet the first Hilton v. Braunskill , 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987), factor -likelihood of success on the merits, because of its failure to comply with the APA-means that its stay motion with respect to the preliminary injunction's application within the Ninth Circuit fails, it is perplexing to me why that failure does not infect the balance of its stay motion and require that a stay of the nationwide aspect of the injunction also be denied. The majority, in its rush to address the merits of the nationwide aspect of the injunction, simply elides this contradiction.
Because I would not peel off part of the preliminary injunction and remand that portion to the district court, "[b]ecause the record is insufficiently developed as to the question of the national scope of the injunction" (quoting San Francisco v. Trump , 897 F.3d at 1245 ), while retaining jurisdiction over the remainder, I dissent from the remand of the nationwide scope of the preliminary injunction to the district court.
I would simply deny the stay motion.
The majority relies on City & County of San Francisco v. Trump , 897 F.3d 1225, 1245 (9th Cir. 2018), but the citation is completely inapposite. That was an opinion by a merits panel charged with deciding the appeal, not a motions panel charged with deciding a stay motion, and the merits panel did exactly what it was charged with, i.e. , it decided the appeal; it "AFFIRMED in part; VACATED in pari; and REMANDED." Id. We, as a motions panel, have no equivalent charge.
Because the issue has been decided, applying the clear error standard of review, the injunction vacated and remanded to the district court, the merits panel, presumably has been deprived of deciding this issue. The majority's assertion, in footnote 2, that its action "does not bind the merits panel," is an empty promise. Deciding the case on the merits, vacating and remanding the injunction is not in accord with the dictates of Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
The majority's answer to this point is to state that "Whether Appellants have made a strong showing of likelihood of success on the merits entitling them to a stay of the preliminary injunction is a separate question from whether the scope of the injunction is appropriate." But that doesn't answer (or even try to answer) my question of why the government's failure to meet the likelihood-of-success factor doesn't doom its motion to stay the nationwide portion of the injunction, as well as the California portion.
The Order does not use the word "remand," but the majority does not quarrel with the obvious inference from its statement that "the district court retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit," is, in substance, a remand.

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