U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:19-cv-04073-JST

East Bay Sanctuary Covenant et al v. Barr et al

Date Filed: 07/16/2019

Assigned to: Judge Jon S. Tigar

Jury Demand: None

Relate Case Case: 4:18-cv-06810-JST

Nature of Suit: 465 Other

Case in other court: U.S. Court of Appeals for the Ninth Immigration Actions

Circuit, 19-16487

Jurisdiction: U.S. Government

Ninth Circuit Court of Appeals, 19- Defendant

16773

Ninth Circuit Court of Appeals, 20-

17204

Cause: 05:551 Administrative Procedure Act

Plaintiff East Bay Sanctuary Covenant

represented by Katrina Leigh Eiland ACLU Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343-0770 Fax: (415) 395-0950 Email: keiland@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lee Gelernt ACLU Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2616 Fax: (212) 549-2654 Email: lgelernt@aclu.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Anand Balakrishnan ACLU Foundation Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2536

Fax: (212) 549-2654 Email: abalakrishnan@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Angelica Salceda ACLU of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621-2493 Fax: (415) 255-8437 Email: asalceda@aclunc.org ATTORNEY TO BE NOTICED
Christine Patricia Sun ACLU Foundation of Northern California 39 Drumm Street San Francisco, CA 94111 (415) 621-2493 Fax: (415) 255-8437 Email: csun@aclunc.org TERMINATED: 09/23/2019 ATTORNEY TO BE NOTICED
Cody H. Wofsy ACLU Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415-343-0785 Fax: 415-395-0950 Email: cwofsy@aclu.org ATTORNEY TO BE NOTICED
Julie Michelle Veroff Cooley LLP 3 Embarcadero Center, 20th Floor San Francisco, CA 94111-4004 +1 (415) 693-2179 Fax: 1 (415) 693-2222 Email: jveroff@cooley.com TERMINATED: 02/16/2021
Mary Catherine Bauer Muslim Advocates P.O. Box 34440

Plaintiff Al Otro Lado

Washington, DC 20043 (202) 873-1550 Email: mary@muslimadvocates.org TERMINATED: 11/15/2019
Melissa E Crow American Immigration Council 1331 G Street, NW, Suite 200 Washington, DC 20005 202-507-7523 Fax: 202-742-5619 Email: melissa.crow@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat ACLU Foundation Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2620 Fax: (212) 549-2654 Email: ojadwat@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
Spencer Elijah Wittmann Amdur ACLU Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2572 Email: samdur@aclu.org ATTORNEY TO BE NOTICED
Vasudha Talla ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 (415) 621-2493 Fax: (415) 255-8437 Email: vtalla@aclunc.org
represented by Katrina Leigh Eiland (See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anand Balakrishnan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/23/2019 ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Julie Michelle Veroff (See above for address) TERMINATED: 02/16/2021
Mary Catherine Bauer (See above for address) TERMINATED: 11/15/2019
Melissa E Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Spencer Elijah Wittmann Amdur

Plaintiff Innovation Law Lab

(See above for address) ATTORNEY TO BE NOTICED
Vasudha Talla (See above for address)
represented by Katrina Leigh Eiland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anand Balakrishnan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/23/2019 ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Julie Michelle Veroff (See above for address) TERMINATED: 02/16/2021
Mary Catherine Bauer (See above for address) TERMINATED: 11/15/2019
Melissa E Crow (See above for address)

Plaintiff
Central American Resource Center in Los Angeles

PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED
Vasudha Talla (See above for address)
represented by Katrina Leigh Eiland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Anand Balakrishnan (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Angelica Salceda (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/23/2019 ATTORNEY TO BE NOTICED
Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Julie Michelle Veroff

V.
Defendant
William Barr Attorney General, in his official capacity

(See above for address) TERMINATED: 02/16/2021
Mary Catherine Bauer (See above for address) TERMINATED: 11/15/2019
Melissa E Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED
Vasudha Talla (See above for address)
represented by Erez R. Reuveni United States Department of Justice, Civil Division Office of Immigration Litigation 450 5th Street NW Washington, DC 20530 (202) 307-4293 Fax: (202) 305-7000 Email: erez.r.reuveni@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart U.S. Department of Justice Office of Immigration Litigation, Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 202-307-6482

Defendant U.S. Department of Justice

Email: scott.g.stewart@usdoj.gov TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin A. Kisor United States Department of Justice Civil Division 950 Pennsylvania Avenue NW, Room 3141 Washington, DC 20530 (202) 514-3301 Email: colin.kisor@usdoj.gov ATTORNEY TO BE NOTICED
Francesca M Genova U.S. Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 202-305-1062 Email: Francesca.M.Genova@usdoj.gov ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED

Defendant James McHenry Director of the Executive Office for Immigration Review, in his official capacity
Defendant Executive Office for Immigration Review
Defendant Kevin K. McAleenan Acting Secretary of Homeland Security, in his official capacity

represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant U.S. Department of Homeland Security
Defendant Kenneth T. Cuccinelli Acting Director of the U.S. Citizenship and Immigration Services, in his official capacity

Scott G. Stewart (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant John P. Sanders Acting Commissioner of U.S. Customs and Border Protection, in his official capacity
Defendant U.S. Citizenship and Immigration Services

Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova

Defendant U.S. Customs and Border Protection
Defendant Matthew T. Albence Acting Director of Immigration and Customs Enforcement, in his official capacity
Defendant Immigration and Customs Enforcement

(See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Erez R. Reuveni (See above for address)

Amicus Former BIA Members, Former Immigration Law Judges, and Law Professors
Amicus Blaine Bookey
V. Intervenor

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) TERMINATED: 01/14/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Colin A. Kisor (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Marienna Harnden Murch Covington and Burling LLP Salesforce Tower 415 Mission Street, Suite 5400 San Francisco, CA 94105-2533 415-591-7016 Fax: 415-955-6516 Email: mmurch@cov.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Blaine Meredith Bookey The Center for Gender and Refugee Studies UC Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 (415) 703-8202 Fax: (415) 581-8824 Email: bookeybl@uchastings.edu ATTORNEY TO BE NOTICED

J.S.M., et al.

represented by Adam Siegler Greenberg Traurig, LLP 1840 Century Park East Suite 1900 Los Angeles, CA 90067 310-586-7700 Email: sieglera@gtlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Caroline Jean Heller Greenberg Traurig, LLP 200 Park Ave New York, NY 10166 212-801-9200 Email: hellerc@gtlaw.com ATTORNEY TO BE NOTICED
Gregory Paul Copeland Rapid Defense Network 11 Broadway Suite 615 New York, NY 10004 212-843-0910 Fax: 212-257-7033 Email: gregory@defensenetwork.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jonathan Kenji Ogata Greenberg Traurig LLP 1201 K Street, Suite 1100 Sacramento, CA 95814 916-442-1111 Email: jonathan_ogata@fd.org TERMINATED: 01/29/2021
Sarah Telo Gillman Rapid Defense Network (RDN) 11 Broadway, Suite 615 New York, NY 10004 United Sta (212)843-0910 Fax: (212) 257-7033 Email: sarah@defensenetwork.org

PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 07/16/2019 07/16/2019
07/17/2019 07/17/2019 07/17/2019

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief (Immigration Action) against All Defendants, (Filing Fee: $400.00, receipt number 0971-13523432). Filed by Innovation Law Lab, Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant. (Attachments: #(1) Civil Cover Sheet)(Eiland, Katrina) (Filed on 7/16/2019) (Entered: 07/16/2019)
2 Case assigned to Magistrate Judge Laurel Beeler.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E-Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5-1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. Consent/Declination due by 7/30/2019. (bwS, COURT STAFF) (Filed on 7/16/2019) (Entered: 07/16/2019)
3 MOTION for Temporary Restraining Order filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Attachments: # 1 Memorandum ISO Motion for TRO, # 2 Declaration Smith Declaration, # 3 Declaration Pinheiro Declaration, # 4 Declaration Manning Declaration, # 5 Declaration Sharp Declaration, # 6 Declaration Frydman Declaration, # 7 Declaration Anker and Hathaway Declaration, # 8 Proposed Order)(Eiland, Katrina) (Filed on 7/17/2019) (Entered: 07/17/2019)
4 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab.. (Eiland, Katrina) (Filed on 7/17/2019) (Entered: 07/17/2019)
5 CLERK'S NOTICE OF IMPENDING REASSIGNMENT TO A U.S. DISTRICT COURT JUDGE: The Clerk of this Court will now randomly reassign this case to a District Judge because either (1) a party has not consented to the jurisdiction of a Magistrate Judge, or (2) time is of the essence in deciding a pending judicial action for which the necessary

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consents to Magistrate Judge jurisdiction have not been secured. You will be informed by separate notice of the district judge to whom this case is reassigned.
ALL HEARING DATES PRESENTLY SCHEDULED BEFORE THE CURRENT MAGISTRATE JUDGE ARE VACATED AND SHOULD BE RE-NOTICED FOR HEARING BEFORE THE JUDGE TO WHOM THIS CASE IS REASSIGNED.
This is a text only docket entry; there is no document associated with this notice. (ejkS, COURT STAFF) (Filed on 7/17/2019) (Entered: 07/17/2019)
6 Immigration Mandamus Case Procedural Order, (fabS, COURT STAFF) (Filed on 7/17/2019) (Entered: 07/17/2019)
7 ORDER, Case Reassigned using a proportionate, random, and blind system pursuant to General Order No. 44 to Judge William H. Orrick for all further proceedings. Magistrate Judge Laurel Beeler no longer assigned to the case. Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras.. Signed by The Clerk on 7/17/19. (Attachments: # 1 Notice of Eligibility for Video Recording)(haS, COURT STAFF) (Filed on 7/17/2019) (Entered: 07/17/2019)
8 NOTICE of Appearance by Erez R. Reuveni (Reuveni, Erez) (Filed on 7/17/2019) (Entered: 07/17/2019)
9 MOTION for Leave to Appear in Pro Hac Vice of Lee Gelernt, (Filing Fee: $310.00, receipt number 0971-13528529) filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Gelernt, Lee) (Filed on 7/17/2019) (Entered: 07/17/2019)
10 NOTICE of Appearance by Julie Michelle Veroff (Veroff, Julie) (Filed on 7/17/2019) (Entered: 07/17/2019)
11 NOTICE of Appearance by Cody H. Wofsy (Wofsy, Cody) (Filed on 7/17/2019) (Entered: 07/17/2019)
12 NOTICE of Appearance by Spencer Elijah Wittmann Amdur (Amdur, Spencer) (Filed on 7/17/2019) (Entered: 07/17/2019)
13 ORDER RELATING CASES 18-cv-06810-JST and 19-cv-04073WHO. Signed by Judge Jon S. Tigar on July 17, 2019. (mllS, COURT STAFF) (Filed on 7/17/2019) (Entered: 07/17/2019)

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Set/Reset Hearing re 13 Order Relating Case Telephone Conference set for 7/18/2019 08:30 AM in San Francisco, Chambers before Judge Jon S. Tigar. (mllS, COURT STAFF) (Filed on 7/17/2019) (Entered: 07/18/2019)
14 Case reassigned to Judge Jon S. Tigar per related case order. Judge William H. Orrick no longer assigned to the case. Notice: The assigned judge participates in the Cameras in the Courtroom Pilot Project. See General Order No. 65 and http://cand.uscourts.gov/cameras. (srnS, COURT STAFF) (Filed on 7/18/2019) (Entered: 07/18/2019)
15 Minute Entry for proceedings held before Judge Jon S. Tigar: Telephone Conference held on 7/18/2019. Parties are to meet and confer regarding the Temporary Restraining Order briefing and submit a proposed schedule by noon today. Proposed Schedule due by 7/18/2019 by 12:00 PM PST.Total Time in Court: 30 minutes. Court Reporter: Not Reported or Recorded. Plaintiff Attorney: Lee Gelernt, Melissa Crow, Julie Veroff, Bahar Azmy, Katrina Eiland. Defendant Attorney: Erez Reuveni. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mllS, COURT STAFF) (Date Filed: 7/18/2019) (Entered: 07/18/2019)
16 NOTICE of Appearance by Vasudha Talla (Talla, Vasudha) (Filed on 7/18/2019) (Entered: 07/18/2019)
17 NOTICE of Appearance by Christine Patricia Sun (Sun, Christine) (Filed on 7/18/2019) (Entered: 07/18/2019)
18 SCHEDULING ORDER. Responses due by 7/19/2019 by 5:00 PM. Replies due by 7/21/2019 by 5:00 PM. Administrative record due by 7/23/2019 at 5:00 PM. Motion Hearing set for 7/24/2019 09:30 AM in San Francisco, Courtroom 09, 19th Floor before Judge Jon S. Tigar. Signed by Judge Jon S. Tigar on July 18, 2019. (mllS, COURT STAFF) (Filed on 7/18/2019) (Entered: 07/18/2019)
19 ORDER UNSEALING DOCKET. Signed by Judge Jon S. Tigar on July 18, 2019. (mllS, COURT STAFF) (Filed on 7/18/2019) (Entered: 07/18/2019)
20 Order by Judge Jon S. Tigar granting 9 Motion for Pro Hac Vice to Lee Gelernt. (mllS, COURT STAFF) (Filed on 7/18/2019) (Entered: 07/18/2019)
21 MOTION for Leave to Appear in Pro Hac Vice of Anand Balakrishnan, (Filing Fee: $310.00, receipt number 0971-13533138) filed by Al Otro Lado, Central American Resource Center, East Bay

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Sanctuary Covenant, Innovation Law Lab. (Balakrishnan, Anand) (Filed on 7/18/2019) (Entered: 07/18/2019)
22 Order by Judge Jon S. Tigar granting 21 Motion for Pro Hac Vice as to Anand Balakrishnan.(mllS, COURT STAFF) (Filed on 7/18/2019) (Entered: 07/18/2019)
23 NOTICE of Appearance by Scott G. Stewart (Stewart, Scott) (Filed on 7/19/2019) (Entered: 07/19/2019)
24 MOTION for Leave to Appear in Pro Hac Vice of Omar Jadwat, (Filing Fee: $310.00, receipt number 0971-13537122) filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Jadwat, Omar) (Filed on 7/19/2019) (Entered: 07/19/2019)
25 Proposed Summons. (Eiland, Katrina) (Filed on 7/19/2019) (Entered: 07/19/2019)
26 Summons Issued as to Defendants Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security & U.S. Department of Justice. (tnS, COURT STAFF) (Filed on 7/19/2019) (Entered: 07/19/2019)
27 Order by Judge Jon S. Tigar granting 24 Motion for Pro Hac Vice as to Omar Jadwat.(mllS, COURT STAFF) (Filed on 7/19/2019) (Entered: 07/19/2019)
28 OPPOSITION/RESPONSE to (re 3 MOTION for Temporary Restraining Order ) filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. (Attachments: #(1) [Proposed] Order)(Reuveni, Erez) (Filed on 7/19/2019) (Entered: 07/19/2019)
29 NOTICE filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice of Filing of the Administrative Record (Attachments: # 1 Exhibit Administrative Record Part 1, # 2 Exhibit Administrative Record Part 2, # 3 Exhibit Administrative

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Record Part 3, # 4 Exhibit Administrative Record Part 4, # 5 Exhibit Administrative Record Part 5, # 6 Exhibit Administrative Record Part 6, # 7 Exhibit Administrative Record Part 6, # 8 Exhibit Administrative Record Part 8, # 9 Exhibit Administrative Record Part 9)(Reuveni, Erez) (Filed on 7/19/2019) (Entered: 07/19/2019)
30 ORDER Because the Government has now produced the administrative record and both parties will be able to rely upon it in making their arguments, and in order both to promptly provide clarity regarding the legality of the challenged regulation and to facilitate the parties' ability to seek appellate review should they so wish, the Court will inquire at the July 24, 2019 hearing whether there is any reason it should not construe Plaintiffs' motion for temporary restraining order as a motion for preliminary injunction. See Four Seasons Hotels And Resorts, B.V. v. Consorcio Barr, S.A., 320 F.3d 1205, 1210 n.3 (11th Cir. 2003) ("The district court may convert a hearing for a temporary restraining order into a hearing for a preliminary injunction as long as the adverse party had notice of the hearing."); Voth v. Mills, No. CV 09-423-HA, 2010 WL 1640401, at *1 (D. Or. Apr. 19, 2010) (converting motion for temporary restraining order to motion for preliminary injunction "on the basis that defendants were given notice and an opportunity to respond to the [m]otion"). (This is a text-only entry generated by the court. There is no document associated with this entry.) (Tigar, Jon) (Filed on 7/20/2019) (Entered: 07/20/2019)
31 REPLY (re 3 MOTION for Temporary Restraining Order) filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Gelernt, Lee) (Filed on 7/21/2019) (Entered: 07/21/2019)
32 First MOTION for Leave to File Amicus Curiae Brief filed by East Bay Sanctuary Covenant. Motion Hearing set for 8/5/2019 08:00 AM in San Francisco, Courtroom 01, 17th Floor before Judge Jon S. Tigar. Responses due by 8/5/2019. Replies due by 8/12/2019. (Attachments: # 1 Exhibit)(Murch, Marienna) (Filed on 7/21/2019) (Entered: 07/21/2019)
33 First MOTION for Leave to File Amicus Curiae Brief - CORRECTION OF DOCKET # 32 filed by Marienna Murch. Responses due by 8/5/2019. Replies due by 8/12/2019. (Attachments: #(1) Exhibit)(Murch, Marienna) (Filed on 7/21/2019) Modified on 8/1/2019 (amgS, COURT STAFF). (Entered: 07/21/2019)
34 NOTICE of Appearance by Angelica Salceda (Salceda, Angelica) (Filed on 7/22/2019) (Entered: 07/22/2019)

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35 CLERK'S NOTICE RE: MEDIA PARTICIPATION. Members of the press wishing to listen to the proceedings scheduled for July 24, 2019, shall contact CourtCall at 1-866-582-6878 to make arrangements to do so. Recording of the hearing is prohibited. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mllS, COURT STAFF) (Filed on 7/23/2019) (Entered: 07/23/2019)
36 ORDER GRANTING LEAVE TO FILE AMICUS BRIEF by Judge Jon S. Tigar. (mllS, COURT STAFF) (Filed on 7/23/2019) (Entered: 07/23/2019)
37 MOTION for Leave to Appear in Pro Hac Vice of Melissa Crow, (Filing Fee: $310.00, receipt number 0971-13547242) filed by East Bay Sanctuary Covenant. (Crow, Melissa) (Filed on 7/24/2019) (Entered: 07/24/2019)
38 MOTION for Leave to Appear in Pro Hac Vice of Mary Bauer, (Filing Fee: $310.00, receipt number 0971-13547247) filed by East Bay Sanctuary Covenant. (Crow, Melissa) (Filed on 7/24/2019) (Entered: 07/24/2019)
39 Minute Entry for proceedings held on 7/24/2019 before Judge Jon S. Tigar regarding motion for temporary restraining order 3 . Hearing held and argument heard. The matter is taken under submission and the Court shall issue a written order ruling on the motion.
Total Time in Court: 63 minutes. Court Reporter: Debra Pas.
Plaintiff Attorneys: Lee Gelernt, Julie Veroff, Melissa Crow, Bahar Azmy, Katrina Eiland, Vasudha Talla, Angelica Salceda, and Spencer Amdur.
Defendant Attorneys: Scott Stewart and Erez Reuveni.
(This is a text-only entry generated by the court. There is no document associated with this entry.) (shyS, COURT STAFF) (Date Filed: 7/24/2019) (Entered: 07/24/2019)
40 TRANSCRIPT ORDER for proceedings held on 07/24/2019 before Judge Jon S. Tigar by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, for Court Reporter Debra Pas. (Kisor, Colin) (Filed on 7/24/2019) (Entered: 07/24/2019)

07/24/2019 07/24/2019 07/25/2019 07/25/2019 07/25/2019
07/29/2019
07/29/2019

41 TRANSCRIPT ORDER for proceedings held on 07/24/2019 before Judge Jon S. Tigar by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab, for Court Reporter Debra Pas. (Gelernt, Lee) (Filed on 7/24/2019) (Entered: 07/24/2019)
42 ORDER GRANTING PRELIMINARY INJUNCTION by Judge Jon S. Tigar re: 3 Motion for Temporary Restraining Order. Case Management Statement due by 10/11/2019. Initial Case Management Conference set for 10/21/2019 at 2:00 PM in Oakland, Courtroom 6, 2nd Floor. (jstlc3, COURT STAFF) (Filed on 7/24/2019) (Entered: 07/24/2019)
43 Order by Judge Jon S. Tigar granting 37 Motion for Pro Hac Vice as to Melissa Crow. (mllS, COURT STAFF) (Filed on 7/25/2019) (Entered: 07/25/2019)
44 Order by Judge Jon S. Tigar granting 38 Motion for Pro Hac Vice as to Mary Bauer.(mllS, COURT STAFF) (Filed on 7/25/2019) (Entered: 07/25/2019)
45 Transcript of Proceedings held on 7-24-2019, before Judge Jon S. Tigar. Court Reporter/Transcriber Debra L. Pas, CRR, telephone number (415) 431-1477/Email: Debra_Pas@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 41 Transcript Order, 40 Transcript Order, ) Release of Transcript Restriction set for 10/23/2019. (Related documents(s) 41 , 40 ) (pasdl50S, COURT STAFF) (Filed on 7/25/2019) (Entered: 07/25/2019)
46 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. Appeal of Order on Motion for TRO, 42 (Appeal fee FEE WAIVED.) (Reuveni, Erez) (Filed on 7/29/2019) USCA Number 1916487 Modified on 7/29/2019 (wsnS, COURT STAFF). (Entered: 07/29/2019)
47 Emergency MOTION to Stay Preliminary Injunction Order Pending Appeal re 42 Order on Motion for TRO filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan,

07/29/2019
07/29/2019
07/29/2019
07/31/2019 08/01/2019 08/02/2019

James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. Motion Hearing set for 8/20/2019 09:30 AM in San Francisco, Courtroom 09, 19th Floor before Judge Jon S. Tigar. Responses due by 8/12/2019. Replies due by 8/19/2019. (Attachments: #(1) [Proposed] Order)(Reuveni, Erez) (Filed on 7/29/2019) (Entered: 07/29/2019)
48 Emergency MOTION to Shorten Time For Decision on Motion to Stay Pending Appeal filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. (Attachments: # 1 Proposed Order)(Reuveni, Erez) (Filed on 7/29/2019) (Entered: 07/29/2019)
49 USCA Case Number 19-16487 U.S. Court of Appeals for the Ninth Circuit for 46 Notice of Appeal, filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, James McHenry, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Executive Office for Immigration Review, Immigration and Customs Enforcement, John P. Sanders. (wsnS, COURT STAFF) (Filed on 7/29/2019) (Entered: 07/29/2019)
50 ORDER by Judge Jon S. Tigar. The Court hereby GRANTS the government's 48 emergency motion to shorten time. Plaintiffs shall file their response to the 47 motion for a stay pending appeal by 12:00 p.m. on July 31, 2019. The Court will then take the matter under submission. The Court intends to rule on the motion for a stay by 12:00 p.m. on August 2, 2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jstlc1S, COURT STAFF) (Filed on 7/29/2019) (Entered: 07/29/2019)
51 OPPOSITION/RESPONSE (re 47 Emergency MOTION to Stay re 42 Order on Motion for TRO, ) filed byAl Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Gelernt, Lee) (Filed on 7/31/2019) (Entered: 07/31/2019)
52 ORDER DENYING STAY PENDING APPEAL by Judge Jon S. Tigar. (mllS, COURT STAFF) (Filed on 8/1/2019) (Entered: 08/01/2019)
53 MOTION for Leave to File Amicus Brief for Dismissal for Lack of Jurisdiction submitted by Duane Morley Cox. (Attachments: # 1 Amicus

08/05/2019 08/06/2019 08/14/2019 08/19/2019
08/19/2019 08/19/2019

Brief, # 2 Notice of Appearance, # 3 Envelope) (gbaS, COURT STAFF) (Filed on 8/2/2019) (Entered: 08/04/2019)
54 ORDER of USCA as to 46 Notice of Appeal 19-16487, filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, James McHenry, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Executive Office for Immigration Review, Immigration and Customs Enforcement, John P. Sanders. (wsnS, COURT STAFF) (Filed on 8/5/2019) (Entered: 08/05/2019)
55 ORDER DENYING LEAVE TO FILE AMICUS BRIEF by Judge Jon S. Tigar. (mllS, COURT STAFF) (Filed on 8/6/2019) (Entered: 08/06/2019)
56 CLERK'S NOTICE CONTINUING CASE MANAGEMENT CONFERENCE. Case Management Statement due by 10/31/2019 by 5:00 PM. Initial Case Management Conference set for 11/7/2019 02:00 PM in Oakland, Courtroom 6, 2nd Floor. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mllS, COURT STAFF) (Filed on 8/14/2019) (Entered: 08/14/2019)
57 Emergency MOTION to Consider Supplemental Evidence and Restore the Nationwide Scope of Injunction filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. Responses due by 8/21/2019. Replies due by 8/22/2019. (Attachments: # 1 Memorandum ISO Motion, # 2 Supplemental Manning Declaration, # 3 Supplemental Smith Declaration, # 4 Ramos Declaration, # 5 Alvarez Declaration, # 6 Reichlin-Melnick Declaration, # 7 Proposed Order)(Gelernt, Lee) (Filed on 8/19/2019) (Entered: 08/19/2019)
58 ORDER of USCA as to 46 Notice of Appeal 19-16487, filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, James McHenry, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Executive Office for Immigration Review, Immigration and Customs Enforcement, John P. Sanders. (wsnS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)
59 SCHEDULING ORDER. Signed by Judge Jon S. Tigar on August 19, 2019. (mllS, COURT STAFF) (Filed on 8/19/2019) (Entered: 08/19/2019)

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08/22/2019 08/29/2019

60 First MOTION for Leave to File Amicus Curiae Brief filed by NonProfit Organizations and Law School Clinics filed by Blaine Bookey. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Bookey, Blaine) (Filed on 8/19/2019) (Entered: 08/19/2019)
61 ORDER GRANTING MOTION FOR LEAVE TO FILE AMICUS BRIEF The Non-Profit Organizations and Law School Clinics' motion for leave to file an amicus curiae brief, ECF No. 60, is granted without objection. (This is a text-only entry generated by the court. There is no document associated with this entry.)(Entered by Judge Jon S. Tigar) (Entered: 08/20/2019)
62 CLERKS NOTICE REGARDING LOCATION CHANGE FOR JUDGE JON S. TIGAR
Effective August 26, 2019:
Judge Jon S. Tigar's courtroom and chambers will be located at the Ronald V. Dellums Federal Building and United States Courthouse, Courtroom 6, 2nd Floor, 1301 Clay Street, Oakland, CA 94612.
On or after the effective date, all court appearances, filings, and deliveries of chambers copies must be made at the Oakland Courthouse (https://cand.uscourts.gov/locations). For updated scheduling information, please visit https://cand.uscourts.gov/jst.
Judge Tigar's case assignments will be updated to reflect the correct office assignment (for example: 3:19-cv-00123-JST will now be 4:19cv-00123-JST). (This is a text-only entry generated by the court. There is no document associated with this entry.) (ecgS-adi, COURT STAFF) (Filed on 8/21/2019) (Entered: 08/21/2019)
63 Supplemental Brief re 57 Emergency MOTION to Consider Supplemental Evidence and Restore the Nationwide Scope of Injunction filed byAl Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Related document(s) 57 ) (Gelernt, Lee) (Filed on 8/22/2019) (Entered: 08/22/2019)
64 **RE-FILED AS DOCKET NO. 65 ** OPPOSITION/RESPONSE (re 57 Emergency MOTION to Consider Supplemental Evidence and Restore the Nationwide Scope of Injunction ) filed byMatthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S.

08/29/2019 08/29/2019 08/30/2019

Department of Homeland Security, U.S. Department of Justice. (Reuveni, Erez) (Filed on 8/29/2019) Modified on 8/30/2019 (jjbS, COURT STAFF). (Entered: 08/29/2019)
65 OPPOSITION/RESPONSE (re 57 Emergency MOTION to Consider Supplemental Evidence and Restore the Nationwide Scope of Injunction ) (corrected, with exhibits) filed byMatthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. (Attachments: # 1 Exhibit Ex. A (EOIR Guidance), # 2 Exhibit Ex. B (USCIS Guidance), # 3 Exhibit Ex. C (ICE Guidance))(Reuveni, Erez) (Filed on 8/29/2019) Modified on 8/30/2019 (cpS, COURT STAFF).
***ATTACHMENT 2 RE-FILED AT DKT. # 66 ***
(Entered: 08/29/2019)
66 ERRATA re 65 Opposition/Response to Motion,, (substituting attached documents in place of Exhibits B in ECF 65-2)) by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. (Attachments: # 1 Exhibit Ex. B (USCIS Guidance), # 2 Exhibit Ex. B (USCIS Guidance))(Reuveni, Erez) (Filed on 8/29/2019) Modified on 8/30/2019 (cpS, COURT STAFF). (Entered: 08/29/2019)
Electronic filing error. NOTICE TO COUNSEL: Document includes redacted pages. A written request must be filed to seal documents. Please see Local Rules 79-5 and re-file in its entirety. Re: 66 Errata, filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, James McHenry, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Executive Office for Immigration Review, Immigration and Customs Enforcement, John P. Sanders, 65 Opposition/Response to Motion,, filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, James McHenry, Kevin K. McAleenan, Immigration and Customs Enforcement, Executive Office for Immigration Review, John P. Sanders (jjbS, COURT STAFF) (Filed on 8/30/2019) (Entered: 08/30/2019)

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67 REPLY (re 57 Emergency MOTION to Consider Supplemental Evidence and Restore the Nationwide Scope of Injunction ) filed byAl Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Gelernt, Lee) (Filed on 9/3/2019) (Entered: 09/03/2019)
68 Administrative Motion to File Under Seal portions of ECF 65-1 and 653 filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Exhibit EOIR Guidance, redacted, # 4 Exhibit EOIR Guidance, unredacted, # 5 Exhibit ICE Guidance, redacted, # 6 Exhibit ICE Guidance, unredacted)(Reuveni, Erez) (Filed on 9/3/2019) Modified on 9/4/2019 (ajsS, COURT STAFF). (Entered: 09/03/2019)
69 Minute Entry for proceedings held before Judge Jon S. Tigar: Motion Hearing held on 9/5/2019. re 57 Emergency MOTION to Consider Supplemental Evidence and Restore the Nationwide Scope of Injunction filed by East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center, Al Otro Lado. Argument heard from both parties. Motion taken under submission. Written order to issue.
Total Time in Court: 35 minutes. Court Reporter: Pamela Hebel.
Plaintiff Attorney: Lee Gelernt, Julie Veroff, Katrina Eiland, Morgan Russell. Defendant Attorney: Scott Stewart. (This is a textonly entry generated by the court. There is no document associated with this entry.) (mllS, COURT STAFF) (Date Filed: 9/5/2019) (Entered: 09/05/2019)
70 Order by Judge Jon S. Tigar granting 68 Administrative Motion to File Under Seal.(mllS, COURT STAFF) (Filed on 9/5/2019) (Entered: 09/05/2019)
71 TRANSCRIPT ORDER for proceedings held on 09/05/2019 before Judge Jon S. Tigar by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, for Court Reporter Pam Batalo. (Genova, Francesca) (Filed on 9/6/2019) (Entered: 09/06/2019)

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09/09/2019 09/10/2019 09/10/2019 09/10/2019
09/10/2019

72 Transcript of Proceedings held on 09/05/19, before Judge Tigar. Court Reporter Pamela Batalo Hebel, telephone number 626-688-7509; pamela_batalo-hebel@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 71 Transcript Order, ) Redaction Request due 9/27/2019. Redacted Transcript Deadline set for 10/7/2019. Release of Transcript Restriction set for 12/5/2019. (Related documents(s) 71 ) (Batalo, Pam) (Filed on 9/6/2019) (Entered: 09/06/2019)
73 Order by Judge Jon S. Tigar granting 57 Motion to Consider Supplemental Evidence and Restore the Nationwide Scope of Injunction.(mllS, COURT STAFF) (Filed on 9/9/2019) (Entered: 09/09/2019)
74 Proposed Summons. (Eiland, Katrina) (Filed on 9/10/2019) (Entered: 09/10/2019)
75 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. Appeal of Order on Motion for Miscellaneous Relief 73 (Appeal fee FEE WAIVED.) (Reuveni, Erez) (Filed on 9/10/2019) (Entered: 09/10/2019)
76 Emergency MOTION to Stay re 73 Order on Motion for Miscellaneous Relief filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. Motion Hearing set for 10/2/2019 09:30 AM in Oakland, Chambers before Judge Jon S. Tigar. Responses due by 9/24/2019. Replies due by 10/1/2019. (Attachments: # 1 Proposed Order)(Reuveni, Erez) (Filed on 9/10/2019) (Entered: 09/10/2019)
77 Emergency MOTION to Stay re 73 Order on Motion for Miscellaneous Relief (CORRECTED) filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James

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09/10/2019 09/12/2019 09/12/2019

McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. Motion Hearing set for 10/2/2019 09:30 AM in Oakland, Chambers before Judge Jon S. Tigar. Responses due by 9/24/2019. Replies due by 10/1/2019. (Attachments: # 1 Proposed Order)(Reuveni, Erez) (Filed on 9/10/2019) (Entered: 09/10/2019)
78 USCA Case Number 19-16773 Ninth Circuit Court of Appeals for 75 Notice of Appeal filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, James McHenry, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Executive Office for Immigration Review, Immigration and Customs Enforcement, John P. Sanders. (cjlS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
79 Summons Issued as to David L. Anderson, U.S. Attorney for the Northern District of California. (jjbS, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
80 ORDER The Court notes Defendants' emergency motion to stay the Court's preliminary injunction order pending appeal. ECF No. 77 . Although Defendants have not filed a motion for order shortening time, the Court on its own motion orders Plaintiffs to file an opposition by September 13, 2019. The Court will then take the matter under submission without a hearing. Signed by Judge Jon S. Tigar on September 10, 2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jstlc1S, COURT STAFF) (Filed on 9/10/2019) (Entered: 09/10/2019)
81 TRANSCRIPT ORDER for proceedings held on 9/5/2019 before Judge Jon S. Tigar by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab, for Court Reporter Pam Batalo. (Eiland, Katrina) (Filed on 9/10/2019) (Entered: 09/10/2019)
82 Joint Statement Concerning Defendants' Emergency Stay Motion by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Attachments: # 1 Proposed Order)(Gelernt, Lee) (Filed on 9/12/2019) Modified on 9/12/2019 (jmlS, COURT STAFF). (Entered: 09/12/2019)
83 SUMMONS Returned Executed by Al Otro Lado, East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center. All Defendants. (Eiland, Katrina) (Filed on 9/12/2019) (Entered: 09/12/2019)

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10/29/2019

84 NOTICE by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice (joint notice concerning service and deadlines) (Reuveni, Erez) (Filed on 9/12/2019) (Entered: 09/12/2019)
85 Order by Judge Jon S. Tigar finding as moot 77 Motion to Stay.(mllS, COURT STAFF) (Filed on 9/12/2019) (Entered: 09/12/2019)
86 NOTICE of Change In Counsel by Angelica Salceda Notice of Withdrawal Christine P. Sun as Counsel (Salceda, Angelica) (Filed on 9/23/2019) (Entered: 09/23/2019)
87 MOTION to Stay case pending appeal and stay deadlines pending resolution of this motion filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. Motion Hearing set for 10/22/2019 10:00 AM in Oakland, Chambers before Judge Jon S. Tigar. Responses due by 11/8/2019. Replies due by 11/15/2019. (Attachments: # 1 Proposed Order)(Reuveni, Erez) (Filed on 10/25/2019) (Entered: 10/25/2019)
88 ORDER In light of Defendants' motion to stay proceedings pending resolution of their appeal, ECF No. 87 , the case management conference currently scheduled for November 7, 2019 is continued to December 17, 2019. Signed by Judge Jon S. Tigar on October 28, 2019. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jstlc1S, COURT STAFF) (Filed on 10/28/2019) (Entered: 10/28/2019)
89 CLERK'S NOTICE Continuing Motion Hearing and Case Management Conference. Motion Hearing set for 12/4/2019 02:00 PM in Oakland, Courtroom 6, 2nd Floor before Judge Jon S. Tigar. Case Management Statement due by 12/10/2019. Initial Case Management Conference set for 12/17/2019 02:00 PM in Oakland, Courtroom 6, 2nd Floor. Set/Reset Deadlines as to 87 MOTION to Stay case pending appeal and stay deadlines pending resolution of this motion. (This is a text-only entry generated by the court. There is no document associated with this entry.). (Related documents(s) 87 )(mllS, COURT STAFF) (Filed on 10/29/2019) (Entered: 10/29/2019)

11/07/2019
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10/16/2020

90 STIPULATION WITH PROPOSED ORDER on deadlines filed by Matthew T. Albence, William Barr, Blaine Bookey, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Reuveni, Erez) (Filed on 11/7/2019) Modified on 11/8/2019 (jmlS, COURT STAFF). (Entered: 11/07/2019)
91 Order by Judge Jon S. Tigar granting 90 Stipulation. The Court has received the parties' stipulation to extend Defendants' deadline to file a motion to dismiss or other responsive pleading to 30 days from the date the Court rules on the government's motion to stay. ECF No. 90 . The Court orders that this deadline shall be extended to January 17, 2020. (This is a text-only entry generated by the court. There is no document associated with this entry.) (jstlc1S, COURT STAFF) (Filed on 11/7/2019) (Entered: 11/07/2019)
92 NOTICE of Change In Counsel by Melissa E Crow (Crow, Melissa) (Filed on 11/15/2019) (Entered: 11/15/2019)
*** Attorney Mary Catherine Bauer terminated. 92 NOTICE of Change In Counsel. (jmlS, COURT STAFF) (Filed on 11/15/2019) (Entered: 11/18/2019)
93 Order by Judge Jon S. Tigar granting 87 Motion to Stay. (mllS, COURT STAFF) (Filed on 11/19/2019) (Entered: 11/19/2019)
94 Opinion of USCA as to 75 Notice of Appeal,, filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, James McHenry, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Executive Office for Immigration Review, Immigration and Customs Enforcement, John P. Sanders, 46 Notice of Appeal,, filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, James McHenry, Kevin K. McAleenan, Immigration and Customs Enforcement, Executive Office for Immigration Review, John P. Sanders (jmlS, COURT STAFF) (Filed on 7/6/2020) (Entered: 07/06/2020)
95 First MOTION to Intervene , MOTION for Order of Sale , MOTION for Preliminary Injunction , MOTION for Temporary Restraining Order filed by J.S.M., et al.. Motion Hearing set for 10/21/2020 02:00 PM in Oakland, Courtroom 6, 2nd Floor before Judge Jon S. Tigar.

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10/19/2020 10/19/2020 10/20/2020 10/20/2020 10/20/2020

Responses due by 10/30/2020. Replies due by 11/6/2020. Motion Hearing set for 10/28/2020 02:00 PM in Oakland, Courtroom 6, 2nd Floor before Judge Jon S. Tigar. Responses due by 11/4/2020. Replies due by 11/12/2020. (Attachments: # 1 Declaration, # 2 Proposed Order)(Ogata, Jonathan) (Filed on 10/16/2020) (Entered: 10/16/2020)
96 First MOTION to Stay filed by J.S.M., et al.. Motion Hearing set for 10/21/2020 02:00 PM in Oakland, Courtroom 6, 2nd Floor before Judge Jon S. Tigar. Responses due by 10/30/2020. Replies due by 11/6/2020. (Attachments: # 1 Proposed Order)(Ogata, Jonathan) (Filed on 10/16/2020) (Entered: 10/16/2020)
97 EXHIBITS re 96 First MOTION to Stay filed byJ.S.M., et al.. (Attachments: # 1 Exhibit)(Related document(s) 96 ) (Ogata, Jonathan) (Filed on 10/16/2020) (Entered: 10/16/2020)
Electronic filing error. No title Page. Exhibits e-filed separately and not as an attachment, require a title page. Please refer to Civil Local Rules 34 re first page requirement . Please re-file in its entirety. Re: 97 Exhibits filed by J.S.M., et al. (jmlS, COURT STAFF) (Filed on 10/16/2020) (Entered: 10/19/2020)
98 ORDER GRANTING 95 TEMPORARY RESTRAINING ORDER; ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION. Responses re: preliminary injunction due by 10/23/2020. Replies due by 10/26/2020. Motion Hearing set for 10/29/2020 at 9:30 AM before Judge Jon S. Tigar. Signed by Judge Jon S. Tigar on October 17, 2020. (jstlc3, COURT STAFF) (Filed on 10/17/2020) (Entered: 10/17/2020)
99 Declaration of Bridget Cambria in Support of 96 First MOTION to Stay filed byJ.S.M., et al.. (Related document(s) 96 ) (Ogata, Jonathan) (Filed on 10/19/2020) (Entered: 10/19/2020)
100 Declaration of Shalyn Fluharty in Support of 96 First MOTION to Stay filed byJ.S.M., et al.. (Related document(s) 96 ) (Ogata, Jonathan) (Filed on 10/19/2020) (Entered: 10/19/2020)
101 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15089940.) filed by J.S.M., et al.. (Siegler, Adam) (Filed on 10/20/2020) (Entered: 10/20/2020)
102 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15089991.) filed by J.S.M., et al.. (Siegler, Adam) (Filed on 10/20/2020) (Entered: 10/20/2020)
103 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15090384.) filed by J.S.M., et al.. (Copeland, Gregory) (Filed on 10/20/2020) (Entered: 10/20/2020)

10/21/2020 10/21/2020 10/21/2020 10/21/2020 10/22/2020

104 Order by Judge Jon S. Tigar granting 101 Motion for Pro Hac Vice as to Steve Barringer.(mllS, COURT STAFF) (Filed on 10/21/2020) (Entered: 10/21/2020)
105 Order by Judge Jon S. Tigar granting 102 Motion for Pro Hac Vice as to Caroline Heller.(mllS, COURT STAFF) (Filed on 10/21/2020) (Entered: 10/21/2020)
106 Order by Judge Jon S. Tigar granting 103 Motion for Pro Hac Vice as to Gregory Copeland.(mllS, COURT STAFF) (Filed on 10/21/2020) (Entered: 10/21/2020)
107 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-15095668.) filed by J.S.M., et al.. (Gillman, Sarah) (Filed on 10/21/2020) (Entered: 10/21/2020)
108 CLERKS NOTICE SETTING ZOOM HEARING. Motion Hearing set for 10/29/2020 09:30 AM in Videoconference Only before Judge Jon S. Tigar. This proceeding will be held via a Zoom webinar.

Webinar Access: All counsel, members of the public, and media may access the webinar information at https://www.cand.uscourts.gov/jst

Court Appearances: Advanced notice is required of counsel or parties who wish to be ident ified by the court as making an appearance or will be participating in the argument at the hearing. One list of names and emails of all counsel appearing for all parties must be sent in one email to the CRD at JSTCRD@cand.uscourts.gov no later than October 28, 2020 by Noon.

General Order 58. Persons granted access to court proceedings held by telephone or videoconference are reminded that photographing, recording, and rebroadcasting of court proceedings, including screenshots or other visual copying of a hearing, is absolutely prohibited.

Zoom Guidance and Setup: https://www.cand.uscourts.gov/zoom/.

10/22/2020

, Set/Reset Deadlines as to 98 Temporar y Restraining Order,, Set Deadlines/Hearings,, Terminate Motions,. Motion Hearing set for 10/29/2020 09:30 AM in Videoconference Only before Judge Jon S. Tigar. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mllS, COURT STAFF) (Filed on 10/22/2020) (Entered: 10/22/2020)
109 Order by Judge Jon S. Tigar granting 107 Motion for Pro Hac Vice as to Sarah Gillman.(mllS, COURT STAFF) (Filed on 10/22/2020) (Entered: 10/22/2020)

10/23/2020 10/23/2020 10/26/2020 10/29/2020
10/29/2020

110 OPPOSITION/RESPONSE (re 96 First MOTION to Stay , 95 First MOTION to Intervene MOTION for Order of Sale MOTION for Preliminary Injunction MOTION for Temporary Restraining Order ) filed byMatthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. (Attachments: # 1 Declaration Declaration of Jay Visconti, # 2 Appendix Appendix of Citations Not Available on Westlaw)(Reuveni, Erez) (Filed on 10/23/2020) (Entered: 10/23/2020)
111 AFFIDAVIT re 110 Opposition/Response to Motion,, (Corrected, with electronic signature) by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. (Attachments: # 1 Exhibit Exhibit to Declaration of Jay Visconti)(Reuveni, Erez) (Filed on 10/23/2020) (Entered: 10/23/2020)
112 REPLY (re 95 First MOTION to Intervene MOTION for Order of Sale MOTION for Preliminary Injunction MOTION for Temporary Restraining Order ) filed byJ.S.M., et al.. (Attachments: # 1 Declaration of Caroline Heller, # 2 Exhibit 5, # 3 Exhibit 6)(Ogata, Jonathan) (Filed on 10/26/2020) (Entered: 10/26/2020)
113 Minute Entry for proceedings held before Judge Jon S. Tigar: Motion Hearing held on 10/29/2020. re 95 First MOTION to Intervene MOTION for Order of Sale MOTION for Preliminary Injunction MOTION for Temporary Restraining Order filed by J.S.M., et al. Hearing held via Zoom videoconference. Argument heard from both parties. The Court will make a determination as to whether it has the authority to extend the TRO. Motion taken under submission. Total Time in Court: 1 hour 16 minutes. Court Reporter: Diane Skillman. Plaintiff Attorney: Caroline J. Heller, Jon Ogata, Gregory Copeland, Sarah Gillman. Defendant Attorney: Erez R. Reuveni. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mllS, COURT STAFF) (Date Filed: 10/29/2020) (Entered: 10/29/2020)
114 NOTICE of Filing of Transcript in M.M.V. v. Barr by J.S.M., et al. (Heller, Caroline) (Filed on 10/29/2020) Modified on 10/30/2020 (jmlS, COURT STAFF). (Entered: 10/29/2020)

10/29/2020
10/29/2020 10/30/2020
11/02/2020 11/02/2020
11/04/2020 11/04/2020 11/05/2020

115 NOTICE (re: extension of TRO by 1 week through November 6) by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice re 113 Motion Hearing,,,, Terminate Deadlines and Hearings,,, 98 Temporary Restraining Order,, Set Deadlines/Hearings,, Terminate Motions, (Reuveni, Erez) (Filed on 10/29/2020) Modified on 10/30/2020 (jmlS, COURT STAFF). (Entered: 10/29/2020)
116 ORDER EXTENDING TEMPORARY RESTRAINING ORDER re 98 Temporary Restraining Order. Signed by Judge Jon S. Tigar on October 29, 2020. (mllS, COURT STAFF) (Filed on 10/29/2020) (Entered: 10/29/2020)
117 TRANSCRIPT ORDER for proceedings held on 10/29/20 before Judge Jon S. Tigar by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice, for Court Reporter Diane Skillman. (Reuveni, Erez) (Filed on 10/30/2020) (Entered: 10/30/2020)
118 Letter from Proposed Plaintiff-Intervenors regarding Reply in Further Support of Motion to Intervene. (Heller, Caroline) (Filed on 11/2/2020) (Entered: 11/02/2020)
119 RESPONSE re 118 Letter (in opposition to request for clarification) by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. (Reuveni, Erez) (Filed on 11/2/2020) (Entered: 11/02/2020)
120 ORDER REGARDING MOTION BRIEFING re 118 Letter filed by J.S.M., et al.. Signed by Judge Jon S. Tigar on November 4, 2020. (mllS, COURT STAFF) (Filed on 11/4/2020) (Entered: 11/04/2020)
121 NOTICE of Supplemental Authority by J.S.M., et al. (Attachments: # 1 Exhibit A-Kiakombua et al v. Wolf et al)(Heller, Caroline) (Filed on 11/4/2020) Modified on 11/5/2020 (jmlS, COURT STAFF). (Entered: 11/04/2020)
122 RESPONSE re 121 Notice (Other) by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review,

11/10/2020 11/11/2020 11/12/2020 11/16/2020 11/21/2020 11/30/2020
11/30/2020 01/14/2021

Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. (Reuveni, Erez) (Filed on 11/5/2020) (Entered: 11/05/2020)
123 Order by Judge Jon S. Tigar denying 95 Motion to Intervene; denying 95 Motion for Preliminary Injunction.(mllS, COURT STAFF) (Filed on 11/10/2020) (Entered: 11/10/2020)
124 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by J.S.M., et al.. Appeal of Order on Motion to Intervene, Order on Motion for Preliminary Injunction 123 (Appeal fee of $505 receipt number 0971-15179645 paid.) (Heller, Caroline) (Filed on 11/11/2020) (Entered: 11/11/2020)
125 USCA Case Number 20-17204 Ninth Circuit Court of Appeals for 124 Notice of Appeal, filed by J.S.M., et al. (cjlS, COURT STAFF) (Filed on 11/12/2020) (Entered: 11/12/2020)
126 TRANSCRIPT ORDER for proceedings held on 10/29/2020 before Judge Jon S. Tigar by J.S.M., et al., for Court Reporter Diane Skillman. (Ogata, Jonathan) (Filed on 11/16/2020) (Entered: 11/16/2020)
127 ORDER of USCA as to 124 Notice of Appeal, filed by J.S.M., et al. (jmlS, COURT STAFF) (Filed on 11/21/2020) (Entered: 11/23/2020)
128 Transcript of Proceedings held on October 29, 2020, before Judge Jon S. Tigar. Court Reporter Diane E. Skillman, telephone number 925-8992912, Diane_Skillman@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 126 Transcript Order ) Release of Transcript Restriction set for 3/1/2021. (Related documents(s) 126 ) (Skillman, Diane) (Filed on 11/30/2020) (Entered: 11/30/2020)
***Motions terminated: 96 First MOTION to Stay filed by J.S.M., et al.. (mllS, COURT STAFF) (Filed on 11/30/2020) (Entered: 11/30/2020)
129 NOTICE of request to withdraw attorney Scott G. Stewart by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S.

01/14/2021 01/19/2021
01/19/2021 01/21/2021
01/27/2021 01/28/2021

Department of Homeland Security, U.S. Department of Justice (Reuveni, Erez) (Filed on 1/14/2021) (Entered: 01/14/2021)
*** Attorney Scott G. Stewart terminated. See notice at docket # 129 . (jmlS, COURT STAFF) (Filed on 1/14/2021) (Entered: 01/15/2021)
130 MOTION for Leave to File Amended and Supplemental Complaint and to Lift Stay of Proceedings filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Attachments: # 1 Memorandum in support of Motion to File Amended and Supplemental Complaint and to Lift Stay of Proceedings, # 2 Exhibit A - Proposed First Amended and Supplemental Complaint, # 3 Exhibit B - Redline version of additions and alterations to Complaint, # 4 Proposed Order)(Eiland, Katrina) (Filed on 1/19/2021) (Entered: 01/19/2021)
Electronic filing error. REMINDER TO COUNSEL: In the future, please be sure that the case number is correctly reflected on your documents as 4:19-cv-04073-JST. Re:[1 30] MOTION for Leave to File Amended and Supplemental Complaint and to Lift Stay of Proceedings filed by East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center, Al Otro Lado (jmlS, COURT STAFF) (Filed on 1/19/2021) (Entered: 01/20/2021)
131 MOTION for Preliminary Injunction and Stay of Final Rule's Effective Date Pursuant to 5 U.S.C. § 705 filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. Responses due by 2/4/2021. Replies due by 2/11/2021. (Attachments: # 1 Memorandum in support of Motion for Preliminary Injunction and Stay of Final Rule, # 2 Exh. A - Further Supplemental Declaration of Nicole Ramos, # 3 Exh. B - Further Supplemental Declaration of Stephen W. Manning, # 4 Exh. C - Further Supplemental Declaration of Camila Alvarez, # 5 Exh. D Further Supplemental Declaration of Michael Smith, # 6 Proposed Order)(Eiland, Katrina) (Filed on 1/21/2021) (Entered: 01/21/2021)
132 STIPULATION WITH [PROPOSED] ORDER regarding Briefing Schedule filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab, William Barr. (Attachments: # 1 Proposed Order)(Eiland, Katrina) (Filed on 1/27/2021) Modified on 1/28/2021 (cjlS, COURT STAFF). (Entered: 01/27/2021)
133 Order by Judge Jon S. Tigar granting 132 Stipulation Regarding Briefing Schedule.(mllS, COURT STAFF) (Filed on 1/28/2021) (Entered: 01/28/2021)

01/28/2021 01/28/2021 01/28/2021
01/29/2021 01/29/2021 01/29/2021
01/29/2021 02/01/2021

Set/Reset Deadlines as to 131 MOTION for Preliminary Injunction and Stay of Final Rule's Effective Date Pursuant to 5 U.S.C. § 705. Responses due by 2/1/2021. Replies due by 2/4/2021. (mllS, COURT STAFF) (Filed on 1/28/2021) (Entered: 01/28/2021)
***Motions terminated: 130 MOTION for Leave to File Amended and Supplemental Complaint and to Lift Stay of Proceedings filed by East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center, Al Otro Lado. (mllS, COURT STAFF) (Filed on 1/28/2021) (Entered: 01/28/2021)
134 First AMENDED COMPLAINT and Supplemental Complaint for Declaratory and Injunctive Relief against Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. Filed byAl Otro Lado, East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center. (Eiland, Katrina) (Filed on 1/28/2021) Modified on 1/29/2021 (jmlS, COURT STAFF). (Entered: 01/28/2021)
135 Notice of Withdrawal of Attorney Jonathan K. Ogata filed by J.S.M., et al.. (Siegler, Adam) (Filed on 1/29/2021) Modified on 1/29/2021 (jmlS, COURT STAFF). (Entered: 01/29/2021)
*** Attorney Jonathan Kenji Ogata terminated. See Notice at docket # 135 . (jmlS, COURT STAFF) (Filed on 1/29/2021) (Entered: 01/29/2021)
Electronic filing error. Incorrect event used. [err101] The correct event is Notice of Substitution of Attorney. the correct event can be found at: Civil Events > Other Filing s > Notices > Notice (Other) > Notice of Substitution of Counsel. Corrected by Clerk's Office. No further action is necessary. Re: 135 MOTION to Withdraw as Attorney Jonathan K. Ogata filed by J.S.M., et al. (jmlS, COURT STAFF) (Filed on 1/29/2021) (Entered: 01/29/2021)
***Motions terminated: 135 MOTION to Withdraw as Attorney Jonathan K. Ogata filed by J.S.M., et al.., ***Deadlines terminated. Electronic Filing Error,,. (jmlS, COURT STAFF) (Filed on 1/29/2021) (Entered: 01/29/2021)
136 OPPOSITION/RESPONSE (re 131 MOTION for Preliminary Injunction and Stay of Final Rule's Effective Date Pursuant to 5 U.S.C. § 705 ) (response to motion for preliminary injunction) filed byMatthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K.

02/02/2021 02/16/2021 02/16/2021 02/16/2021 02/25/2021
02/25/2021
03/24/2021

McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. (Reuveni, Erez) (Filed on 2/1/2021) (Entered: 02/01/2021)
137 REPLY (re 131 MOTION for Preliminary Injunction and Stay of Final Rule's Effective Date Pursuant to 5 U.S.C. § 705 ) filed byAl Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Eiland, Katrina) (Filed on 2/2/2021) (Entered: 02/02/2021)
138 ORDER by Judge Jon S. Tigar granting 131 Motion for Preliminary Injunction and Stay of Final Rule's Effective Date Pursuant to 5 U.S.C. § 705. (mllS, COURT STAFF) (Filed on 2/16/2021) (Entered: 02/16/2021)
139 NOTICE of Change In Counsel by Lee Gelernt Notice of Withdrawal of Julie Veroff as Counsel (Gelernt, Lee) (Filed on 2/16/2021) (Entered: 02/16/2021)
*** Attorney Julie Michelle Veroff terminated. See Notice at docket # 139 . (jmlS, COURT STAFF) (Filed on 2/16/2021) (Entered: 02/17/2021)
140 Joint MOTION to Stay filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P. Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice. Motion Hearing set for 3/24/2021 02:00 PM in Do Not Use To Be Determined before Judge Jon S. Tigar. Responses due by 3/11/2021. Replies due by 3/18/2021. (Attachments: # 1 Proposed Order)(Reuveni, Erez) (Filed on 2/25/2021) (Entered: 02/25/2021)
141 CLERK'S NOTICE Continuing Motion Hearing. The motion hearing set for 3/25/2021 is CONTINUED to be in compliance with Civil Local Rule 7-2. Set/Reset Deadlines as to 140 Joint MOTION to Stay . Motion Hearing set for 4/8/2021 02:00 PM in Oakland, - To be determined before Judge Jon S. Tigar. (This is a text-only entry generated by the court. There is no document associated with this entry.), (Related documents(s) 140 )(mllS, COURT STAFF) (Filed on 2/25/2021) (Entered: 02/25/2021)
142 STIPULATION WITH PROPOSED ORDER to extend answer deadline filed by Matthew T. Albence, William Barr, Kenneth T. Cuccinelli, Executive Office for Immigration Review, Immigration and Customs Enforcement, Kevin K. McAleenan, James McHenry, John P.

03/24/2021 03/24/2021 04/08/2021
04/16/2021

Sanders, U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, U.S. Department of Homeland Security, U.S. Department of Justice and East Bay Sanctuary Covenant et al.. (Reuveni, Erez) (Filed on 3/24/2021) Modified on 3/25/2021 (jmlS, COURT STAFF). (Entered: 03/24/2021)
143 Order by Judge Jon S. Tigar granting 142 Stipulation to Extend Answer Deadline.(mllS, COURT STAFF) (Filed on 3/24/2021) (Entered: 03/24/2021)
144 Order by Judge Jon S. Tigar granting 140 Motion to Stay Proceedings.(mllS, COURT STAFF) (Filed on 3/24/2021) (Entered: 03/24/2021)
145 ORDER and Amended Opinion of USCA as to 75 Notice of Appeal to the Ninth Circuit,, filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, James McHenry, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Executive Office for Immigration Review, Immigration and Customs Enforcement, John P. Sanders, 94 USCA Order,,, 46 Notice of Appeal to the Ninth Circuit,, filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, James McHenry, Kevin K. McAleenan, Immigration and Customs Enforcement, Executive Office for Immigration Review, John P. Sanders (jmlS, COURT STAFF) (Filed on 4/8/2021) (Entered: 04/08/2021)
146 MANDATE of USCA as to 75 Notice of Appeal to the Ninth Circuit,, filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, James McHenry, U.S. Citizenship and Immigration Services, Kevin K. McAleenan, Executive Office for Immigration Review, Immigration and Customs Enforcement, John P. Sanders, 46 Notice of Appeal to the Ninth Circuit,, filed by U.S. Department of Homeland Security, Matthew T. Albence, U.S. Customs and Border Protection, William Barr, U.S. Department of Justice, Kenneth T. Cuccinelli, U.S. Citizenship and Immigration Services, James McHenry, Kevin K. McAleenan, Immigration and Customs Enforcement, Executive Office for Immigration Review, John P. Sanders (jmlS, COURT STAFF) (Filed on 4/16/2021) (Entered: 04/16/2021)

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 Case 3:19-cv-04073-JST Document 1 Filed 07/16/19 Page 1 of 34

1 Lee Gelernt*

Katrina Eiland (SBN 275701)

Omar C. Jadwat*

Cody Wofsy (SBN 294179)

2 Anand Balakrishnan*

Spencer Amdur (SBN 320069)

ACLU FOUNDATION

Julie Veroff (SBN 310161)

3 IMMIGRANTS’ RIGHTS PROJECT

ACLU FOUNDATION

125 Broad Street, 18th Floor

IMMIGRANTS’ RIGHTS PROJECT

4 New York, NY 10004

39 Drumm Street

T: (212) 549-2660

San Francisco, CA 94111

5 F: (212) 549-2654

T: (415) 343-0770

lgelernt@aclu.org

F: (415) 395-0950

6 ojadwat@aclu.org

keiland@aclu.org

abalakrishnan@aclu.org

cwofsy@aclu.org

7

samdur@aclu.org

jveroff@aclu.org

8

Attorneys for Plaintiffs (Additional counsel listed on following page)

9

10

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

11 East Bay Sanctuary Covenant; Al Otro Lado;

12 Innovation Law Lab; and Central American Resource Center in Los Angeles,

Case No.:

13 Plaintiffs,

14 v.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

15 William Barr, Attorney General, in his official

16 capacity; U.S. Department of Justice; James McHenry, Director of the Executive Office for

IMMIGRATION ACTION

17 Immigration Review, in his official capacity; the Executive Office for Immigration Review; Kevin

18 K. McAleenan, Acting Secretary of Homeland Security, in his official capacity; U.S. Department

19 of Homeland Security; Kenneth T. Cuccinelli, Acting Director of the U.S. Citizenship and

20 Immigration Services, in his official capacity; U.S. Citizenship and Immigration Services; John P.

21 Sanders, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity;

22 U.S. Customs and Border Protection; Matthew T. Albence, Acting Director of Immigration and

23 Customs Enforcement, in his official capacity; Immigration and Customs Enforcement,

24 Defendants.

25

26

27

28

Case 3:19-cv-04073-JST Document 1 Filed 07/16/19 Page 2 of 34

1
2 Melissa Crow*
SOUTHERN POVERTY LAW CENTER
3 1101 17th Street, NW Suite 705
Washington, D.C. 20036
4 T: (202) 355-4471
F: (404) 221-5857
5 melissa.crow@splcenter.org
6 Mary Bauer*
SOUTHERN POVERTY LAW CENTER
7 1000 Preston Avenue
Charlottesville, VA 22903
8 T: (470) 606-9307
F: (404) 221-5857
9 mary.bauer@splcenter.org
10
11
12
13 Attorneys for Plaintiffs
14 *Pro hac vice application forthcoming
** Application for admission pending
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Baher Azmy* Angelo Guisado* Ghita Schwarz* CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 T: (212) 614-6464 F: (212) 614-6499 bazmy@ccrjustice.org aguisado@ccrjustice.org gschwarz@ccrjustice.org
Christine P. Sun (SBN 218701) Vasudha Talla (SBN 316219) Angélica Salceda**
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 T: (415) 621-2493 F: (415) 255-8437 csun@aclunc.org vtalla@aclunc.org asalceda@aclunc.org

Case 3:19-cv-04073-JST Document 1 Filed 07/16/19 Page 3 of 34

INTRODUCTION 1

2

1. The United States has a longstanding commitment under domestic and international

3 law to protecting people fleeing persecution from further harm.

4

2. The Immigration and Nationality Act reflects Congress’s carefully considered

5 balance between effectuating our broad, historic commitment to international humanitarian law

6 principles in the context of our asylum system and ensuring fairness and efficiency in the process. In
7 crafting our asylum laws, Congress sought to implement the principles in the 1951 Refugee
8
9 Convention, which was designed to avoid the horrors visited on refugees around World War II.

10

3. As part of our nation’s commitment to the protection of people fleeing persecution

11 and consistent with our international obligations, it is longstanding federal law that merely transiting

12 through a third country is not a basis to categorically deny asylum to refugees who arrive at our
13 shores. 14
4. Specifically, Congress expressly provided in the Immigration and Nationality Act 15
(“INA”) that a noncitizen is ineligible for asylum in the United States only if she “was firmly 16 17 resettled in another country prior to arriving in the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi).
18 The concept of firm resettlement—which involves far more than a mere transitory relationship with

19 a third country—dates back to international agreements crafted after World War II, and takes into

20 account the ties an individual fleeing persecution formed with another country and his or her
21 particular ability to enjoy safety and legal protection there. 22
5. Moreover, Congress expressly spoke to when an asylum seeker may be removed to a 23
third country and required to seek protection there: only where the United States and that country 24
25 have entered into a bilateral or multilateral agreement, the removal is pursuant to that agreement, and

26 there is a determination that the asylum seeker would not face persecution and “would have access to

27 a full and fair procedure for determining a claim to asylum” in that country. 8 U.S.C.

28 § 1158(a)(2)(A).

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1

6. Indeed, Congress made clear that noncitizens may apply for asylum regardless of

2 where they enter the United States, “whether or not at a designated port of arrival.” 8 U.S.C.

3 § 1158(a)(1). All asylum seekers coming from a country other than a country contiguous to the

4 United States who enter between ports of arrival necessarily transited through another country before

5 reaching the southern border. Congress therefore guaranteed that they, too, should be able to seek
6
asylum free of any categorical restriction based on their route to the United States.
7
7. Together, these provisions illustrate the careful balance Congress struck between
8 9 protecting vulnerable individuals from harm and sharing the burdens of asylum processing with
10 other countries in which safety and fair processing can be assured and are appropriate, and its

11 decision that only in specific narrow circumstances could a noncitizen’s transit or even residence in

12 a third country justify a denial of protection in the United States.

13

8. Despite Congress’s clear commands, on July 16, 2019, the Attorney General and

14
Acting Secretary of Homeland Security promulgated an interim final rule (“Rule”) providing that
15

noncitizens who transit through another country prior to reaching the southern border of the United
16

17 States are ineligible for asylum here. The Rule, which takes effect on July 16, has only three narrow

18 exceptions, for those who applied for protection in a transit country and were denied it in a final

19 judgment; who meet the definition of a “victim of severe form of trafficking in persons”; or who

20 transited only through countries that are not parties to the 1951 Convention on the Status of

21 Refugees, the 1967 Protocol Relating to the Status of Refugees, or the Convention Against Torture.
22
Mexico, the only country adjoining the southern border of the United States, is a party to the 1951
23
24 Refugee Convention, the 1967 Refugee Protocol, and the Convention Against Torture.

25

9. The Rule thus bars virtually every noncitizen fleeing persecution from obtaining

26 asylum in the United States if they passed through another country on their way here, no matter the

27 conditions or purpose of their journey through that country or their prospect of protection, rights, or

28 permanent legal status in that country. Accordingly, anyone fleeing persecution from the ongoing
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1 humanitarian crisis in the countries that constitute the Northern Triangle who reasonably does not 2 apply for protection while en route will be categorically denied the opportunity to seek asylum in the

3 United States and likely forced to return to countries that are rife with danger and violence. The

4 Rule is a part of an unlawful effort to significantly undermine, if not virtually repeal, the U.S.
5 asylum system at the southern border, and cruelly closes our doors to refugees fleeing persecution, 6
forcing them to return to harm.
7
10. The Rule directly violates Congress’s clear requirement that for a noncitizen to be
8 9 denied asylum because of his or her relationship with a third country, the noncitizen had to be firmly
10 resettled in that third country or subject to a safe third country agreement, as well as Congress’s

11 requirement that asylum cannot be categorically denied based on an asylum seeker’s route to the

12 United States. It is also arbitrary and capricious.

13

11. In addition, the Attorney General and Acting Secretary of Homeland Security issued

14
the Rule immediately, without abiding by the required procedural steps of the Administrative
15
Procedure Act (“APA”).
16

17

12. Plaintiffs seek a declaration that these actions violate the INA and the APA, and an

18 order enjoining the Rule.

19

JURISDICTION AND VENUE

20

13. This case arises under the APA, 5 U.S.C. § 701, et seq. and the INA, 8 U.S.C. § 1101,

21 et seq. This Court has subject matter jurisdiction under 28 U.S.C. § 1331.
22
14. Venue is proper under 28 U.S.C. § 1391(e)(1) because the defendants are agencies of
23
24 the United States and officers of the United States acting in their official capacity and 1) at least one

25 plaintiff resides in this district; and/or 2) a substantial part of the events or omissions giving rise to

26 the claim occurred in this district.

27

28

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1

PARTIES

2

15. Plaintiff East Bay Sanctuary Covenant (“EBSC”) is a nonprofit organization

3 incorporated in California. EBSC’s main office is in Berkeley, California.

4

16. EBSC was founded in 1982 to assist refugees fleeing the civil wars and violence in El

5 Salvador and Guatemala. EBSC’s mission is to offer sanctuary, support, community organizing
6
assistance, advocacy, and legal services to people escaping political persecution, terror, war,
7
intolerance, exploitation, and other violence. In particular, one of EBSC’s critical missions is to
8 9 assist individuals fleeing persecution in applying for asylum in the United States. EBSC also trains
10 and mentors law students and attorneys to help clients apply for asylum.

11

17. Plaintiff Al Otro Lado is a nonprofit, nonpartisan organization established in 2014

12 and incorporated in California.

13

18. Al Otro Lado is a legal services organization that serves indigent deportees, migrants,

14
refugees, and their families, and operates primarily in Southern California, and Tijuana, Mexico. Al
15

Otro Lado’s mission is to coordinate and provide screening, advocacy, and legal representation for
16

17 individuals in asylum and other immigration proceedings; to seek redress for civil rights violations;

18 and to provide assistance with other legal and social service needs.

19

19. Plaintiff Innovation Law Lab is a nonprofit organization that has projects in multiple

20 states, including an office in Oakland, California.

21

20. Innovation Law Lab seeks to advance the legal rights of immigrants and refugees in

22
the United States, with a focus on providing and facilitating representation to asylum seekers.
23

24

21. Plaintiff Central American Resource Center (“CARECEN”) is a nonprofit

25 organization incorporated in California.

26

22. CARECEN’s mission is to empower Central Americans and all immigrants by

27 defending human and civil rights, working for social and economic justice and promoting cultural

28 diversity. CARECEN offers low-cost immigration legal services; community education programs;
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1 and advocacy and organizing to achieve fair and more inclusive immigration, education, and labor 2 laws and policies in Los Angeles. A central part of CARECEN’s mission is to provide legal

3 counseling and representation to asylum seekers.

4

23. Defendant William Barr is the Attorney General of the United States. He is sued in

5 his official capacity. In that capacity, he issued the interim final rule challenged in this suit. The

6
Attorney General is responsible for the administration of the immigration laws pursuant to 8 U.S.C.
7
§ 1103 and is empowered to grant asylum or other relief.
8

9

24. Defendant U.S. Department of Justice (“DOJ”) is a cabinet-level department of the

10 United States federal government.

11

25. Defendant James McHenry is the Director of the Executive Office for Immigration

12 Review (“EOIR”). He is sued in his official capacity.

13

26. Defendant EOIR is the sub-agency of DOJ that, through its immigration judges,

14
conducts limited review of negative credible fear determinations.
15
27. Defendant Kevin K. McAleenan is the Acting Secretary of Homeland Security. He is
16

17 sued in his official capacity. In that capacity, he issued the interim final rule challenged in this suit.

18 He directs each of the component agencies within the Department of Homeland Security. In his

19 official capacity, Defendant McAleenan is responsible for the administration of the immigration

20 laws pursuant to 8 U.S.C. § 1103, and is empowered to grant asylum and other immigration benefits.

21

28. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet-level

22
department of the United States federal government. Its components include U.S. Citizenship and
23

24 Immigration Services (“USCIS”), Customs and Border Protection (“CBP”), and Immigration and

25 Customs Enforcement (“ICE”).

26

29. Defendant Kenneth T. Cuccinelli is the Acting Director of USCIS. He is sued in his

27 official capacity. 28

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1

30. Defendant USCIS is the sub-agency of DHS that, through its asylum officers,

2 conducts interviews of individuals who apply for asylum.

3

31. Defendant John P. Sanders is the Acting Commissioner of CBP. He is sued in his

4 official capacity.

5

32. Defendant CBP is the sub-agency of DHS that is responsible for the initial processing

6
and detention of noncitizens who are apprehended near the U.S. border or who present themselves at
7
ports of entry.
8

9

33. Defendant Matthew T. Albence is the Acting Director of ICE. He is sued in his

10 official capacity.

11

34. Defendant ICE is the sub-agency of DHS that is responsible for carrying out removal

12 orders and overseeing immigration detention.

13

BACKGROUND

14 The U.S. Asylum System

15
35. Asylum affords protection to individuals who have a “well-founded fear of
16
persecution” on account of any one of five protected grounds: race, religion, nationality, political
17

18 opinion, or membership in a particular social group. 8 U.S.C. § 1158(b)(1)(A); 8 U.S.C.

19 § 1101(a)(42)(A). Withholding of removal also offers protection to individuals targeted on account

20 of one of the five grounds, but it requires an applicant to show that such persecution is more likely

21 than not—a much higher standard of proof than that needed for asylum.

22

36. Congress also provided asylees with certain benefits that are critical to the

23
noncitizen’s safety and ability to successfully transition to a life free from persecution. See 8 U.S.C.
24

25 §§ 1159(b) (ability to adjust to the status of a lawful permanent resident); 1427 (ability to become a

26 United States citizen after being lawfully admitted for permanent residence). The spouse and

27 children of a person granted asylum are likewise eligible for asylum. 8 U.S.C. § 1158(b)(3). These

28

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1 benefits are not available with certain other forms of relief from removal, like withholding of 2 removal.

3

37. There are three principal ways for an individual to seek asylum:

4

38. First, where a noncitizen is not in any kind of removal proceedings, his or her

5 application is “affirmative.” See 8 C.F.R. §§208.2(a), 208.9. He or she files an application with
6
USCIS, and has an interview with an asylum officer.
7
39. Second, a noncitizen in ordinary removal proceedings, see 8 U.S.C. § 1229a, may
8
9 apply for asylum as a form of relief from removal, 8 C.F.R. § 208.2(b). These applications are

10 referred to as “defensive” asylum applications.

11

40. Third, Congress established an alternative process, “expedited removal,” applicable to

12 certain noncitizens who are arriving at ports of entry or apprehended after entering without

13 inspection. See 8 U.S.C. § 1225(b)(1); see also Designating Aliens for Expedited Removal, 69 Fed.

14
Reg. 48,877 (Aug. 11, 2004) (expedited removal applicable to those who entered without inspection
15
and are apprehended within 14 days of entry and 100 miles of the border).
16

17

41. As part of the expedited removal system, a noncitizen who expresses a fear of return

18 to his or her home country is entitled to a “credible fear” screening interview. 8 U.S.C. §

19 1225(b)(1)(B). If the screening officer finds a “significant possibility” that the individual “could

20 establish eligibility for asylum,” he or she is placed in regular removal proceedings and may apply
21 for asylum. Id. 22

23 U.S. Law on Asylum Seekers and Third Countries

24

42. Federal law provides several forms of protection for individuals fleeing persecution

25 and torture. These forms of protection include asylum, 8 U.S.C. § 1158; withholding of removal, 8
26 U.S.C. § 1231(b)(3); and protection under the Convention Against Torture, see Foreign Affairs 27

28

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1 Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-277, div. G, Title XXII, § 2 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231); 8 C.F.R. § 208.18.

3

43. The modern asylum system was established by the Refugee Act of 1980, Pub. L. 96-

4 212, 94 Stat. 102, which was incorporated into the INA. The Act reflects “one of the oldest themes

5 in America’s history—welcoming homeless refugees to our shores,” and “gives statutory meaning to

6
our national commitment to human rights and humanitarian concerns.” Sen. Rep. No. 256, 96th

7
Cong., 1st Sess. 1 (1979), reprinted in U.S. Code Cong. and Admin. News 141, 141.
8

9

44. The statutory provisions governing asylum represent an effort by Congress to bring

10 the United States into compliance with its international obligations under the 1951 Refugee

11 Convention and the 1967 Protocol.

12

45. It is obvious and well understood that asylum seekers often pass through third

13 countries on their way to seeking refuge in the United States. Accordingly, in crafting the statutory
14
provisions governing asylum, Congress took care to ensure that noncitizens within our country or at
15
the border would be able to seek asylum even if they transited through another country to reach the
16

17 United States.

18

46. 8 U.S.C. § 1158(a)(1) provides: “Any alien who is physically present in the United

19 States or who arrives in the United States (whether or not at a designated port of arrival and

20 including an alien who is brought to the United States after having been interdicted in international
21 or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with 22
this section or, where applicable, section 1225(b) of this title.” Congress thus was clear that entering
23 24 the United States at or between ports of arrival is not a basis to categorically deny asylum to
25 refugees. In so providing, Congress recognized that many asylum seekers would transit through

26 another country before reaching the United States. That is because, except for Mexicans arriving at

27 the southern border and Canadians arriving at the northern border, virtually all asylum seekers

28 arriving between ports of arrival at a land border necessarily transit through at least one other
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1 country before reaching the United States. In guaranteeing that entering the United States at or 2 between ports of arrival could not be a basis for categorically denying asylum, Congress also

3 guaranteed that merely transiting through another country to reach the United States could not be a

4 categorical barrier either.

5

47. Congress also spoke directly to the circumstances when a noncitizen may be deemed

6
ineligible for asylum based on his or her relationship with a third country. 8 U.S.C. § 1158(b)(2)(A)
7
specifically provides that a noncitizen shall be ineligible for asylum if he or she “was firmly resettled
8
9 in another country prior to arriving in the United States.” The plain text of the statute, agency

10 regulations, and case law have long made clear that firm resettlement requires far more than merely

11 transiting through another country.

12

48. Under international law, firm resettlement requires more than transiting through a

13 third country. For example, the 1951 United Nations Convention Relating to the Status of Refugees
14
provides that it shall not apply to a person who “acquired a new nationality, and enjoys the
15
protection of the country of his new nationality” or “is recognized by the competent authorities of
16

17 the country in which he has taken residence as having the rights and obligations which are attached

18 to the possession of the nationality of that country.” Art. 1, §§ C(3), E, adopted July 28, 1951, 189

19 U.N.T.S. 150.

20

49. In 1980, the former Immigration and Naturalization Service (“INS”) issued interim

21 regulations providing that a noncitizen would be considered firmly resettled “if he was offered
22
resident status, citizenship, or some other type of permanent resettlement by another nation and
23
24 traveled to and entered that nation as a consequence of his flight from persecution.” 8 C.F.R.

25 § 208.14 (1981). The regulations further provided for an exception if the asylum applicant

26 established “that the conditions of his residence in that nation were so substantially and consciously

27 restricted by the authority of the country of asylum/refuge that he was not in fact resettled.” Id.

28 Officers were to consider “the type of housing, whether permanent or temporary, made available to
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1 the refugee, the types and extent of employment available to the refugee, and the extent to which the 2 refugee received permission to hold property and to enjoy other rights and privileges (such as travel

3 documentation, education, public relief, or naturalization) available to others resident in the

4 country.” Id.

5

50. The Attorney General amended the firm resettlement regulations in 1991. The

6
definition of firm resettlement provided in those regulations is substantially the same as the current
7
firm resettlement regulations set out at 8 C.F.R. §§ 208.15, 1208.15. The 1991 regulation provided
8

9 that a noncitizen would be “considered to be firmly resettled if, prior to arrival in the United States,

10 he entered into another nation with, or while in that nation received, an offer of permanent resident

11 status, citizenship, or some other type of permanent resettlement unless” he could establish that “his

12 entry into that nation was a necessary consequence of his flight from persecution, that he remained
13 in that nation only as long as was necessary to arrange onward travel, and that he did not establish 14
significant ties in that nation” or that “the conditions of his residence in that nation were so
15
substantially and consciously restricted by the authority of the country of refuge that he was not in
16 17 fact resettled.” 8 C.F.R. § 208.15 (revised Jan. 1, 1991). The regulation directed that the asylum
18 officer and/or immigration judge undertake an individualized inquiry and consider the following

19 factors: “the conditions under which other residents of the country live, the type of housing made

20 available to the refugee, whether permanent or temporary, the types and extent of employment
21 available to the refugee, and the extent to which the refugee received permission to hold property 22
and to enjoy other rights and privileges, such as travel documentation including a right of entry
23 24 and/or reentry, education, public relief, or naturalization, ordinarily available to others resident in the
25 country.” Id.

26

51. Congress then adopted the current firm resettlement bar, 8 U.S.C.

27 § 1158(b)(2)(A)(vi), in 1996, when it amended the INA in the Illegal Immigration Reform and 28

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1 Immigrant Responsibility Act. In so doing, it codified the regulatory definition of “firm 2 resettlement.”

3

52. The implementing regulation on firm resettlement was finalized in 2000, and is

4 substantively identical to the 1991 version. It provides: “An alien is considered to be firmly resettled

5 if, prior to arrival in the United States, he or she entered into another country with, or while in that
6
country received, an offer of permanent resident status, citizenship, or some other type of permanent
7
resettlement unless he or she establishes: (a) That his or her entry into that country was a necessary
8 9 consequence of his or her flight from persecution, that he or she remained in that country only as
10 long as was necessary to arrange onward travel, and that he or she did not establish significant ties in

11 that country; or (b) That the conditions of his or her residence in that country were so substantially

12 and consciously restricted by the authority of the country of refuge that he or she was not in fact
13 resettled. In making his or her determination, the asylum officer or immigration judge shall consider 14
the conditions under which other residents of the country live; the type of housing, whether
15
permanent or temporary, made available to the refugee; the types and extent of employment
16
17 available to the refugee; and the extent to which the refugee received permission to hold property

18 and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or

19 reentry, education, public relief, or naturalization, ordinarily available to others resident in the

20 country.”

21

53. Furthermore, Congress also spoke directly to the circumstances when noncitizens

22
may be returned to a third country to have their asylum claims processed there. 8 U.S.C.
23

24 § 1158(a)(2)(A) provides that the Attorney General may do so only when he or she “determines that

25 the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than

26 the country of the alien’s nationality or, in the case of an alien having no nationality, the country of

27 the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on

28 account of race, religion, nationality, membership in a particular social group, or political opinion,
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1 and where the alien would have access to a full and fair procedure for determining a claim to asylum 2 or equivalent temporary protection, unless the Attorney General finds that it is in the public interest

3 for the alien to receive asylum in the United States.”

4

54. The only such agreement that the United States has entered into is with Canada. See

5 https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-
6
instructions-agreements/agreements/safe-third-country-agreement/final-text.html.
7
55. The United States has attempted to negotiate third-country agreements with Mexico
8 9 and Guatemala, but has not succeeded in obtaining such agreements, and in any event, an agreement
10 with those particular countries would not satisfy the INA’s strict requirements for such agreements.

11 See 8 U.S.C. § 1158(b)(2)(A).

12

56. These statutory provisions governing asylum and a noncitizen’s relationship to or

13 opportunity to apply for asylum in a third country, including 8 U.S.C. §§ 1158(a)(1), (b)(2)(A), and
14
(b)(2)(A)(vi), represent a carefully crafted effort by Congress to satisfy its domestic and international
15
obligations to protect those fleeing persecution and torture while also taking account of the need to
16

17 share the burden of protecting asylum seekers with those countries capable of offering safety and full

18 and fair asylum proceedings.

19

57. Our immigration laws track international humanitarian law, under which protection of

20 an individual fleeing persecution is paramount and individuals may not be required to seek

21 protection in a country where they lack a genuine guarantee of safety and access to a functioning

22
procedure, even if they transited through that country.
23

24

58. The 1951 Refugee Convention and the 1967 Protocol do not require refugees to apply

25 for protection in the first country where it could have been sought and do not require refugees to be

26 returned to a country that was crossed in transit.

27

59. The United Nations High Commissioner for Refugees (“UNHCR”) has consistently

28 issued guidance on the “safe third country” concept, noting that the “primary responsibility to
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1 provide protection rests with the State where asylum is sought.” Asylum should not be refused 2 “solely on the ground that it could be sought from another State,” and an asylum-seeker should not

3 be required “to seek asylum in a country with which he has not established any relevant links.”

4 UNHCR’s analysis provides significant guidance for courts on issues of refugee law.

5

60. UNHCR has also explained that the mere fact that a country is a party to the 1951

6
Convention and/or its 1967 Protocol does not allow one to be required to seek asylum in that

7
country.
8

9

61. Consistent with this long-standing guidance, UNHCR has publicly stated that the

10 Rule at issue here jeopardizes the right to non-refoulement and ignores the lack of effective

11 international protection in transit countries. See UNHCR Deeply Concerned About New U.S.

12 Asylum Restrictions (July 15, 2019), https://www.unhcr.org/en-
13 us/news/press/2019/7/5d2cdf114/unhcr-deeply-concerned-new-asylum-restrictions.html. 14
The Interim Final Rule
15
62. On July 16, 2019, Defendant Barr, in his role as Attorney General, and Defendant
16
McAleenan, in his role as Acting Secretary of Homeland Security, promulgated an interim final rule
17
18 pursuant to 8 U.S.C. § 1158(b)(2)(C), which provides that the Attorney General may “by regulation

19 establish additional limitations and conditions, consistent with [§ 1158], under which an alien shall

20 be ineligible for asylum,” and 8 U.S.C. § 1158(d)(5)(B), which provides that the Attorney General

21 may “provide by regulation for any other conditions or limitations on the consideration of an

22 application for asylum not inconsistent with this chapter.”
23
63. The Rule renders ineligible for asylum noncitizens who transit through another
24
25 country before arriving in the United States, with only extremely limited exceptions.

26

64. Specifically, the Rule provides that “any alien who enters, attempts to enter, or arrives

27 in the United States across the southern land border on or after” the effective date of the Rule “after

28 transiting through at least one country outside the alien’s country of citizenship, nationality, or last

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1 lawful habitual residence en route to the United States,” shall be found ineligible for asylum unless 2 one of three conditions is met: (1) “The alien demonstrates that he or she applied for protection from

3 persecution or torture in at least one country outside the alien’s country of citizenship, nationality, or

4 last lawful habitual residence through which the alien transited en route to the United States, and the

5 alien received a final judgment denying the alien protection in such country;” (2) “The alien
6
demonstrates that he or she satisfies the definition of ‘victim of a severe form of trafficking in
7
persons’ provided in 8 C.F.R. 214.11;” or (3) “The only countries through which the alien transited
8 9 en route to the United States were, at the time of the transit, not parties to the 1951 United Nations
10 Convention relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees,

11 or the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading

12 Treatment or Punishment.”

13

65. Noncitizens subject to expedited removal who seek protection will be screened by an

14
asylum officer. The asylum officer will determine whether the noncitizen is subject to the bar set out
15

in the Rule. If the asylum officer determines that the noncitizen is subject to the bar, the asylum
16

17 officer will deny asylum and then apply the reasonable-fear standard, rather than the credible-fear

18 asylum standard, to assess the noncitizen’s claims for statutory withholding of removal and

19 Convention Against Torture protection. A noncitizen who passes the reasonable-fear screening will

20 be placed in removal proceedings where they will be permitted to apply for withholding and/or
21 Convention Against Torture protection. A noncitizen may seek review of the asylum officer’s 22
determination that he or she is subject to the eligibility bar before an immigration judge. If the
23 24 immigration judge affirms the determination that the bar applies, and that the noncitizen has failed to
25 pass the reasonable fear standard, the applicant will be subject to removal without any opportunity

26 for judicial review.

27

66. The Rule does not require any individualized assessment of the asylum system in the

28 country or countries a noncitizen transited through en route to the United States, or any assessment
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1 of the asylum seeker’s protection claims or reasons for not seeking protection in the transit country. 2 It does not require an assessment of whether the transit country had a functioning asylum system

3 capable of processing the asylum seeker’s claim in a full and fair manner; whether the country was

4 able to offer the asylum seeker effective protection against persecution or torture; whether the

5 asylum seeker could even access—practically or legally—the asylum system; whether the asylum
6
system would recognize the asylum seeker’s particular claim for protection; or why the asylum
7
seeker otherwise did not apply for protection. If, for example, an asylum seeker has a protection
8 9 claim rooted in persecution based on sexual orientation but the transit country does not offer asylum
10 on that basis, the asylum seeker would nonetheless be subject to the Rule. So too if the asylum

11 seeker faced threats to her safety in the transit country and staying to apply for asylum and receive a

12 final judgment would have required her to risk further harm.

13

67. The Rule further does not require that a transit country have signed the 1951 Refugee

14
Convention, 1967 Protocol, and the Convention Against Torture for the asylum seeker to be deemed
15

ineligible for asylum in the United States. Rather, it is sufficient that the transit country has signed
16

17 only one. An individual thus will be denied asylum for transiting through a country that signed the

18 Convention Against Torture but not the 1951 Refugee Convention without applying for protection,

19 even if the individual had a claim for asylum but not for relief under the Convention Against

20 Torture.

21

68. Many countries that are plainly unable to provide adequate protection to asylum

22
seekers and lack full and fair asylum systems nonetheless are signatories to the 1951 Refugee
23

24 Convention, including Afghanistan, Chad, the Democratic Republic of Congo, Iran, Somalia, and

25 Sudan. The U.S. State Department has recognized in its Country Reports that many signatories to

26 the Convention do not adequately protect refugees or lack adequate asylum processing systems. For

27 example, Egypt is a signatory to the Convention, but according to the State Department, Egypt’s

28 “laws do not provide for granting asylum or refugee status, and the government has not established a
15 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 comprehensive legal regime for providing protection to refugees.” Similarly, Angola is a signatory 2 to the Convention, but according to the State Department, “[t]he law provides for the granting of

3 asylum or refugee status, but the law did not function during the year.”

4

69. The Rule contains no exception for unaccompanied children as defined in 6 U.S.C.

5 § 279(g). They, too, must apply for protection in a country through which they transit or will be
6
deemed ineligible for asylum in the United States, irrespective of their age, knowledge of or ability
7
to understand the Rule’s requirements, or knowledge of or ability—practical or legal—to access the
8 9 asylum system in a transit country. By contrast, Congress expressly exempted unaccompanied
10 children from the safe third country exception in the INA. See 8 U.S.C. § 1158(a)(2)(E).

11

70. Under the Rule, asylum seekers with the financial means, time, and other resources

12 required to obtain travel documents, a visa, and plane tickets to the United States are still able to

13 access asylum. But asylum seekers who are forced to flee immediately because of exigent danger,
14
and so lack the time to make such preparations, as well as asylum seekers without adequate financial
15
resources, will be denied.
16

17

71. Because the Rule provides that the eligibility bar will not apply to individuals who

18 receive final judgments denying them protection, individuals whose asylum claims have already

19 been rejected once are still considered eligible for asylum in the United States, while individuals

20 whose claims have not been rejected are considered ineligible.

21

72. On July 15, 2019, Defendant James R. McHenry, Director of the Executive Office for

22
Immigration Review in the Department of Justice, issued guidance entitled “Guidelines Regarding
23

24 New Regulations Governing Asylum and Protection Claims.” The Guidelines review the substance

25 of the Rule and the screening process it establishes.

26

73. On the same day, John Lafferty, head of USCIS’s asylum division, also advised

27 asylum officers regarding the new Rule. Lafferty informed asylum officers that the division was

28 “being asked to adapt and to do so with very little time to train and prepare.”
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1

74. The APA generally requires a period of public notice and comment on proposed

2 regulations to ensure that agency actions are transparent, lawful, and appropriately vetted. But

3 Defendants issued the Rule without following this statutory obligation. Instead, Defendants claimed

4 “good cause” to bypass the notice-and-comment procedures normally required for a rulemaking

5 pursuant to 5 U.S.C. § 553(b)(B), and the 30-day waiting period that is required even where notice

6
and comment are not, 5 U.S.C. § 553(d). They also invoked the “foreign affairs” exception to those

7
procedures. 5 U.S.C. § 553(a)(1).
8

9 The Administration’s Persistent Attacks on Asylum Seekers

10

75. The new Rule bears stark resemblance to the November 8, 2018 interim final rule

11 (“2018 Rule”), also enacted pursuant to 8 U.S.C. § 1158(b)(2)(C), and President Trump’s signed

12 2018 Proclamation entitled “Presidential Proclamation Addressing Mass Migration Through the

13 Southern Border of the United States” (“2018 Proclamation”). The 2018 Rule provided that all
14 persons subject to a presidential proclamation concerning the southern border issued pursuant to the 15
INA § 212(f), 8 U.S.C. § 1182(f), or INA § 215(a)(1), 8 U.S.C. § 1185(a)(1), were ineligible for
16
asylum. The Proclamation suspended the entry of all persons entering without inspection at the
17
18 southern border.

19

76. Together, the 2018 Rule and 2018 Proclamation barred people from obtaining asylum

20 if they entered the United States somewhere along the southern border other than a designated port

21 of arrival—in direct violation of Congress’s clear command that manner of entry cannot constitute a
22 categorical asylum bar. 23
77. On November 9, 2018, East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law
24 25 Lab, and Central American Resource Center—the same Plaintiffs in this action—challenged the
26 procedural and substantive validity of the 2018 Rule. On December 19, 2018, the district court

27 granted a preliminary injunction preventing the government from taking any action to continue to

28 implement the 2018 Rule. The order remains in effect pending a final judgement and is before the

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1 Ninth Circuit on the merits. On December 21, 2018, the U.S. Supreme Court denied the 2 government’s request for a stay pending appeal of the district court’s order granting a temporary

3 restraining order.

4

78. The new Rule serves to bar a similar group of people in a categorical fashion—

5 noncitizens who transit through another country prior to reaching the southern border. Indeed, the
6
new Rule is more draconian than its 2018 counterpart because it forecloses the protection of asylum
7
to those who seek asylum even at a port of entry. As such, asylum seekers coming from a country
8
9 other than a country contiguous to the United States—such as those from the Northern Triangle—are

10 left with only two more limited forms of protection—withholding of removal and protection under

11 the Convention Against Torture—regardless of whether they present themselves at a port of arrival.

12

79. The new Rule is the latest in a series of attacks on asylum seekers and a further

13 attempt to undermine the statutory provisions governing asylum.
14
Asylum Seekers at the Southern Border
15
Dire Conditions in Central America Have Prompted Many to Seek Refuge Elsewhere
16
80. Individuals who arrive at the southern border seeking protection in the United States
17
18 through the asylum process, including children, are fleeing some of the most dangerous countries in

19 the world.

20

81. Although asylum seekers come to the southern border from all over the world, many

21 come from El Salvador, Guatemala, and Honduras, countries known as the “Northern Triangle.”

22 According to a recent report from UNHCR, these countries are experiencing epidemic levels of

23
violence. Human rights groups have compared the levels of violence in this region to those typically
24
seen in war zones.
25

26

82. Those who leave often are running from life-threatening situations, leaving

27 everything behind to make a dangerous journey. In particular, violence against women by criminal

28

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1 armed groups has escalated dramatically in Central America, and those governments have been 2 unable or unwilling to provide effective protection.

3

83. Asylum seekers fleeing their home countries in Central America face an arduous

4 journey to the United States, involving a high risk of violence, including sexual assault, along the

5 way.

6
84. Many asylum seekers from Central American have no choice but to travel by land to
7
the United States due to documentation requirements that would be necessary to board a plane, as
8
9 well as financial constraints.

10

85. The vast majority of asylum seekers from Central America thus arrive at the southern

11 border after traveling by land across one or more countries. Those coming from Guatemala

12 necessarily transit through Mexico, and those coming from El Salvador and Honduras transit through

13 Guatemala and Mexico.
14
86. Many of the migrants coming to the southern border have legitimate claims to
15
asylum.
16

17

87. According to UNHCR, in fiscal year 2015, 82 percent of the women from El

18 Salvador, Guatemala, Honduras, and Mexico who were subject to a credible fear screening by an

19 asylum officer were found to have a significant possibility of establishing eligibility for asylum or

20 protection under the Convention Against Torture.

21

88. Between fiscal years 2014 and 2016, 8,848 people from El Salvador, Guatemala, and

22
Honduras were granted asylum affirmatively, and 3,502 people from those countries were granted
23

24 asylum defensively.

25

Guatemala Is Not Safe for Asylum Seekers and Lacks a Fair, Functioning Asylum System

26

89. For most asylum seekers, remaining in Guatemala and seeking protection there is not

27 an option. The country lacks a full and fair asylum processing system, and is often extremely

28 dangerous for migrants.
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1

90. According to the U.S. State Department, rape, violence against women, trafficking,

2 violence against LGBTQ persons, gang recruitment of children, and corruption are serious issues in

3 Guatemala.

4

91. The State Department’s Overseas Security Advisory Council reports that “Guatemala

5 remains among the most dangerous countries in the world” and has an “alarmingly high murder rate”

6
that “appears driven by narco-trafficking activity, gang-related violence, a heavily armed population,
7
and police/judicial system unable to hold many criminals accountable.”
8

9

92. Guatemala was in the top four countries whose nationals were granted asylum in the

10 United States in fiscal years 2015, 2016, and 2017.

11

93. Guatemala’s asylum system is new and barely functioning.

12

94. According to the U.S. State Department, UNHCR “reported that identification and

13 referral mechanisms for potential asylum seekers” in Guatemala “were inadequate,” and “[b]oth

14
migration and police authorities lacked adequate training concerning the rules for establishing
15
refugee status.”
16

17

95. According to the UNHCR, only 262 people applied for refugee status in Guatemala

18 between January and November 2018, and that number was a 75 percent increase from the prior

19 year. Since 2015, Guatemala has received on average fewer than 100 cases per year for asylum

20 processing. In the last two years, it has only decided roughly 20 to 30 asylum cases. There are very

21 few officials working on the asylum process in Guatemala, and its capacity to handle asylum claims

22
is extremely limited.
23

24

96. The Rule is silent as to Guatemala’s asylum system and ability to protect migrants

25 from persecution or torture.

26

27

28

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1

Mexico Is Not Safe for Asylum Seekers and Lacks a Fair, Functioning Asylum System

2

97. For most asylum seekers, remaining in Mexico and seeking protection there is not an

3 option. The country lacks a full and fair asylum processing system, and is often extremely

4 dangerous for migrants.

5

98. According to the U.S. State Department’s 2017 Mexico Country Report, “violence

6
against migrants by government officers and organized criminal groups” is one of “[t]he most
7
significant human rights issues” in Mexico. The State Department also reported in 2018 that the
8

9 dangers that forced many Central American migrants to flee their homes are likewise present in

10 Mexico, as the presence of Central American gangs has “spread farther into the country and

11 threatened migrants who had fled the same gangs in their home countries,” that there were reports of

12 migrants being victimized “by criminal groups and in some cases by police, immigration officers,
13 and customs officials,” that “[t]here were media reports that criminal groups kidnapped 14
undocumented migrants to extort money from migrants’ relatives or force them into committing
15
criminal acts on their behalf,” that “[t]here were numerous instances of armed groups limiting the
16 17 movements of migrants, including by kidnapping and homicides,” and that there were “5,824
18 reported crimes against migrants” and “99 percent of the crimes were unresolved” at the federal

19 level.

20

99. Migrants in Mexico are at risk of kidnapping, disappearance, trafficking, and sexual

21 assault, among other harms. Lesbian, gay, bisexual, and transgender persons, as well as people with
22
indigenous heritage, regularly have been subject to persecution in Mexico. Children in particular are
23
24 at risk of robbery, sexual violence, kidnapping, femicide, extortion, and threats.

25

100. Mexico experienced its highest number of murders recorded in 2018, up 33% from

26 2017, which previously was the highest number recorded.

27

28

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1

101. President Trump has himself acknowledged that Mexico is not a safe place, tweeting

2 on January 31, 2019: “Very sadly, Murder cases in Mexico in 2018 rose 33% from 2017, to 33,341.”

3 He further stated that the situation in Mexico is “[w]orse even than Afghanistan.”

4

102. The asylum system in Mexico is not adequate to protect the rights of asylum seekers.

5 Among other problems, Central American asylum seekers in Mexico face a substantial risk of being
6
involuntarily repatriated to the countries they have fled. Intergovernmental and human rights
7
organizations have documented widespread instances of Mexican officials returning Central
8 9 American migrants to their home countries despite their fears of persecution or torture, without any
10 meaningful process.

11

103. The U.S. Department of State has noted “incidents in which immigration agents had

12 been known to threaten and abuse migrants to force them to accept voluntary deportation and
13 discourage them from seeking asylum.” It further noted that “NGOs reported bribes sometimes 14
influenced the adjudication of asylum petitions and requests for transit visas.”
15
104. Data from the Mexican government indicates that very few of the children who are
16
17 apprehended by Mexican immigration authorities are recognized as refugees or given other formal

18 protection in Mexico, and that Mexican immigration authorities routinely fail to inform detained

19 children about their right to seek protection and fail to adequately screen them for refugee

20 recognition.

21

105. Despite Mexican law prohibiting the detention of children for migration purposes,

22
many children continue to be detained by Mexico’s immigration agency. Conditions in Mexican
23

24 detention centers have been widely reported to be harmful to children and in violation of

25 international law. Mexico also sometimes deports unaccompanied children to danger, in many cases

26 in violation of its own child protection laws.

27

106. President Trump recently encouraged Mexico to deport individuals who arrived on

28 “caravans” regardless of their claims for asylum or other forms of protection: “Mexico should move
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1 the flag waving Migrants, many of whom are stone cold criminals, back to their countries. Do it by 2 plane, do it by bus, do it anyway [sic] you want, but they are NOT coming into the U.S.A. We will

3 close the Border permanently if need be.”

4

107. The Rule offers no analysis or evidence as to the adequacy of Mexico’s asylum

5 system and ability to protect migrants from persecution or torture. It notes only the number of
6
asylum applications Mexico received in 2016, 2017, and 2018.
7
108. Despite the growing number of asylum applications, Mexico’s Commission for
8 9 Refugee Assistance (“COMAR”) has not grown its personnel or its budget accordingly. Mexico’s
10 asylum system is strained as a result. COMAR has failed to make a decision within the time limits

11 provided by Mexico law on 22,000 asylum cases, and more than 50,000 asylum claims are pending.

12 Harms to Plaintiffs

13

109. Plaintiffs are nonprofit organizations that provide assistance to asylum seekers,

14
including those who came to the United States after transiting through another country. The new
15

Rule will cause each Plaintiff significant harm.
16

17

110. Plaintiff East Bay Sanctuary Covenant provides legal and social services to

18 immigrants and refugees within the jurisdiction of the San Francisco Asylum Office, including

19 applicants in California, Washington, and Oregon. It offers clients legal assistance in affirmative

20 asylum applications; provides social services; and helps train professionals to assist immigrant and
21 refugee communities. 22
111. EBSC’s affirmative asylum program is a key part of the organization’s mission, is its
23 24 most important program, and accounts for nearly half of its organizational budget. Since 1992,
25 EBSC has filed nearly 5,000 affirmative asylum cases. Over 97 percent of those adjudicated cases

26 have been granted.

27

112. An estimated 50 percent of the clients in EBSC’s affirmative asylum program in 2018

28 came to the United States through the southern land border after transiting through a third country en
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1 route to seek asylum in the United States, and EBSC expects that rate to be similar in the future. 2 Most of those clients fled persecution in Central America.

3

113. EBSC works mainly with low-income and poor individuals from around the world,

4 and works especially closely with vulnerable populations including victims of gender-based violence

5 and domestic violence, indigenous Guatemalans, LGBT individuals, those affected by HIV/AIDS,
6
and unaccompanied children.
7
114. Funding for EBSC’s affirmative asylum program is based in part on the number of
8
9 cases EBSC handles per year, and the number of clients EBSC anticipates serving.

10

115. The new Rule will significantly harm EBSC as an organization, seriously frustrates

11 EBSC’s mission, and cause it to divert organizational resources.

12

116. As a result of the new policy, EBSC will have to expend significant resources to

13 adjust to a new regulatory landscape and substantially reduce its affirmative asylum practice, thus

14
reducing the number of clients it can serve and frustrating its mission of serving asylum seekers
15
fleeing persecution and violence regardless of their manner of entry, means of entry, or travel route.
16

17

117. EBSC also will have to divert significant resources to, among other things,

18 understanding the new policy and its impact on the communities EBSC serves, and educating and

19 advising its staff, clients, and prospective clients accordingly. To properly counsel new prospective

20 clients who seek its affirmative asylum services going forward, EBSC will need to invest resources
21 in training multiple intake staff not only to screen for asylum eligibility based on the new Rule, but 22
to conduct detailed screenings for alternative forms of relief to facilitate referrals or other forms of
23 24 assistance as appropriate. These alternative forms of relief, including withholding of removal and
25 Convention Against Torture protection, require a far greater expenditure of staff resources per client.

26

118. Under the new policy, EBSC will no longer be able to train law students to handle

27 affirmative asylum cases, or would have to substantially reduce its training program, which 28

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1 frustrates its mission of helping to train legal professionals to assist individuals fleeing violence and 2 persecution.

3

119. The new policy jeopardizes EBSC’s funding streams. If EBSC is no longer able to

4 handle affirmative asylum cases for individuals who enter after transiting through another country, it
5 will face a marked decrease in its budget and will have to significantly cut its program and staff, or 6
dramatically overhaul its program to provide types of assistance it is not currently equipped or
7
trained to provide. The grant that funds EBSC’s work is only to serve people who make under 250
8 9 percent of the poverty guidelines. In practice, the few noncitizens who will remain eligible to apply
10 affirmatively for asylum under the new Rule will mostly be those who have visas of some kind and

11 could travel to the U.S. by air and so likely fall outside of the population it is EBSC’s mission to

12 serve and outside of the income requirements for EBSC’s services.

13

120. Plaintiff Al Otro Lado routinely provides representation or other assistance to asylum

14
seekers who have entered the United States after transiting through another country. Approximately
15
two-thirds of the individuals it serves out of its Tijuana office transited through another country en
16

17 route to the United States.

18

121. The new Rule frustrates Al Otro Lado’s mission and will force Al Otro Lado to divert

19 significant resources away from its other programs. Because individuals who enter after transiting

20 through another country are categorically ineligible for asylum under the Rule, Al Otro Lado will
21 have to revamp its representation strategy, overhaul the materials it uses to train pro bono attorneys, 22
and evaluate the eligibility of each of its clients for other types of immigration relief. It will also
23 24 have to expend resources to litigate eligibility issues, including under the higher standard governing
25 withholding of removal, resulting in additional hearings and time spent on each case.

26

122. The new policy also jeopardizes some of Al Otro Lado’s most critical funding

27 streams. 28

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1

123. Most of Al Otro Lado’s asylum clients are families traveling with minor children.

2 Because they will be ineligible for asylum under the new policy, spouses and minor children can no

3 longer be counted as derivatives in a single application. Al Otro Lado must now prepare separate

4 cases for each family member, exponentially increasing the number of hours required to prepare a

5 family’s case. Withholding and Convention Against Torture applications also require more time and
6
greater legal resources.
7
124. The new Rule will also require Al Otro Lado to shut down or restructure its Border
8 9 Rights Project in San Diego, which is focused on helping detained asylum seekers apply for bond or
10 parole.

11

125. Plaintiff Innovation Law Lab, among other services, has established “Centers of

12 Excellence,” which provide support to noncitizens and their pro bono attorneys including legal,

13 technical, and strategic assistance in the preparation and presentation of claims. These projects are
14
established in Georgia, Kansas, Missouri, North Carolina, and Oregon, with expansion underway to
15
Texas, New Mexico, and California.
16

17

126. The new policy will require Innovation Law Lab to significantly divert its limited

18 resources. The vast majority of people Innovation Law Lab serves are asylum seekers, and nearly all

19 of its asylum-seeking clients have traveled through a country other than their country of origin on

20 their way to the United States and did not seek asylum in the countries through which they transited.
21 The new Rule thus would make a high percentage of the asylum seekers Innovation Law Lab serves 22
ineligible for asylum. The new policy will, among other things, require Innovation Law Lab to
23 24 entirely rework the advice and guidance it provides in its legal services workshops, and respond to a
25 flood of inquiries and uncertainty from the immigrant communities Innovation Law Lab serves

26 regarding the attempt to change asylum law. The new Rule will also make a significant percentage

27 of Innovation Law Lab’s new pro bono cases a great deal more complicated and will require it to

28 reevaluate relief eligibility in all of the cases that it screens and mentors. And because withholding
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1 of removal and Convention Against Torture relief claims have a higher standard of proof than 2 asylum, do not allow for derivative applications, and are more time-consuming to handle, the

3 Centers of Excellence may begin to lose more cases, requiring a shift of significant resources toward

4 mentoring pro bono attorneys on complicated appeals.

5

127. The new Rule will also eliminate release eligibility for a significant percentage of the

6
clients in Innovation Law Lab’s detention-focused programs.
7
128. Innovation Law Lab also will have to deploy expensive and limited engineering
8

9 resources to recode its software to create new analytical modeling to account for the new Rule.

10 Innovation Law Lab publishes materials for pro bono attorneys and asylum applicants, including

11 printed guides, worksheets, training videos, self-help videos, and other resources that are used

12 around the country. The new asylum Rule will require Innovation Law Lab to substantially revise

13 this material and create new learning engagements and materials on the asylum Rule.
14
129. Thousands of individuals rely on the Innovation Law Lab’s systems; the new asylum
15
Rule will require the organization to divert its limited resources away from other projects and
16
17 priorities.

18

130. Plaintiff CARECEN in Los Angeles, California, provides immigration legal services

19 to clients throughout Southern California. These services include affirmative and defensive

20 representation for asylum seekers. CARECEN also educates immigrants through citizenship classes,

21 trainings to develop organizing and advocacy skills, and workshops to facilitate the integration of
22
immigrants into their communities. CARECEN also helps to organize immigrant communities to
23
24 advocate for their rights on specific policy issues.

25

131. Nearly all of CARECEN’s asylum applicant clients entered the United States through

26 the southern border after transiting through at least one other country en route from their country of

27 origin. 28

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1

132. Funding for CARECEN’s asylum cases is based in part on the number of cases it

2 handles per year, and the number of clients it anticipates serving. The Rule will seriously harm

3 CARECEN in multiple respects, and frustrate CARECEN’s mission and divert organizational

4 resources.

5

133. For example, CARECEN’s mission as it relates to asylum applicants will be

6
frustrated because the organization will be unable to assist most asylum seekers from Central
7
America because they will no longer be eligible for asylum given that they traveled through another
8

9 country en route to the United States and did not apply for asylum in those countries. CARECEN

10 will be unable to fulfill its mission of helping asylum seekers apply affirmatively to USCIS, and will

11 instead be forced to assist them in applying for withholding and Convention Against Torture

12 protection in removal proceedings, a much more resource-intensive process. The additional staff
13 time required to handle such cases because of the more stringent standards for withholding and CAT 14
and lack of derivative applications will require diverting resources from other critical areas of work.
15
134. CARECEN’s mission is to provide representation to asylum seekers, regardless of
16 17 their manner of entry or how they traveled to the U.S. CARECEN cannot, consistent with its
18 mission, cherry pick and serve only those few individuals who entered the U.S. without transiting

19 through a third country. It would also be difficult, as a practical matter, for CARECEN to verify in

20 the intake process when and how an individual traveled to the United States, and enter into an

21 attorney-client relationship accordingly. CARECEN would not be compensated for this additional

22
screening work, which would strain the organization’s resources.
23

24

135. CARECEN will also have to divert resources to training staff and educating

25 prospective clients about the effects of the new policy.

26

136. Plaintiffs have also been harmed because they were denied the opportunity to

27 comment. If Defendants had provided an opportunity for notice and comment before the Rule, 28

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1 Plaintiffs would have informed Defendants of their serious objections to the Rule, and they may

2 have convinced Defendants to adopt a different approach.

3

FIRST CLAIM FOR RELIEF

4

(Violation of Immigration and Nationality Act and Administrative Procedure Act)

5

137. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

6

138. The Immigration and Nationality Act provides that “any alien who is physically

7 present in the United States or who arrives in the United States (whether or not at a designated port

8
of arrival . . . ), irrespective of such alien’s status, may apply for asylum in accordance with this
9
section or, where applicable, section 1225(b) of this title.” 8 U.S.C. § 1158(a)(1).
10

11

139. The Immigration and Nationality Act further provides that a noncitizen is ineligible

12 for asylum if he or she “was firmly resettled in another country prior to arriving in the United

13 States.” 8 U.S.C. § 1158(b)(2)(A)(vi).

14

140. The Immigration and Nationality Act likewise provides that asylum is not available to

15 a noncitizen “if the Attorney General determines that the alien may be removed, pursuant to a
16
bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in
17
the case of an alien having no nationality, the country of the alien's last habitual residence) in which
18
19 the alien's life or freedom would not be threatened on account of race, religion, nationality,

20 membership in a particular social group, or political opinion, and where the alien would have access

21 to a full and fair procedure for determining a claim to asylum or equivalent temporary protection,

22 unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the
23 United States.” 8 U.S.C. § 1558(a)(2)(A). 24
141. Any additional condition or limitation on asylum established by the Attorney General
25 26 must be “consistent with” § 1158. See 8 U.S.C. § 1158(b)(2)(C); see also § 1158(d)(5)(B) (requiring
27 that “any other conditions or limitations on the consideration of an application for asylum” be “not

28 inconsistent with this chapter”).

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1

142. The Administrative Procedure Act, 5 U.S.C. § 706, provides that a Court “shall hold

2 unlawful and set aside agency action, findings, and conclusions found to be – (A) arbitrary,

3 capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to

4 constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction,

5 authority, or limitations, or short of statutory right.”

6
143. The Rule is contrary to law, including 8 U.S.C. §§ 1158(a)(1), 1158(a)(2)(A), and

7
1158(b)(2)(A)(vi).
8

9

SECOND CLAIM FOR RELIEF

10

(Violation of Administrative Procedure Act)

11

144. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

12

145. The APA requires notice and opportunity for comment prior to the promulgation of

13 regulations. 5 U.S.C. §§ 553(b), (c). The Attorney General and Acting Secretary of Homeland
14
Security failed to provide notice and an opportunity to comment in a timely manner.
15
146. The APA requires that a regulation be published “no less than 30 days before its
16

17 effective date.” 5 U.S.C. § 553(d). The Attorney General and Acting Secretary of Homeland

18 Security failed to publish the regulation 30 days before its effective date.

19

147. The Attorney General and Acting Secretary of Homeland Security have not

20 articulated reasons sufficient to show good cause why these requirements are inapplicable, nor is the

21 foreign affairs exception applicable.

22
THIRD CLAIM FOR RELIEF
23

24

(Violation of Administrative Procedure Act, Arbitrary & Capricious)

25

148. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

26

149. The APA provides that courts “shall . . . hold unlawful and set aside agency action”

27 that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

28 U.S.C. § 706(2)(A).
30 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-04073-JST Document 1 Filed 07/16/19 Page 33 of 34

1

150. Among other reasons, the Rule is arbitrary and capricious because, in adopting it,

2 Defendants have failed to articulate a reasoned explanation for their decision, which represents a

3 change in the agency’s longstanding policy; considered factors that Congress did not intend to be

4 considered; entirely failed to consider important aspects of the problem; and offered explanations for

5 their decision that run counter to the evidence before the agency.

6
PRAYER FOR RELIEF

7
WHEREFORE, Plaintiffs respectfully pray for the following relief:
8

9

a. A declaration pursuant to 28 U.S.C. § 2201 that the interim final rule is unlawful and invalid;

10

b. A preliminary and permanent injunction enjoining Defendants, their officials, agents,

11

employees, assigns, and all persons acting in concert or participating with them from

12

implementing or enforcing the interim final rule;

13

c. An order awarding Plaintiffs costs of suit, and reasonable attorneys’ fees and expenses

14
pursuant to any applicable law;
15

d. Such other and further relief as the Court deems equitable, just, and proper.
16

17

18

19
Dated: July 16, 2019
20
Lee Gelernt*
21 Omar Jadwat*
Anand Balakrishnan*
22 AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
23 IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
24 New York, NY 10004
T: (212) 549-2660
25 F: (212) 549-2654
lgelernt@aclu.org
26 ojadwat@aclu.org
abalakrishnan@aclu.org
27
28

Respectfully submitted,
/s/ Katrina Eiland Katrina Eiland (SBN 275701) Cody Wofsy (SBN 294179) Spencer Amdur (SBN 320069) Julie Veroff (SBN 310161) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 keiland@aclu.org cwofsy@aclu.org samdur@aclu.org jveroff@aclu.org

31 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:19-cv-04073-JST Document 1 Filed 07/16/19 Page 34 of 34

1 Melissa Crow*
SOUTHERN POVERTY LAW CENTER
2 1101 17th Street, NW Suite 705
Washington, D.C. 20036
3 T: (202) 355-4471
F: (404) 221-5857
4 melissa.crow@splcenter.org
5 Mary Bauer*
SOUTHERN POVERTY LAW CENTER
6 1000 Preston Avenue
Charlottesville, VA 22903
7 T: (470) 606-9307
F: (404) 221-5857
8 mary.bauer@splcenter.org
9 Attorneys for Plaintiffs
10
*Pro hac vice application forthcoming
11 ** Application for admission pending
12
13

Christine P. Sun (SBN 218701) Vasudha Talla (SBN 316219) Angélica Salceda** AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 T: (415) 621-2493 F: (415) 255-8437 csun@aclunc.org vtalla@aclunc.org asalceda@aclunc.org
Baher Azmy* Angelo Guisado* Ghita Schwarz* CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Telephone: (212) 614-6464 Facsimile: (212) 614-6499 bazmy@ccrjustice.org aguisado@ccrjustice.org gschwarz@ccrjustice.org

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

32 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
 Case 3:19-cv-04073-JST Document 42 Filed 07/24/19 Page 1 of 45

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

EAST BAY SANCTUARY COVENANT,

Case No. 19-cv-04073-JST

et al.,

8

Plaintiffs,

9

v.

ORDER GRANTING PRELIMINARY INJUNCTION

10 WILLIAM BARR, et al.,

Re: ECF No. 3

11

Defendants.

12

13

On July 16, 2019, the Department of Justice (“DOJ”) and the Department of Homeland

14 Security (“DHS”) published a joint interim final rule, entitled “Asylum Eligibility and Procedural

15 Modifications” (the “Rule” or the “third country transit bar”). The effect of the Rule is to

16 categorically deny asylum to almost anyone entering the United States at the southern border if he

17 or she did not first apply for asylum in Mexico or another third country.

18

Under our laws, the right to determine whether a particular group of applicants is

19 categorically barred from eligibility for asylum is conferred on Congress. Congress has

20 empowered the Attorney General to establish additional limitations and conditions by regulation,

21 but only if such regulations are consistent with the existing immigration laws passed by Congress.

22 This new Rule is likely invalid because it is inconsistent with the existing asylum laws.

23

First, Congress has already created a bar to asylum for an applicant who may be removed

24 to a “safe third country.” The safe third country bar requires a third country’s formal agreement to

25 accept refugees and process their claims pursuant to safeguards negotiated with the United States.

26 As part of that process, the United States must determine that (1) the alien’s life or freedom would

27 not be threatened on account of a protected characteristic if removed to that third country and

28 (2) the alien would have access to a full and fair procedure for determining a claim to asylum or

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United States District Court Northern District of California

1 equivalent temporary protection there. Thus, Congress has ensured that the United States will

2 remove an asylum applicant to a third country only if that country would be safe for the applicant

3 and the country provides equivalent asylum protections to those offered here. The Rule provides

4 none of these protections.

5

Congress has also enacted a firm resettlement bar, pursuant to which asylum is unavailable

6 to an alien who was firmly resettled in another country prior to arriving in the United States.

7 Before this bar can be applied, however, the government must make individualized determinations

8 that an asylum applicant received an offer of some type of permanent resettlement in a country

9 where the applicant’s stay and ties are not too tenuous, or the conditions of his or her residence too

10 restricted, for him or her to be firmly resettled. Again, the Rule ignores these requirements.

11

Additionally, there are serious questions about the Rule’s validity given the government’s

12 failure to comply with the Administrative Procedure Act’s notice-and-comment rules. The

13 government made the Rule effective without giving persons affected by the Rule and the general

14 public the chance to submit their views before the Rule took effect. The government contends that

15 it did not need to comply with those procedures because the Rule involves the “foreign affairs” of

16 the United States. But this exception requires the government to show that allowing public

17 comment will provoke “definitely undesirable international consequences,” which the government

18 has not done. Indeed, the Rule explicitly invites such comment even while it goes into effect.

19 Thus, the government will still suffer the ill consequences of public comment – which, to be clear,

20 are entirely speculative – but without gaining the benefit to good rule-making that public comment

21 would provide.

22

Next, the Rule is likely invalid because the government’s decision to promulgate it was

23 arbitrary and capricious. The Rule purports to offer asylum seekers a safe and effective alternative

24 via other countries’ refugee processes. As the Rule expressly contemplates, this alternative forum

25 will most often be Mexico. But the government’s own administrative record contains no evidence

26 that the Mexican asylum regime provides a full and fair procedure for determining asylum claims.

27 Rather, it affirmatively demonstrates that asylum claimants removed to Mexico are likely to be

28 (1) exposed to violence and abuse from third parties and government officials; (2) denied their 2

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United States District Court Northern District of California

1 rights under Mexican and international law, and (3) wrongly returned to countries from which they

2 fled persecution. The Rule also ignores the special difficulties faced by unaccompanied minors.

3 Congress recognized these difficulties by exempting “unaccompanied alien child[ren]” from the

4 safe third country bar. The Rule, which applies to unaccompanied minors just as it does to adults,

5 casts these protections to one side.

6

Lastly, the balance of equities and the public interest tip strongly in favor of injunctive

7 relief. While the public has a weighty interest in the efficient administration of the immigration

8 laws at the border, it also has a substantial interest in ensuring that the statutes enacted by its

9 representatives are not imperiled by executive fiat. Also, an injunction in this case would not

10 radically change the law – or change it at all. It would merely restore the law to what it has been

11 for many years, up until a few days ago. Finally, an injunction would vindicate the public’s

12 interest – which our existing immigration laws clearly articulate – in ensuring that we do not

13 deliver aliens into the hands of their persecutors.

14

For these reasons, and the additional reasons set forth below, the Court will enjoin the Rule

15 from taking effect.

16

I. BACKGROUND

17

A. Asylum Framework

18

1. Overview

19

In a related case, the Ninth Circuit has extensively summarized the general framework

20 governing U.S. both immigration law generally and asylum in particular. See E. Bay Sanctuary 21 Covenant v. Trump (E. Bay II), 909 F.3d 1219, 1231-36 (9th Cir. 2018).1 The Court therefore

22 reviews the relevant law more briefly, focusing on the provisions most relevant here.

23

The current iteration of U.S. asylum law stems from the Refugee Act of 1980, Pub. L. No.

24 96-212, 94 Stat. 102 (1980), which Congress enacted in large part “to bring United States refugee

25

26

1 Because of the overlap between the claims and arguments presented, the Court refers extensively to three decisions from that case: E. Bay Sanctuary Covenant v. Trump (E. Bay I), 349 F. Supp. 3d

27

838 (N.D. Cal. 2018) (order granting temporary restraining order (“TRO”)); E. Bay Sanctuary Covenant v. Trump (E. Bay II), 909 F.3d 1219 (9th Cir. 2018) (order denying stay of TRO); E.

28

Bay Sanctuary Covenant v. Trump (E. Bay III), 354 F. Supp. 3d 1094 (N.D. Cal. 2018) (order granting preliminary injunction).

3

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United States District Court Northern District of California

1 law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees,

2 19 U.S.T. 6223, T.I.A.S. No. 6577 [(‘1967 Protocol’)], to which the United States acceded in

3 1968.” I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987). The 1967 Protocol, in turn,

4 incorporates articles 2 to 34 of the 1951 Convention Relating to the Status of Refugees, July 28,

5 1951, 189 U.N.T.S. 150 (“1951 Convention”). See 1967 Protocol, art. I. Although these

6 international agreements do not independently carry the force of law domestically, see I.N.S. v.

7 Stevic, 467 U.S. 407, 428 n.22 (1984), they provide relevant guidance for interpreting the asylum

8 statutes, see Cardoza-Fonseca, 480 U.S. at 439-40.

9

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility

10 Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”). Under IIRIRA, an

11 immigrant’s ability to lawfully reside in the United States ordinarily turns on whether the

12 immigrant has been lawfully “admitted,” meaning that there has been a “lawful entry of the alien

13 into the United States after inspection and authorization by an immigration officer.” 8 U.S.C.

14 § 1101(a)(13)(A); see also E. Bay II, 909 F.3d at 1232 (explaining that Congress has “established

15 ‘admission’ as the key concept in immigration law”). U.S. immigration law sets forth numerous

16 reasons why aliens may be “ineligible to receive visas and ineligible to be admitted to the United

17 States.” 8 U.S.C. § 1182(a).

18

But “[a]sylum is a concept distinct from admission.” E. Bay II, 909 F.3d at 1233. Asylum

19 “permits the executive branch – in its discretion – to provide protection to aliens who meet the

20 international definition of refugees.” Id. Accordingly, “the decision to grant asylum relief is

21 ultimately left to the Attorney General’s discretion,” see I.N.S. v. Aguirre-Aguirre, 526 U.S. 415,

22 420 (1999); Delgado v. Holder, 648 F.3d 1095, 1101 (9th Cir. 2011), subject to the court of

23 appeals’ review for whether the Attorney General’s decision was “manifestly contrary to the law

24 and an abuse of discretion,” 8 U.S.C. § 1252(b)(4)(D).

25

The Immigration and Nationality Act (“INA”) sets forth the general rule regarding

26 eligibility for asylum:

27

Any alien who is physically present in the United States or who

arrives in the United States (whether or not at a designated port of

28

arrival and including an alien who is brought to the United States

4

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United States District Court Northern District of California

after having been interdicted in international or United States

1

waters), irrespective of such alien’s status, may apply for asylum in

accordance with this section or, where applicable, section 1225(b) of

2

this title.

3 8 U.S.C. § 1158(a)(1). Notwithstanding the grant of discretion to the Attorney General, Congress

4 has established certain categorical bars to asylum. These exceptions to the general rule apply to

5 aliens who (1) may be removed to a safe third country with which the United States has a

6 qualifying agreement, (2) did not apply within one year of arriving in the United States, or

7 (3) have previously been denied asylum. Id. § 1158(a)(2)(B)-(C).2 Neither the safe third country

8 exception nor the one-year rule apply to “an unaccompanied alien child.” Id. § 1158(a)(2)(E).3

9

Congress also mandated that certain categories of aliens are ineligible for asylum. Id.

10 § 1158(b)(2)(A)(i)-(vi). Most relevant here, an alien is ineligible for asylum if she “was firmly

11 resettled in another country prior to arriving in the United States.” Id. § 1158(b)(2)(A)(vi).

12 Congress further empowered the Attorney General to “by regulation establish additional

13 limitations and conditions, consistent with [§ 1158], under which an alien shall be ineligible for

14 asylum.” Id. § 1158(b)(2)(C).

15

In addition to asylum, two other forms of relief from removal are generally available under

16 U.S. immigration law. With some exceptions not relevant here, an alien is entitled to withholding

17 of removal if “the Attorney General decides that the alien’s life or freedom would be threatened in

18 that country because of the alien’s race, religion, nationality, membership in a particular social

19 group, or political opinion.” Id. § 1231(b)(3)(A). However, “[t]he bar for withholding of removal

20 is higher; an applicant must demonstrate that it is more likely than not that he would be subject to

21

22 2 An application ordinarily foreclosed by the latter two exceptions may nonetheless be considered

23

if the alien demonstrates either a material change in circumstances or that extraordinary circumstances prevented the alien from filing a timely application. Id. § 1158(a)(2)(D).

24 3 Congress has further defined an “unaccompanied alien child” as “a child who –

25

(A) has no lawful immigration status in the United States; (B) has not attained 18 years of age; and

26

(C) with respect to whom-(i) there is no parent or legal guardian in the United States; or

27

(ii) no parent or legal guardian in the United States is available to provide care and physical custody.

28 6 U.S.C. § 279(g)(2). 5

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United States District Court Northern District of California

1 persecution on one of the [protected] grounds.” Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th

2 Cir. 2014).

3

An alien may also seek protection under the Convention Against Torture (“CAT”), which

4 requires the alien to prove that “it is more likely than not that he or she would be tortured if

5 removed to the proposed country of removal,” 8 C.F.R. § 1208.16(c)(2), and that the torture would

6 be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or

7 other person acting in an official capacity,” id. § 1208.18(a)(1).

8

These forms of relief differ in meaningful respects. While an asylum grant is ultimately

9 discretionary, withholding of removal or CAT protection are mandatory if the applicant makes the

10 requisite showing of fear of persecution or torture. See Nuru v. Gonzales, 404 F.3d 1207, 1216

11 (9th Cir. 2005). At the same time, an applicant must meet a higher threshold to be eligible for the

12 latter two forms of relief. See Ling Huang, 744 F.3d at 1152; Nuru, 404 F.3d at 1216. Moreover,

13 “[u]nlike an application for asylum, . . . a grant of an alien’s application for withholding is not a

14 basis for adjustment to legal permanent resident status, family members are not granted derivative

15 status, and [the relief] only prohibits removal of the petitioner to the country of risk, but does not

16 prohibit removal to a non-risk country.” Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004)

17 (second alteration in original) (citation omitted); see also E. Bay II, 909 F.3d at 1236 (describing

18 additional asylum benefits).

19

2. Procedures for Asylum Determinations

20

Asylum claims may be raised in three different contexts. First, aliens present in the United

21 States may affirmatively apply for asylum, regardless of their immigration status. See 8 U.S.C.

22 § 1158(a)(1); Dep’t of Homeland Sec. & Dep’t of Justice, Instructions for Form I-589:

23 Application for Asylum and Withholding of Removal, at 2 (rev. Apr. 9, 2019),

24 https://www.uscis.gov/system/files force/files/form/i-589instr.pdf. Affirmative applications are

25 processed by U.S. Citizenship and Immigration Services (“USCIS”). 8 C.F.R. § 208.2(a). A

26 USCIS asylum officer interviews each applicant and renders a decision. Id. §§ 208.9, 208.19.

27 The officer may grant asylum based on that interview. Id. § 208.14(b). If, however, the officer

28 determines that the applicant is not entitled to asylum and that the applicant is otherwise 6

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United States District Court Northern District of California

1 “removable” – i.e., lacks lawful immigration status – the officer is generally required to refer the

2 applicant to immigration court for the appropriate removal proceeding before an immigration

3 judge (“IJ”). Id. § 208.14(c).

4

Second, an asylum claim may be raised as a defense in removal proceedings conducted

5 pursuant to 8 U.S.C. § 1229(a), sometimes referred to as “full removal proceedings.” Matter of

6 M-S-, 27 I. & N. Dec. 509, 510 (BIA 2019). An alien in full removal proceedings may renew a

7 previously denied affirmative asylum application or file one with the immigration judge in the first

8 instance. See 8 C.F.R. § 1208.4(b)(3)(iii). If the application is denied, the immigration judge

9 must also consider the alien’s eligibility for withholding of removal and, if requested by the alien

10 or suggested by the record, protection under CAT. Id. § 1208.3(c)(1). An alien who is denied

11 relief in these proceedings has a number of options for obtaining additional review. The alien may

12 file a motion to reconsider or reopen proceedings with the IJ, 8 U.S.C. § 1229(a)(6)-(7), or appeal

13 the decision to the Board of Immigration Appeals (“BIA”), 8 C.F.R. § 1003.1(b)(3). If the BIA

14 denies relief, the alien may likewise file a motion to reconsider or reopen with the BIA, 8 C.F.R.

15 § 1003.2(b)-(c), or petition for review of the BIA’s adverse decision with the relevant circuit court

16 of appeals, 8 U.S.C. § 1252(d).

17

Finally, asylum claims may be raised in expedited removal proceedings. By statute, these

18 proceedings apply “[w]hen a U.S. Customs and Border Protection (‘CBP’) officer determines that

19 a noncitizen arriving at a port of entry is inadmissible for misrepresenting a material fact or

20 lacking necessary documentation.” Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097,

21 1100 (9th Cir. 2019) (citing 8 U.S.C. §§ 1182(a)(6)(C), 1182(a)(7), 1225(b)(1)(A)(i)). As a

22 further exercise of its regulatory authority, 8 U.S.C. § 1225(b)(1)(A)(iii), DHS had, at the time this

23 suit was filed, “also applie[d] expedited removal to inadmissible noncitizens arrested within 100

24 miles of the border and unable to prove that they have been in the United States for more than the

25 prior two weeks.” Thuraissigiam, 917 F.3d at 1100. On July 23, 2019, however, DHS published

26 a notice that it was expanding the scope of expedited removal to apply “to aliens encountered

27 anywhere in the United States for up to two years after the alien arrived in the United States.”

28 Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409, 35,409 (July 23, 2019); see also 7

Case 3:19-cv-04073-JST Document 42 Filed 07/24/19 Page 8 of 45

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1 8 U.S.C. § 1225(b)(1)(A)(iii). Aliens determined to fall within those categories shall be “removed

2 from the United States without further hearing or review unless the alien indicates either an

3 intention to apply for asylum under [8 U.S.C. § 1158] or a fear of persecution.” 8 U.S.C. §

4 1225(b)(1)(A)(i).

5

If a noncitizen expresses an intent to seek asylum, the applicant is referred to an asylum

6 officer for a credible fear interview to determine whether the applicant “has a credible fear of

7 persecution.” Id. § 1225(b)(1)(B)(v). To have a credible fear, “there [must be] a significant

8 possibility, taking into account the credibility of the statements made by the alien in support of the

9 alien’s claim and such other facts as are known to the officer, that the alien could establish

10 eligibility for asylum.” Id. Applicants who demonstrate a credible fear of a basis for asylum,

11 withholding of removal, or protection under CAT, are generally placed in full removal

12 proceedings for further adjudication of their claims. Id. § 1225(b)(1)(B)(ii); 8 C.F.R.

13 § 208.30(e)(2)-(3), (f). By contrast, if the officer concludes that no credible fear exists, applicants

14 are “removed from the United States without further hearing or review,” except for an expedited

15 review by an IJ, which is ordinarily concluded within 24 hours and must be concluded within 7

16 days. 8 U.S.C. § 1225(b)(1)(B)(iii)(I), (III); see also 8 C.F.R. § 1208.30(g).

17

B. The Challenged Rule

18

On July 16, 2019, the DOJ and the DHS published a joint interim final rule, entitled

19 “Asylum Eligibility and Procedural Modifications.” 84 Fed. Reg. 33,829 (July 16, 2019) (codified

20 at 8 C.F.R. pts. 208, 1003, 1208). In general terms, the Rule imposes “a new mandatory bar for

21 asylum eligibility for aliens who enter or attempt to enter the United States across the southern

22 border after failing to apply for protection from persecution or torture in at least one third country

23 through which they transited en route to the United States.” Id. at 33,830.

24

Under the Rule, “any alien who enters, attempts to enter, or arrives in the United States

25 across the southern land border on or after July 16, 2019, after transiting through at least one

26 country outside the alien’s country of citizenship, nationality, or last lawful habitual residence en

27 route to the United States, shall be found ineligible for asylum.” 8 C.F.R. § 208.13(c)(4). The

28 Rule provides three exceptions. First, the Rule does not apply if the alien “applied for protection 8

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United States District Court Northern District of California

1 from persecution or torture in at least one country . . . through which the alien transited en route to

2 the United States, and the alien received a final judgment denying the alien protection in such

3 country.” Id. § 208.13(c)(4)(i). Second, the Rule exempts “victim[s] of a severe form of

4 trafficking in persons,” as defined in 8 C.F.R. § 214.11. 8 C.F.R. § 208.13(c)(4)(ii)). Finally, the

5 Rule does not apply if “[t]he only countries through which the alien transited en route to the

6 United States were, at the time of the transit, not parties to [the 1951 Convention, the 1967

7 Protocol, or CAT].” Id. § 208.13(c)(4)(iii). In sum, except for qualifying trafficking victims, the

8 Rule requires any alien transiting through a third country that is a party to one of the above

9 agreements to apply for protection and receive a final denial prior to entering through the southern

10 border and seeking asylum relief in the United States.

11

The Rule also sets forth special procedures for how the mandatory bar applies in expedited

12 removal proceedings. In general, “if an alien is able to establish a credible fear of persecution but

13 appears to be subject to one or more of the mandatory [statutory] bars to applying for, or being

14 granted, asylum . . . [DHS] shall nonetheless place the alien in proceedings under [8 U.S.C.

15 § 1229a] for full consideration of the alien’s claim.” 8 C.F.R. § 208.30(e)(5)(i). An alien subject

16 to the Rule’s third country bar, however, is automatically determined to lack a credible fear of

17 persecution. Id. § 208.30(e)(5)(iii). The asylum officer must then consider whether the alien

18 demonstrates a reasonable fear of persecution or torture (as necessary to support a claim for

19 withholding of removal or CAT protection). Id. The alien may then seek review from an IJ, on

20 the expedited timeline described above, of the determination that the Rule’s mandatory bar applies

21 and that the alien lacks a reasonable fear of persecution or torture. Id. § 1208.30(g)(1)(ii).

22

In promulgating the Rule, the agencies invoked their authority to establish conditions

23 consistent with 8 U.S.C. § 1158. 84 Fed. Reg. at 33,834. They also claimed exemption from the

24 Administrative Procedure Act’s (“APA”) notice-and-comment requirements. See 5 U.S.C.

25 § 553(b)-(d). As grounds for an exemption, they invoked § 553(a)(1)’s “military or foreign affairs

26 function” exemption and § 553(b)(B)’s “good cause” exemption. 84 Fed. Reg. at 33,840-42.

27 They also invoked § 553(d)(3)’s “good cause” waiver of the thirty-day grace period that is usually

28 required before a newly promulgated rule goes into effect. Id. at 33,841. The Court discusses the 9

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1 proffered reasons for both the Rule and the waiver of § 553 requirements as relevant below.

2

C. Procedural History

3

Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central

4 American Resource Center (the “Organizations”) filed this lawsuit on July 16, 2019, the day the 5 Rule went into effect. Complaint (“Compl.”), ECF No. 1.4 The Organizations filed a motion for

6 temporary restraining order (“TRO”) the following day. ECF No. 3. The Court set a scheduling 7 conference for the morning of July 18, 2019. ECF No. 13, 15.5 At the conference, the

8 government suggested that the parties proceed directly to a hearing on a preliminary injunction on

9 the administrative record but represented that it would likely not be able to produce the record

10 until July 23, 2019. After considering the parties’ positions, the Court ordered the government to

11 file its opposition to the TRO on July 19, 2019, and the Organizations to file a reply on July 21,

12 2019. ECF No. 18 at 1. The Court further ordered the government to file the administrative

13 record by July 23, 2019, stating that the Court “contemplates that the administrative record may be

14 useful in subsequent proceedings but will not be the subject of argument at the July 24 hearing.”

15 Id. at 1-2.

16

The government filed the administrative record simultaneously with its opposition to the

17 TRO on July 19, 2019, ECF No. 29, citing extensively to the record throughout its opposition,

18 ECF No. 28. The Court then issued a notice to the parties that it was considering converting the

19 motion to a preliminary injunction, given that both sides would have an opportunity to address the

20 administrative record in their papers. ECF No. 30. The Organizations’ reply did, in fact, address

21 the record and the government’s citations to it. ECF No. 31. At the hearing, both parties agreed

22 that it would be appropriate to convert the motion to a preliminary injunction. The Court therefore

23 does so. See ECF No. 30.

24

25 4 The Organizations named as defendants a number of relevant agencies and agency officials. The 26 Court refers to them collectively as the government.

27

5 After considering the parties’ briefing on an expedited basis, the Court granted the Organizations’ motion to relate this case to another action pending before this Court regarding a

28

different asylum eligibility regulation. E. Bay Sanctuary Covenant v. Trump, No. 18-cv-06810JST (N.D. Cal.), ECF Nos. 115, 117, 118.

10

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1

The Organizations’ motion relies on the three claims advanced in their complaint. First,

2 they claim that the Rule is substantively invalid because it is inconsistent with the statutes

3 governing asylum. Compl. ¶¶ 137-143. Second, they claim that the Rule is procedurally invalid

4 because the agencies violated the APA’s notice-and-comment requirements, 5 U.S.C. § 553(b)-(d).

5 Compl. ¶¶ 144-147. Finally, they argue that the Rule is procedurally invalid because the agencies

6 failed to articulate a reasoned explanation for their decision. Id. ¶¶ 148-150.

7

II. MOTION FOR PRELIMINARY INJUNCTION

8

A. Legal Standard

9

The Court applies a familiar four-factor test on a motion for a preliminary injunction. See

10 Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839-40 & n. 7 (9th Cir. 2001). A

11 plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer

12 irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,

13 and that an injunction is in the public interest.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles,

14 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20

15 (2008)). Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear

16 showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22.

17

To grant preliminary injunctive relief, a court must find that “a certain threshold showing

18 [has been] made on each factor.” Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per

19 curiam). Assuming that this threshold has been met, “‘serious questions going to the merits’ and a

20 balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary

21 injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and

22 that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,

23 1135 (9th Cir. 2011).

24

B. Likelihood of Success on the Merits

25

1. Standing

26

The government challenges the Organizations’ Article III and statutory standing, but only

27 in a footnote. ECF No. 28 at 16 n.1. The government concedes that its positions are generally

28 irreconcilable with the Ninth Circuit’s and this Court’s rulings in a prior case brought by the 11

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1 Organizations, challenging a different regulation imposing a mandatory bar on asylum eligibility

2 (the “illegal entry bar”). Id.; see generally E. Bay Sanctuary Covenant v. Trump, No. 18-cv-

3 06810-JST (N.D. Cal.). While the Court considers these arguments, it does so correspondingly

4 briefly. Cf. Holley v. Gilead Scis., Inc., 379 F. Supp. 3d 809, 834 (N.D. Cal. 2019) (“‘Arguments

5 raised only in footnotes, or only on reply, are generally deemed waived’ and need not be

6 considered.” (quoting Estate of Saunders v. Comm’r, 745 F.3d 953, 962 n.8 (9th Cir. 2014)).

7

First, the Organizations have adequately demonstrated injury-in-fact to support Article III

8 standing. The Ninth Circuit has repeatedly recognized that “‘a diversion-of-resources injury is

9 sufficient to establish organizational standing’ for purposes of Article III, if the organization

10 shows that, independent of the litigation, the challenged ‘policy frustrates the organization’s goals

11 and requires the organization to expend resources in representing clients they otherwise would

12 spend in other ways.’” E. Bay II, 909 F.3d at 1241 (first quoting Nat’l Council of La Raza v.

13 Cegavske, 800 F.3d 1032, 1040 (9th Cir. 2015); then quoting Comite de Jornaleros de Redondo

14 Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011) (en banc)). As in East Bay II,

15 the Organizations have “offered uncontradicted evidence that enforcement of the Rule has

16 required, and will continue to require, a diversion of resources, independent of expenses for this

17 litigation, from their other initiatives.” Id. at 1242; see also ECF No. 3-2 ¶¶ 14-15, 17, 19; ECF

18 No. 3-3 ¶¶ 12-17, 19; ECF No. 3-4 ¶¶ 16-19; ECF No. 3-5 ¶¶ 10-14. The Ninth Circuit likewise

19 recognized that the Organizations “can demonstrate organizational standing by showing that the

20 Rule will cause them to lose a substantial amount of funding.” E. Bay II, 909 F.3d at 1243. For

21 similar reasons, three of the four Organizations have shown that the majority of the clients they

22 serve would be rendered “categorically ineligible for asylum,” and that they “would lose a

23 significant amount of business and suffer a concomitant loss of funding” as a result. Id.; see also

24 ECF No. 3-2 ¶¶ 15-16, ECF No. 3-3 ¶ 18; ECF No. 3-5 ¶¶ 6-7.

25

Second, the Organizations’ interests are “arguably within the zone of interests to be

26 protected or regulated by the statute.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians

27 v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v.

28 Camp, 397 U.S. 150, 153 (1970)). Here, the Ninth Circuit has already determined that the 12

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1 Organizations’ “interests fall within the zone of interests protected by the INA,” and these same

2 “asylum provisions” in particular. E. Bay II, 909 F.3d at 1244.6

3

Accordingly, the Organizations have standing to prosecute this lawsuit.

4

2. Substantive Validity: Chevron

5

a. Legal Standard

6

The Organizations challenge “the validity of the [Rule] under both Chevron and State

7 Farm, which ‘provide for related but distinct standards for reviewing rules promulgated by

8 administrative agencies.’” Altera Corp. & Subsidiaries v. Comm’r of Internal Revenue, 926 F.3d

9 1061, 1075 (9th Cir. 2019) (quoting Catskill Mountains Chapter of Trout Unlimited, Inc. v. Envtl.

10 Prot. Agency, 846 F.3d 492, 521 (2d Cir. 2017)). “State Farm review for arbitrariness focuses on

11 the rationality of an agency’s decisionmaking process – i.e., ‘whether a rule is procedurally

12 defective as a result of flaws in the agency’s decisionmaking process.’” 33 Charles Alan Wright,

13 Charles H. Koch & Richard Murphy, Federal Practice and Procedure, § 8435 at 538 (2d ed.

14 2018) (footnotes omitted) (quoting Catskill Mountains, 846 F.3d at 521). By contrast, the

15 Chevron analysis considers “whether the conclusion reached as a result of that process – an

16 agency’s interpretation of a statutory provision it administers – is reasonable.” Altera Corp., 926

17 F.3d at 1075 (quoting Catskills Mountains, 846 F.3d at 521). Thus, where a plaintiff alleges that,

18 as a result of an erroneous legal interpretation, the agency’s action was “not in accordance with the

19 law,” 5 U.S.C. § 706(2)(A), or “in excess of statutory jurisdiction, authority, or limitations, or

20 short of statutory right,” id. § 706(2)(C), courts apply the Chevron framework. See Nw. Envtl.

21

22 6 The government contends that the Ninth Circuit’s legal conclusion is flawed because it failed to

23

consider the judicial review provisions of 8 U.S.C. §§ 1252 and 1329, which the government reads to require that “review may be sought only by the affected alien.” ECF No. 28 at 16 n.1. But the

24

government did, in fact, argue to the Ninth Circuit that “the immigration statutes . . . presuppose that only aliens may challenge certain asylum-related decisions and limit when and where aliens

25

may seek judicial review.” E. Bay Sanctuary Covenant v. Trump, No. 18-17274 (9th Cir.), ECF No. 14 at 9 (citing 8 U.S.C. §§ 1225, 1252); see also Day v. Apoliona, 496 F.3d 1027, 1031 (9th

26

Cir. 2007) (district courts are bound by circuit precedent); cf. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (“As a general rule, the principle of stare decisis directs us to adhere not

27

only to the holdings of our prior cases, but also to their explications of the governing rules of law.” (quoting County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 668 (1989)

28 (Kennedy, J., concurring in part and dissenting in part))).

13

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1 Advocates v. U.S. E.P.A., 537 F.3d 1006, 1014 (9th Cir. 2008) (citing Chevron, U.S.A., Inc. v. Nat.

2 Res. Def. Council, Inc., 467 U.S. 837 (1984)).7

3

Under Chevron, the Court first considers “whether Congress has directly spoken to the

4 precise question at issue. If the intent of Congress is clear, that is the end of the matter.” Campos-

5 Hernandez v. Sessions, 889 F.3d 564, 568 (9th Cir. 2018) (quoting Chevron, 467 U.S. at 842).

6 The Court “starts with the plain statutory text and, ‘when deciding whether the language is

7 plain, . . . must read the words in their context and with a view to their place in the overall

8 statutory scheme.’” Altera Corp., 926 F.3d at 1075 (quoting King v. Burwell, 135 S. Ct. 2480,

9 2489 (2015)). Consideration of “the legislative history, the statutory structure, and ‘other

10 traditional aids of statutory interpretation’” supplements this plain text analysis. Id. (quoting

11 Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass'n, 453 U.S. 1, 13 (1981)). In recent

12 years, the Supreme Court has cautioned that courts may not “engage[] in cursory analysis” of these

13 statutory questions. Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018) (Kennedy, J., concurring)

14 (observing that “reflexive deference” to the agency under Chevron “suggests an abdication of the

15 Judiciary’s proper role in interpreting federal statutes”). Rather, as it emphasized in an analogous

16 context, “only when that legal toolkit is empty and the interpretive question still has no single right

17 answer can a judge conclude that it is ‘more [one] of policy than of law.’” Kisor v. Wilkie, 139 S.

18 Ct. 2400, 2415 (2019) (alteration in original) (quoting Pauley v. BethEnergy Mines, Inc., 501 U.S.

19 680, 696 (1991)).

20

If, after exhausting those tools, the Court concludes the rule or regulation is ambiguous, it

21 turns to Chevron step two. Id. There, the Court determines whether the agency’s construction is

22 “arbitrary, capricious, or manifestly contrary to the statute,” again taking into account “the

23 statute’s text, structure and purpose.” Altera Corp., 926 F.3d at 1075 (first quoting Chevron, 467

24 U.S. at 843; then quoting Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007)). “Thus,

25 an agency interpretation that is ‘inconsisten[t] with the design and structure of the statute as a

26 whole,’ does not merit deference.” Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 321 (2014)

27

28

7 Despite the government’s failure to invoke Chevron deference, the Court nonetheless applies the governing standard. See E. Bay II, 909 F.3d at 1247-48 (citing Chevron).

14

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1 (alteration in original) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013)).

2 Ultimately, the regulation “fails if it is ‘unmoored from the purposes and concerns’ of the

3 underlying statutory regime.” Altera Corp., 926 F.3d at 1076 (quoting Judulang v. Holder, 565

4 U.S. 42, 64 (2011)); see also S.J. Amoroso Const. Co. v. United States, 981 F.2d 1073, 1075 (9th

5 Cir. 1992) (“If a regulation is fundamentally at odds with the statute, it will not be upheld simply

6 because it is technically consistent with the statute.”).

7

b. Statutory Framework

8

The Organizations argue that the Rule conflicts with the two statutory provisions that

9 currently disqualify asylum applicants based on third countries: (1) the firm resettlement bar and

10 (2) the safe third country bar. These provisions reflect “[t]he core regulatory purpose of asylum,”

11 which “is not to provide [applicants] with a broader choice of safe homelands, but rather, to

12 protect [refugees] with nowhere else to turn.” Matter of B-R-, 26 I. & N. Dec. 119, 122 (BIA

13 2013) (quoting Tchitchui v. Holder, 657 F.3d 132, 137 (2d Cir. 2011)). To determine whether the

14 Rule is consistent with these statutory bars, the Court reviews their history in greater depth.

15

i. Firm Resettlement Bar

16

The concept of firm resettlement has a long history in U.S. immigration law. It was first

17 introduced in a 1948 statute, although the language was later dropped in 1957 legislation and

18 subsequent acts. Rosenberg v. Yee Chien Woo, 402 U.S. 49, 53 (1971). Interpreting those later

19 statutes, which limited asylum to those fleeing persecution, the Supreme Court concluded that they

20 nonetheless required the government to take the “the ‘resettlement’ concept . . . into account to

21 determine whether a refugee seeks asylum in this country as a consequence of his flight to avoid

22 persecution.” Id. at 56. “[T]he correct legal standard,” the Rosenberg Court explained, was

23 whether the applicant’s presence in the United States was “reasonably proximate to the flight and

24 not . . . following a flight remote in point of time or interrupted by intervening residence in a third

25 country reasonably constituting a termination of the original flight in search of refuge.” Id. at 57.

26

In 1980, Congress passed the Refugee Act “to bring the INA into conformity with the

27 United States’s obligations under the Convention and Protocol.” E. Bay II, 909 F.3d at 1233.

28 Congress barred from asylum any alien “convicted of an aggravated felony,” 8 U.S.C. § 1158(d) 15

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1 (1980), but did not impose other categorical restrictions. The agency then charged with

2 administering asylum, the Immigration and Naturalization Service (“INS”) adopted additional

3 regulatory bars, including one that required INS district directors to deny asylum to an applicant

4 who had “been firmly resettled in a foreign country.” 8 C.F.R. § 208.8(f)(1)(ii) (1981). The

5 regulations went on to define “firm resettlement” in greater detail.8 In addition, those regulations

6 imposed a discretionary bar, providing that a district director could deny asylum if “there is an

7 outstanding offer of resettlement by a third nation where the applicant will not be subject to

8 persecution and the applicant’s resettlement in a third nation is in the public interest.” Id.

9 § 208.8(f)(2).

10

Because this regulatory bar applied only to district directors, the BIA subsequently

11 concluded that it did “not prohibit an immigration judge or the Board from granting asylum to an

12 alien deemed to have been firmly resettled.” Matter of Soleimani, 20 I. & N. Dec. 99, 104 (BIA

13 1989). Instead, it explained, “firm resettlement is a factor to be evaluated in determining whether

14 asylum should be granted as a matter of discretion under the standards set forth in Matter of Pula,

15 19 I & N Dec. 467 (BIA 1987).” Matter of Soleimani, 20 I. & N. Dec. at 103. In Matter of Pula,

16 the BIA had rejected a rule that accorded illegal entry so much weight that its “practical effect

17

18 8 Specifically, the Attorney General defined an alien as “firmly resettled” if:

19

[H]e was offered resident status, citizenship, or some other type of permanent resettlement by another nation and traveled to and entered

20

that nation as a consequence of his flight from persecution, unless the refugee establishes . . . that the conditions of his residence in that

21

nation were so substantially and consciously restricted by the authority of the country of asylum/refuge that he was not in fact

22

resettled.

23 8 C.F.R. § 208.14 (1980). Officers making the firm resettlement determination were instructed to

24

[C]onsider, in light of the conditions under which other residents of the country live, the type of housing, whether permanent or

25

temporary, made available to the refugee, the types and extent of employment available to the refugee, and the extent to which the

26

refugee received permission to hold property and to enjoy other rights and privileges (such as travel documentation, education,

27

public relief, or naturalization) available to others resident in the country.

28 Id. 16

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1 [was] to deny relief in virtually all cases,” instructing instead that “the totality of the circumstances

2 and actions of an alien in his flight from the country where he fears persecution should be

3 examined in determining whether a favorable exercise of discretion is warranted.” 19 I. & N. Dec.

4 at 473. And although the BIA included as relevant factors “whether the alien passed through any

5 other countries or arrived in the United States directly from his country, whether orderly refugee

6 procedures were in fact available to help him in any country he passed through, and whether he

7 made any attempts to seek asylum before coming to the United States,” 19 I. & N. Dec. at 473-74,

8 those factors were not given dispositive weight, and they were to be considered among a host of

9 other relevant factors in their totality:

10

In addition, the length of time the alien remained in a third country,

and his living conditions, safety, and potential for long-term

11

residency there are also relevant. For example, an alien who is

forced to remain in hiding to elude persecutors, or who faces

12

imminent deportation back to the country where he fears

persecution, may not have found a safe haven even though he has

13

escaped to another country. Further, whether the alien has relatives

legally in the United States or other personal ties to this country

14

which motivated him to seek asylum here rather than elsewhere is

another factor to consider. In this regard, the extent of the alien’s

15

ties to any other countries where he does not fear persecution should

also be examined. 16

17 Id.

18

In 1990, the Attorney General expanded the mandatory firm resettlement bar to include IJ

19 asylum determinations, thereby superseding Matter of Soleimani. See 8 C.F.R. § 208.14(c)(2)

20 (1990). The 1990 regulations also amended the firm resettlement definition to permit an applicant

21 to rebut a showing of a firm offer by establishing “[t]hat his entry into that nation was a necessary

22 consequence of his flight from persecution, that he remained in that nation only as long as was

23 necessary to arrange onward travel, and that he did not establish significant ties in that nation.” Id.

24 § 208.15(a). The Ninth Circuit subsequently upheld this regulatory bar as “a permissible

25 construction of the statute,” noting that “[f]irm resettlement has long been a decisive factor in

26 asylum policy,” and that “[e]ven before the regulation was promulgated in 1990, firm resettlement

27 seems to have precluded a grant of asylum in practice.” Yang v. I.N.S., 79 F.3d 932, 939 (9th Cir.

28 1996). Moreover, it reasoned, “[b]ecause firmly resettled aliens are by definition no longer 17

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1 subject to persecution, the regulation create[d] no conflict with” the Refugee Act. Id.

2

Congress revisited the issue of firm resettlement in 1996, when it enacted IIRIRA. In

3 IIRIRA, Congress codified the firm resettlement bar, providing that asylum was unavailable to an

4 alien who “was firmly resettled in another country prior to arriving in the United States.” 8 U.S.C.

5 § 1158(b)(2)(A)(vi).

6

Following IIRIRA, the Attorney General issued interim implementing regulations. In

7 addition to tracking the mandatory firm resettlement bar, 8 C.F.R. §§ 208.13(c)(2)(B), 208.15

8 (1997), the regulations also included a provision for discretionary denials “if the alien can be

9 removed to a third country which has offered resettlement and in which the alien would not face

10 harm or persecution,” id. § 208.13(d). In subsequent cases, the Ninth Circuit concluded that these

11 regulations had replaced the factors cited in Matter of Pula as a basis for discretionary denial of

12 asylum. See Mamouzian v. Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004) (“Stays in third

13 countries are now governed by 8 C.F.R. § 208.15, which specifies how and when an opportunity

14 to reside in a third country justifies a denial of asylum.”); Andriasian v. I.N.S., 180 F.3d 1033,

15 1044 (9th Cir. 1999) (“The amended regulations now specify how and when an opportunity to stay

16 in a third country justifies a mandatory or discretionary denial of asylum by an IJ or the BIA.”). In

17 Andriasian, the Ninth Circuit elaborated on its rationale, explaining that a contrary reading would

18 defeat the regulations’ “purpose . . . to ensure that if this country denies a refugee asylum, the

19 refugee will not be forced to return to a land where he would once again become a victim of harm

20 or persecution.” 180 F.3d at 1046-47. “[T]he discretionary authority to deny asylum when a

21 refugee has spent a brief period of time in a third country but has no opportunity to return there or,

22 if he does, would be subject to further serious harm, would permit just such a result and would

23 totally undermine the humanitarian policy underlying the regulation.” Id. at 1047. Thus, “[t]hat a

24 refugee has spent some period of time elsewhere before seeking asylum in this country is relevant

25 only if he can return to that other country. Otherwise, that fact can in no way, consistent with the

26 statute and the regulations, warrant denial of asylum.” Id. at 1047.

27

In 2000, the Attorney General finalized the regulations implementing IIRIRA. During the

28 rulemaking process, the government received comments expressing concern that the discretionary 18

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1 denial regulation was inconsistent with the statutory safe third country bar. Asylum Procedures,

2 65 Fed. Reg. 76,121-01, 76,126 (Dec. 6, 2000). Although the government maintained that the

3 regulation was a proper exercise of the Attorney General’s authority pursuant to 8 U.S.C.

4 § 1158(b)(2)(C), it nonetheless “decided to remove it from the regulations to avoid confusion.”

5 Id.; cf. 8 C.F.R. § 208.13 (2001). Consistent with the Ninth Circuit’s recognition that these

6 regulations created a unified scheme “specif[ying] how and when an opportunity to reside in a

7 third country justifies a denial of asylum,” Mamouzian, 390 F.3d at 1138, some courts have since

8 held that a “stay in a third country before arriving in the United States cannot support a denial of

9 [an] asylum claim” where the IJ finds that applicant “was not firmly resettled,” Tandia v.

10 Gonzales, 437 F.3d 245, 249 (2d Cir. 2006) (per curiam) (emphasis omitted); see also Prus v.

11 Mukasey, 289 F. App’x 973, 976 (9th Cir. 2008); cf. Shantu v. Lynch, 654 F. App’x 608, 617 (4th

12 Cir. 2016) (noting the Tandia court’s decision and inviting the BIA to consider on remand whether

13 a finding that a third country provides a “‘safe haven’ remains a factor that may properly be 14 considered in a discretionary asylum determination”).9

15

Under the current statutory scheme, “[d]etermining whether the firm resettlement rule

16 applies involves a two-step process: First, the government presents ‘evidence of an offer of some

17 type of permanent resettlement,’ and then, second, ‘the burden shifts to the applicant to show that

18 the nature of his [or her] stay and ties was too tenuous, or the conditions of his [or her] residence

19 too restricted, for him [or her] to be firmly resettled.’” Arrey v. Barr, 916 F.3d 1149, 1159 (9th

20 Cir. 2019) (alterations in original) (quoting Maharaj v. Gonzales, 450 F.3d 961, 976-77 (9th Cir.

21 2006) (en banc)); see also 8 C.F.R. § 208.15. Further, because “firmly resettled aliens are by

22 definition no longer subject to persecution,” an applicant may provide evidence of persecution in

23 the third country to “rebut the finding of firm resettlement” there. Arrey, 916 F.3d at 1159-60

24 (first quoting Yang, 79 F.3d at 939).

25

ii. Safe Third Country Bar

26

Though a more recent innovation, the safe third country bar also provides guidance

27

28

9 Pursuant to Fourth Circuit Rule 36 and Ninth Circuit Rule 36-3, Shantu and Prus are not binding precedent. The Court nonetheless relies on them as persuasive authority.

19

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1 regarding the statutory scheme that Congress enacted.

2

Shortly prior to IIRIRA, the Attorney general promulgated a regulation providing for

3 discretionary denials of asylum where “the alien can and will be deported or returned to a country

4 through which the alien traveled en route to the United States and in which the alien would not

5 face harm or persecution and would have access to a full and fair procedure for determining his or

6 her asylum claim in accordance with a bilateral or multilateral arrangement with the United States

7 governing such matter.” 8 C.F.R. § 208.14(e) (1995). At that time, no such agreement existed.

8

Congress then codified that bar as part of IIRIRA, converting it into a mandatory bar that

9 disqualified aliens from applying for asylum if:

10

[T]he Attorney General determines that the alien may be removed,

pursuant to a bilateral or multilateral agreement, to a country (other

11

than the country of the alien’s nationality or, in the case of an alien

having no nationality, the country of the alien’s last habitual

12

residence) in which the alien’s life or freedom would not be

threatened on account of race, religion, nationality, membership in a

13

particular social group, or political opinion, and where the alien would

have access to a full and fair procedure for determining a claim to

14

asylum or equivalent temporary protection, unless the Attorney

General finds that it is in the public interest for the alien to receive

15

asylum in the United States.

16 8 U.S.C. § 1158(a)(2)(A). Congress further provided that the bar would not apply to

17 “unaccompanied alien child[ren].” Id. § 1158(a)(2)(E).

18

To date, the United States has entered into only one such agreement, with Canada.

19 Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third

20 Countries, Can.-U.S., Dec. 5, 2002 (“Canada Third Country Agreement”). The agreement

21 generally provides that, between the two nations, the country through which the alien transited

22 (i.e., “the country of last presence”) will adjudicate the alien’s claim for refugee status. Id., art.

23 IV, ¶ 1. However, the agreement contains exceptions where the “receiving country” will

24 adjudicate the claim, including where the applicant has at least one family member with refugee or

25 other lawful status or a family member who is at least 18 years old and has a pending refugee

26 claim. Id., art. IV, ¶ 2. Notwithstanding that allocation of adjudicatory responsibility, each

27 country reserved the right to examine any claim at its own discretion if it would serve its public

28 interest to do so. Id., art. VI. 20

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1

c. Discussion

2

The government represents that, like the firm resettlement and safe third country bars, the

3 Rule provides a means of separating asylum applicants who truly have “nowhere else to turn” to

4 avoid persecution, 84 Fed. Reg. at 33,834 (quoting Matter of B-R-, 26 I. & N. Dec. at 122), from

5 “economic migrants seeking to exploit our overburdened immigration system,” id. at 33,839; see

6 also ECF No. 28 at 17 (“[T]he Department heads determined . . . that aliens who fail to apply for

7 protection in at least one third country through which they transited should not be granted the

8 discretionary benefit of asylum, because they are not refugees with nowhere else to turn.”).

9

The Organizations first contend that “Congress spoke directly to the issue of seeking

10 asylum in another country and created two narrow circumstances where asylum can be denied

11 based on a third country.” ECF No. 3-1 at 14. Implicit in this argument is that the Rule fails at

12 Chevron step one because Congress has articulated the only permissible mandatory bars in this 13 area. See Chevron, 467 U.S. at 842.10 The Organizations’ position has some force. As noted

14 above, some courts, including the Ninth Circuit, have treated the regulations based on the firm

15 resettlement bar as establishing the only circumstances under which “an opportunity to stay in a

16 third country justifies a mandatory or discretionary denial of asylum by an IJ or the BIA.”

17 Andriasian, 180 F.3d at 1044; see also Prus, 289 F. App’x at 97; Tandia, 437 F.3d at 249;

18 Mamouzian, 390 F.3d at 1138. But as the Organizations acknowledged at the hearing, the Court

19 need not decide that question today.

20

Even assuming that the statute does not prohibit the government from adopting additional

21 mandatory bars based on an applicant’s relationship with a third country, any such bar must be

22 consistent “with the design and structure of the statute as a whole” to survive Chevron step two.

23 Util. Air Regulatory Grp., 573 U.S. at 321 (citation omitted). The Rule fails this test in at least

24 two respects.

25

26 10 At the outset, the Court rejects the government’s reliance on Lopez v. Davis, 531 U.S. 230, 243-

27

44 (2001), and R-S-C- v. Sessions, 869 F.3d 1176, 1187 n.9 (10th Cir. 2017). Those cases stand for the undisputed principle that the agencies have the authority to adopt additional categorical

28

limitations, but do not shed light on the specific statutory conflicts and arbitrariness arguments raised in this case. See E. Bay II, 909 F.3d at 1248 n.13.

21

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1

First, as the government emphasizes, the two statutory bars “limit an alien’s ability to

2 claim asylum in the United States when other safe options are available.” Matter of B-R-, 26 I. &

3 N. Dec. at 122. But in keeping with that purpose, both provisions incorporate requirements to

4 ensure that the third country in question actually is a “safe option[].” Id. The safe third country

5 bar requires a third country’s formal agreement to accept refugees and process their claims

6 pursuant to safeguards negotiated with the United States. 8 U.S.C. § 1158(a)(2)(A). As part of

7 that process, the United States must determine that (1) “the alien’s life or freedom would not be

8 threatened on account of [a protected characteristic]” if removed to that third country and (2) “the

9 alien would have access to a full and fair procedure for determining a claim to asylum or

10 equivalent temporary protection” there. Id.

11

Similarly, in enacting the firm resettlement bar, Congress left in place the pre-existing

12 regulatory definition, under which the government must make individualized determinations that

13 the applicant received “an offer of some type of permanent resettlement” in a country where the

14 applicant’s “stay and ties [were not] too tenuous, or the conditions of his [or her] residence too

15 restricted, for him [or her] to be firmly resettled.” Arrey, 916 F.3d at 1159 (alterations in original)

16 (quoting Maharaj, 450 F3d at 976). As the Ninth Circuit has recognized, the purpose of these

17 requirements “is to ensure that if this country denies a refugee asylum, the refugee will not be

18 forced to return to a land where he would once again become a victim of harm or persecution.”

19 Andriasian, 180 F.3d at 1046-47; see also Yang, 79 F.3d at 939 (“[F]irmly resettled aliens are by

20 definition no longer subject to persecution . . . .”).

21

By contrast, the Rule does virtually nothing to ensure that a third country is a “safe

22 option.” The Rule requires only that the third country be a party to the 1951 Convention, the 1967

23 Protocol, or the CAT. 8 C.F.R. § 208.13(c)(4)(iii). While the firm resettlement bar requires a

24 determination regarding each alien’s individual circumstances, and the safe third country bar

25 requires a formalized determination as to the individual country under consideration, the Rule

26 ignores an applicant’s individual circumstances and categorically deems most of the world a “safe

27 option” without considering – or, as set forth below, in contravention of – the evidence in its own

28 record. See AR 560-62, 581-83, 588. For example, the administrative record demonstrates 22

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1 abundantly why Mexico is not a safe option for many refugees, despite its party status to all three

2 agreements. AR 561, 582, 588.11 In short, Congress requires consideration of an applicant’s

3 circumstances and those of the third country; the Rule turns its back on those requirements. On its

4 face, this approach fundamentally conflicts with the one Congress took in enacting mandatory bars

5 based on a safe option to resettle or pursue other relief in a third country.

6

The government’s contrary arguments are not persuasive. First, the government contends

7 that there is no conflict with the firm resettlement bar because that bar concerns aliens who have

8 already received an offer of permanent resettlement, while the Rule disqualifies “those who could

9 have applied (but did not apply) for protection in a third country.” ECF No. 28 at 18. The

10 government similarly asserts that the Rule need not resemble the safe third country bar because

11 that bar, as implemented by the United States’ sole safe third country agreement, (1) requires

12 consideration of withholding of removal in Canada and (2) allows an alien to seek relief in the

13 United States if Canada denies the asylum claim. Id. at 21; see also 8 C.F.R. § 208.30(e)(6).

14

The government’s focus on the type of conduct that is subject to each bar, or any

15 difference in consequences that flow from its application, is misplaced. ECF No. 28 at 18, 21-22.

16 If a country is not a safe option, there is no reason to infer that an alien’s failure to seek protection

17 there undermines her claim. For purposes of the particular question of safety, it makes no

18 difference whether the safe option is one that the alien had or has (in the case of the firm

19 resettlement bar), will have (in the case of the safe third country bar) or forewent (in the case of

20 the Rule).

21

In sum, when Congress barred asylum to an applicant with an alternative safe option in

22 another country, it required “reasonable assurance that he will not suffer further harm or

23 persecution there,” Andriasian, 180 F.3d at 1046, in keeping with the long-held understanding that

24 these bars apply to those who have somewhere else to turn, see Matter of B-R-, 26 I. & N. Dec. at

25 122. The Rule’s sweeping approach makes no attempt to accommodate this concern, and so is

26

27

11 The Organizations suggest examples of other countries that might support the same conclusion, but do not seek to expand the administrative record to include the relevant information. ECF No.

28 3-1 at 18. The Court therefore does not rely on those arguments.

23

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1 antithetical to the statute’s structure and “unmoored from the purposes and concerns of the

2 underlying statutory regime.” Altera Corp., 926 F.3d at 1076 (quoting Judulang, 565 U.S. at 64).

3

Second, the Rule is based on an unrebuttable categorical inference that is arbitrary and

4 capricious. The Rule’s major premise is that “[a]n alien’s decision not to apply for protection at

5 the first available opportunity, and instead wait for the more preferred destination of the United

6 States” is sufficiently probative that the alien should be denied asylum. 84 Fed. Reg. at 33,839.

7

The Ninth Circuit has rejected this assumption as unreasonable as applied to an individual

8 on multiple occasions, consistent with the general principle that “[a] valid asylum claim is not

9 undermined by the fact that the applicant had additional reasons (beyond escaping persecution) for

10 coming to or remaining in the United States, including seeking economic opportunity.” Dai v.

11 Sessions, 884 F.3d 858, 873 (9th Cir. 2018) (citing Li v. Holder, 559 F.3d 1096, 1105 (9th Cir.

12 2009)). In Melkonian v. Ashcroft, for instance, the IJ found the applicant ineligible for asylum

13 “because he came to the United States in order to better himself and his family economically,

14 when he could have remained in Russia without facing persecution.” 320 F.3d 1061, 1067 (9th

15 Cir. 2003). The Ninth Circuit deemed this reasoning erroneous as a matter of law, stressing “that

16 a refugee need not seek asylum in the first place where he arrives.” Id. at 1071. Rather, the Ninth

17 Circuit explained, “it is ‘quite reasonable’ for an individual fleeing persecution ‘to seek a new

18 homeland that is insulated from the instability [of his home country] and that offers more

19 promising economic opportunities.’” Id. (alteration in original) (quoting Damaize-Job v. I.N.S.,

20 787 F.2d 1332, 1337 (9th Cir. 1986)). The court has similarly rejected the Rule’s theory as a basis

21 for finding claims of persecution not credible. See Damaize-Job, 787 F.2d at 1337 (“[The

22 applicant’s] failure to apply for asylum in any of the countries through which he passed or in

23 which he worked prior to his arrival in the United States does not provide a valid basis for

24 questioning the credibility of his persecution claims.”); Garcia-Ramos v. I.N.S., 775 F.2d 1370,

25 1374-75 (9th Cir. 1985) (“We do not find it inconsistent with a claimed fear of persecution that a

26 refugee, after he flees his homeland, goes to the country where he believes his opportunities will

27

28 24

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1 be best. Nor need fear of persecution be an alien’s only motivation for fleeing.”).12 If this

2 inference is unreasonable as applied to one asylum applicant, it is manifestly more so when

3 applied to all such applicants.

4

Moreover, the government cites nothing in the administrative record to support the

5 inference.13 Instead, the government relies on a series of cases of which none supports its

6 position, placing its greatest weight on the BIA’s discussion of third country transit in Matter of

7 Pula, 19 I. & N. at 473-74. See 84 Fed. Reg. at 33,839 n.8; ECF No. 28 at 17. The government

8 notes that Matter of Pula includes as adverse factors supporting denial of asylum “whether the

9 alien passed through other countries or arrived in the United States directly from his country,

10 whether orderly refugee procedures were in fact available to help him in any country he passed

11 through, and whether he made any attempts to seek asylum before coming to the United States.”

12 Id.

13

As an initial matter, the Court again notes that courts have concluded that Matter of Pula

14 was superseded by the mandatory firm resettlement bar on this point. See, e.g., Andriasian, 180

15 F.3d at 1044. Moreover, Matter of Pula’s nuanced discussion only highlights the ways in which

16 the Rule fails to account for other factors influencing whether the failure to seek official protection

17 in a third country is probative as to “the validity and urgency of the alien’s claim.” 84 Fed. Reg. at

18 33,839. There, the BIA instructed that adjudicators should consider “the length of time the alien

19 remained in a third country, and his living conditions, safety, and potential for long-term

20 residency,” as well as “whether the alien has relatives legally in the United States or other personal

21 ties to this country which motivated him to seek asylum here rather than elsewhere. Matter of

22 Pula, 19 I. & N. Dec. at 473-74. The BIA further emphasized that “an alien who is forced to

23

24

12 The Rule notes a different category of cases where the lack of economic opportunity in one’s home country is asserted as the persecution suffered. 84 Fed. Reg. at 33,839 n.9. In that instance,

25

the applicant must show that she suffered “‘substantial economic disadvantage’ that interferes with the applicant’s livelihood” on account of a protected ground. He v. Holder, 749 F.3d 792, 796

26 (9th Cir. 2014) (citation omitted).

27

13 At the hearing, the government suggested that the holdings of these Ninth Circuit cases were factual conclusions that the agencies were free to subsequently overrule. Without reaching the

28

legal merits of this argument, the Court notes that the agencies have cited no facts in support of their conclusion, but only prior agency precedent, which the Court discusses below.

25

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1 remain in hiding to elude persecutors, or who faces imminent deportation back to the country

2 where he fears persecution, may not have found a safe haven even though he has escaped to

3 another country.” Id. at 474. Read fairly and completely, Matter of Pula does not support the

4 rationale for the Rule’s categorical bar.

5

The government also cites Kalubi v. Ashcroft, 364 F.3d 1134 (9th Cir. 2004), but Kalubi is

6 not on point. There, the Ninth Circuit suggested in dicta that “[i]n an appropriate case, ‘forum

7 shopping’ might conceivably be part of the totality of circumstances that sheds light on a request

8 for asylum in this country.” Id. at 1140 (emphasis added). Because that dicta simply restates the

9 Matter of Pula analysis, it provides no additional justification for a categorical bar.

10

Tellingly, the government does not cite a single case where third country transit, short of

11 firm resettlement, played a substantial role in denying asylum. Cf. Matter of Pula, 19 I. & N. Dec.

12 at 475 (granting asylum and noting that it did “not appear that [the applicant] was entitled to

13 remain permanently in either [third] country” and reasonably “decided to seek asylum in the

14 United States because he had many relatives legally in the United States to whom he could turn for

15 assistance”). The government’s lone citation related to the safe third country bar further

16 underscores the arbitrary and capricious nature of the Rule’s failure to account for alternative

17 explanations for failing to apply elsewhere. In United States v. Malenge, the Second Circuit noted

18 that a criminal defendant’s asylum claim would normally have been barred by the Canada Third

19 Country Agreement. 294 F. App’x 642, 644-45 (2d Cir. 2008). But, “[u]nder an exception

20 created by Article 4 of the Agreement, [the defendant] was entitled to pursue asylum in the United

21 States at the time of her arrival, because her husband was already living here as a refugee with a

22 pending asylum claim.” Id. at 645.

23

Finally, as discussed in greater detail below, the administrative record evidence regarding

24 conditions in Mexico abundantly demonstrates alternative reasons why aliens might not seek

25 protection while transiting through third countries.

26

Accordingly, the Court concludes that the Organizations are likely to succeed on the merits

27

28 26

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1 of their claim that the Rule is substantively invalid.14

2

3. Notice-and-Comment Requirements

3

The Court next turns to the Organizations’ notice-and-comment claims.

4

a. Legal Standard

5

The APA requires agencies to publish notice of proposed rules in the Federal Register and

6 then allow “interested persons an opportunity to participate in the rule making through submission

7 of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C.

8 § 553(c). “These procedures are ‘designed to assure due deliberation’ of agency regulations and

9 ‘foster the fairness and deliberation that should underlie a pronouncement of such force.’” E. Bay

10 II, 909 F.3d at 1251 (quoting United States v. Mead Corp., 533 U.S. 218, 230 (2001)); see also

11 Batterton v. Marshall, 648 F.2d 694, 703 (D.C. Cir. 1980) (“The essential purpose of according

12 [§] 553 notice and comment opportunities is to reintroduce public participation and fairness to

13 affected parties after governmental authority has been delegated to unrepresentative agencies.”).

14 Accordingly, agencies may not treat § 553 as an empty formality. Rather, “[a]n agency must

15 consider and respond to significant comments received during the period for public comment.”

16 Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015). It is therefore “antithetical to the

17 structure and purpose of the APA for an agency to implement a rule first, and then seek comment

18 later.” United States v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010) (citation omitted).

19

These purposes apply with particular force in important cases. As Judge Posner has stated,

20 “[t]he greater the public interest in a rule, the greater reason to allow the public to participate in its

21 formation.” Hoctor v. U.S. Dep’t of Agric., 82 F.3d 165, 171 (7th Cir. 1996).

22

Nonetheless, the APA contains some limited exceptions to the notice-and-comment

23 requirements. First, the APA provides that notice-and-comment procedures do not apply to

24 regulations involving “a military or foreign affairs function of the United States.” 5 U.S.C.

25

26

14 At the hearing, the government argued for the first time that the Court should deny a preliminary injunction if it found the Rule consistent with the statute but inadequately explained

27

by the agency, because the government would ultimately seek the equitable remedy of remand without vacatur at the final relief stage. See All. for the Wild Rockies v. U.S. Forest Serv., 907

28

F.3d 1105, 1121 (9th Cir. 2018). Because the Court concludes that the Rule is likely substantively invalid, it does not reach this argument, which the parties did not brief.

27

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1 § 553(a)(1). In addition, an agency need not comply with notice and comment when it “for good

2 cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules

3 issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the

4 public interest.” Id. § 553(b)(B). Section 553(d) also provides that a promulgated final rule shall

5 not go into effect for at least thirty days. Independently of this good-cause exception to notice and

6 comment, an agency may also waive this grace period “for good cause found and published with

7 the rule.” Id. § 553(d)(3).

8

b. Foreign Affairs

9

The Court first considers whether the Rule involves a “foreign affairs function of the

10 United States.” To invoke this exception, the government must show that “ordinary application of

11 ‘the public rulemaking provisions [will] provoke definitely undesirable international

12 consequences.’” E. Bay II, 909 F.3d at 1252 (second alteration in original) (quoting Yassini v.

13 Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980). This standard may be met “where the

14 international consequence is obvious or the Government has explained the need for immediate

15 implementation of a final rule.” Id. The Ninth Circuit has explained that this showing is required

16 because “[t]he foreign affairs exception would become distended if applied to [an immigration

17 enforcement agency’s] actions generally, even though immigration matters typically implicate 18 foreign affairs.” Id. (alterations in original) (quoting Yassini, 618 F.2d at 1360 n.4).15

19

The Court rejects the government’s suggestions that the exception is met simply because

20 the Rule involves illegal immigration at the southern border or would facilitate ongoing

21 negotiations regarding that general issue. ECF No. 28 at 26 (citing 84 Fed. Reg. at 33,841-42).

22 These are the same preamble justifications that the Ninth Circuit found insufficient in East Bay II.

23 Cf. Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for

24

25 15 As a threshold matter, the government disputes whether the APA requires a showing of

26

undesirable international consequences. ECF No. 28 at 28. This argument is foreclosed by the Ninth Circuit’s clear guidance. See East Bay II, 909 F.3d at 1252-53 (explaining that “courts have

27

approved the Government’s use of the foreign affairs exception where the international consequence is obvious or the Government has explained the need for immediate implementation

28

of a final rule” and concluding that the challenged rule’s explanation was insufficient); see also E. Bay III, 354 F. Supp. 3d at 1113-14.

28

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1 Protection Claims, 83 Fed. Reg. 55,934, 55,950 (Nov. 9, 2018) (“The flow of aliens across the

2 southern border, unlawfully or without appropriate travel documents, directly implicates the

3 foreign policy interests of the United States. . . . Moreover, this rule would be an integral part of

4 ongoing negotiations with Mexico and Northern Triangle countries . . . .”). Relatedly, pointing to

5 negotiations regarding a different policy does not suffice. Cf. id. at 55,951 (“Furthermore, the

6 United States and Mexico have been engaged in ongoing discussions of a safe-third-country

7 agreement, and this rule will strengthen the ability of the United States to address the crisis at the

8 southern border and therefore facilitate the likelihood of success in future negotiations.”). The

9 government must articulate some connection between the Rule and these various initatives. E.

10 Bay II, 909 F.3d at 1252. It does not.

11

The government also repeats its argument that the Rule is “linked intimately with the

12 Government’s overall political agenda concerning relations with another country.” ECF No. 28 at

13 27 (quoting Am. Ass’n of Exporters & Importers-Textile & Apparel Grp. v. United States, 751

14 F.2d 1239, 1249 (Fed. Cir. 1985)); see also E. Bay I, 349 F. Supp. 3d at 861 (same). As the Court

15 previously explained, the fact that a rule is “part of the President’s larger coordinated effort in the

16 realm of immigration” is not sufficient to justify the foreign affairs exception. E. Bay I, 349 F.

17 Supp. 3d at 861. The Ninth Circuit then confirmed that the government must “explain[] how

18 immediate publication of the Rule, instead of announcement of a proposed rule followed by a

19 thirty-day period of notice and comment, is necessary for negotiations with Mexico.” E. Bay II,

20 909 F.3d at 1252 (emphasis in original). The government does nothing to meet this burden. Nor

21 is the government’s citation to Rajah v. Mukasey much help, given that the present case involves

22 neither “sensitive foreign intelligence,” the government’s “ability to collect intelligence,” or “a

23 public debate over why some citizens of particular countries [are] a potential danger to our

24 security.”16 544 F.3d 427, 437 (2d Cir. 2008).

25

Next, after resisting the need to make the showing, the government asserts that the record

26

27 16 The government’s contention that immediate publication is necessary to address illegal

28

immigration levels, ECF No. 28 at 28, is more properly addressed in the context of good cause, which the Court addresses below.

29

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1 nonetheless demonstrates that “definitively undesirable international consequences” would result

2 from following the APA’s procedures. E. Bay II, 909 F.3d at 1252 (quoting Yassini, 618 F.2d at

3 1360 n.4); see also ECF No. 28 at 28. The Rule asserts for instance, that “[d]uring a notice-and-

4 comment process, public participation and comments may impact and potentially harm the

5 goodwill between the United States and Mexico and the Northern Triangle countries.” 84 Fed.

6 Reg. at 33,842. This assertion obviously cannot support the agencies’ decision to forego notice

7 and comment, because the Rule actually invites public comment for the next 30 days. Id. at

8 33,830. And even if the agencies’ actions did not entirely contradict their words, crediting that

9 unexplained speculation would expand the exception to swallow the rule. To the extent the

10 government anticipates that negative comments regarding those other countries will emerge during

11 the comment process, the same could be said any time the government enacts a rule touching on

12 international relations or immigration. As the Ninth Circuit noted, courts have construed the

13 foreign affairs exception narrowly in this context so that it does not “eliminate[] public

14 participation in this entire area of administrative law.” E. Bay II, 909 F.3d at 1252 (quoting City

15 of New York v. Permanent Mission of India to United Nations, 618 F.3d 172, 202 (2d Cir. 2010)).

16

Finally, the government’s unexplained string citations do not show any consequences

17 attributable to the notice-and-comment process, as they largely pertain to the issues discussed

18 above, such as implementation of the Migrant Protocol Policy or the general fact of ongoing

19 negotiations on migration issues. See, e.g., AR 46-50, 537-57, 635-37.

20

The Court therefore concludes that the Organizations raised serious questions regarding the

21 government’s invocation of the foreign affairs exception.

22

c. Good Cause

23

An agency “must overcome a high bar if it seeks to invoke the good cause exception to

24 bypass the notice and comment requirement.” Valverde, 628 F.3d at 1164. In other words, the

25 exception applies “only in those narrow circumstances in which ‘delay would do real harm.’” Id.

26 at 1165 (quoting Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982)). Courts must

27 conduct this analysis on a “case-by-case [basis], sensitive to the totality of the factors at play.” Id.

28 at 1164 (quoting Alcaraz v. Block, 746 F.2d 593, 612 (9th Cir. 1984)). “[T]he good cause 30

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1 exception should be interpreted narrowly, so that the exception will not swallow the rule.”

2 Buschmann, 676 F.2d at 357 (citation omitted).

3

As in the first East Bay case, the government asserts that good cause exists to dispense

4 with notice-and-comment and the 30-day grace period because the announcement of the rule

5 before its enactment would encourage a “surge in migrants.” 84 Fed. Reg. at 33,841. There, the

6 Court found that an October 2018 newspaper article provided a slender but sufficient reed for the

7 agencies to infer that “smugglers might similarly communicate” the rule’s unfavorable terms to

8 potential asylum seekers. E. Bay III, 354 F. Supp. 3d at 1115. Once again, the government asks

9 the Court to reach the same conclusion. Indeed, the Court’s prior East Bay decision and its

10 reliance on the October 2018 article are the only relevant authority cited in the body of the Rule’s

11 good cause explanation. See 84 Fed. Reg. at 33,841.17

12

Although the government includes that same article in this administrative record, AR 438,

13 the Court is hesitant to give it as much weight as the government requests. A single, progressively

14 more stale article cannot excuse notice-and-comment for every immigration-related regulation ad 15 infinitum.18 Otherwise, as the Organizations point out, every immigration regulation imposing

16 more stringent requirements would pass the good cause threshold – a result that would violate the

17 Ninth Circuit’s instruction that “the good cause exception should be interpreted narrowly, so that

18 the exception will not swallow the rule.” Buschmann, 676 F.2d at 357.

19

The Court’s reluctance is further reinforced by the government’s failure to produce more

20 robust evidence. Why is there no objective evidence to link a similar announcement and a spike in

21 border crossings or claims for relief? Seemingly aware of the need to provide such evidence, the

22 government cites to a newspaper documenting “a huge spike in unauthorized migration” in the

23 “past several months” preceding June 2019, AR 676, but does not connect it to any “public

24

25 17 Although the Rule cites past instances where the agencies invoked good cause for immigration

26

rules, 84 Fed. Reg. at 33,841, these “prior invocations of good cause to justify different [rules] – the legality of which are not challenged here – have no relevance.” California v. Azar, 911 F.3d

27 558, 575-76 (9th Cir. 2018).

28

18 As the government acknowledged at today’s hearing, “We don’t need to rest on one article and have [it] frozen in time.”

31

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1 announcement[] . . . regarding changes in our immigration laws and procedures,” 84 Fed. Reg. at

2 33,841. The government also cites two articles reporting that Mexico experienced an influx of

3 migrants when it implemented a humanitarian visa program. AR 663-65, 683. While these do

4 provide some additional support for the government’s theory, the government makes no effort to

5 address the similarities and differences between the two situations. Accordingly, the

6 government’s citation is reduced to a generic rule that immigration-related regulations can never

7 be the subject of notice-and-comment – which, for the reasons just given, is untenable.19

8

The Court therefore concludes that the Organizations have raised serious questions

9 regarding the government’s invocation of good cause.

10

4. Arbitrary and Capricious: State Farm

11

Finally, the Court addresses the Organizations’ claim that the agencies’ explanation for the

12 Rule itself is inadequate.

13

a. Legal Standard

14

“Under State Farm, the touchstone of ‘arbitrary and capricious’ review under the APA is

15 ‘reasoned decisionmaking.’” Altera Corp., 926 F.3d at 1080 (quoting State Farm, 463 U.S. at 52).

16 Basic principles of administrative law require the agency to “examine the relevant data and

17 articulate a satisfactory explanation for its action including a ‘rational connection between the

18 facts found and the choice made.’” State Farm, 463 U.S. at 43 (quoting Bowman Transp., Inc. v.

19 Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)). In reviewing that explanation, “a

20 court is not to substitute its judgment for that of the agency.” Turtle Island Restoration Network v.

21 U.S. Dep’t of Commerce, 878 F.3d 725, 732 (9th Cir. 2017) (quoting State Farm, 463 U.S. at 43).

22 Nonetheless, a court must “strike down agency action as ‘arbitrary and capricious if the agency

23 has relied on factors which Congress has not intended it to consider, entirely failed to consider an

24 important aspect of the problem, offered an explanation for its decision that runs counter to the

25 evidence before the agency,’ or if the agency’s decision ‘is so implausible that it could not be

26

27 19 A similarly generic statement in another article that “[m]igrants generally lack understanding of

28

United States immigration law,” but that “they appear to be informed about the basics,” provides only ambiguous support for the same untenable argument. AR 768.

32

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1 ascribed to a difference in view or the product of agency expertise.’” Id. at 732-33 (quoting State

2 Farm, 463 U.S. at 43).

3

b. Discussion

4

A number of the Organizations’ critiques under State Farm overlap with the reasons why

5 the Rule is substantively invalid under Chevron. As previously discussed, the government has

6 failed to provide any reasoned explanation for the Rule’s methodology of determining that a third

7 country is safe and asylum relief is sufficiently available, such that the failure to seek asylum there

8 casts doubt on the validity of an applicant’s claim. Nor has the government provided any reasoned

9 explanation for the Rule’s assumption that the failure to seek asylum in a third country is so

10 damning standing alone that the government can reasonably disregard any alternative reasons why

11 an applicant may have failed to seek asylum in that country. These deficiencies support a finding

12 that the Rule is arbitrary and capricious.

13

State Farm review, however, also encompasses additional points the Court has not

14 previously addressed, and the Court discusses them in greater detail here. First, the government

15 suggests that its determination that “asylum in Mexico is a feasible alternative to relief in the

16 United States” supports the Rule. ECF No. 28 at 31. The argument appears to run that, even if the

17 Rule itself provides inadequate safeguards for identifying third countries where transiting aliens

18 should first seek asylum, it will provide such safeguards in practice because applicants subject to

19 the Rule must necessarily transit through Mexico. Putting aside the legal sufficiency of the

20 analysis, the factual premise “runs counter to the evidence before the agency.” State Farm, 463

21 U.S. at 43.

22

The government’s explanation on this point falters at the outset because, as the

23 Organizations correctly note, the “feasible alternative” determination is based on a post hoc

24 attempt to rewrite the Rule’s supporting findings. “[T]he principle of agency accountability . . .

25 means that ‘an agency’s action must be upheld, if at all, on the basis articulated by the agency

26 itself.’” Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 643 (1986) (quoting State Farm, 463 U.S. at

27 50). In the Rule’s preamble, the agencies noted that “[a]ll seven countries in Central America plus

28 Mexico are parties to both the Refugee Convention and the Refugee Protocol.” 84 Fed. Reg. at 33

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1 33,839. They then found that “Mexico has expanded its capacity to adjudicate asylum claims in

2 recent years, and the number of claims submitted in Mexico has increased,” from 8,789 asylum

3 claims filed in 2016, to 12,716 claims filed in the first three months of 2019 alone. Id. These

4 facts do not make asylum in Mexico a “feasible alternative.”

5

The statistics regarding the number of claims submitted in Mexico contradict the

6 government’s suggestion that Mexico provides an adequate alternative. While the Rule notes that

7 Mexico has expanded its system’s capacity, it also projects that, independently of the Rule,

8 Mexico will receive over five times the claims in 2019 that it received in 2016. 84 Fed. Reg. at

9 33,839. The Rule does not discuss whether Mexico is adequately processing this unprecedented

10 increase, let alone whether Mexico has capacity to handle additional claims. At the same time, the

11 Rule notes that USCIS received 99,035 credible fear claims in 2018, that the immigration courts

12 received over 162,000 asylum applications in 2018, and that “non-Mexican aliens . . . now

13 constitute the overwhelming majority of aliens encountered along the southern border with

14 Mexico, and the overwhelming majority of aliens who assert claims of fear.” Id. at 33,838. By

15 any reasonable estimation, the Rule anticipates that tens of thousands of additional asylum

16 claimants – i.e., most of the persons who would otherwise seek asylum in the United States – will

17 now seek relief in Mexico. The Rule does not even acknowledge this outcome, much less suggest

18 that Mexico is prepared to accommodate such a massive increase. To the contrary, the record

19 contains reports that Mexico’s “increased detentions have overwhelmed capacity at [an]

20 immigration center,” AR 698, and that the head of Mexico’s refugee agency “was so overwhelmed

21 that he had turned to [the United Nations] for help,” AR 700. Again, the administrative record

22 fails to support the conclusion that asylum in Mexico is a “feasible alternative.”

23

In its opposition, the government attempts to declare its way past the issue, arguing “the

24 government determined that Mexico is a signatory to and in compliance with the relevant

25 international instruments governing consideration of refugee claims, that its domestic law and

26 procedures regarding such relief are robust and capable of handling claims made by Central

27 American aliens in transit to the United States, and that the statistics regarding the influx of claims

28 in that country support the conclusion that asylum in Mexico is a feasible alternative to relief in 34

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1 the United States,” followed by a string citation to the administrative record. ECF No. 28 at 31.

2 But nowhere in the Rule do the agencies find that Mexico “is in compliance with the relevant

3 international instruments governing consideration of refugee claims.” ECF No. 28 at 31. Nor

4 does the government cite any finding in the Rule that Mexico’s “domestic law and procedures

5 regarding such relief are robust and capable of handling claims made by Central American aliens

6 in transit to the United States.” Id.20 Because the Court cannot “accept [government] counsel’s

7 post hoc rationalizations for agency action,” State Farm, 463 U.S. at 50, these arguments do not

8 help the Rule survive arbitrary and capricious review. Moreover, the record cites actually weaken

9 the government’s position. With limited exceptions that are at best unresponsive to the question,21

10 the cited evidence consists simply of an unbroken succession of humanitarian organizations

11 explaining why the government’s contention is ungrounded in reality.

12

First, the government cites a report from the international organization Médecins Sans

13 Frontières, Forced to Flee Central America’s Northern Triangle: A Neglected Humanitarian

14 Crisis (May 2017). AR 286-317. The report found that, during transit through Mexico, “68.3

15 percent of people from the [Northern Triangle of Central America (“NTCA”)] reported that they

16 were victims of violence,” and that “31.4 percent of women and 17.2 percent of men had been

17 sexually abused.” AR 296-97. Moreover, Médecins Sans Frontières concluded that “[d]espite the

18 exposure to violence and the deadly risks . . . face[d] in their countries of origin, the non-

19 refoulement principle is systematically violated in Mexico.” AR 306.22 Although the report noted

20

21 20 The Rule contains two ipse dixit references to Mexico’s “robust protection regime” and

22

“functioning asylum system.” 84 Fed. Reg. at 33,835, 33,838. Even were the Court to construe this as a finding by the agencies, it runs contrary to the evidence, as explained below.

23 21 The government cites a State Department press release documenting Mexico’s commitment to

24

increase enforcement against migration and human smuggling and trafficking networks, as well as providing temporary protections to asylum seekers whose claims are being processed in the United

25

States. AR 231-32. This does not address, however, the adequacy of Mexico’s asylum process. The remaining citations consist of reports explaining why people flees certain Northern Triangle

26

countries, AR 318-433, documents showing Mexico as a party to the three agreements, AR 56065, 581-83, 588, and a series of appendices explaining how the State Department prepares its

27 Country Reports on Human Rights Practices, AR 728-55.

28

22 The non-refoulement principle is “a binding pillar of international law that prohibits the return of people to a real risk of persecution or other serious human rights violations.” AR 708.

35

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1 that Mexico had made some official attempts to improve its system, it observed a significant “gap

2 between rights and reality,” citing “[l]ack of access to the asylum and humanitarian visa processes,

3 lack of coordination between different governmental agencies, fear of retaliation in case of official

4 denunciation to a prosecutor, [and] expedited deportation procedures that do not consider

5 individual exposure to violence.” Id. As a result, “[t]he lack of safe and legal pathways

6 effectively keeps refugees and migrants trapped in areas controlled by criminal organizations.” Id.

7

Second, an April 2019 factsheet from the United Nations High Commissioner for Refugees

8 (“UNHCR”) lists “strong obstacles to accessing the asylum procedure” in Mexico, including

9 “[t]he absence of proper protection screening protocols for families and adults, the lack of a

10 systematic implementation of existing best interest determination procedures for unaccompanied

11 children and detention of asylum-seekers submitting their claim at border entry points.” AR 534.

12 Further, “[t]he abandonment rate of asylum procedures, especially in Southern Mexico is a key

13 protection concern. This situation, compounded by insufficient resources and limited field

14 presence of [Comisíon Mexicana de Ayuda a Refugiados (“COMAR”)] in key locations in

15 Northern and Central Mexico, continues to pose challenges to efficient processing of asylum

16 claims.” Id. The UNCHR also observed that “[p]ersons in need of international protection often

17 take dangerous routes to reach COMAR offices” and that “[w]omen and girls in particular are at

18 risk of sexual and gender-based violence.” Id. While UNCHR indicated that it was partnering

19 with Mexico on various initiatives, it did not suggest that these problems would be easily solved,

20 let alone consider how a massive influx of claimants might affect the situation.

21

Third, the government cites to the UNCHR’s July 2018 review of Mexico’s refugee

22 process. AR 638-57. The report notes two positive developments in response to a prior round of

23 recommendations, AR 639, but documents a host of additional problems. For instance, the

24 UNCHR stated that “concerns persist regarding the rise in crimes and the increased risk towards

25 migrants throughout the country, the high levels of impunity for crimes committed against

26 migrants, and the difficulties that migrants who are victims of crime and asylum-seekers continue

27 to face in accessing justice and obtaining regularization for humanitarian reasons under article 52

28 of the 2011 Migration Act.” AR 640. In addition, the UNCHR highlighted ongoing problems in 36

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1 the areas of (1) “[s]exual and gender-based violence against migrants, asylum-seekers, and

2 refugees”; (2) “[d]etention of migrants and asylum seekers, particularly children and other

3 vulnerable persons”; and (3) “[a]ccess to economic, social and cultural rights for asylum-seekers

4 and refugees.” AR 640-42.

5

Fourth, the government relies on a November 2018 factsheet from Human Rights First,

6 which asks: “Is Mexico Safe for Refugees and Asylum Seekers?” AR 702. Answering in the

7 negative, the factsheet explains that “many refugees face deadly dangers in Mexico. For many,

8 the country is not at all safe.” Id. (emphasis in original). Human Rights First notes that “refugees

9 and migrants face acute risks of kidnapping, disappearance, sexual assault, trafficking, and other

10 grave harms in Mexico,” based not just on “their inherent vulnerabilities as refugees but also on

11 account of their race, nationality, gender, sexual orientation, gender identity, and other reasons.”

12 AR 703 (emphasis omitted). The factsheet also concludes that “[d]eficiencies, barriers, and flaws

13 in Mexico’s asylum system leave many refugees unprotected and Mexican authorities continue to

14 improperly return asylum seekers to their countries of persecution.” Id. (emphasis omitted). For

15 example, “refugees are blocked from protection under an untenable 30-day filing deadline, denied

16 protection by COMAR officers who claim that refugees targeted by groups with national reach can

17 safely relocate within their countries, and lack an effective appeal process to correct wrongful

18 denials of protection.” Id. (emphasis omitted).

19

Fifth, the government cites to a 2018 report from Amnesty International entitled

20 “Overlooked, Under-Protected: Mexico’s Deadly Refoulement of Central Americans Seeking

21 Asylum.” AR 704-27. As its title suggests, the report concludes that “the Mexican government is

22 routinely failing in its obligations under international law to protect those who are in need of

23 international protection, as well as repeatedly violating the non-refoulement principle, a binding

24 pillar of international law that prohibits the return of people to a real risk of persecution or other

25 serious human rights violations. These failures by the Mexican government in many cases can

26 cost the lives of those returned to the country from which they fled.” AR 708. Among its

27 highlights include testimony that Mexican officials systematically coerced asylum seekers into

28 waiving their right to asylum, including by denying detainees food, AR 718, and “a number of 37

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1 reports of grave human rights violations committed by . . . officials during the moments of

2 apprehension as well as in detention centres,” AR 722.

3

Sixth, the government points to a New York Times article, ‘They Were Abusing Us the

4 Whole Way’: A Tough Path for Gay and Trans Migrants (July 11, 2018). AR 756-66. The article

5 notes that “[t]rans women in particular encounter persistent abuse and harassment in Mexico at the

6 hands of drug traffickers, rogue immigration agents and other migrants.” AR 758. It then goes on

7 to recount the story of one migrant who was robbed and sexually exploited in transit. AR 760.

8

Additional portions of the administrative record not cited by the government bolster the

9 already overwhelming evidence on this point. The Women’s Refugee Commission likewise

10 concluded that “Mexico is clearly not a safe, or in many cases viable, alternative for many

11 refugees and vulnerable migrants seeking international protection.” AR 771. Another article

12 discusses the detention of unaccompanied minors in Mexico, noting that the country “deported

13 more than 36,000 unaccompanied Central American children, toddlers to 17-year-olds” in a two-

14 year period. AR 784.

15

In sum, the bulk of the administrative record consists of human rights organizations

16 documenting in exhaustive detail the ways in which those seeking asylum in Mexico are

17 (1) subject to violence and abuse from third parties and government officials, (2) denied their

18 rights under Mexican and international law, and (3) wrongly returned to countries from which they

19 fled persecution. Yet, even though this mountain of evidence points one way, the agencies went 20 the other – with no explanation.23 This flouts “[o]ne of the basic procedural requirements of

21 administrative rulemaking,” namely “that an agency must give adequate reasons for its decisions.”

22 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). Its failure to do so here,

23 particularly viewed against the mass of contrary evidence, renders the agencies’ conclusion

24 regarding the safety and availability of asylum in Mexico arbitrary and capricious.

25

26

23 To be clear, the Court does not review this evidence de novo. If the government offered a reasoned explanation why it reached a contrary conclusion from respected third-party

27

humanitarian organizations, the Court would give that explanation the deference that it was due. But “[i]t is not the role of the courts to speculate on reasons that might have supported an agency’s

28 decision.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2127 (2016).

38

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1

Moreover, because every alien subject to the Rule must pass through Mexico, this arbitrary

2 and capricious conclusion fatally infects the whole Rule. And because Mexico is a party to the

3 1951 Convention, 1967 Protocol, and CAT, almost every alien24 must apply for asylum in Mexico

4 and receive a final judgment through its system before seeking asylum in the United States.25 In

5 other words, if the agencies are wrong about Mexico, the Rule is wrong about everyone it covers.

6 The Court notes also that Mexico’s example demonstrates for a second time why two of the Rule’s

7 critical assumptions are arbitrary, not just as to Mexico, but as a general matter. First, even though

8 Mexico is a party to the agreements listed in the Rule, the unrefuted record establishes that it is

9 categorically not a “safe option[]” for the majority of asylum seekers. Matter of B-R-, 26 I. & N.

10 Dec. at 122. Second, the record offers an abundance of reasons besides economic gain why an

11 asylum seeker with a meritorious claim might choose to transit through Mexico without

12 attempting to pursue an asylum claim there. For all these reasons, the Rule “is arbitrary and

13 capricious and so cannot carry the force of law.” Encino Motorcars, LLC, 136 S. Ct. at 2125.

14

While the foregoing analysis is sufficient to resolve the Organizations’ State Farm claim in

15 their favor, the Court briefly addresses their remaining arguments.

16

The Organizations contend that the agencies “entirely failed to consider an important

17 aspect of the problem,” State Farm, 463 U.S. at 43, because the Rule does not create an exception

18 for unaccompanied minors, ECF No. 3-1 at 27-28. The government responds that the failure to

19 include such an exception does not conflict with any statutory provisions. ECF No. 28 at 31-32.

20 Regardless whether there is any true statutory conflict, Congress’s enactment of special provisions

21 regarding unaccompanied minors, including excepting them from the related safe third country

22 bar, 8 U.S.C. §§ 279, 1158(a)(2)(E), demonstrates that such children are “an important aspect of

23

24

24 Except for the limited category of aliens who qualify as a “victim of a severe form of trafficking in persons.” 8 C.F.R. § 208.13(c)(4)(ii).

25 25 Though asylum applicants might also seek protection in a different third country under the Rule,

26

the Rule does not consider the asylum systems of any other countries. For instance, persons fleeing some of the so-called Northern Triangle countries that are the focus of the Rule, 84 Fed.

27

Reg. at 33,831, 33,838, 33,840, 33,842, i.e., El Salvador and Honduras, must pass through Guatemala before reaching Mexico. But whereas the Rule asserts that Mexico has a “robust

28

protection regime,” id. at 33,835, it makes no conclusions at all regarding Guatemala, and the administrative record contains no information about that country’s asylum system.

39

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1 the problem,” State Farm, 463 U.S. at 43, when it comes to administering the asylum scheme.

2

Although not cited by the government, the Rule does contain a brief discussion explaining

3 why it “does not provide for a categorical exception for unaccompanied alien children.” 84 Fed.

4 Reg. at 33,839 n.7. First, the Rule notes that Congress did not exempt those children from every

5 statutory bar to asylum eligibility. Id. As just explained, however, that does not mean that the

6 agencies need not consider whether such an exception was appropriate. Second, the Rule reasons

7 that an exception is unnecessary because unaccompanied children can still apply for withholding

8 of removal or protection under CAT. Id. This explanation suggests that the agencies at least

9 considered the problem of unaccompanied minors. But there are at least serious questions whether

10 this conclusion was supported by the record. For one, the agencies did not expressly consider

11 whether the Rule’s rationale applies with full force to those children. Given that children have

12 more difficulty than adults pursuing asylum claims in Mexico, AR 641-42, 778-86, the agencies

13 have not explained why it is rational to assume that an unaccompanied minor’s failure to apply has

14 the same probative value on the merits as an adult’s – assuming for the moment that an adult’s

15 failure has any meaningful value. Also, as the Court has previously explained, the availability of

16 alternative forms of immigration relief, which are subject to a higher bar and different collateral

17 consequences, are not interchangeable substitutes. See E. Bay I, 349 F. Supp. 3d at 864-65. Last,

18 the agencies did not address whether placing unaccompanied minors in the more rigorous

19 reasonable fear screening process, combined with the higher standard for withholding of removal

20 and protection under CAT, creates a significantly greater risk that even those alternative claims

21 will be decided wrongly.

22

Finally, the Organizations assert that the Rule is counterproductive because applicants

23 whose claims have already been denied in third countries are likely to have weaker rather than

24 stronger claims. ECF No. 3-1 at 27. The Organizations’ argument is based on a misunderstanding

25 of the Rule’s purposes. As the government points out, the Rule’s intent is to incentivize putative

26 refugees to seek relief at the first opportunity, preferably elsewhere. ECF No. 28 at 31. The

27 agency’s explanation as to how this exhaustion requirement serves its stated aims is adequate.

28 40

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1

C. Irreparable Harm

2

The irreparable harm “analysis focuses on irreparability, ‘irrespective of the magnitude of

3 the injury.’” Azar, 911 F.3d at 581 (quoting Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th

4 Cir. 1999)). “A threat of irreparable harm is sufficiently immediate to warrant preliminary

5 injunctive relief if the plaintiff ‘is likely to suffer irreparable harm before a decision on the merits

6 can be rendered.’” Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1023 (9th Cir. 2016) (quoting

7 Winter, 555 U.S. at 22).

8

The government contends that the Organizations’ injuries are not irreparable, again relying

9 on the general rule that “monetary injury is not normally considered irreparable” because it can

10 “be remedied by a damage award.” L.A. Mem’l Coliseum Comm’n v. Nat'l Football League, 634

11 F.2d 1197, 1202 (9th Cir. 1980). As the Court has previously explained, controlling precedent

12 establishes that this rule “does not apply where there is no adequate remedy to recover those

13 damages, such as in APA cases.” E. Bay III, 354 F. Supp. 3d at 1116 (first citing Azar, 911 F.3d

14 at 581; then citing Idaho v. Coeur d’Alene Tribe, 794 F.3d 1039, 1046 (9th Cir. 2015)); accord

15 Pennsylvania v. President of the United States, -- F.3d --, No. 17-3752, 2019 WL 3057657, at *17

16 (3d Cir. July 12, 2019), amended in part on other grounds, 2019 WL 3228336 (3d Cir. July 18,

17 2019).

18

Here, the Organizations have again established a sufficient likelihood of irreparable harm

19 through “diversion of resources and the non-speculative loss of substantial funding from other

20 sources.” E. Bay III, 354 F. Supp. 3d at 1116; see also ECF No. 3-2 ¶¶ 14-16; ECF No. 3-3 ¶¶ 12-

21 19; ECF No. 3-4 ¶¶ 16-19; ECF No. 3-5 ¶¶ 6-7, 10-14. “That the [Organizations] promptly filed

22 an action following the issuance of the [Rule] also weighs in their favor.” Azar, 911 F.3d at 581.

23

The Court therefore finds that the Organizations have satisfied the irreparable harm factor.

24

D. Balance of the Equities and the Public Interest

25

The Court turns to the final two Winter factors. “When the government is a party, these

26 last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).

27 Given the overlap with the arguments made in this case, the Ninth Circuit’s decision in East Bay II

28 “provide[s] substantial guidance on the equities involved” and the public interest. E. Bay III, 354 41

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1 F. Supp. 3d at 1116.

2

Responding there to a similar argument from the government, the Ninth Circuit observed

3 that “aspects of the public interest favor both sides,” given that “the public has a ‘weighty’ interest

4 ‘in efficient administration of the immigration laws at the border,’” counterbalanced by an

5 “interest in ensuring that ‘statutes enacted by [their] representatives’ are not imperiled by

6 executive fiat.” E. Bay II, 909 F.3d at 1255 (first quoting Landon v. Plasencia, 459 U.S. 21, 34

7 (1982); then quoting Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers)). 8 Once again, these same factors sit on opposite sides of the scale.26 But as in the earlier East Bay

9 case, additional considerations weigh strongly in favor of injunctive relief.

10

First, an injunction would “restore[] the law to what it had been for many years prior to”

11 July 16, 2019, E. Bay II, 909 F.3d at 1255, by requiring the government to take into account

12 whether an applicant’s “life or freedom would . . . be threatened on account of race, religion,

13 nationality, membership in a particular social group, or political opinion” in a third country before

14 denying asylum on that basis, 8 U.S.C. § 1158(a)(2)(A); see also Andriasian, 180 F.3d at 1046

15 (“[T]he circumstances must show that [the applicant] has established, or will be able to establish,

16 residence in another nation, and that he will have a reasonable assurance that he will not suffer

17 further harm or persecution there.”).

18

Next, the Rule implicates to an even greater extent than the illegal entry rule “the public’s

19 interest in ensuring that we do not deliver aliens into the hands of their persecutors.” Leiva-Perez,

20 640 F.3d at 971. One of the Rule’s express purposes is to incentivize all asylum applicants to seek

21 relief in other countries. 84 Fed. Reg. at 33,831. Indeed, by imposing a categorical bar on asylum

22 in the United States, it will force them to seek relief elsewhere. For the reasons explained above,

23 however, the Organizations have made a strong showing that the Rule contains insufficient

24 safeguards to ensure that applicants do not suffer persecution in those third countries or will not be

25

26

26 The Ninth Circuit’s analysis in Innovation Law Lab v. McAleenan, is not on point here, because the Organizations have shown that the Rule is unlikely to be a “congressionally authorized

27

measure[].” 924 F.3d 503, 510 (9th Cir. 2019). And in Innovation Law Lab, the Mexican government had made a specific “commitment to honor its international-law obligations and to

28

grant humanitarian status and work permits to individuals” who would temporarily reside in Mexico while the United States processed their claims. Id.

42

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1 wrongfully returned to their original countries of persecution – as underscored by the unrefuted

2 evidence regarding Mexico in particular. See AR 286-317, 534, 638-57, 702-27, 771.

3

Nor does it change the equities that putative refugees barred by the Rule from seeking

4 asylum may nonetheless pursue withholding of removal and CAT protections. For reasons the

5 Court previously discussed, E. Bay I, 349 F. Supp. 3d at 864-65, those other forms of relief are not

6 coextensive in important ways, most notably that they require aliens to meet a higher bar to avoid

7 removal. See Ling Huang, 744 F.3d at 1152. The difference between those substantive standards

8 is amplified by the Rule’s use of the more stringent “reasonable fear” standard in the screening

9 process. 84 Fed. Reg. at 33,836-37; compare 8 C.F.R. § 208.30(e)(2)-(3), with id.

10 § 208.30(e)(5)(iii). And channeling those claims into the expedited removal process only

11 increases the risk of error. See Thuraissigiam, 917 F.3d at 1118 (“[The expedited screening

12 process’s] meager procedural protections are compounded by the fact that § 1252(e)(2) prevents

13 any judicial review of whether DHS complied with the procedures in an individual case, or applied

14 the correct legal standards.” (emphasis in original)).

15

The Court notes one additional equitable consideration suggested by the administrative

16 record. The administrative record contains evidence that the government has implemented a

17 metering policy that “force[s] migrants to wait weeks or months before they can step onto US soil

18 and exercise their right to claim asylum.” AR 686. At the same time, the record also indicates

19 that Mexico requires refugees seeking protection to file claims within 30 days of entering the

20 country. AR 703. For asylum seekers that forfeited their ability to seek protection in Mexico but

21 fell victim to the government’s metering policy, the equities weigh particularly strongly in favor of

22 enjoining a rule that would now disqualify them from asylum on a potentially unlawful basis.

23

Finally, the government rightly notes that the strains on this country’s immigration system

24 have only increased since the fall of 2018. See 84 Fed. Reg. at 33,831; AR 119, 121, 208-32. The

25 public undoubtedly has a pressing interest in fairly and promptly addressing both the harms to

26 asylum applicants and the administrative burdens imposed by the influx of persons seeking

27 asylum. But shortcutting the law, or weakening the boundary between Congress and the

28 Executive, are not the solutions to these problems. See Food & Drug Admin. v. Brown & 43

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1 Williamson Tobacco Corp., 529 U.S. 120, 125 (2000) (“Regardless of how serious the problem an

2 administrative agency seeks to address, however, it may not exercise its authority in a manner that

3 is inconsistent with the administrative structure that Congress enacted into law.” (internal

4 quotation marks and citation omitted)). As the Ninth Circuit noted, “[t]here surely are

5 enforcement measures that the President and the Attorney General can take to ameliorate the

6 crisis, but continued inaction by Congress is not a sufficient basis under our Constitution for the

7 Executive to rewrite our immigration laws.” E. Bay II, 909 F.3d at 1250-51.

8

The Court also acknowledges the government’s frustration that its other immigration

9 policies have also been subjected to suit. ECF No. 28 at 10-11. These other cases are largely

10 beyond the scope of the Court’s consideration. In any event, the presence of other lawsuits does

11 not absolve the agencies from scrutiny. Cf. Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 69

12 (2011) (Scalia, J., dissenting) (explaining in another context that deference is particularly

13 unwarranted where “an agency . . . has repeatedly been rebuked in its attempts to expand the

14 statute beyond its text, and has repeatedly sought new means to the same ends”).

15

For the foregoing reasons, the Court concludes that injunctive relief is appropriate.

16

E. Scope of Relief

17

1. Statutory Constraints

18

The government raises a now-familiar argument that the Court’s authority to issue relief is

19 constrained by 8 U.S.C. § 1252(e). ECF No. 28 at 33. The Court again acknowledges that “it

20 lacks the authority to enjoin ‘procedures and policies adopted by the Attorney General to

21 implement the provisions of section 1225(b)(1) of [Title 8].’” E. Bay III, 354 F. Supp. 3d at 1118

22 (emphasis in original) (quoting 8 U.S.C. § 1252(a)(2)(A)(iv)); see also 8 U.S.C. § 1252(e)(3).

23 But, as the Court has twice previously observed, the government has “‘provided no authority to

24 support the proposition that any rule of asylum eligibility that may be applied in the expedited

25 removal proceedings is swallowed up’ by these restrictions.” E. Bay III, 354 F. Supp. 3d at 1118

26 (quoting E. Bay I, 349 F. Supp. 3d at 867 (emphasis in original)). The government does not

27 attempt to renew the arguments the Court previously rejected or offer new ones in their stead. The

28 Court therefore reaches the same conclusion. 44

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1

2. Nationwide Injunction

2

The government’s arguments against a nationwide injunction likewise travel well-trod

3 ground. ECF No. 28 at 33-34. But the Ninth Circuit has “consistently recognized the authority of

4 district courts to enjoin unlawful policies on a universal basis.” E. Bay II, 909 F.3d at 1255

5 (collecting cases). While the government disagrees with that ruling, it provides no contrary

6 authority from the immigration context and “no grounds on which to distinguish this case from

7 [the Ninth Circuit’s] uncontroverted line of precedent.” Id. at 1256.

8

CONCLUSION

9

For the foregoing reasons, the Organizations’ motion for preliminary injunction is granted.

10

Defendants are hereby ORDERED AND ENJOINED, pending final judgment herein or

11 further order of the Court, from taking any action continuing to implement the Rule and

12 ORDERED to return to the pre-Rule practices for processing asylum applications.

13

The Court sets this matter for a case management conference on October 21, 2019 at

14 2:00 p.m. A joint case management statement is due by October 11, 2019.

15

IT IS SO ORDERED.

16 Dated: July 24, 2019 17 18

________ _________________ ___________
JON S. TIGAR United States District Judge

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28 45

 
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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

EAST BAY SANCTUARY COVENANT,

Case No. 19-cv-04073-JST

et al.,

8

Plaintiffs,

9

v.

ORDER GRANTING MOTION TO RESTORE NATIONWIDE SCOPE OF INJUNCTION

10 WILLIAM BARR, et al.,

Re: ECF No. 57

11

Defendants.

12

13

Now before the Court is Plaintiffs’ motion “to consider supplemental evidence and restore

14 the nationwide scope of injunction.” ECF No. 57. For the reasons set forth below, the Court will

15 grant the motion.

16 I. BACKGROUND

17

The factual background to this case is discussed at length in the Court’s preliminary

18 injunction order, and the Court will not repeat those details here except as necessary to explain its

19 ruling on the present motion.

20

On July 16, 2019, the Department of Justice (“DOJ”) and the Department of Homeland

21 Security (“DHS”) published a joint interim final rule, entitled “Asylum Eligibility and Procedural

22 Modifications” (the “Rule” or the “third country transit bar”). The effect of the Rule is to

23 categorically deny asylum to almost anyone entering the United States at the southern border if he

24 or she did not first apply for asylum in Mexico or another third country.

25

Plaintiffs in this case – East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab,

26 and Central American Resource Center (the “Organizations”) – are legal and social service

27 organizations that provide assistance, advocacy, and legal services to undocumented persons. On

28 July 17, 2019, the Organizations filed a motion for temporary restraining order to prevent the Rule

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1 from taking effect. ECF No. 3. By consent of the parties, the motion was converted to one for

2 preliminary injunction, which the Court granted on July 24, 2019. ECF No. 42. The injunction 3 prevented the Defendants1 “from taking any action continuing to implement the Rule” and ordered

4 them “to return to the pre-Rule practices for processing asylum applications.” E. Bay Sanctuary 5 Covenant v. Barr (“East Bay IV”), 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019).2 Among other

6 things, the Court found that “the Organizations [had] . . . established a sufficient likelihood of

7 irreparable harm through ‘diversion of resources and the non-speculative loss of substantial

8 funding from other sources.’” Id. at 957-58 (quoting E. Bay Sanctuary Covenant v. Trump (“East

9 Bay III”), 354 F. Supp. 3d 1094, 1116 (N.D. Cal. 2018)).

10

Defendants appealed that order to the Ninth Circuit and moved for a stay pending appeal.

11 The Ninth Circuit denied the motion for stay pending appeal, but only “insofar as the injunction

12 applies within the Ninth Circuit.” E. Bay Sanctuary Covenant v. Barr (“East Bay V”), --- F.3d ---,

13 No. 19-16487, 2019 WL 3850928, at *1 (9th Cir. Aug. 16, 2019). The court “grant[ed] the motion

14 for stay pending appeal insofar as the injunction applies outside the Ninth Circuit, because the

15 nationwide scope of the injunction is not supported by the record as it stands.” Id. The Ninth

16 Court also ordered that this Court “retains jurisdiction to further develop the record in support of a

17 preliminary injunction extending beyond the Ninth Circuit.” Id. at *3. That court did not disturb

18 this Court’s prior findings regarding the nature of the harms the Organizations were likely to

19 suffer if the Rule were given effect.

20

The Organizations then filed this motion “to consider supplemental evidence and restore

21

22 1 Defendants in this action are Attorney General William Barr; the Department of Justice (“DOJ”);

23

the Executive Office for Immigration Review (“EOIR”); James McHenry, the Director of EOIR; the Department of Homeland Security (“DHS”); Kevin K. McAleenan, the Acting Secretary of

24

DHS; U.S. Citizenship and Immigration Services (“USCIS”); Kenneth T. Cuccinelli, the Acting Director of USCIS; Customs and Border Protection (“CBP”); John P. Sanders, the Acting

25

Commissioner of CBP; Immigration and Customs Enforcement (“ICE”); and Matthew T. Albence, the Acting Director of ICE.

26

2 In its prior order, the Court referred to the district court’s temporary restraining order in Case No. 18-cv-06810-JST as “East Bay I,” to the Ninth Circuit’s order denying a stay of that order as “East

27

Bay II,” and the district court’s order issuing a preliminary injunction as “East Bay III.” See generally id. Consistent with that nomenclature, the Court therefore refers to its July 24, 2019

28

order in this case as “East Bay IV” and the Ninth Circuit’s order partially denying and partially granting a stay of that order as “East Bay V.”

2

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1 the nationwide scope of injunction,” ECF No. 57, as well as a supplemental brief ordered by the

2 Court, ECF No. 63. The Government filed an opposition, ECF Nos. 65, 66, and the Organizations 3 filed a reply, ECF No. 67.3

4

After the Organizations filed their motion, but before the Government filed its opposition,

5 three of the defendants – EOIR, USCIS, and ICE – issued guidance regarding the implementation

6 of the Court’s injunction as modified by the Ninth Circuit’s stay order. The guidance requires

7 employees of those agencies to treat individuals as covered by the injunction if: “(1) the alien was

8 apprehended in the Ninth Circuit, (2) the alien is detained in the Ninth Circuit, or (3) the interview

9 or adjudication itself occurs in the Ninth Circuit.” ECF No. 65-1 (EOIR Guidance) at 1; see also

10 ECF No. 65-2 (USCIS Guidance) at 1 (“the IFR should not apply to any [credible fear]

11 determination or asylum adjudication in which: (1) the alien was apprehended in the jurisdiction

12 of the Ninth Circuit . . . (2) the alien is detained in the jurisdiction of the Ninth Circuit; or (3) the

13 interview itself occurs in the jurisdiction of the Ninth Circuit”); ECF No. 65-3 (ICE Guidance) at 1

14 (ICE “will consider the PI to apply in situations where the alien: (i) was initially apprehended by

15 DHS within the jurisdiction of the Ninth Circuit; (ii) is detained within the Ninth Circuit at the

16 time of adjudication of the asylum application; or (iii) was initially located outside the Ninth

17 Circuit but whose asylum application is subsequently adjudicated within the Ninth Circuit”).

18

The Court conducted a hearing on the motion on September 5, 2019.

19 II. JURISDICTION

20

The Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.

21 However, the parties dispute the nature and extent of the Court’s jurisdiction to decide the present

22 motion. The Organizations contend that this Court retains jurisdiction to further develop the 23 record and affirm or disaffirm the nationwide scope of its injunction order.4 ECF No. 67 at 17-21.

24

25 3 With leave of court, a consortium of non-profit organizations and law school clinics filed an

26

amicus curiae brief in support of the Organizations’ motion. ECF Nos. 60, 61. 4 Defendants have previously agreed with this characterization. See Defendants’ Application to

27

the United States Supreme Court for Stay Pending Appeal, Barr v. E. Bay Sanctuary Covenant, Case No. 19A230 (Aug. 26, 2019) (describing the Ninth Circuit’s order in East Bay V as “stat[ing]

28

that the district court retained jurisdiction to further develop the record and to re-extend the injunction beyond the Ninth Circuit.”).

3

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1 Defendants contend that the Court lacks jurisdiction to restore the nationwide scope of the

2 injunction, and that the Court at most has jurisdiction to issue an indicative ruling pursuant to Rule

3 62.1 of the Federal Rules of Civil Procedure. ECF No. 65 at 12-16. The parties’ positions turn on

4 their competing interpretations of the Ninth Circuit’s language that “the district court retains

5 jurisdiction to further develop the record in support of a preliminary injunction extending beyond

6 the Ninth Circuit.” East Bay V, 2019 WL 3850928, at *1.

7

The normal rule is that “[o]nce a notice of appeal is filed, the district court is divested of

8 jurisdiction over the matters being appealed.” Nat’l Res. Def. Council v. Sw. Marine Inc., 242

9 F.3d 1163, 1166 (9th Cir. 2001). This rule is “judge-made” rather than jurisdictional, designed to

10 “promote judicial economy and avoid the confusion that would ensue from having the same issues

11 before two courts simultaneously.” Id. One exception to this rule is when the court of appeals

12 orders a limited remand to the district court. See Wright & Miller, Retained Jurisdiction, 16 Fed.

13 Prac. & Proc. Juris. § 3937.1 (3d ed.) (“Whatever the reason, the courts of appeals often have

14 retained jurisdiction while making a limited remand for additional findings or explanations.”).

15 Such remands often come with specific instructions. See, e.g., Friery v. Los Angeles Unified Sch.

16 Dist., 448 F.3d 1146, 1147 (9th Cir. 2006) (remanding to district court “for the limited purpose of

17 finding facts and making a determination of the plaintiff’s standing” and empowering the court to

18 “entertain any appropriate motions” and “enter an appropriate order” if it found abstention or

19 dismissal appropriate). Here, although the Ninth Circuit did not provide instructions as to what

20 action the Court should take if it finds that the supplemented record supports a nationwide

21 injunction, the most plausible reading of East Bay V’s language is that it grants the Court

22 jurisdiction to consider the augmented record in its totality and, based on that record, affirm or

23 disaffirm the nationwide scope of its prior order. Several considerations support this conclusion.

24

First, there is a longstanding exception to the divestiture rule, providing that a “district

25 court retains jurisdiction during the pendency of an appeal to act to preserve the status quo.” Sw.

26 Marine Inc., 242 F.3d at 1166. This exception is codified in Federal Rule of Civil Procedure

27 62(d), which allows a district court to “suspend, modify, restore, or grant an injunction” while an

28 appeal of a prior injunction is pending. Id.; Fed. R. Civ. Proc. 62(d). Any action taken pursuant to 4

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1 Rule 62(d) “may not materially alter the status of the case on appeal.” Sw. Marine Inc., 242 F.3d

2 at 1166 (citation omitted).

3

For the purposes of Rule 62(d), “status quo” means the state of affairs at the time the

4 appeal was filed, i.e., the nationwide injunction originally issued by the Court. Mayweathers v.

5 Newland, 258 F.3d 930 (9th Cir. 2001) is instructive. In that case, a prison appealed a preliminary

6 injunction forbidding it from disciplining inmates for missing work to attend religious services.

7 Id. at 933. Because the injunction expired under the terms of the Prison Litigation Reform Act,

8 the district court entered a second, identical injunction while the appeal was pending. Id. at 934.

9 The Ninth Circuit held that the district court had jurisdiction to issue the second injunction under

10 Rule 62(d)5 because it “neither changed the status quo at the time of the first appeal nor materially

11 altered the status of the appeal.” Id. at 935 (emphasis added); see also Sw. Marine, 242 F.3d at

12 1167 (affirming district court’s modification of injunction while appeal was pending because it

13 “left unchanged the core questions before the appellate panel”). The Mayweathers court noted

14 that the case involved “defendants who were subject to an injunction at the time of appeal” and

15 that “the renewed injunction was identical to the original one.” 258 F.3d at 935.

16

Defendants cite McClatchy Newspapers v. Cent. Valley Typographical Union No. 46, 686

17 F.2d 731 (9th Cir. 1982) to support their argument that the Court lacks authority to consider the

18 Organizations’ motion, ECF No. 65 at 13, but that case is not helpful. In McClatchy Newspapers,

19 a publisher appealed a district court’s confirmation of an arbitration award in favor of a union.

20 686 F.2d at 732. While the appeal was pending, the district court entered an amended judgment

21 that swept more broadly than the original, this time requiring the publisher to return certain

22 employees to their positions. Id. at 733. The Ninth Circuit held that, “by ordering the publisher to

23 reinstate employees who were not working when the appeal was filed, the amended judgment

24 required a change from the status quo” and thus fell outside the bounds of Rule 62. Id. at 735

25 (emphasis added). Notably, in Mayweathers, which Defendants do not discuss, the court

26 distinguished McClatchy Newspapers, 258 F.3d at 935 finding that unlike in that case, the

27

28

5 The Mayweathers court, like other courts cited in this section, refers to Rule 62(c). Rule 62 was reorganized in 2018, and the pertinent subsection is now 62(d).

5

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1 Mayweathers injunction “involve[d] defendants who were subject to an injunction at the time of

2 appeal, and the renewed injunction was identical to the original one.” 258 F.3d at 935-36.

3

As in Mayweathers, the injunction now before the Court is the same as the one the Court

4 originally issued. Should the Court agree with the Organizations that the supplemented record

5 demands restoration of the injunction’s nationwide scope, it would not, as Defendants allege, be

6 entering a “new injunction.” ECF No. 65 at 14 (emphasis omitted). Rather, it would be using its

7 Rule 62(d) power to preserve the status quo at the time the government appealed the injunction. If

8 anything, the Court would be entering the “old injunction.” The “core questions before the

9 appellate panel” – the propriety and scope of the preexisting nationwide injunction – would be

10 unchanged. Sw. Marine, 242 F.3d at 1167.

11

This conclusion is also consistent with the case law holding that a court has the authority to

12 issue additional factual findings while an appeal is pending. See East Bay III, 354 F. Supp. 3d at

13 1105 n.3 (noting that a district court “may act to assist the court of appeals in the exercise of its

14 jurisdiction . . . such as by fil[ing] written findings of fact and conclusions of law in support of the

15 preliminary injunction order on appeal”) (quoting Davis v. United States, 667 F.2d 822, 824 (9th

16 Cir. 1982) and Thomas v. County of Los Angeles, 978 F.2d 504, 507 (9th Cir. 1992), as amended

17 (Feb. 12, 1993)) (quotation marks omitted). As well, it is consistent with the Ninth Circuit’s

18 citation to the instructions issued by that court’s merits panel in City & County of San Francisco v.

19 Trump:

20

Because the record is insufficiently developed as to the question of

the national scope of the injunction, we vacate the injunction to the

21

extent that it applies outside California and remand to the district

court for a more searching inquiry into whether this case justifies the

22

breadth of the injunction imposed.

23 897 F.3d 1225, 1245 (9th Cir. 2018).

24

The Court thus concludes that it has jurisdiction to consider the Organizations’ motion to

25 restore the nationwide scope of the injunction. Should the Ninth Circuit conclude otherwise,

26 however, the Court adds that, to the extent that the Organizations’ motion may also be construed

27 as one for an indicative ruling under Rule 62.1, the Court would grant it.

28 6

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1 III. LEGAL STANDARD

2

A district court has “considerable discretion in ordering an appropriate equitable remedy.”

3 City & Cty. of San Francisco, 897 F.3d at 1244. “Crafting a preliminary injunction is ‘an exercise

4 of discretion and judgment, often dependent as much on the equities of a given case as the

5 substance of the legal issues it presents.’” California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018)

6 (quoting Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017)). Injunctive

7 relief “should be no more burdensome to the defendant than necessary to provide complete relief

8 to the plaintiffs.” Califano v. Yamasaki, 422 U.S. 682, 702 (1979). “Where relief can be

9 structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown.”

10 Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 1987). But in certain “exceptional cases,” an

11 injunction “is not necessarily made overbroad by extending benefit or protection to persons other

12 than prevailing parties in the lawsuit . . . if such breadth is necessary to give prevailing parties the

13 relief to which they are entitled.” City & Cty. of San Francisco, 897 F.3d at 1244 (quoting

14 Bresgal, 843 F.2d at 1170-71) (internal quotation marks omitted). The record must show,

15 however, that nationwide relief is necessary to remedy plaintiffs’ harms. City & Cty. of San

16 Francisco, 897 F.3d at 1244 (vacating injunction to the extent it applied outside of California

17 because “the record [was] not sufficiently developed on the nationwide impact of the Executive

18 Order”).

19

Recently, there has arisen in some quarters “a growing uncertainty about the propriety of

20 universal injunctions.”6 E. Bay Sanctuary Covenant v. Trump (“East Bay II”), 932 F.3d 742, 779

21 (9th Cir. 2018). One concern is that nationwide injunctions “have detrimental consequences to the

22 development of law and deprive appellate courts of a wider range of perspectives.” Azar, 911 F.3d

23 at 583. Another is “the equities of non-parties who are deprived the right to litigate in other

24

25 6 Some writers also use the term “universal injunctions.” See Amanda Frost, In Defense of

26

Nationwide Injunctions, 93 NYU L. Rev. 1065, 1071 (2018) (“[N]o one denies that district courts have the power to enjoin a defendant’s conduct anywhere in the nation (indeed, the world) as it

27

relates to the plaintiff; rather, the dispute is about who can be included in the scope of the injunction, not where the injunction applies or is enforced. For that reason, some scholars refer to

28

injunctions that bar the defendant from taking action against nonparties as ‘universal injunctions,’ ‘global injunctions,’ or ‘defendant-oriented injunctions.’”) (citations omitted).

7

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1 forums.” Id. Lastly, “[n]ationwide injunctions are . . . associated with forum shopping, which

2 hinders the equitable administration of laws.” Id. Nonetheless, there is a robust jurisprudence

3 supporting the issuance of nationwide injunctions, especially in immigration cases. See, e.g., East

4 Bay II, 932 F.3d at 779 (“In immigration matters, we have consistently recognized the authority of

5 district courts to enjoin unlawful policies on a universal basis.”) (citing Regents of the Univ. of

6 Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018), cert. granted, 139 S. Ct.

7 2779 (2019)). In East Bay II, for example, the Ninth Circuit upheld a nationwide injunction in

8 circumstances very similar to those present here, because “the Government raise[d] no grounds on

9 which to distinguish this case from our uncontroverted line of precedent” and “‘fail[ed] to explain

10 how the district court could have crafted a narrower [remedy]’ that would have provided complete

11 relief to the Organizations.” Id. (quoting Regents, 908 F.3d 476 at 512).

12 IV. DISCUSSION

13

The Court previously found that the Organizations had “established a sufficient likelihood

14 of irreparable harm through ‘diversion of resources and the non-speculative loss of substantial

15 funding from other sources.’” East Bay IV, 385 F. Supp. 3d at 957-58 (citing East Bay III, 354 F.

16 Supp. 3d at 1116). The question now before the Court is whether those harms can be addressed by

17 any relief short of a nationwide injunction. The answer is that they cannot.

18

A. A Nationwide Injunction Is Necessary to Provide Complete Relief

19

The primary reason a nationwide injunction is appropriate is that it is the only means of

20 affording complete relief to the Organizations. As one commentator has observed, the principle

21 that “injunctive relief should be no more burdensome to the defendant than necessary to provide

22 complete relief to the plaintiffs,” Califano, 422 U.S. at 702, “suggests that when a national

23 injunction is needed for complete relief a court should award one,” Samuel L. Bray, Multiple

24 Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 466 (2017) (emphasis in

25 original). And as the Supreme Court has observed in analogous circumstances, “the scope of

26 injunctive relief is dictated by the extent of the violation established, not by the geographical

27 extent of the plaintiff class.” Califano, 442 U.S. at 702. Accordingly, “[the Ninth Circuit has]

28 upheld nationwide injunctions where such breadth was necessary to remedy a plaintiff’s harm.” 8

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1 East Bay V, 2019 WL 3850928, at *2.

2

Bresgal v. Brock provides an example. Plaintiffs in that case were the Northwest Forest

3 Workers Association and individual migrant agricultural workers who worked in forestry on a

4 seasonal basis. Bresgal, 843 F.2d at 1165. They sought, and the district court granted, a

5 declaratory judgment that the Migrant and Seasonal Agricultural Workers Protection Act applied

6 to forestry workers and an injunction requiring the Secretary of Labor to enforce the Act in the

7 industry. Id. The Ninth Circuit affirmed the nationwide scope of the injunction, even though it

8 would impact labor contractors who were not parties to the suit, including contractors located

9 outside the Ninth Circuit. Id. at 1171. The court concluded that a nationwide scope was necessary

10 to provide the plaintiffs complete relief because “[m]igrant laborers who are parties to this suit

11 may be involved with contractors whose operations are concentrated elsewhere. Similarly, these

12 plaintiffs, as migrant laborers, may travel to forestry jobs in other parts of the country under the

13 supervision of labor contractors.” Id. See also Texas v. United States, 787 F.3d 733, 769 (5th Cir.

14 2015) (refusing to narrow preliminary injunction of Deferred Action for Parents of Americans and

15 Lawful Permanent Residents (DAPA) to Texas or the plaintiff states due to “a substantial

16 likelihood that a partial injunction would be ineffective because DAPA beneficiaries would be free

17 to move between states”); Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02

18 (9th Cir. 1996) (upholding statewide injunction where 14 named plaintiffs were spread across four

19 counties because “plaintiffs would not receive the complete relief to which they are entitled

20 without statewide application of the injunction”).

21

By contrast, a district court abuses its discretion when it grants a geographically broader

22 injunction than is necessary to prevent a plaintiff’s injury. In Azar, for example, five plaintiff

23 states challenged the federal government’s implementation of two interim final rules exempting

24 employers with religious and moral objections from the Affordable Care Act’s contraceptive

25 coverage requirement. 911 F.3d at 566. The states claimed that enforcement of the rules would

26 cause them economic harm by forcing them to pay for contraceptive care for women whose

27 employers would otherwise cover it. Id. at 571, 581. The record established that enjoining

28 implementation of the rules within the plaintiff states would prevent this harm, but “it was not 9

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1 developed as to the economic impact on other states.” Id. at 584. Because a narrower injunction

2 “would provide complete relief” to the plaintiff states, the court held that the district court abused

3 its discretion by enjoining the rules nationwide. Id. See also City & Cty. of San Francisco, 897

4 F.3d at 1244 (remanding to the district court for reexamination of the nationwide scope of a

5 permanent injunction where plaintiff counties’ “tendered evidence [wa]s limited to the effect of

6 the [executive order] on their governments and the State of California”).

7

The circumstances here are much more like those in Bresgal than those in Azar. Some of

8 the plaintiff Organizations serve clients within and outside of the Ninth Circuit. In addition to

9 representing individuals seeking asylum, three of the organizations serve individuals who are not

10 retained clients by, for example, offering asylum law training for pro bono lawyers and pro se

11 asylum workshops for immigrants. ECF No. 67 at 8-9, 11; ECF No. 3-2 ¶ 7. Under the current

12 bifurcated asylum regime, at least two of the Organizations must expend significant resources

13 determining which of their clients are subject to which regime and adjusting their legal services

14 accordingly, as well as revising centralized resources to reflect the complicated landscape of the

15 limited injunction. A nationwide injunction is thus necessary to provide complete relief from the

16 diversion of resources harms the Court identified in its order granting the first preliminary

17 injunction. East Bay IV, 385 F. Supp. 3d at 957.

18

A discussion of two of the plaintiffs’ circumstances makes this point. Plaintiff Innovation

19 Law Lab (“Law Lab”) is a nonprofit focused on “improv[ing] the legal rights of immigrants and

20 refugees in the United States.” ECF No. 3-4 ¶ 2. Law Lab has offices in California, Oregon,

21 Missouri, Texas, and Georgia. ECF No. 57-2 ¶ 4. Law Lab offers workshops and support to

22 noncitizens and pro bono attorneys in Georgia, Kansas, Missouri, North Carolina, and Oregon, as

23 well as to legal service providers at immigrant detention centers throughout the country. Id. ¶ 5.

24 Law Lab can offer such a geographically diverse set of services partly thanks to template materials

25 it has developed to assist asylum seekers. Id. ¶ 7. Law Lab also directly represents persons

26 applying for asylum inside and outside the Ninth Circuit. Id. ¶ 5. While many of these clients

27 cross the border in the Ninth Circuit, they “move between jurisdictions throughout the lifetime of

28 their asylum case.” Id. ¶ 16. 10

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1

Law Lab will suffer a variety of harms if the third country transit bar goes into effect

2 outside the Ninth Circuit. For example, it will have to redesign its workshops and templates and

3 “devote significant time to re-training . . . volunteers on the new standards and how to screen for

4 attendees who might be subject to the ban.” Id. ¶¶ 7, 9. Its direct representation work will

5 “become significantly more complicated and burdensome.” Id. ¶ 15. Implementation of the Rule

6 outside the Ninth Circuit would also adversely impact Law Lab’s work within the Ninth Circuit by

7 diverting resources to clients who are subject to the Rule. Id. ¶ 17. Because these clients will no

8 longer be eligible for asylum, they will instead have to apply for withholding of removal or relief

9 under the Convention Against Torture (“CAT”), which “have a higher standard of proof than

10 asylum, do not allow for derivative applications, and are more time-consuming cases to handle.”

11 ECF No. 3-4 ¶ 17. As a result, Law Lab would be “forced to serve fewer people overall because

12 of the increased time burden required for a subset of cases.” ECF No. 57-2 ¶ 17.

13

Plaintiff Al Otro Lado is a nonprofit whose mission is, in part, “to provide screening,

14 advocacy, and legal representation for individuals in asylum and other immigration proceedings.”

15 ECF No. 3-3 ¶ 4. Al Otro Lado is based in California as well as Tijuana, Mexico. Id. ¶¶ 4, 8. It

16 offers “legal orientation workshops” at its Tijuana office, “providing information about the U.S.

17 asylum system to migrants who wish to seek asylum in the United States.” Id. ¶ 5. Al Otro Lado

18 “recruits and trains volunteers and pro bono attorneys” to assist with these workshops. Id. ¶ 6. A

19 number of Al Otro Lado’s clients end up crossing the border in Texas or New Mexico or later

20 relocate (or are detained) outside the Ninth Circuit. ECF No. 57-4 ¶ 5. As a result, “[i]t is

21 impossible for Al Otro Lado to know with certainty ex ante where a given asylum seeker whom

22 [Al Otro Lado] serve[s] prior to their entry will ultimately enter the United States, or where they

23 will end up once they are in the United States, or where a given asylum seeker whom [Al Otro

24 Lado] serve[s] while in detention will end up if released from custody.” Id. ¶ 8.

25

If the injunction is limited to the Ninth Circuit, it will force Al Otro Lado to provide a

26 much broader range of advice to pre-entry asylum seekers to account for different outcomes based

27 on where they choose to enter the country and travel within it. Id. at ¶ 9. This will require the

28 expenditure of “significant organizational resources regarding training materials, staff time, 11

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1 resources, and capacity . . . .” Id.; see also ECF No. 67 at 11.7

2

Defendants do not dispute this evidence or engage with the applicable law. Instead, they

3 devote much of their argument to focusing on the lack of harm to identified asylum seekers. See,

4 e.g., ECF No. 65 at 7 (“Yet, despite multiple opportunities, Plaintiffs’ counsel does not identify a

5 single, bona fide client who suffers injury as a result of the rule, or explain how an injunction

6 limited to such aliens would not cure their alleged injuries while this litigation proceeds.”). But

7 this is a strawman – the harm to the Organizations, not their potential clients, was the focus of the

8 Court’s injunction. See East Bay IV, 385 F. Supp. 3d at 957 (“Here, the Organizations have again

9 established a sufficient likelihood of irreparable harm through diversion of resources and the non-

10 speculative loss of substantial funding from other sources.”) (citation and quotation marks

11 omitted). And, rather than dispute that harm, Defendants disagree with Ninth Circuit law on

12 organizational standing, see ECF No. 28 at 16 n.1; East Bay IV, 385 F. Supp. 3d at 937, and repeat

13 their contention from earlier phases of this litigation that the organizational harms Plaintiffs allege

14 are speculative, see ECF No. 65 at 23; ECF 28 at 32.8 These issues have already been decided.

15

The Organizations have presented sufficient evidence that they will suffer organizational

16 and diversion of resources harms unless the Rule is enjoined outside of, as well as within, the

17 Ninth Circuit.9 A nationwide injunction is thus “necessary to give prevailing parties the relief to

18 which they are entitled.” City & Cty. of San Francisco, 897 F.3d at 1244 (quoting Bresgal, 843

19 F.2d at 1170-71) (internal quotation marks omitted).

20

21

7 Because the Court finds that a nationwide injunction is necessary to provide complete relief to 22 Law Lab and Al Otro Lado, it need not examine the supplemental evidence provided by plaintiffs

23

CARECEN and EBSC. 8 Indeed, at the hearing on this motion, in response to a direct question from the Court, the

24

Government did not dispute that (1) the Organizations would suffer harm if the Rule were applied outside the Ninth Circuit, and (2) that a nationwide injunction was necessary to remedy that harm.

25

ECF No. 72 at 19-23. 9 Defendants also argue that the Organizations’ supplemental evidence does not go beyond the

26

declarations that were already in the record at the time of the Ninth Circuit’s stay. ECF No. 65 at 19. This is incorrect. While some of the material in the Organizations’ five supplemental

27

declarations is redundant with their original declarations, compare ECF Nos. 57-2, 57-3, 57-4, 575, 57-6 with ECF Nos. 3-2, 3-3, 3-4, 3-5, 3-6, 3-7, they have provided additional detail about

28

where the organizations operate, how they train their staff and volunteers, and how the limited injunction will impact their operations.

12

Case 4:19-cv-04073-JST Document 73 Filed 09/09/19 Page 13 of 14

United States District Court Northern District of California

1

B. Additional Factors Supporting a Nationwide Injunction

2

The need to provide complete relief to the Plaintiffs, standing alone, is sufficient reason for

3 the re-issuance of the nationwide injunction. In addition to that factor, however, three other

4 factors support such relief.

5

First, a nationwide injunction is supported by the need to maintain uniform immigration

6 policy. See East Bay II, 932 F.3d at 779 (collecting cases and stating that “[i]n immigration

7 matters, we have consistently recognized the authority of district courts to enjoin unlawful policies

8 on a universal basis”); Regents of the Univ. of Cal., 908 F.3d at 511 (affirming nationwide

9 injunction against the government’s rescission of the Deferred Action for Childhood Arrivals

10 (DACA) program based in part on “the need for uniformity in immigration policy”). While this

11 factor may not, by itself, support the issuance of a nationwide injunction, it weighs in its favor.

12

Second, nationwide relief is supported by the text of the Administrative Procedure Act

13 (APA), which requires the “reviewing court,” “[t]o the extent necessary and when presented,” to

14 “hold unlawful and set aside agency action, findings, and conclusions” found to be “arbitrary,

15 capricious, an abuse of discretion, or otherwise not in accordance with law . . . .” 5 U.S.C. § 706.

16 The Ninth Circuit has cited this language in upholding a nationwide injunction of regulations that

17 conflicted with the governing statute. Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th

18 Cir. 2007), aff’d in part, rev’d in part on other grounds sub nom. Summers v. Earth Island Inst.,

19 555 U.S. 488 (2009); see also Regents of the Univ. of Cal., 908 F.3d at 511 (“In [the APA]

20 context, ‘[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary

21 result is that the rules are vacated – not that their application to the individual petitioners is

22 proscribed.’”) (quoting Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C.

23 Cir. 1998)).10

24

25

10 Although Defendants attempt to address the propriety of vacatur, ECF No. 65 at 27, that issue is not before the Court. Defendants also misstate the law. They cite California Communities

26

Against Toxics v. U.S. E.P.A., 688 F.3d 989, 994 (9th Cir. 2012) for the proposition that “[e]ven where rules are declared invalid under the APA, ‘remand without vacatur’ is a remedy that courts

27

must consider.” ECF No. 65 at 27 (emphasis added). But California Communities does not stand for that proposition. To the contrary, California Communities is clear that remand without vacatur

28

should be ordered only in “limited circumstances.” 688 F.3d at 994. Defendants do not explain what “limited circumstances” are present here. Furthermore, as Defendants themselves note,

13

Case 4:19-cv-04073-JST Document 73 Filed 09/09/19 Page 14 of 14

United States District Court Northern District of California

1

Lastly, anything but a nationwide injunction will create major administrability issues.

2 Although the Government’s recently-issued guidance with regard to the Rule is intended to allow

3 the Court’s injunction to be applied within the Ninth Circuit, problems in administration would

4 remain. For one thing, ambiguities within the guidance documents will lead to uneven

5 enforcement. See ECF No. 67 at 12 (comparing the Government’s description of the injunction as

6 covering those “whose adjudications and proceedings occur in the Ninth [C]ircuit” to the EOIR

7 Guidance’s instruction that the Rule does not apply to those whose “interview or adjudication”

8 occurs in the Ninth Circuit). For another, it is not clear what effect the guidance will have on an

9 asylum applicant who transits between circuits. For example, an applicant who crosses the border

10 and has a credible fear interview outside the Ninth Circuit would, in the absence of a nationwide

11 injunction, be subject to the Rule and thus (barring an exception) eligible only for withholding of

12 removal or CAT. Id. If that individual’s removal proceedings were later moved to the Ninth

13 Circuit, it is unclear whether the immigration judge would be bound by the original denial of

14 credible fear or, since the Rule is enjoined within the Ninth Circuit, able to allow the individual to

15 apply for asylum.

16

CONCLUSION

17

While nationwide injunctions are not the “general rule,” they are appropriate “where such

18 breadth [is] necessary to remedy a plaintiff’s harm.” East Bay V, 2019 WL 3850928, at *2. This

19 is such a case. Accordingly, and for the reasons set forth above, the Court grants the

20 Organizations’ motion to restore the nationwide scope of the injunction.

21

IT IS SO ORDERED.

22 Dated: September 9, 2019 23 24

______________________________________
JON S. TIGAR United States District Judge

25

26

27 “[o]rdinarily, when a regulation is not promulgated in compliance with the APA, the regulation is

28

invalid.” Ida. Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995); ECF No. 65 at 27.

14

 
 Barr v. East Bay Sanctuary Covenant, 140 S.Ct. 3 (Mem) (2019) 204 L.Ed.2d 1189, 2019 Daily Journal D.A.R. 8805, 28 Fla. L. Weekly Fed. S 1

140 S.Ct. 3 Supreme Court of the United States.
William P. BARR, Attorney General, et al. v.
EAST BAY SANCTUARY COVENANT, et al.
No. 19A230 |
September 11, 2019
Opinion
The application for stay presented to Justice KAGAN and by her referred to the Court is granted. The district court’s July 24, 2019 order granting a preliminary injunction and September 9, 2019 order restoring the nationwide scope of the injunction are stayed in full pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.
Justice SOTOMAYOR, with whom Justice GINSBURG joins, dissenting from grant of stay.
*4 Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution. Although this Nation has long kept its doors open to refugees—and although the stakes for asylum seekers could not be higher—the Government implemented its rule without first providing the public notice and inviting the public input generally required by law. After several organizations representing immigrants sued to stop the rule from going into effect, a federal district court found that the organizations were likely to prevail and preliminarily enjoined the rule nationwide. A federal appeals court narrowed the injunction to run only circuit-wide, but denied the Government’s motion for a complete stay.
1

Now the Government asks this Court to intervene and to stay the preliminary decisions below. This is an extraordinary request. Unfortunately, the Court acquiesces. Because I do not believe the Government has met its weighty burden for such relief, I would deny the stay.
The Attorney General and Secretary of Homeland Security promulgated the rule at issue here on July 16, 2019. See 84 Fed. Reg. 33829. In effect, the rule forbids almost all Central Americans—even unaccompanied children—to apply for asylum in the United States if they enter or seek to enter through the southern border, unless they were first denied asylum in Mexico or another third country. Id., at 33835, 33840; see also 385 F.Supp.3d 922, 929–930 (N.D. Cal. 2019).
The District Court found that the rule was likely unlawful for at least three reasons. See id., at 938–957. First, the court found it probable that the rule was inconsistent with the asylum statute, 94 Stat. 105, as amended, 8 U.S. C. § 1158. See § 1158(b)(2)(C) (requiring that any regulation like the rule be “consistent” with the statute). Section 1158 generally provides that any noncitizen “physically present in the United States or who arrives in the United States ... may apply for asylum.” § 1158(a)(1). And unlike the rule, the District Court explained, the statute provides narrow, carefully calibrated exceptions to asylum eligibility. As relevant here, Congress restricted asylum based on the possibility that a person could safely resettle in a third country. See § 1158(a)(2)(A), (b)(2)(A)(vi). The rule, by contrast, does not consider whether refugees were safe or resettled in Mexico—just whether they traveled through it. That blunt approach, according to the District Court, rewrote the statute. See 385 F.Supp.3d at 939–947, 959.
Second, the District Court found that the challengers would likely prevail because the Government skirted typical rulemaking procedures. Id., at 947–951. The District Court noted “serious questions” about the rule’s validity because the Government effected a sea change in immigration law without first providing advance notice and opportunity for public comment. Id., at 930; see also 5 U.S. C. § 553. The District Court found the Government’s purported justifications unpersuasive at the preliminary-injunction stage. 385 F.Supp.3d at 948–951 (discussing statutory exceptions to notice-and-comment procedures).

Barr v. East Bay Sanctuary Covenant, 140 S.Ct. 3 (Mem) (2019) 204 L.Ed.2d 1189, 2019 Daily Journal D.A.R. 8805, 28 Fla. L. Weekly Fed. S 1

Last, the District Court found the explanation for the rule so poorly reasoned that the Government’s action was likely arbitrary and capricious. See id., at 951–957; 5 U.S. C. § 706. On this score, the District Court addressed the Government’s principal justifications for the rule: that failing to seek asylum while fleeing through more than one country “raises questions about *5 the validity and urgency” of the asylum seeker’s claim, 84 Fed. Reg. 33839; and that Mexico, the last port of entry before the United States, offers a feasible alternative for persons seeking protection from persecution, id., at 33835, 33839–33840. The District Court examined the evidence in the administrative record and explained why it flatly refuted the Government’s assumptions. 385 F.Supp.3d at 951–957. A “mountain of evidence points one way,” the District Court observed, yet the Government “went the other—with no explanation.” Id., at 955.
After the District Court issued the injunction, the Ninth Circuit declined the Government’s request for a complete stay, reasoning that the Government did not make the required “ ‘strong showing’ ” that it would likely succeed on the merits of each issue. 934 F.3d 1026, 1028 – 1029 (2019), 2019 WL 3850928, *1 (quoting Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987)). Narrowing the injunction to the Circuit’s borders, the Ninth Circuit expedited the appeal and permitted the District Court to consider whether additional facts would warrant a broader injunction. 934 F.3d 1026, 1029 – 1031, 2019 WL 3850928, *2–*3.
The lower courts’ decisions warrant respect. A stay pending appeal is “extraordinary” relief. Williams v. Zbaraz, 442 U.S. 1309, 1311, 99 S.Ct. 2095, 60 L.Ed.2d 1033 (1979) (Stevens, J., in chambers); see also Maryland v. King, 567 U.S. 1301, 1302, 133 S.Ct. 1, 183 L.Ed.2d 667 (2012) (ROBERTS, C.J., in chambers) (listing stay factors). Given the District Court’s thorough analysis, and the serious questions that court raised, I do not believe the Government has carried its “especially heavy” burden. Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1320, 114 S.Ct. 1036, 127 L.Ed.2d 530 (1994) (Rehnquist, C. J., in chambers). The rule here may be, as the District Court concluded, in significant tension with the asylum statute. It may also be arbitrary and capricious for failing to engage with the record evidence contradicting its conclusions. It is especially concerning, moreover, that the rule the Government promulgated topples decades of settled asylum practices and affects some of the most vulnerable people in the Western Hemisphere—without affording the public a chance to weigh in.
2

Setting aside the merits, the unusual history of this case also counsels against our intervention. This lawsuit has been proceeding on three tracks: In this Court, the parties have litigated the Government’s stay request. In the Ninth Circuit, the parties are briefing the Government’s appeal. And in the District Court, the parties recently participated in an evidentiary hearing to supplement the record. Indeed, just two days ago the District Court reinstated a nationwide injunction based on new facts. See East Bay Sanctuary Covenant v. Barr, No. 4:19–cv–4073, Doc. 73, 391 F.Supp.3d 974, 2019 WL 4265078 (N.D. Cal., Sept. 9, 2019). Notably, the Government moved to stay the newest order in both the District Court and the Ninth Circuit. (Neither court has resolved that request, though the Ninth Circuit granted an administrative stay to allow further deliberation.) This Court has not considered the new evidence, nor does it pause for the lower courts to resolve the Government’s pending motions. By granting a stay, the Court simultaneously lags behind and jumps ahead of the courts below. And in doing so, the Court sidesteps the ordinary judicial process to allow the Government to implement a rule that bypassed the ordinary rulemaking process. I fear that the Court’s precipitous action today risks undermining the interbranch governmental processes that encourage deliberation, public participation, and transparency.
*6 * * *
In sum, granting a stay pending appeal should be an “extraordinary” act. Williams, 442 U.S., at 1311, 99 S.Ct. 2095. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. See Trump v. East Bay Sanctuary Covenant, 586 U.S. ––––, 139 S.Ct. 782, 202 L.Ed.2d 510 (2018). I regret that my colleagues have not exercised the same restraint here. I respectfully dissent.
All Citations

Barr v. East Bay Sanctuary Covenant, 140 S.Ct. 3 (Mem) (2019) 204 L.Ed.2d 1189, 2019 Daily Journal D.A.R. 8805, 28 Fla. L. Weekly Fed. S 1 140 S.Ct. 3 (Mem), 204 L.Ed.2d 1189, 2019 Daily Journal D.A.R. 8805, 28 Fla. L. Weekly Fed. S 1
3

 
 Case 4:19-cv-04073-JST Document 131 Filed 01/21/21 Page 1 of 4

1 Lee Gelernt*

Omar C. Jadwat* 2 Anand Balakrishnan*

3

Ming Cheung** ACLU FOUNDATION

4 IMMIGRANTS’ RIGHTS PROJECT 125 Broad Street, 18th Floor

5 New York, NY 10004

T: (212) 549-2660 6 F: (212) 549-2654

lgelernt@aclu.org 7 ojadwat@aclu.org

abalakrishnan@aclu.org 8 mcheung@aclu.org

9 Attorneys for Plaintiffs
10 (Additional counsel listed on following page)

Katrina Eiland (SBN 275701) Cody Wofsy (SBN 294179) Spencer Amdur (SBN 320069) Morgan Russell (SBN 296137) ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-0770 F: (415) 395-0950 keiland@aclu.org cwofsy@aclu.org samdur@aclu.org mrussell@aclu.org

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

14 East Bay Sanctuary Covenant, et al.,

15

Plaintiffs,

16

v.

17 Robert M. Wilkinson, et al.,

18

Defendants.

19

Case No.: 4:19-cv-04073-JST
NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION AND STAY OF FINAL RULE’S EFFECTIVE DATE PURSUANT TO 5 U.S.C. § 705

20

21

22

23

24

25

26

27

28

Case 4:19-cv-04073-JST Document 131 Filed 01/21/21 Page 2 of 4

1
Melissa Crow*
2 SOUTHERN POVERTY LAW CENTER
1101 17th Street, NW Suite 705
3 Washington, D.C. 20036
T: (202) 355-4471
4 F: (404) 221-5857
melissa.crow@splcenter.org
5 6 7 8 9 Attorneys for Plaintiffs 10 *Admitted pro hac vice
**Pro hac vice application forthcoming
11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Baher Azmy** Angelo Guisado** Ghita Schwarz** CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 T: (212) 614-6464 F: (212) 614-6499 bazmy@ccrjustice.org aguisado@ccrjustice.org gschwarz@ccrjustice.org
Vasudha Talla (SBN 316219) Angélica Salceda (SBN 296152)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 T: (415) 621-2493 F: (415) 255-8437 vtalla@aclunc.org asalceda@aclunc.org

MOTION FOR PRELIMINARY INJUNCTION AND STAY OF FINAL RULE, 4:19-cv-04073

Case 4:19-cv-04073-JST Document 131 Filed 01/21/21 Page 3 of 4

1 TO RESPONDENTS AND THEIR ATTORNEYS OF RECORD:

2

PLEASE TAKE NOTICE that Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado,

3 Innovation Law Lab, and Central American Resource Center of Los Angeles hereby move the Court

4 for a preliminary injunction and a stay pursuant to 5 U.S.C. § 705 of the transit asylum ban final

5 rule’s effective date.1 The Trump administration issued the final rule on December 17, 2020, and it

6 went into effect on January 19, 2021. See Asylum Eligibility and Procedural Modifications, 85 Fed.

7 Reg. 82,260 (Dec. 17, 2020). The final rule is materially identical to the interim version of the rule,

8 which this court preliminarily enjoined. Although that ruling was stayed, the interim rule had not

9 been in effect since June 2020 when a district court in the District of Columbia vacated it. Now that

10 the policy is once again in force, a preliminary injunction and/or stay of the rule under 5 U.S.C.

11 § 705 is necessary to prevent Plaintiffs from again experiencing significant harm.

12

This motion is brought pursuant to Federal Rule of Civil Procedure 65 and is based on the

13 accompanying Memorandum in Support and materials cited therein; the pleadings and evidence on

14 file in this matter; the accompanying declarations; and such other materials and argument as may be

15 presented in connection with a hearing on the motion.

16

Plaintiffs will confer with counsel for Defendants about a briefing schedule on this motion

17 and Plaintiffs’ previous motion for leave to file an amended and supplemental complaint, and will

18 attempt to make a joint proposal to the Court.

19

20 Dated: January 21, 2021

21

Lee Gelernt* Omar C. Jadwat*

22

Anand Balakrishnan* Ming Cheung**

23

ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

24 125 Broad Street, 18th Floor

Respectfully submitted,
/s/ Katrina L. Eiland Katrina Eiland (SBN 275701) Cody Wofsy (SBN 294179) Spencer Amdur (SBN 320069) Morgan Russell (SBN 296137) ACLU FOUNDATION

25 1 Plaintiffs previously filed a motion for leave to file a First Amended and Supplemental Complaint
26 that (1) challenges the final transit ban rule on the same grounds asserted against the interim rule in the original complaint and (2) amends the claims to challenge the final rule as invalid because
27 Department of Homeland Security Acting Secretary officials were not validly serving when the final rule was issued. See ECF No. 130.
28

1 MOTION FOR PRELIMINARY INJUNCTION AND STAY OF FINAL RULE, 4:19-cv-04073

Case 4:19-cv-04073-JST Document 131 Filed 01/21/21 Page 4 of 4

New York, NY 10004
1 T: (212) 549-2660
F: (212) 549-2654
2 lgelernt@aclu.org
ojadwat@aclu.org
3 abalakrishnan@aclu.org
mcheung@aclu.org
4
Melissa Crow*
5 SOUTHERN POVERTY LAW CENTER
1101 17th Street NW, Suite 705
6 Washington, DC 20036
T: (202) 355-4471
7 F: (404) 221-5857
melissa.crow@splcenter.org
8
Attorneys for Plaintiffs
9
*Admitted pro hac vice
10 **Pro hac vice application forthcoming
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-0770 F: (415) 395-0950 keiland@aclu.org cwofsy@aclu.org samdur@aclu.org mrussell@aclu.org
Baher Azmy** Angelo Guisado** Ghita Schwarz** CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Telephone: (212) 614-6464 Facsimile: (212) 614-6499 bazmy@ccrjustice.org aguisado@ccrjustice.org gschwarz@ccrjustice.org
Vasudha Talla (SBN 316219) Angélica Salceda (SBN 296152) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 T: (415) 621-2493 F: (415) 255-8437 vtalla@aclunc.org asalceda@aclunc.org

2 MOTION FOR PRELIMINARY INJUNCTION AND STAY OF FINAL RULE, 4:19-cv-04073

 
 Case 4:19-cv-04073-JST Document 138 Filed 02/16/21 Page 1 of 8

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

EAST BAY SANCTUARY COVENANT,

Case No. 19-cv-04073-JST

et al.,

8

Plaintiffs,

9

v.

ORDER GRANTING PRELIMINARY INJUNCTION

10 WILLIAM BARR, et al.,

Re: ECF No. 131

11

Defendants.

12

13

14

On December 17, 2020, just weeks before a change in presidential administrations – and

15 with an effective date of January 19, 2021, just one day before that change – the Department of

16 Homeland Security (“DHS”) issued the final third country transit ban rule, entitled “Asylum

17 Eligibility and Procedural Modifications” (the “Final Rule”). 85 Fed. Reg. 82,260 (Dec. 17, 2020)

18 (codified at 8 C.F.R. pts. 208, 1208). The Final Rule is functionally equivalent to the interim rule

19 that this Court preliminarily enjoined (and another court vacated). 84 Fed. Reg. 33,829 (“Interim

20 Rule”). It categorically denies asylum to most persons entering the United States at the southern

21 border who did not first apply for asylum in Mexico or another third country.

22

Under controlling Ninth Circuit law, the Final Rule is invalid because it is inconsistent

23 with existing asylum laws. As with the Interim Rule, the Final Rule deprives vulnerable asylum

24 applicants of essential procedural safeguards designed to avoid arbitrary denials of asylum. Also,

25 rather than ensure their safety, the rule increases the risk asylum applicants will be subjected to

26 violence. See E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 953-56 (N.D. Cal. 2019)

27 (“E. Bay I”). For these reasons, and the additional reasons set forth below, the Court now enjoins

28 the Final Rule from taking effect.

Case 4:19-cv-04073-JST Document 138 Filed 02/16/21 Page 2 of 8

United States District Court Northern District of California

1 I. BACKGROUND

2

On July 16, 2019, the Department of Justice (“DOJ”) and the Department of Homeland

3 Security published a joint interim final rule, entitled “Asylum Eligibility and Procedural

4 Modifications.” 84 Fed. Reg. 33,829. The effect of the Interim Rule was to categorically deny

5 asylum to most persons entering the United States at the southern border if they had not first

6 applied for asylum in Mexico or another third country through which they passed. Id. In

7 promulgating the Interim Rule, the agencies invoked their authority to establish conditions

8 consistent with 8 U.S.C. § 1158. 84 Fed. Reg. at 33,834.

9

Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central

10 American Resource Center filed this lawsuit against relevant federal agencies and agency officials

11 on July 16, 2019, the day the Rule went into effect. ECF No. 1. On July 24, 2019, the Court

12 granted Plaintiffs’ motion for a preliminary injunction, finding that Plaintiffs were likely to

13 succeed on the merits of their claims that the rule was substantively invalid, that the Rule was

14 arbitrary and capricious, and that there were serious questions as to Defendants’ attempts to rely

15 on the foreign affairs and good cause exceptions to notice and comment rulemaking requirements.

16 ECF No. 42; E. Bay I, 385 F. Supp. 3d at 922. Defendants appealed the Court’s order to the Ninth

17 Circuit on July 29, 2019, ECF No. 46, and again on September 10, 2019, ECF No. 75, after the

18 Court restored the nationwide scope of the injunction, ECF No. 73. On August 26, 2019,

19 Defendants applied to the United States Supreme Court for an emergency stay of the preliminary

20 injunction pending resolution of their appeal. Barr v. E. Bay Sanctuary Covenant, No. 19A230

21 (Aug. 26, 2019). The Supreme Court granted Defendants’ request and stayed the order granting

22 the preliminary injunction and order restoring the injunction’s nationwide scope. Id. (Sept. 11,

23 2019). The Supreme Court’s stay remains in effect “pending disposition of the Government’s

24 appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the

25 Government’s petition for a writ of certiorari, if such a writ is sought.” Id.

26

The Interim Rule was also challenged in an action filed in the District Court for the District

27 of Columbia. On June 30, 2020, that court granted summary judgment for the plaintiffs and

28 vacated the Interim Rule, finding that it was invalid under the Administrative Procedures Act 2

Case 4:19-cv-04073-JST Document 138 Filed 02/16/21 Page 3 of 8

United States District Court Northern District of California

1 (“APA”) for failing to adhere to notice and comment procedures. See Cap. Area Immigrants’

2 Rights Coal. v. Trump, Civil Action Nos. 19-2117 (TJK), 19-2530 (TJK), 2020 WL 3542481

3 (D.D.C. June 30, 2020). The government appealed this decision to the D.C. Circuit, ECF No. 131

4 at 9, but the vacatur remains in effect.

5

On July 6, 2020, the Ninth Circuit affirmed both preliminary injunction orders in this case,

6 holding that the Interim Rule was “not in accordance with law” and that the injunctions properly

7 “cover[ed] the four states along our border with Mexico.” E. Bay Sanctuary Covenant v. Barr,

8 964 F.3d 832, 857 (9th Cir. 2020) (“E. Bay II”). On October 5, 2020, Defendants filed a petition

9 for rehearing en banc, E. Bay Sanctuary Covenant, Nos. 19-16487, 19-16773, ECF No. 117 (9th

10 Cir. Oct. 5, 2020), which remains pending.

11

On December 17, 2020, Acting DHS Secretary Chad Wolf “reviewed and approved” the

12 Final Rule and authorized former Acting General Counsel Chad Mizelle to “electronically sign” it

13 for the purpose of publishing it in the Federal Register. 85 Fed. Reg. 82,289. The Final Rule went

14 into effect on January 19, 2021, and – as the Government concedes – it is “almost verbatim the

15 interim final rule this Court previously enjoined.” ECF No. 136 at 2. The Final Rule is different

16 from the Interim Rule in two ways. 85 Fed. Reg. 82,261-62, 82,289-90. First, the Final Rule does

17 not exempt individuals who applied for and were denied protection from torture in a third country.

18 It now only exempts those who applied for and were denied asylum in a third country. Second,

19 individuals are exempt from the Final Rule if the countries they traveled to were signatories to the

20 Convention Against Torture but not to the 1951 Convention on the Status of Refugees (“1951

21 Convention”) or the 1967 Protocol Relating to the Status of Refugees (“1967 Protocol”).1

22

Plaintiffs have filed an amended complaint challenging the Final Rule, ECF No. 134, and

23 now seek a preliminary injunction on the grounds that the Final Rule is contrary to law and

24 arbitrary and capricious for the same reasons that the “materially-identical Interim Rule” was, and

25 for the “independent reason” that Chad Wolf was unlawfully serving as Acting DHS Secretary

26

27 1 The second change has no practical effect because Mexico is a signatory to both refugee treaties.

28

See E. Bay II, 964 F.3d at 855 (“The [Interim] Rule targets only asylum applicants entering at our southern border with Mexico.”).

3

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United States District Court Northern District of California

1 when the Rule was issued. ECF No. 131 at 8. The Government filed a response to the motion, in

2 which it “acknowledges that the Ninth Circuit’s decision [affirming the preliminary injunction

3 order in this case] is law of the circuit and therefore controlling.” ECF No. 136 at 2. And

4 Plaintiffs filed a reply to note their agreement that “it would be sufficient for the Court to grant

5 preliminary relief ‘on the statutory-authority holding in the Ninth Circuit’s precedential decision.’”

6 ECF No. 137 at 2.

7

II. LEGAL STANDARD

8

To be entitled to a preliminary injunction, the moving party must show: (1) a likelihood of

9 success on the merits; (2) a likelihood of irreparable harm to the moving party in the absence of

10 preliminary relief; (3) that the balance of equities tips in favor of the moving party; and (4) that an

11 injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

12 “When the government is a party, these last two factors merge.” E. Bay II, 964 F.3d at 845

13 (quotation marks and citation omitted). To grant preliminary injunctive relief, a court must find

14 that “a certain threshold showing [has been] made on each factor.” Leiva-Perez v. Holder, 640

15 F.3d 962, 966 (9th Cir. 2011) (per curiam). “[S]erious questions going to the merits and a balance

16 of hardships that tips sharply towards the plaintiff can support issuance of a preliminary

17 injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and

18 that the injunction is in the public interest.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127,

19 1135 (9th Cir. 2011) (quotation marks omitted).

20

III. DISCUSSION

21

The Parties agree that the Court can rely on East Bay II to hold that Plaintiffs are likely to

22 succeed on the merits because the Ninth Circuit has held that the Interim Rule, which is materially

23 identical to the Final Rule, is contrary to 8 U.S.C. § 1158. ECF No. 136 at 2-3; ECF No. 137 at 2.

24 In brief, the Ninth Circuit held that the Interim Rule was “not in accordance with law” or “in

25 excess of statutory limitations” because it was inconsistent with both the safe-third-country and

26 the firm-resettlement provisions of § 1158. 5 U.S.C. § 706(2)(A), (C); East Bay II, 964 F.3d at

27 845-49. East Bay II explained that “[a] critical component of both [the safe-third-country and

28 firm-resettlement] bars is the requirement that the alien’s ‘safe option’ be genuinely safe,” and that 4

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United States District Court Northern District of California

1 the Interim Rule did “virtually nothing to ensure that a third country is a ‘safe option.’” Id. at 847

2 (citation and quotation marks omitted).

3

Although the Final Rule avers to “have addressed the Ninth Circuit’s concerns by further

4 explaining . . . how the transit bar is consistent” with § 1158, 85 Fed. Reg. 82,267 n.18, the Court

5 finds that the Final Rule remains inconsistent with § 1158. Once again, “[t]he sole protection

6 provided by the [Final] Rule is its requirement that the country through which the barred alien has

7 traveled be a ‘signatory’ to the 1951 Convention and the 1967 Protocol.” East Bay II, 964 F.3d at

8 847. As the Government acknowledges, the Ninth Circuit has already held that “[t]his

9 requirement does not remotely resemble the assurances of safety built into the two safe-place bars

10 of § 1158,” id., and in fact is inconsistent with those provisions, id. at 845-49.

11

In addition, the Court notes that the Final Rule does not acknowledge the “mountain of

12 evidence” contradicting the agencies’ conclusion that asylum in Mexico is a feasible alternative to

13 asylum in the United States, id. at 850-51, and instead repeatedly relies on a memorandum from

14 the U.S. Ambassador to Mexico to vaguely assert that reports of violence in Mexico “do not

15 reflect conditions across the country as a whole” and that “discussions about conditions in Mexico

16 oftentimes conflate the perils that refugees might face traversing across dangerous parts of Mexico

17 en route to the United States with the ability to seek protection in a safe place in Mexico,” 85 Fed.

18 Reg. 82,271, 82,277, 82,286. The agencies offer no evidence to support these assertions. Finally,

19 the Final Rule contends that

20

if an alien believes that he or she would likely be subject to

persecution on account of a protected ground or torture in the country

21

that he or she transits en route to the United States, he or she may seek

withholding of removal under section 241(b)(3) . . . or withholding of

22

removal or deferral of removal under the [Convention Against

Torture (“CAT”)] regulations. 23

24 Id. at 82,276. As the Ninth Circuit has explained, “the standards for granting withholding or CAT

25 relief are higher than those governing a grant of asylum,” and withholding and CAT relief are

26 “less advantageous than asylum relief.” 964 F.3d at 843. Thus, these “forms of relief are not

27 coextensive in important ways.” East Bay I, 385 F. Supp. 3d at 959. The Court concludes that the

28 Final Rule is “not in accordance with law” and is “in excess of statutory limitations” for the 5

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United States District Court Northern District of California

1 reasoning articulated in East Bay II; the Final Rule is inconsistent with the safe-third-country and

2 firm-resettlement bars of § 1158. Plaintiffs have therefore demonstrated a likelihood of success on

3 the merits.

4

The Parties also agree that East Bay II’s analysis of the other preliminary-injunction

5 factors applies equally to the Final Rule. ECF No. 136 at 2; ECF No. 137 at 2. The Ninth Circuit

6 affirmed this Court’s conclusion that Plaintiffs had “established a sufficient likelihood of

7 irreparable harm through diversion of resources and the non-speculative loss of substantial

8 funding from other sources” as a result of the functionally identical Interim Rule, and that the

9 balance of equities and the public interest favored Plaintiffs. 964 F.3d at 854-55. The Ninth

10 Circuit explained that the public has an interest in “not returning refugees to their persecutors or to

11 a country where they would be endangered,” and in “ensuring that ‘statutes enacted by [their]

12 representatives’ are not imperiled by executive fiat.” Id. (quotation marks and citation omitted).

13 Nothing about the Final Rule affects these considerations or changes this Court’s conclusion – as

14 affirmed by the Ninth Circuit – that the other preliminary-injunction factors also support

15 Plaintiff’s motion. The Court therefore holds that Plaintiffs have satisfied their burden and are

16 entitled to a preliminary injunction.

17

Although the Court need not reach Plaintiffs’ additional arguments for why a preliminary

18 injunction should issue, the Court briefly notes that a preliminary injunction is further supported

19 by the likelihood that (1) and because the government’s decision to promulgate the Final Rule was

20 arbitrary and capricious and (2) Chad Wolf lacked the authority to issue the Final Rule.

21

The Ninth Circuit affirmed this Court’s holding that the Interim Rule was arbitrary and

22 capricious because: (1) evidence in record contradicted the agencies’ conclusion that immigrants

23 barred by the Interim Rule had “safe options in Mexico” and (2) the agencies did not justify their

24 assumption that failing to apply for asylum in a third country makes an immigrant less likely to

25 have meritorious asylum claim. E. Bay II, 964 F.3d at 849-50.2 The Final Rule has not adequately

26

27

2 The Ninth Circuit also affirmed this Court’s finding that the Interim Rule was arbitrary and capricious because the agencies “entirely failed to consider an important aspect of the problem” by

28

not addressing the special vulnerability of unaccompanied minors, and why they were not exempted from the rule. Id. at 853-54. The Final Rule explicitly considers the “particular

6

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United States District Court Northern District of California

1 addressed these failings. As discussed above, the Final Rule does not acknowledge – let alone

2 answer – the “mountain of evidence” contradicting the agencies’ conclusion that asylum in

3 Mexico is a feasible alternative to asylum in the United States. Id. at 850-51. The Ninth Circuit

4 held that “given the strength of th[e] alternative explanation” – that immigrants are not applying

5 for asylum in Mexico or Guatemala because these countries are dangerous for immigrants – “the

6 agencies’ assumption ‘runs counter to the evidence before the agency.’” Id. at 853 (citation

7 omitted). As explained above, the agencies again failed to consider this alternative explanation in

8 issuing the Final Rule. Although the Final Rule states that “an alien’s subjective belief that refuge

9 in another country is unavailable or less desirable than settling in the United States does not

10 support the persuasiveness of that alien’s asylum claim,” it does not consider that this evidence

11 does support Plaintiffs’ argument that an immigrant’s decision not to apply for asylum in a third

12 country does not undermine the strength of their asylum claim. 85 Fed. Reg. 82,286 n.48.

13

Finally, the Court notes that the Final Rule is likely unlawful because Chad Wolf did not

14 have the authority to issue the Final Rule. Several district courts have commented on Wolf’s lack

15 of statutory authority to serve as Acting Secretary and the resulting invalidity of actions he took

16 during that service. See, e.g., Pangea Legal Servs. v. DHS, No. 20-cv-9253-JD, 2021 WL 75756,

17 at *3-6 (N.D. Cal. Jan. 8, 2021); Batalla Vidal v. Wolf, No. 16-CV-4756 (NGG) (VMS), 2020 WL

18 6695076, at *1 (E.D.N.Y. Nov. 14, 2020); Nw. Immigrant Rts. Project v. USCIS, No. 19-3283

19 (RDM), 2020 WL 5995206, at *24 (D.D.C. Oct. 9, 2020); Casa de Maryland, Inc. v. Wolf, No.

20 8:20-cv-2118-PX, 2020 WL 5500165, at *20-23 (D. Md. Sept. 11, 2020). The Government offers

21 no response to the growing chorus of authority holding that Wolf was unlawfully serving as

22 Acting Secretary of DHS when the Final Rule was issued.

23

IV. CONCLUSION

24

For the foregoing reasons, Plaintiffs’ motion for preliminary injunction is granted.

25

26

vulnerability” of unaccompanied minors and concludes that “encouraging [them] to apply for asylum in Mexico through the promulgation of this rule will not jeopardize the wellbeing of

27

[unaccompanied minors] in a way that would warrant exempting [them] from the rule’s scope.” 85 Fed. Reg. 82,274, 82,286 n.48. See also id. at 82,274-75; 82,277-78. The Court need not

28

consider Plaintiffs’ argument that the Final Rule is based on the same principal justifications that this Court and the Ninth Circuit rejected in considering the Interim Rule. ECF No. 131 at 18-20.

7

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United States District Court Northern District of California

1

Defendants are hereby ORDERED AND ENJOINED, pending final judgment herein or

2 further order of the Court, from taking any action continuing to implement the Final Rule and

3 ORDERED to return to the pre-Final Rule practices for processing asylum applications.

4

IT IS SO ORDERED.

5 Dated: February 16, 2021 6 7

______________________________________
JON S. TIGAR United States District Judge

8

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12

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28 8

 
 Case 4:19-cv-04073-JST Document 145 Filed 04/08/21 Page 1 of 69

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

EAST BAY SANCTUARY COVENANT; AL OTRO LADO; INNOVATION LAW LAB; CENTRAL AMERICAN RESOURCE CENTER,
Plaintiffs-Appellees,
v.

Nos. 19-16487 19-16773
D.C. No. 4:19-cv-04073-
JST

MERRICK B. GARLAND, Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; JEAN KING, Acting Director, Executive Office for Immigration Review (EOIR); EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY; TRACY RENAUD, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services; TROY MILLER, Senior Official Performing the Duties of the Commissioner, U.S. Customs and Border Protection; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; U.S. CUSTOMS AND BORDER PROTECTION; TAE D. JOHNSON,

ORDER AND AMENDED OPINION

Case 4:19-cv-04073-JST Document 145 Filed 04/08/21 Page 2 of 69
2 EAST BAY SANCTUARY COVENANT V. GARLAND
Acting Director, U.S. Immigration and Customs Enforcement; IMMIGRATION AND CUSTOMS ENFORCEMENT,
Defendants-Appellants.
Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding
Argued and Submitted December 2, 2019 San Francisco, California Filed July 6, 2020 Amended April 8, 2021
Before: William A. Fletcher, Richard R. Clifton, and Eric D. Miller, Circuit Judges. Order; Opinion by Judge W. Fletcher; Concurrence by Judge Clifton;
Partial Concurrence and Partial Dissent by Judge Miller

Case 4:19-cv-04073-JST Document 145 Filed 04/08/21 Page 3 of 69
EAST BAY SANCTUARY COVENANT V. GARLAND 3 SUMMARY*
Immigration / Preliminary Injunction
The panel filed: 1) an order denying on behalf of the court a petition for rehearing en banc and amending the opinion filed on July 6, 2020; and 2) an amended opinion affirming the district court’s grant of a preliminary injunction against enforcement, in the four states on the United States-Mexico border, of a Department of Justice and Department of Homeland Security joint interim final rule, entitled “Asylum Eligibility and Procedural Modifications” (the “Rule”), which—with limited exceptions—categorically denies asylum to aliens arriving at the border with Mexico unless they have first applied for, and have been denied, asylum in Mexico or another country through which they have traveled.
Previously, a motions panel denied in part and granted in part the government’s request for an emergency stay pending appeal, staying the injunction only insofar as it applied to states outside the Ninth Circuit. The district court later reinstated its previous preliminary injunction, but the Supreme Court stayed the injunction pending disposition of the appeal in this court and disposition of the government’s petition for a writ of certiorari, if such a writ is filed.
The panel concluded that plaintiffs—nonprofit organizations that represent asylum seekers—had established Article III standing, explaining that the Rule requires a diversion of resources from plaintiffs’ other initiatives, and
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case 4:19-cv-04073-JST Document 145 Filed 04/08/21 Page 4 of 69
4 EAST BAY SANCTUARY COVENANT V. GARLAND
that three of the plaintiffs showed they would lose significant funding due to the Rule.
With respect to the likelihood of success on the merits, the government justified the Rule by relying on 8 U.S.C. § 1158(b)(2)(C), which provides that the “Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum.” Specifically, the government argued that the Rule is consistent with § 1158(a)(2)(A), which bars an alien who can be removed to a safe third country from applying for asylum (“safe-third-country bar”), and 8 U.S.C. § 1158(b)(2)(A)(vi), which bars a grant of asylum to an alien who was firmly resettled in another country prior to arriving in the United States (“firm-resettlement bar”).
The panel held that the Rule is unlawful under the Administrative Procedures Act (“APA”) on the ground that the Rule is not in accordance with law and is in excess of statutory limitations because it is not consistent with 8 U.S.C. § 1158. The panel observed that the government had not asked for deference under Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984), to the agencies’ interpretation of § 1158. However, the panel held, independently of Chevron, that the Rule is not consistent with § 1158. The panel also noted that it would come to the same conclusion even if it were to apply Chevron because the Rule is contrary to the unambiguous language of § 1158.
The panel concluded that the Rule is not consistent with § 1158 because the Rule does virtually nothing to ensure that a third country is a safe option. In so concluding, the panel explained that: 1) the sole protection in the Rule is the requirement that the country be a “signatory” to the 1951

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EAST BAY SANCTUARY COVENANT V. GARLAND 5
Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, neither of which requires a signatory to submit to any meaningful procedures to ensure its obligations are discharged; 2) the Rule lacks the requirements of the safe-third-country bar that there be a formal agreement between the United States and a third country, and that there be a “full and fair” procedure for applying for asylum in that country; and 3) that aliens subject to the Rule cannot conceivably be regarded as firmly resettled in Mexico, as they do not intend to settle in Mexico and have not received an offer of resettlement, as required by the firmresettlement bar. Moreover, the panel explained that the Rule would make superfluous the protection provided by the safethird-country and firm-resettlement bars.
The panel also concluded that the Rule is arbitrary and capricious because: 1) evidence in the record contradicted the agencies’ conclusion that aliens have safe options in Mexico; 2) the agencies had not justified the Rule’s assumption that an alien who has failed to apply for asylum in a third country is, for that reason, not likely to have a meritorious asylum claim; and 3) the agencies failed to adequately consider the effect of the Rule on unaccompanied minors.
Next, the panel agreed with the district court that plaintiffs established a sufficient likelihood of irreparable harm through diversion of resources and the non-speculative loss of substantial funding from other sources. The panel also held that the district court did not abuse its discretion in weighing the balance of equities and the public interest.
As to the scope of the injunction, the panel noted that the motions panel had stayed the injunction insofar as it operated outside the Ninth Circuit. However, the panel concluded it

Case 4:19-cv-04073-JST Document 145 Filed 04/08/21 Page 6 of 69
6 EAST BAY SANCTUARY COVENANT V. GARLAND
was not bound by that decision, noting that this court recently explained in East Bay Sanctuary Covenant v. Biden, No. 1817274, 2020 WL 8970552, at *8 (9th Cir. 2021) (amended opinion), that in deciding whether to stay the grant of a preliminary injunction pending appeal, the motions panel predicts the likelihood of success of the appeal, while the merits panel considers whether the district court abused its discretion in granting the preliminary injunction. Given the differing legal standards and the subsequent record development in this case, the panel concluded the motions panel’s order was not binding.
The panel concluded that the district court did not abuse its discretion in entering an injunction covering the four states along the Mexican border. First, the panel concluded that a limited injunction would not offer complete relief from the harms plaintiffs suffer from their inability to represent and protect aliens seeking to enter the country through Texas or New Mexico. Second, the panel explained that the APA provides that a reviewing court shall hold unlawful and set aside agency action not in accordance with the law; it does not tell a circuit to set aside unlawful agency action only within the geographic boundaries of that circuit. Moreover, the panel noted that cases implicating immigration policy have a particularly strong claim for uniform, nationwide relief, and that the government had failed to distinguish this case from the court’s uncontroverted line of precedent.
Concurring, Judge Clifton wrote that he concurred in the court’s opinion except as to its discussion in part V.D of the scope of the injunction. However, he concurred in the conclusion reached in that section, but only because there did not appear to be sufficient distinction between this case and precedents. To the extent that the opinion in this case

Case 4:19-cv-04073-JST Document 145 Filed 04/08/21 Page 7 of 69
EAST BAY SANCTUARY COVENANT V. GARLAND 7
expressed agreement with or affirmative support for the reasoning behind the relevant portions of those opinions, Judge Clifton did not join the opinion.
Concurring in part and dissenting in part, Judge Miller wrote that he agreed with the court that the rule is invalid, and concurred in the court’s opinion except as to part V.C.1.a, addressing the Attorney General’s statutory authority, and part V.D, addressing the scope of the injunction. Judge Miller wrote separately to elaborate on why, in his view, the rule is arbitrary and capricious, and to explain why the injunction should be limited to asylum seekers having a bona fide client relationship with the plaintiff organizations. Judge Miller also wrote that he would refrain from deciding whether Chevron is subject to waiver or whether the Rule exceeds the scope of the Attorney General’s statutory authority.

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8 EAST BAY SANCTUARY COVENANT V. GARLAND
COUNSEL
Scott G. Stewart (argued), Deputy Assistant Attorney General; Patrick Glen, Senior Litigation Counsel; Erez Reuveni, Assistant Director; William C. Peachey, Director; Jeffrey Bossert Clark, Acting Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Lee Gelernt (argued), Omar C. Jadwat, and Anand Balakrishnan, American Civil Liberties Union Foundation Immigrants’ Rights Project, New York, New York; Katrina Eiland, Cody Wofsy, Spencer Amdur, Julie Veroff, and Morgan Russell, American Civil Liberties Union Foundation Immigrants’ Rights Project, San Francisco, California; Melissa Crow, Southern Poverty Law Center, Washington, D.C.; Baher Azmy, Angelo Guisado, and Ghita Schwarz, Center for Constitutional Rights, New York, New York; Vasudha Talla and Angélica Salceda, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California; for Plaintiffs-Appellees.
Alan E. Schoenfeld and Tara E. Levens, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Peter S. Margulies, Roger Williams University School of Law, Bristol, Rhode Island; Shoba Sivaprasad Wadhia, University Park, Pennsylvania; for Amici Curiae Professors of Immigration Law.
Christopher J. Hajec, Director of Litigation, Immigration Reform Law Institute, Washington, D.C.; Lawrence J. Joseph, Washington, D.C.; for Amicus Curiae Immigration Reform Law Institute.

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EAST BAY SANCTUARY COVENANT V. GARLAND 9
Xavier Becerra, Attorney General; Michael L. Newman, Senior Assistant Attorney General; Susan Slager, Supervising Deputy Attorney General; Marissa Malouff and Erandi Zamora, Deputy Attorneys General; Attorney General’s Office, Los Angeles, California; Maura Healey, Attorney General; David C. Kravitz, Deputy Solicitor General; Abigail B. Taylor, Chief, Civil Rights Division; Office of the Attorney General, Boston, Massachusetts; Philip J. Weiser, Attorney General, Colorado; William Tong, Attorney General, Connecticut; Karl A. Racine, Attorney General, District of Columbia; Kathleen Jennings, Attorney General, Delaware; Clare E. Connors, Attorney General, Hawai‘i; Kwame Raoul, Attorney General, Illinois; Aaron M. Frey, Attorney General, Maine; Brian E. Frosh, Attorney General, Maryland; Dana Nessel, Attorney General, Michigan; Keith Ellison, Attorney General, Minnesota; Aaron D. Ford, Attorney General, Nevada; Gurbir S. Grewal, Attorney General, New Jersey; Hector Balderas, Attorney General, New Mexico; Letitia James, Attorney General, New York; Joshua H. Stein, Attorney General, North Carolina; Ellen F. Rosenblum, Attorney General, Oregon; Josh Shapiro, Attorney General, Pennsylania; Peter F. Neronha, Attorney General, Rhode Island; Thomas J. Donovan Jr., Attorney General, Vermont; Mark R. Herring, Attorney General, Virginia; Robert W. Ferguson, Attorney General, Washington; for Amici Curiae States of California, Massachusetts, Colorado, Connecticut, Delaware, Hawai‘i, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington, and the District of Columbia.

Case 4:19-cv-04073-JST Document 145 Filed 04/08/21 Page 10 of 69
10 EAST BAY SANCTUARY COVENANT V. GARLAND
Muhammad U. Faridi, Stephanie Teplin, and A. Robert Quirk, Patterson Belknap Webb & Tyler LLP, New York, New York, for Amicus Curiae National Citizenship and Immigration Services Council 119.
Barbara J. Parker, City Attorney; Maria Bee, Erin Bernstein, and Malia McPherson, Attorneys; Office of the City Attorney, Oakland, California; Margaret L. Carter and Daniel R. Suvor, O’Melveny & Myers LLP, Los Angeles, California; Anne L. Morgan, City Attorney, Austin, Texas; Andre M. Davis, City Solicitor, Law Department, Baltimore, Maryland; Eugene L. O’Flaherty, Corporation Counsel, Boston, Massachusetts; Mark A. Flessner, Corporation Counsel, Chicago, Illinois; Leslie J. Girard, Acting County Counsel, County of Monterey, Salinas, California; Marc P. Hansen, County Attorney, County of Montgomery, Rockville, Maryland; Georgia M. Pestana, Acting Corporation Counsel, New York, New York; Lyndsey M. Olson, City Attorney, St. Paul, Minnesota; Zach Klein, City Attorney, Columbus, Ohio; Kimberly M. Foxx, States Attorney, County of Cook, Chicago, Illinois; Christopher J. Caso, Interim City Attorney, Dallas, Texas; Angela Wheeler, City Attorney, Flint, Michigan; Dennis J. Herrera, City Attorney, San Francisco, California; James R. Williams, County Counsel, County of Santa Clara, San Jose, California; Erin K. McSherry, City Attorney, Santa Fe, New Mexico; Peter S. Holmes, City Attorney, Seattle, Washington; Eleanor M. Dilkes, City Attorney, Iowa City, Iowa; Michael N. Feuer, City Attorney, Los Angeles, California; Susan Segal, City Attorney, Minneapolis, Minnesota; Francis X. Wright Jr., City Solicitor, Somerville, Massachusetts; William Fosbre, City Attorney, Tacoma, Washington; Michael Rankin, City Attorney, Tucson, Arizona; for Amici Curiae 24 Counties and Cities.

Case 4:19-cv-04073-JST Document 145 Filed 04/08/21 Page 11 of 69
EAST BAY SANCTUARY COVENANT V. GARLAND 11
Blaine Bookey, Anne Peterson, Karen Musalo, and Kate Jastram, Center for Gender & Refugee Studies, U.C. Hastings College of Law, San Francisco, California, for Amici Curiae Non-Profit Organizations and Law School Clinics.
Alice Farmer, Office of the United Nations High Commissioner for Refugees, Washington, D.C.; Patrick W. Pearsall, Karthik P. Reddy, and Vaishalee V. Yeldandi, Jenner & Block LLP, Washington, D.C.; for Amicus Curiae Office of the United Nations High Commissioner for Refugees.
Harold Hongju Koh, Peter Gruber Rule of Law Clinic, New Haven, Connecticut; Phillip Spector, Messing & Spector LLP, Baltimore, Maryland; for Amici Curiae Former National Security Officials.
Scott Shuchart, Kids in Need of Defense, Washington, D.C.; Ilissa S. Samplin and Jennafer Tryck, Gibson Dunn & Crutcher LLP, Los Angeles, California; Rachel S. Brass, Gibson Dunn & Crutcher LLP, San Francisco, California; for Amicus Curiae Kids in Need of Defense.

Case 4:19-cv-04073-JST Document 145 Filed 04/08/21 Page 12 of 69
12 EAST BAY SANCTUARY COVENANT V. GARLAND
ORDER
1. Appellants filed a petition for rehearing en banc on October 5, 2020 (19-16487, Dkt. Entry 117; 19-16773, Dkt. Entry 75). Judges W. Fletcher and Miller have voted to deny the petition for rehearing en banc, and Judge Clifton so recommends. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.
2. The opinion filed on July 6, 2020, is amended as follows:
On page 49, strike the entire second paragraph, starting with, “That decision does not bind this court when sitting as a merits panel.”
Replace it with:
The motions panel’s decision is not binding. As we recently explained in East Bay Sanctuary Covenant v. Biden (“East Bay III”), No. 18-17274, 2020 WL 8970552, at *8 (9th Cir. 2021) (amended opinion), “[i]n deciding whether the court should stay the grant or denial of a preliminary injunction pending appeal, the motions panel is predicting the likelihood of success of the appeal.” (Emphasis added). As in East Bay III, the motions panel considered whether to stay the injunction. We consider whether the district court abused its discretion in granting the preliminary injunction. These are different issues. Moreover, after the motions panel published its opinion, the district court took additional evidence and reinstated its previously entered injunction. Given the differing legal standards and the subsequent record

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EAST BAY SANCTUARY COVENANT V. GARLAND 13
development in this case, the motions panel’s order is not binding. See id.
3. An amended opinion is filed concurrently with this order. No further petitions for rehearing may be filed.
OPINION
W. FLETCHER, Circuit Judge:
On July 16, 2019, the Department of Justice and the Department of Homeland Security published a joint interim final Rule without notice and comment, entitled “Asylum Eligibility and Procedural Modifications” (the “Rule”). With limited exceptions, the Rule categorically denies asylum to aliens arriving at our border with Mexico unless they have first applied for, and have been denied, asylum in Mexico or another country through which they have traveled. We describe the Rule in detail below.
Plaintiffs are nonprofit organizations that represent asylum seekers. They brought suit in district court seeking an injunction against enforcement of the Rule, contending that the Rule is invalid on three grounds: first, the Rule is not “consistent with” Section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158; second, the Rule is arbitrary and capricious; third, the Rule was adopted without notice and comment. The district court found that plaintiffs had a likelihood of success on all three grounds and entered a preliminary injunction against enforcement of the Rule, with effect in the four states on our border with Mexico.

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We hold that plaintiffs have shown a likelihood of success on the first and second grounds. We do not reach the third ground. We affirm.
I. Procedural Background
The district court entered a published order on July 24, 2019, granting relief to plaintiffs. E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019) (“E. Bay I”). The government appealed and sought an emergency stay pending appeal. A motions panel of our court denied in part and granted in part the requested stay. E. Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1028 (9th Cir. 2019) (“E. Bay II”). The motions panel concluded that the government had not made a “strong showing” that it was likely to succeed on its contention that the Rule was properly issued without notice and comment. Id. The panel did not address the government’s other contentions on the merits. It declined to stay the operation of the district court’s injunction within the Ninth Circuit, but granted the stay “insofar as the injunction applies outside the Ninth Circuit, because the nationwide scope of the injunction is not supported by the record as it stands.” Id. One member of the motions panel would have denied the stay request in its entirety. Id. at 1031 (Tashima, J., concurring in part and dissenting in part).
After the motions panel granted the stay with respect to the geographical scope of the injunction, the district court took additional evidence to expand the record. On September 9, 2019, the district court reinstated its previously entered injunction. E. Bay Sanctuary Covenant v. Barr, 391 F. Supp. 3d 974, 985 (N.D. Cal. 2019) (“E. Bay III”). The government again sought an emergency stay pending appeal. By the time the government sought the second stay, the appeal had been

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assigned to a merits panel. On September 10, the merits panel issued a clerk order administratively staying the district court’s injunction in order to allow consideration of the government’s second stay request. On September 11, the Supreme Court issued a one-paragraph order pretermitting any decision by the merits panel on the second stay request. Without addressing either the substantive merits or the scope of the injunction, the Court stayed the district court’s order “in full pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is sought.” Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019). The merits panel heard argument on the government’s appeal on December 2, 2019.
II. Background of the Immigration and Nationality Act
In 1967, the United Nations adopted the Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, 19 U.S.T. 6223, T.I.A.S. No. 6577 (“1967 Protocol”), which largely incorporated the United Nation’s 1951 Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 (“1951 Convention”). The 1967 Protocol and the 1951 Convention defined a “refugee” as someone who is “unable” or “unwilling” to return to his or her country of origin due to a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” See 1951 Convention, art. 1(A); 1967 Protocol, art. 1. In 1968, the United States acceded to the 1967 Protocol, and by extension, the incorporated 1951 Convention. See INS v. Cardoza-Fonseca, 480 U.S. 421, 436–37 (1987).

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A decade later, Congress passed the Refugee Act of 1980, Pub. L. No. 96–212, 94 Stat. 102 (1980), amending the Immigration and Nationality Act (“INA”). “As [the U.S. Supreme Court] has twice recognized, one of Congress’ primary purposes in passing the Refugee Act was to implement the principles agreed to in the [1967 Protocol] as well as the [1951 Convention].” Negusie v. Holder, 555 U.S. 511, 520 (2009) (internal quotations and citations omitted); see generally Deborah E. Anker & Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980, 19 San Diego L. Rev. 9, 46 (1981) (“Anker & Posner”); Stephen H. Legomsky & Cristina M. Rodríguez, Immigration and Refugee Law and Policy 883 (5th ed. 2009) (“Legomsky & Rodríguez”).
Among other reforms, the Refugee Act codified the 1967 Protocol’s definition of “refugee.” See Pub. L. No. 96–212, § 201(a), 94 Stat. 102, 102. In relevant part, the INA defines refugees as persons outside of their own country who are “unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42).
The Refugee Act also codified procedures for determining eligibility for asylum. It required the Attorney General to create an “asylum procedure” under which any alien “physically present in the United States or at a land border or port of entry, irrespective of such alien’s status” could apply for asylum. Pub. L. No. 96–212, § 208, 94 Stat. 102, 105; cf. 8 U.S.C. § 1158(a)(1) (modern equivalent). In explaining this provision, the House Report emphasized that the Act’s asylum procedure was designed to give full effect to our treaty obligations:

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The Committee wishes to insure a fair and workable asylum policy which is consistent with this country’s tradition of welcoming the oppressed of other nations and with our obligations under international law . . . . The Committee intends to monitor closely the Attorney General’s implementation of the section so as to insure the rights of those it seeks to protect.
H.R. Rep. No. 96–608 (“H.R. Rep.”) at 17–18 (1979) (emphasis added).
Finally, the Refugee Act codified exceptions to eligibility for asylum. As discussed in detail below, the codified exceptions paralleled exceptions to removal relief contained in the 1951 Convention. See H.R. Rep. at 18 (“The exceptions [to withholding of removal] are those provided in the [1951] Convention.”); Legomsky & Rodríguez at 1016.
III. Asylum Under the Immigration and Nationality Act
Refugees, as defined in 8 U.S.C. § 1101(a)(42)(A), are eligible to apply for asylum. The burden of proof to show refugee status falls on the applicant. “To establish that the applicant is a refugee . . . , the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i).
Subject to certain statutory exceptions, an alien “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival

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. . . )” is eligible to apply for asylum. Id. § 1158(a)(1). Those exceptions include: aliens who may be “removed” to a “safe third country”; aliens who did not apply for asylum within one year after arrival in the United States; and aliens who previously applied for, and were denied, asylum. See id. § 1158(a)(2)(A)–(C). The safe-third-country provision and the one-year filing deadline do not apply to unaccompanied children. Id. § 1158(a)(2)(E).
Again subject to certain statutory exceptions, the Attorney General or the Secretary of Homeland Security may grant asylum to refugees who are eligible to apply for asylum. Id. § 1158(b)(1). Those exceptions include aliens who have persecuted others on account of a protected ground; aliens who have been convicted of particularly dangerous crimes; aliens for whom there are serious reasons to believe they have committed serious nonpolitical crimes outside the United States; aliens for whom there are reasonable grounds to believe they are terrorists or a danger to the security of the United States; and aliens who have “firmly resettled in another country prior to arriving in the United States.” See id. § 1158(b)(2)(A)(i)–(vi).
Two of the exceptions—or asylum bars—are directly relevant to the appeal before us. First, an alien subject to the “safe third country” provision may not apply for asylum. Id. § 1158(a)(2)(A). Second, neither the Attorney General nor the Secretary of Homeland Security may grant asylum to an alien who was “firmly resettled” in another country prior to arriving in the United States. Id. § 1158(b)(2)(A)(vi). We describe these two asylum bars in turn.

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A. Safe-Third-Country Bar
In 1995, the Attorney General promulgated a regulation allowing discretionary denials of asylum in certain circumstances where asylum or its near equivalent was available in a safe third country. 8 C.F.R. § 208.15 (1995). A year later, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, § 604, Pub. L. No. 104–208, 110 Stat. 3009, 3009–690 (1996) (“IIRIRA”), Congress codified, with some changes, the Attorney General’s regulation. Section 1158(a)(2)(A), the safe-thirdcountry bar, provides:
Paragraph [a](1) [authorizing refugees to apply for asylum] shall not apply to an alien if the Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country . . . in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection . . . .
(emphases added.)
As indicated by the italicized language, there are two core requirements that must be satisfied before the safe-thirdcountry bar applies. First, there must be an agreement between the United States and another country to which the alien would be removed and in which the alien would not be subject to persecution. Second, the country with which the

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United States has such an agreement must allow access to a “full and fair” procedure for determining eligibility for asylum or equivalent temporary protection.
In 2002, the United States entered into a safe-thirdcountry agreement with Canada. See Agreement Between the Government of the United States of America and the Government of Canada for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, Can.–U.S., Dec. 5, 2002, T.I.A.S. No. 04-1229 (2004). When the Rule was issued, the United States had entered into no other safe-third-country agreement.
B. Firm-Resettlement Bar
A firm-resettlement bar was first incorporated into United States law in the Displaced Persons Act of 1948. See Pub. L. No. 80–774, 62 Stat. 1009 (1948); Rosenberg v. Woo, 402 U.S. 49, 53–54 (1971). The bar was carried over into the Refugee Relief Act of 1953. See Pub. L. No. 83–203, 67 Stat. 400 (1953). The firm resettlement language was dropped from the Refugee Relief Act of 1957, see Pub. L. No. 85–316, 71 Stat. 639 (1957), but the concept of firm resettlement remained in refugee admissions even without an explicit statutory reference. See Rosenberg, 402 U.S. at 53–58. The Refugee Act of 1980 again codified the firm-resettlement bar. Pub. L. No. 96–212, § 207(c)(1), 94 Stat. 102, 103.
In 1996, Congress included the firm-resettlement bar in IIRIRA. The current statutory language provides:
Paragraph [b](1) [authorizing discretionary grants of asylum] shall not apply to an alien if the Attorney General determines that—

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. . .
(vi) the alien was firmly resettled in another country prior to arriving in the United States.
8 U.S.C. § 1158(b)(2)(A). The current implementing regulation provides:
An alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement unless he or she establishes:
(a) That his or her entry into that country was a necessary consequence of his or her flight from persecution, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country; or
(b) That the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled. In making his or her determination, the asylum officer or immigration judge shall consider the conditions under which other residents of the country live; the type of

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housing, whether permanent or temporary, made available to the refugee; the types and extent of employment available to the refugee; and the extent to which the refugee received permission to hold property and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or reentry, education, public relief, or naturalization, ordinarily available to others resident in the country.
8 C.F.R. § 208.15.
A determination whether the firm-resettlement bar applies entails a two-step process. First, the government has the “initial burden of showing that the government of the third country issued to the alien a formal offer of some type of official status permitting the alien to reside in that country indefinitely.” Maharaj v. Gonzales, 450 F.3d 961, 976 (9th Cir. 2006) (en banc). Second, if the government has carried its initial burden, “the burden shifts to the applicant to show that the nature of his stay and ties was too tenuous, or the conditions of his residence too restricted, for him to be firmly resettled.” Id. at 976–77. See also Arrey v. Barr, 916 F.3d 1149, 1159 (9th Cir. 2019) (reciting the two-step process outlined in Maharaj).
IV. The Rule
On July 16, 2019, the Departments of Justice and Homeland Security jointly issued an interim final Rule governing aliens who travel through a “third country” before reaching the southern land border of the United States. See

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Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,830 (July 16, 2019) (codified at 8 C.F.R. §§ 208, 1003, 1208). The Rule provides:
Notwithstanding the provisions of [8 C.F.R.] § 208.15 [the regulation implementing the firm-resettlement bar], any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019 after transiting through at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States, shall be found ineligible for asylum unless:
(i) The alien demonstrates that he or she applied for protection from persecution or torture in at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States, and the alien received a final judgment denying the alien protection in such country;
(ii) The alien demonstrates that he or she satisfies the definition of “victim of a severe form of trafficking in persons” provided in 8 CFR 214.11; or
(iii) The only countries through which the alien transited en route to the United States were, at the time of the transit, not parties to the 1951 United Nations Convention relating

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to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
8 C.F.R. § 208.13(c)(4); see also id. § 1208.13(c)(4).
In effect, the Rule requires Guatemalan aliens reaching our southern border to apply for, and then be finally denied, asylum by Mexico before they are eligible to apply for asylum in the United States. The same requirement applies to aliens who arrived in Mexico from other countries by plane or ship before traveling to our southern border. Aliens traveling overland from El Salvador, Honduras, or other countries south of Guatemala, must apply for and be finally denied asylum by Mexico, Guatemala, or another country through which they traveled.
The Rule further provides that aliens ineligible for asylum under § 208.13(c)(4) are automatically and conclusively determined not to have a “credible fear” of persecution in their home countries:
If the alien is found to be an alien described as ineligible for asylum in § 208.13(c)(4), then the asylum officer shall enter a negative credible fear determination with respect to the alien’s application for asylum.
8 C.F.R. § 208.30(e)(5)(iii).
The Rule applies only to aliens seeking asylum. It does not apply to aliens seeking withholding of removal or relief

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under the Convention Against Torture (“CAT”). The standards for granting withholding or CAT relief are higher than those governing a grant of asylum. See Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014). Most important, an applicant for withholding or CAT relief must establish a “reasonable fear” of persecution or torture rather than merely a “credible fear.” See 8 C.F.R. §§ 208.30(e)(5)(iii), 1208.16(c)(2). Further, relief under withholding of removal and under CAT is less advantageous than asylum relief. For example, “[u]nlike an application for asylum, [] a grant of an alien’s application for withholding is not a basis for adjustment to legal permanent resident status, family members are not granted derivative status, and [the relief] only prohibits removal of the petitioner to the country of risk, but does not prohibit removal to a non-risk country.” Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004) (citation omitted and alteration in original).
V. Discussion
A. Standard of Review
We review “the district court’s decision to grant or deny a preliminary injunction for abuse of discretion.” Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017) (internal quotation marks omitted). “The scope of the preliminary injunction, such as its nationwide effect, is . . . reviewed for abuse of discretion.” California v. Azar, 911 F.3d 558, 568 (9th Cir. 2018). We review legal conclusions de novo and underlying factual findings for clear error. Hernandez, 872 F.3d at 987.

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B. Article III Standing
The government challenged plaintiffs’ Article III standing in the district court. In this court, it challenges their Article III standing only in a footnote. We sometimes treat as waived arguments that are made in such a perfunctory manner, see Estate of Saunders v. Comm’r, 745 F.3d 953, 962 n.8 (9th Cir. 2014), but we have an independent obligation to determine our jurisdiction under Article III.
An organization can assert Article III standing on behalf of either its members or the organization itself. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982). An organization may establish standing on its own behalf by showing that the defendant’s conduct resulted in “a diversion of its resources and frustration of its mission,” Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002) (discussing Havens Realty), or caused a substantial loss in organizational funding, East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 766–67 (9th Cir. 2018) (“Trump I”). Of course, an organization cannot “manufacture the injury by incurring litigation costs or simply choosing to spend money fixing a problem that would not affect the organization at all.” La Asociacion de Trabajadores de Lake Forest v. Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). “It must instead show that it would have suffered some other injury if it had not diverted resources to counteracting the problem.” Id.
Plaintiffs are nonprofit organizations that represent and assist asylum seekers in the United States and in Mexico. Plaintiffs argue that the Rule frustrates their mission of providing legal aid to affirmative asylum applicants because it renders “a large number” of potential applicants categorically ineligible for asylum and thus “significantly

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discourages” them from applying. Trump I, 932 F.3d at 766. The district court found that plaintiffs “offered uncontradicted evidence that enforcement of the Rule has required, and will continue to require, a diversion of resources . . . from their other initiatives.” E. Bay I, 385 F. Supp. 3d at 937. For example, East Bay Sanctuary Covenant, which focuses on filing affirmative asylum applications, would have to “overhaul” its affirmative asylum practice into a removal defense program, diverting resources to develop new materials and train existing staff. Trump I, 932 F.3d at 766. Because forms of relief from removal other than asylum do not allow applicants to file derivative applications for family members, plaintiffs must divert resources to filing a greater number of applications for each family-unit client. Id. The district court also found that three of the plaintiffs showed that they would lose significant funding because a large portion of their funding was tied to the number of asylum applications pursued, and a significant majority of their clients were now categorically ineligible for asylum. E. Bay I, 385 F. Supp. 3d at 937; see also Trump I, 932 F.3d at 767.
Plaintiffs’ injuries are not “manufacture[d] . . . injur[ies]” addressing “a problem that would not affect the organization at all.” Lake Forest, 624 F.3d at 1088. The injuries affect plaintiffs’ core mission and their organizational funding, and are sufficient to establish standing. We note that we recently held that the same four plaintiffs, asserting the same harms resulting from a different agency rule limiting asylum eligibility, had standing to challenge that rule. See E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1265–68 (9th Cir. 2020) (“Trump II”).

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C. Preliminary Injunction
On a motion for a preliminary injunction, plaintiffs must make a “threshold showing” of four factors. Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per curiam). Plaintiffs must show that (1) they are likely to succeed on the merits, (2) they are likely to “suffer irreparable harm” without relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest. Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). “When the government is a party, these last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).
We consider them in turn.
1. Likelihood of Success on the Merits
To show a likelihood of success on the merits, plaintiffs must show that the Rule is likely to be held unlawful agency action under the Administrative Procedure Act (“APA”). In relevant part, the APA provides:
The reviewing court shall—
. . .
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—

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(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
. . .
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; [or]
(D) without observance of procedure required by law[.]
5 U.S.C. § 706(2).
Plaintiffs allege that the Rule is unlawful under the APA on three grounds. First, under § 706(2)(A) and (C), the Rule is “not in accordance with law” and is “in excess of statutory . . . limitations” because it is not “consistent with” § 1158. 8 U.S.C. § 1158(b)(2)(C). Second, under § 706(2)(A), the Rule is “arbitrary” and “capricious” because it “runs counter to the evidence before the agency” and because the agencies “entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“State Farm”). Third, under § 706(2)(D), the Rule was adopted “without observance of procedure required by law” because it was adopted without notice and comment. The district court agreed with plaintiffs on all three grounds. We affirm on the first two. We do not reach the third.

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a. “Not in Accordance with Law” or “in Excess of Statutory Limitations”
The Rule creates a bar to asylum, in addition to the asylum bars that already exist in § 1158. To justify the additional bar, the government relies on § 1158(b)(2)(C), which provides that “[t]he Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph [b](1).” (emphasis added).
An agency action must be “set aside” if it is “not in accordance with law,” or “in excess of statutory jurisdiction, authority, or limitations.” 5 U.S.C. § 706(2)(A), (C). When a plaintiff alleges a violation of a statute by a federal agency, we generally apply Chevron to determine whether to defer to the agency’s interpretation of the statute. See, e.g., Nw. Envt’l Advocates v. EPA, 537 F.3d 1006, 1014 (9th Cir. 2008) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984)). In the case before us, however, the government has not asked for deference under Chevron to the agencies’ interpretation of § 1158. The government did not mention Chevron in its briefs and specifically disclaimed reliance on Chevron during oral argument. We hold, independently of Chevron, that the Rule is not “consistent with” § 1158. We note, however, that we would come to the same conclusion even if we were to apply Chevron, for the Rule is contrary to the unambiguous language of § 1158.
The question before us is whether the Rule is “consistent with” § 1158, as required by § 1158(b)(2)(C). For the reasons that follow, we conclude that it is not, and the Rule is

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therefore “not in accordance with law,” and is “in excess of statutory . . . limitations.” 5 U.S.C. § 706(2)(A), (C).
Asylum bars under § 1158 fall into two broad categories. As relevant here, the first category covers aliens who may otherwise be entitled to asylum but who pose a threat to society—aliens who have persecuted others, aliens who have been convicted of particularly serious crimes, aliens who may have committed serious non-political crimes outside the United States, and aliens who may be terrorists or a danger to the security of the United States. See 8 U.S.C. § 1158(b)(2)(A)(i)–(iv). The second category covers aliens who do not need the protection of asylum in the United States—aliens who may be removed to a safe third country, and aliens who have firmly resettled in another country. See id. § 1158(a)(2)(A) and (b)(2)(A)(vi).
Section 1158 is rooted in the 1951 Convention, which excludes from protection two broad categories of aliens—those persons “considered not to be deserving of international protection,” and those persons “not considered to be in need of international protection.” U.N. High Commissioner for Refugees (“UNHCR”) Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979) (“Handbook”), ch. 4, ¶¶ 144–63 (emphases added); see Cardoza-Fonseca, 480 U.S. at 439 n.22 (noting that Handbook provides “significant guidance” in interpreting refugee law); Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005) (same). Specifically, the 1951 Convention recognizes that a nation may justifiably exclude persons convicted of certain crimes, such as a “serious non-political crime” from entering its borders, 1951 Convention, art. 1(F)(b), and persons who have found full “rights and obligations” in a third country, id., art. 1(E). See Hernandez-

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Ortiz v. INS, 777 F.2d 509, 519 (9th Cir. 1985) (noting that denial of asylum must be on grounds either “involving the national interest or the welfare of the community, or . . . relating to the existence of other means of ensuring the safety and security of the alien.”), superseded on other grounds by statute, see Parussimova v. Mukasey, 555 F.3d 734, 739–40 (9th Cir. 2009). Scholars have noted that the bars of § 1158 “rough[ly] parallel[]” the bars of the 1951 Convention. Legomsky & Rodríguez at 1016; see also Deborah E. Anker, Discretionary Asylum: A Protection Remedy for Refugees Under the Refugee Act of 1980, 28 Va. J. Int’l L. 1, 50–51, 55–60 (1987).
The government does not argue that aliens subject to the Rule are similar to aliens barred because they are persecutors, criminals, or a threat to national security. That is, it does not argue that the Rule furthers the purpose and is therefore “consistent with” § 1158(b)(2)(A)(i)–(iv). Rather, the government argues that the Rule is “consistent with” the safethird-country and firm-resettlement bars. See 8 U.S.C. § 1158(a)(2)(A) and (b)(2)(A)(vi).
The safe-third-country and firm-resettlement bars “limit an alien’s ability to claim asylum in the United States when other safe options are available.” Matter of B-R-, 26 I. & N. Dec. 119, 122 (BIA 2013). These two asylum bars are consistent with the “core regulatory purpose of asylum,” which is “to protect [refugees] with nowhere else to turn,” because “by definition” an applicant barred by a safe-place provision has somewhere else to turn. Id.; Yang v. INS, 79 F.3d 932, 939 (9th Cir. 1996).
A critical component of both bars is the requirement that the alien’s “safe option” be genuinely safe. The safe-third-

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country bar requires that the third country enter into a formal agreement with the United States; that the alien will not be persecuted on account of a protected ground in that country; and that the alien will have access to a “full and fair” asylum procedure in that country. 8 U.S.C. § 1158(a)(2)(A). “The requirement of a pre-existing [safe-third-country] agreement was an essential procedural safeguard agreed to among members of Congress to prevent arbitrary denials of asylum.” Understanding the 1996 Immigration Act § 2–6 (Juan P. Osuna ed., 1997). The firm-resettlement bar requires the government to make an individualized determination whether an alien has truly been firmly resettled, or, if only an offer of permanent resettlement has been made, an individualized determination whether an alien has too tenuous a tie to the country making the offer or is too restricted by that country’s authorities. 8 C.F.R. § 208.15(a), (b); Arrey, 916 F.3d at 1159. The safe-place requirements embedded in the safethird-country and firm-resettlement bars “ensure that if [the United States] denies a refugee asylum, the refugee will not be forced to return to a land where he would once again become a victim of harm or persecution”—an outcome which “would totally undermine the humanitarian policy underlying the regulation.” Andriasian v. INS, 180 F.3d 1033, 1046–47 (9th Cir. 1999).
In stark contrast to the safe-third-country and firmresettlement bars, “the Rule does virtually nothing to ensure that a third country is a ‘safe option.’” E. Bay I, 385 F. Supp. 3d at 944. The sole protection provided by the Rule is its requirement that the country through which the barred alien has traveled be a “signatory” to the 1951 Convention and the 1967 Protocol. This requirement does not remotely resemble the assurances of safety built into the two safe-place bars of § 1158. A country becomes a signatory to the Convention

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and the Protocol merely by submitting an instrument of accession to the U.N. Secretary General. It need not “submit to any meaningful international procedure to ensure that its obligations are in fact discharged.” See Declaration of Deborah Anker, Harvard Law School, & James C. Hathaway, University of Michigan Law School, ¶¶ 5, 7. Many of the aliens subject to the Rule are now in Mexico. They have fled from Guatemala, Honduras, and El Salvador. All four of these countries are parties to the Convention and Protocol. 84 Fed. Reg. at 33,839.
The Rule superficially resembles the safe-third-country bar in that aliens subject to the Rule are in a third country, and they must apply for asylum in that country (Mexico) or must have previously applied for asylum in another third country (Guatemala). Similarly, the safe-third-country bar under § 1158(a)(2)(A) allows the United States to deny asylum on the ground that the alien may be removed to and apply for asylum in a safe third country. But entirely absent from the Rule are the requirements under § 1158(a)(2)(A) that there be a formal agreement between the United States and the third country, and that there be a “full and fair” procedure for applying for asylum in that country.
The Rule does not even superficially resemble the firmresettlement bar. The firm-resettlement bar denies asylum to aliens who have either truly resettled in a third country, or have received an actual offer of firm resettlement in a country where they have ties and will be provided appropriate status. Aliens subject to the Rule cannot conceivably be regarded as firmly resettled in Mexico. They do not intend to settle in Mexico. They have been there only for the time necessary to reach our border and apply for asylum. Nor have they received an offer of resettlement. Even if they were to

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receive such an offer, they have no ties to Mexico. The Supreme Court has long recognized that the firm-resettlement bar does not bar aliens who have merely traveled through third countries, since “many refugees make their escape to freedom from persecution in successive stages and come to this country only after stops along the way.” Rosenberg, 402 U.S. at 57 n.6. The BIA has likewise understood that denial of asylum cannot be predicated solely on an alien’s transit through a third country. See Matter of Soleimani, 20 I. & N. Dec. 99, 103 (BIA 1989); see also Matter of Pula, 19 I. & N. Dec. 467, 473–74 (BIA 1987); E. Bay I, 385 F. Supp. 3d at 940.
“A statute should be construed so that . . . no part will be inoperative or superfluous, void or insignificant.” Hibbs v. Winn, 542 U.S. 88, 101 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction § 46.06, at 181–86 (rev. 6th ed. 2000)). In enacting the two safe-place bars, Congress specifically addressed the circumstances in which an alien who has traveled through, or stayed in, a third country can be deemed sufficiently safe in that country to warrant a denial of asylum in the United States. The administration’s new Rule would make entirely superfluous the protection provided by the two safe-place bars in § 1158. Under the Rule, the government need neither enter into a safe-third-country agreement, nor show firm resettlement in Mexico, in order to deny asylum. The government need only show that an alien from Guatemala, Honduras, or El Salvador has arrived at our southern border with Mexico.
The government makes essentially two arguments in favor of the Rule. Neither argument is convincing.

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First, the government argues that a holding that the Rule is not “consistent with” § 1158 would require a “fieldpreemptive” reading of § 1158, restricting the Attorney General to limiting eligibility for asylum only as specifically provided by its two safe-place provisions. The government argues that such a “field-preemptive” reading is inconsistent with the statute’s grant of authority to the Attorney General in § 1158(b)(2)(C) to establish by regulation “additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph [b](1).”
Contrary to the government’s argument, § 1158(b)(2)(C) need not be read—and we do not read it—as preempting the field, such that the government is entirely disabled from promulgating regulations with “additional limitations and conditions” under which an alien would be ineligible for asylum. That is, we do not read the “consistent with” language of § 1158(b)(2)(C) as limiting the Attorney General’s authority to the literal terms of the two safe-place statutory bars. But we do read the words “consistent with” as limiting the scope of that authority. We put to one side as irrelevant for present purposes the one-year time bar and regulations that are directed to persecutors, criminals, and threats to national security. For the rest, regulations imposing additional limitations and conditions under § 1158(b)(2)(C) must be consistent with the core principle of § 1158(a)(2)(A) and (b)(2)(A)(vi)—that an otherwise qualified alien can be denied asylum only if there is a “safe option” in another country. If such a regulation ensures a genuinely safe option in another country, that regulation would be “consistent with” § 1158. However, the challenged Rule does no such thing.

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Second, pointing to the Attorney General’s discretion to deny asylum to eligible aliens, the government suggests that the Attorney General has equivalent discretion to establish criteria for asylum eligibility. The government writes in its brief, “The asylum statute makes clear that asylum is always a matter of executive ‘discretion’ and never a matter of ‘entitlement.’” 1 Gov’t Br. 26 (quoting Cardoza-Fonseca, 480 U.S. at 428 n.6 and citing 8 U.S.C. § 1158(b)(1)(A)) (emphasis added). The government writes in the next sentence: “The asylum statute also makes clear that the Executive may exercise its discretion through categorical rules, not just through case-by-case adjudication.” Id. (emphasis added).
In juxtaposing these two sentences, the government suggests that the Attorney General’s discretion to deny asylum under § 1158(b)(1)(A) is equal in scope to his discretion to prescribe criteria for eligibility for asylum. This suggestion is based on a misunderstanding of the Attorney General’s discretion to deny asylum under § 1158(b)(1)(A). The Supreme Court in Cardoza-Fonseca noted that the Attorney General has broad discretion to deny asylum under § 1158(b)(1)(A), but it made clear that this discretion may be exercised only with respect to aliens who are eligible for asylum: “[A]n alien who satisfies the applicable standard under § [1158](a) does not have a right to remain in the United States; he or she simply is eligible for asylum, if the Attorney General, in his discretion, chooses to grant it.” Cardoza-Fonseca, 480 U.S. at 443 (emphasis in original). Discretion to deny asylum to eligible aliens, as in CardozaFonseca, is different from discretion to prescribe criteria for asylum eligibility. Unlike the broad discretion to deny asylum to aliens who are eligible for asylum, the discretion to prescribe criteria for eligibility is constrained by

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§ 1158(b)(2)(C), which allows the Attorney General to “establish additional limitations and conditions . . . under which an alien shall be ineligible for asylum” only so long as those limitations and conditions are “consistent with” § 1158.
If the Attorney General’s discretion to add limitations and conditions for asylum eligibility were the same as his discretion to deny asylum to eligible aliens, the “consistent with” language in § 1158(b)(2)(C) would be superfluous. Under the canons of construction, we should avoid an interpretation of statutory language that would produce superfluity. But even without resort to the canons, we can be confident that the “consistent with” language is not, and was not intended to be, superfluous. The legislative history of IIRIRA emphasizes the importance Congress attached to the constraints on the Attorney General’s discretion to prescribe criteria for asylum eligibility. When enacting IIRIRA, Congress went out of its way to insert the “consistent with” language into § 1158(b)(2)(C), adding it to an earlier draft of IIRIRA that had not contained that language. Compare H.R. Rep. No. 104-469, at 80 (1996), with H.R. Rep. No. 104-828, at 164 (1996) (Conf. Rep.).
b. Arbitrary and Capricious
“[T]he touchstone of ‘arbitrary and capricious’ review . . . is ‘reasoned decisionmaking.’” Altera Corp. & Subsidiaries v. Comm’r of Internal Revenue, 926 F.3d 1061, 1080 (9th Cir. 2019) (quoting State Farm, 463 U.S. at 52).
The Rule is arbitrary and capricious for three reasons. First, evidence in the record contradicts the agencies’ conclusion that aliens barred by the Rule have safe options in Mexico. Second, the agencies have not justified the Rule’s

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assumption that an alien who has failed to apply for asylum in a third country is, for that reason, not likely to have a meritorious asylum claim. Finally, the agencies failed to adequately consider the effect of the Rule on unaccompanied minors.
i. Safe Option
Consistent with the “core regulatory purpose” of asylum to “protect [refugees] with nowhere else to turn,” Matter of BR-, 26 I. & N. Dec at 122, the Rule must ensure some degree of safety for aliens barred from asylum. Quoting from the agencies’ analysis of, and justification for, the Rule, the government argues in its brief that “applicants covered by the bar do ‘have [an] alternative country where they can escape persecution or torture.’” 1 Gov’t Br. 16 (quoting 84 Fed. Reg. at 33,840); see also 84 Fed. Reg. at 33,840 (characterizing aliens subject to the Rule as “aliens without a genuine need for asylum”). The government contends that Mexico offers a “feasible alternative” to relief in the United States. 1 Gov’t Br. 39–41. At oral argument, the government stated that the Rule is “consistent with the aim and thrust of those other two bars,” which “set out situations where somebody has such a good circumstance or . . . place to live, that they categorically do not need asylum from this country.” The government writes further in its brief, “[A]s even the district court’s review shows, Mexico has a robust refugeeprotection system, which is improving in conjunction with guidance from international partners.” 1 Gov’t Br. 40. (citing E. Bay I, 385 F. Supp. 3d at 952–54).
The government misrepresents both the record and the district court’s opinion.

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In the pages of its opinion cited by the government, the district court described and analyzed the record:
The statistics regarding the number of claims submitted in Mexico contradict the government’s suggestion that Mexico provides an adequate alternative. . . . [T]he administrative record fails to support the conclusion that asylum in Mexico is a “feasible alternative.”
. . . [N]owhere in the Rule do the agencies find that Mexico “in compliance with the relevant international instruments governing consideration of refugee claims.” Nor does the government cite any finding in the Rule that Mexico’s “domestic law and procedures regarding such relief are robust and capable of handling claims made by Central American aliens in transit to the United States.” . . . With limited exceptions that are at best unresponsive to the question, the cited evidence consists simply of an unbroken succession of humanitarian organizations explaining why the government’s contention is ungrounded in reality.
First, the government cites a report from the international organization, Médecins Sans Frontières, Forced to Flee Central America’s Northern Triangle: A Neglected Crisis (May 2017). AR 286–317. The report found that, during transit through Mexico, “68.3 percent of people from the [Northern Triangle]

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reported that they were victims of violence,” and that “31.4 percent of women and 17.2 percent of men had been sexually abused.” AR 296–97. . . .
Second, an April 2019 factsheet from the United Nations High Commissioner for Refugees (“UNHCR”) lists “strong obstacles to accessing the asylum procedure” in Mexico[.] . . . AR 534. . . . The UNHCR also observed that . . . “[w]omen and girls in particular are at risk of sexual and genderbased violence. Id. . . .
Third, the government cites to the UNHCR’s July 2018 review of Mexico’s refugee process. AR 638–57. The report notes two positive developments in response to a prior round of recommendations, AR 639, but documents a host of additional problems. . . . [T]he UNHCR highlighted ongoing problems in the areas of (1) “[s]exual and gender-based violence against migrants, asylum-seekers, and refugees”; (2) “[d]etention of migrants and asylum seekers, particularly children and other vulnerable persons”; and (3) “[a]ccess to economic, social and cultural rights for asylum-seekers and refugees.” AR 640–42.
Fourth, the government relies on a November 2018 factsheet from Human Rights First, which asks: “Is Mexico Safe for Refugees and Asylum Seekers?” AR 702.

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Answering in the negative, the factsheet explains that “many refugees face deadly dangers in Mexico. For many, the country is not at all safe.” Id. (emphasis in original). Human Rights First notes that “refugees and migrants face acute risks of kidnapping, disappearance, sexual assault, trafficking, and other grave harms in Mexico[.]” . . .
Fifth, the government cites to a 2018 report from Amnesty International entitled “Overlooked, Under-Protected: Mexico’s Deadly Refoulement of Central Americans Seeking Asylum.” AR 704–27. As its title suggests, the report concluded that “the Mexican government is routinely failing in its obligations under international law to protect those who are in need of international protection[.] . . .
Sixth, the government points to a New York Times article, ‘They Were Abusing Us the Whole Way’: A Tough Path for Gay and Trans Migrants (July 11, 2018). AR 756–66. The article notes that “[t]rans women in particular encounter persistent abuse and harassment in Mexico at the hands of drug traffickers, rogue immigration agents and other migrants.” AR 758. . . .
Additional portions of the administrative record not cited by the government bolster the already overwhelming evidence on this point. . . .

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In sum, the bulk of the administrative record consists of human rights organizations documenting in exhaustive detail the ways in which those seeking asylum in Mexico are (1) subject to violence and abuse from third parties and government officials, (2) denied their rights under Mexican and international law, and (3) wrongly returned to countries from which they fled persecution. Yet, even though this mountain of evidence points one way, the agencies went the other—with no explanation.
E. Bay I, 385 F. Supp. 3d at 952–55 (emphases in original).
An agency must “examine the relevant data and articulate a satisfactory explanation for its action.” State Farm, 463 U.S. at 43. “Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id. In promulgating the Rule, the agencies “entirely failed to consider an important aspect of the problem.” Id. Further, the agencies’ conclusion that aliens barred by the Rule have a safe alternative in Mexico “runs counter to the evidence before the agency.” Id.

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ii. Likely Merit of the Aliens’ Asylum Claims
The government argues that the Rule relieves strain on an overburdened asylum system by screening out meritless asylum claims. In support of the Rule, the agencies wrote:
By deterring meritless asylum claims and deprioritizing the applications of individuals who could have sought protection in another country before reaching the United States, the Departments seek to ensure that those asylees who need relief most urgently are better able to obtain it.
The interim rule would further this objective by restricting the claims of aliens who, while ostensibly fleeing persecution, chose not to seek protection at the earliest opportunity, . . . and instead wait for the more preferred destination of the United States, raises questions about the validity and urgency of the alien’s claim and may mean that the claim is less likely to be successful.
84 Fed. Reg. at 33,839. The Rule assumes, based solely on the fact that an alien has not applied for asylum in Mexico or Guatemala, that the alien’s asylum claim in the United States is “less likely to be successful.” Based on that assumption, the Rule categorically requires that an asylum officer “enter a negative credible fear determination with respect to the alien’s application for asylum.” 8 C.F.R. § 208.30(e)(5)(iii). That is, the Rule categorically requires an asylum officer to disbelieve aliens from Guatemala, Honduras, or El Salvador who have not applied for asylum in Mexico or Guatemala and

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who claim to have a fear that would justify a grant of asylum. There is no evidence in the record to support the Rule’s assumption that such aliens are not credible.
We have held in a long line of cases that the failure to apply for asylum in a country through which an alien has traveled has no bearing on the validity of an alien’s claim for asylum in the United States. For example, we wrote in Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir. 1986), that an asylum applicant’s “failure to apply for asylum in any of the countries through which he passed or in which he worked prior to his arrival in the United States does not provide a valid basis for questioning the validity of his persecution claims.” The fact that an alien might prefer to seek asylum in the United States rather than Mexico or Guatemala may be reflective of the relative desirability of asylum in these countries, but it has no bearing on the validity of the alien’s underlying asylum claim. See, e.g., GarciaRamos v. INS, 775 F.2d 1370, 1374–75 (9th Cir. 1985) (“We do not find it inconsistent with a claimed fear of persecution that a refugee, after he flees his homeland, goes to the country where he believes his opportunities will be best.”); see also Dai v. Sessions, 884 F.3d 858, 873 (9th Cir. 2018); Li v. Holder, 559 F.3d 1096, 1105 (9th Cir. 2009); Melkonian v. Ashcroft, 320 F.3d 1061, 1068 (9th Cir. 2003).
The government argued in the district court that an alien’s failure to apply for asylum in a country through which the alien had passed can be a legitimate—indeed the sole—factor to be considered in determining whether the alien has a credible fear of persecution and is thus eligible to apply for asylum in the United States. The sole case relied upon by the government to support this argument was Matter of Pula, 19 I. & N. Dec. 467 (BIA 1987). See E. Bay I, 385 F. Supp.

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3d at 946–47. The agencies had similarly relied on Matter of Pula in support of the Rule. See 84 Fed. Reg. at 33,839 n.8. The district court pointed out that Matter of Pula has been superseded by the firm-resettlement bar. See E. Bay I, 385 F. Supp. 3d at 946. In its briefing to us, the government has not relied on, or even cited, Matter of Pula.
The government provides to us only a single record citation in support of the Rule’s categorical assumption that aliens subject to the Rule do not have a valid asylum claim if they have not previously applied for asylum in either Mexico or Guatemala. The citation is to a newspaper article reporting that Central American migrants traveling through Mexico stated that their ultimate destination was the United States. The article does nothing to support the Rule’s assumption. The article does not even remotely suggest that the aliens’ preference to apply for asylum in the United States rather than Mexico had any bearing on whether they had a credible fear of persecution that could support a valid claim to asylum.
Evidence in the administrative record establishes that Mexico and Guatemala are dangerous places for aliens subject to the Rule. See also Innovation Law Lab v. Wolf, 951 F.3d 1073, 1090–93 (9th Cir. 2020). This evidence strongly suggests a reason other than invalidity of their underlying asylum claims why the aliens subject to the Rule would not apply for asylum in either of those countries. In the course of promulgating the Rule, the agencies did not discuss or even acknowledge this evidence.
In sum, the agencies’ conclusion that an alien’s failure to apply for asylum in Guatemala or Mexico justifies an assumption that the alien does not have a valid asylum claim, and a categorical adverse credibility finding, ignores a long

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line of cases holding that aliens are not required to apply for asylum in countries they pass through on their way to the United States; ignores the fact that a preference for asylum in the United States rather than Mexico or Guatemala is irrelevant to the merits of an alien’s asylum claim; and ignores extensive evidence in the record documenting the dangerous conditions in Mexico and Guatemala that would lead aliens with valid asylum claims to pursue those claims in the United States rather than in those countries.
In failing to consider an alternative (and very likely) explanation for aliens’ failure to apply for asylum in Mexico or Guatemala, the agencies “entirely failed to consider an important aspect of the problem.” State Farm, 463 U.S. at 43. Further, given the strength of this alternative explanation, as shown by evidence in the record, the agencies’ assumption “runs counter to the evidence before the agency.” Id.
iii. Unaccompanied Minors
In 2008, in recognition of the vulnerability of unaccompanied minors seeking asylum, Congress amended the INA to provide them special protection. See Trafficking Victims Protection Reauthorization Act, Pub. L. No. 110–457, 122 Stat. 5044 (2008). Congress added two provisions to § 1158 to ensure “children . . . who have escaped traumatic situations” would not be “forced to struggle through an immigration system designed for adults.” 154 Cong. Rec. S10,886 (Dec. 10, 2008) (statement of Senator Feinstein). First, unaccompanied minors are expressly exempted from the safe-third-country bar. 8 U.S.C. § 1158(a)(2)(E). Second, they are entitled to present their asylum claims in the first instance to an asylum officer in a

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non-adversarial interview instead of to an immigration court. Id. § 1158(b)(3)(C).
The Rule does not exempt unaccompanied minors. The agencies’ only explanation for the Rule’s failure to do so is that while unaccompanied minors are given special protection by § 1158(a)(2)(E) and (b)(3)(C), they are not exempt from other provisions of § 1158. See 84 Fed. Reg. at 33,839 n.7. This explanation in no way addresses the special vulnerability of unaccompanied minors and the failure of the Rule to take that vulnerability into account.
In failing to explain why the Rule provides no special protection for unaccompanied minors, the agencies “entirely failed to consider an important aspect of the problem.” State Farm, 463 U.S. at 43.
2. Irreparable Harm
Plaintiffs must also show that “irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22. Organizations may establish irreparable harm by showing “ongoing harms to their organizational missions.” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013). In the APA context, economic harms may be irreparable because plaintiffs are otherwise unable to recover monetary damages. See Azar, 911 F.3d at 581; 5 U.S.C. § 702 (providing for relief “other than monetary damages”). Although the government argues that monetary harms are not irreparable, controlling circuit precedent establishes otherwise. See Azar, 911 F.3d at 581.
As discussed above, plaintiffs established that the Rule harms their mission of representing and assisting asylum

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seekers and results in a substantial loss of organizational funding. The government does not dispute these factual findings. The Rule forces plaintiffs to overhaul their programs and pursue more complex and time-and-resource intensive forms of relief, resulting in plaintiffs’ providing fewer services to fewer individuals. The Rule also jeopardizes the plaintiffs’ funding streams. For example, plaintiff East Bay Sanctuary Covenant receives a fixed percase amount for each affirmative asylum case it files. Decl. Michael Smith, East Bay Sanctuary Covenant ¶ 16. Plaintiff Al Otro Lado receives funding at a fixed per-case rate to represent individuals in bond proceedings, but applicants affected by the Rule are ineligible for bond for at least six months after entry. Decl. Erika Pinheiro, Al Otro Lado ¶ 18. Because the Rule renders a substantial portion of plaintiffs’ clients categorically ineligible for asylum, it directly threatens their standard caseload, and consequently, their caseloaddependent funding.
We agree with the district court that the plaintiffs “established a sufficient likelihood of irreparable harm through diversion of resources and the non-speculative loss of substantial funding from other sources.” E. Bay I, 385 F. Supp. 3d at 957 (internal quotation marks omitted); see also Trump II, 950 F.3d at 1280.
3. Balance of Equities and Public Interest
When the government is a party, the third and fourth preliminary injunction factors merge. Drakes Bay Oyster Co., 747 F.3d at 1092.
On the side of the plaintiffs, the district court found that there was a public interest in not returning refugees to their

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persecutors or to a country where they would be endangered. E. Bay I, 385 F. Supp. 3d at 958 (citing Leiva-Perez, 640 F.3d at 971); see also Nken v. Holder, 556 U.S. 418, 436 (2009) (“[T]here is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.”). This concern is especially pressing here, where the government concedes that potentially meritorious asylum claims will be “channeled” away from the United State and into Mexico. 1 Gov’t Br. 4, 39.
Next, the district court noted that the government has implemented a new policy under which aliens potentially subject to the Rule must wait “weeks or months” in Mexico before they are permitted to initiate an application for asylum in the United States. E. Bay I, 385 F. Supp. 3d at 959. At the same time, Mexico has a 30-day filing deadline for asylum applications. Id. “For asylum seekers that forfeited their ability to seek protection in Mexico but fell victim to the government’s . . . policy, the equities weigh particularly strongly in favor” of an injunction. Id.
The district court also noted the public interest in “ensuring that ‘statutes enacted by [their] representatives’ are not imperiled by executive fiat.” Id. at 958 (quoting Maryland v. King, 567 U.S. 1301, 1301 (2012)). As discussed earlier, the Rule is contrary to the asylum statute and contravenes clear congressional intent to give effect to our international treaty obligations.
On the side of the government, the public has an interest in relieving burdens on the asylum system and the efficient conduct of foreign affairs. But, as the district court noted, “shortcutting the law, or weakening the boundary between

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Congress and the Executive, are not the solutions to these problems.” Id. at 959 (citing Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125 (2000) (“Regardless of how serious the problem an administrative agency seeks to address, however, it may not exercise its authority in a manner that is inconsistent with the administrative structure that Congress enacted into law.”)).
We hold that the district court did not abuse its discretion in weighing these factors in favor of plaintiffs. Cf. Trump II, 950 F.3d at 1280–82.
D. Scope of the Injunction
Finally, we consider the proper scope of the injunction. A motions panel of this court stayed the injunction, pending the district court’s further development of the record, insofar as it operated outside the Ninth Circuit. E. Bay II, 932 F.3d at 1030–31.
The motions panel’s decision is not binding. As we recently explained in East Bay Sanctuary Covenant v. Biden (“East Bay III”), No. 18-17274, 2020 WL 8970552, at *8 (9th Cir. 2021) (amended opinion), “[i]n deciding whether the court should stay the grant or denial of a preliminary injunction pending appeal, the motions panel is predicting the likelihood of success of the appeal.” (Emphasis added). As in East Bay III, the motions panel considered whether to stay the injunction. We consider whether the district court abused its discretion in granting the preliminary injunction. These are different issues. Moreover, after the motions panel published its opinion, the district court took additional evidence and reinstated its previously entered injunction. Given the differing legal standards and the subsequent record

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development in this case, the motions panel’s order is not binding. See id.
We note initially that although injunctions with broad geographic scope are often referred to as “nationwide” injunctions, that is a misnomer in this case. See Innovation Law Lab, 951 F.3d at 1094. The Rule targets only asylum applicants entering at our southern border with Mexico, and the district court’s injunction affects the government’s actions in only four states within three circuits: California and Arizona (Ninth Circuit), New Mexico (Tenth Circuit), and Texas (Fifth Circuit).
We analyze the proper scope of the injunction in this case from two perspectives—first, the scope of the harm to plaintiffs; and, second, the nature of the case before us.
First, nationwide or other broad injunctions are appropriate when necessary to remedy a plaintiff’s harm. City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018). The requested relief should be “no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the court.” Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018) (internal quotations omitted), rev’d in part, vacated in part No. 18-587, 2020 WL 3271746 (U.S. June 18, 2020). However, there is “no general requirement that an injunction affect only the parties in the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169–70 (9th Cir. 1987). “[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979).

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As discussed above, the Rule interferes with plaintiffs’ organizational missions and causes them to lose funding. “Complete relief” for plaintiffs must remedy both harms. In fulfilling their missions to assist asylum seekers throughout the lifetime of their cases, plaintiffs “do not operate in a fashion that permits neat geographic boundaries.” Trump II, 950 F.3d at 1282–83. For example, plaintiff Innovation Law Lab is a legal service organization representing aliens applying for asylum both inside and outside the Ninth Circuit. Some of these aliens move between jurisdictions throughout the lifetime of their asylum case. Innovation Law Lab has offices in California, Oregon, Missouri, Texas, and Georgia, and it provides workshops and offers support to aliens and pro bono attorneys in Georgia, Kansas, Missouri, North Carolina, and Oregon. E. Bay III, 391 F. Supp. 3d at 982–83. Besides the harm to organizational purpose, the loss of potential clients jeopardizes funding streams that are tied to the number of asylum applications a Plaintiff organization files.
In response to the district court’s initial order, the government issued guidance (the “Guidance”) providing that in some circumstances the district court’s order would enjoin enforcement of the Rule outside the Ninth Circuit. The Guidance generally requires the relevant enforcement agencies to treat an individual alien as protected by the injunction if “(1) the alien was apprehended in the Ninth Circuit, (2) the alien is detained in the Ninth Circuit, or (3) the [credible fear] interview or adjudication itself occurs in the Ninth Circuit.” Id. at 977.
The district court found that, despite the Guidance, Innovation Law Lab would have to divert resources to determine which of their clients were subject to the Rule,

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which could change during the lifetime of their case; they would have to redesign centralized workshops and templates; and they would have to change practices of synchronizing work across sites. Id. at 983.
Moreover, a limited injunction would not offer “complete relief” from the harms plaintiffs suffer from their inability to represent, and to protect, aliens seeking to enter the United States through Texas or New Mexico. As we have noted in a recent case, this would “result[] in a frustration of purpose (by preventing the organization from continuing to aid asylum applicants who seek relief), and a loss of funding (by decreasing the money it receives for completed cases).” Trump II, 950 F.3d at 1283.
Second, as we have previously observed in an APA case, § 706(2)(A) provides that a “reviewing court shall . . . hold unlawful and set aside agency action . . . not in accordance with law.” Innovation Law Lab, 951 F.3d at 1094 (quoting 5 U.S.C. § 706(2)(A)). Section 706(2) does not tell a circuit court to “set aside” unlawful agency action only within the geographic boundaries of that circuit. Vacatur of an agency rule prevents its application to all those who would otherwise be subject to its operation. See generally id.; Regents of the Univ. of Cal., 908 F.3d at 511 (“[W]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that rules are vacated—not that their application to the individual petitioners is proscribed.”) (internal quotation marks omitted); Cal. Wilderness Coalition v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011) (“When a court determines that an agency’s action failed to follow Congress’s clear mandate the appropriate remedy is to vacate that action.”); see also Gen. Chem. Corp. v. United States, 817 F.2d 844, 848 (D.C. Cir. 1987) (“The APA requires us to

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vacate the agency’s decision if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law’. . . .”); United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice is to vacate unlawful agency action.”). Because the Rule is “not in accordance” with 8 U.S.C. § 1158, our obligation as a reviewing court is to vacate the unlawful agency action.
Moreover, “cases implicating immigration policy have a particularly strong claim for uniform, nationwide relief.” Innovation Law Lab, 951 F.3d at 1094–95; see Arizona v. United States, 567 U.S. 387, 401 (2012) (federal law contemplates a “comprehensive and unified” immigration policy); Trump I, 932 F.3d at 779 (“In immigration matters, we have consistently recognized the authority of district courts to enjoin unlawful policies on a universal basis.”); Regents of the Univ. of Cal., 908 F.3d at 511 (“A final principle is also relevant: the need for uniformity in immigration policy . . . . Allowing uneven application of nationwide immigration policy flies in the face of these requirements.”); Washington v. Trump, 847 F.3d 1151, 1166–67 (9th Cir. 2017) (per curiam) (“[A] fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy.”); Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017) (per curiam), rev’d on other grounds, — U.S. —, 138 S. Ct. 2392 (2018) (“Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”). The Fifth Circuit, one of the only two other federal circuits with a state affected by the Rule, agrees with the Ninth Circuit that nationwide injunctions are uniquely appropriate in immigration cases. See Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (“[T]he Constitution requires ‘an

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uniform Rule of Naturalization’; Congress has instructed that ‘the immigration laws of the United States should be enforced vigorously and uniformly’; and the Supreme Court has described immigration policy as ‘a comprehensive and unified system.’”) (emphases in original; citations omitted).
The government “raises no grounds on which to distinguish this case from our uncontroverted line of precedent.” Trump I, 932 F.3d at 779. Indeed, we recently held that a nationwide scope was necessary to offer adequate relief to the same four plaintiffs asserting the same organizational harms resulting from a different rule limiting asylum eligibility. See Trump II, 950 F.3d at 1284; see also Innovation Law Lab, 951 F.3d at 1094–95.
Conclusion
We hold that plaintiffs are likely to succeed on the merits of their claims. The Rule is “not in accordance with law” and “in excess of statutory limitations” because it is not “consistent with” 8 U.S.C. § 1158. State Farm, 463 U.S. at 43. The Rule is also “arbitrary and capricious” because it “runs counter to the evidence before the agency” and “entirely failed to consider . . . important aspect[s] of the problem.” Id. We hold further that plaintiffs have shown that they will suffer irreparable harm, that the balance of equities lies in their favor, and that an injunction is in the public interest. Finally, we hold that the district court did not abuse its discretion in entering an injunction covering the four states along our border with Mexico.
AFFIRMED.

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CLIFTON, Circuit Judge, concurring:
I concur in the court’s opinion except as to its discussion in part V.D (pages 51–56) of the scope of the injunction. I concur in the conclusion reached in that portion of the opinion, that the district court did not abuse its discretion in entering an injunction that extends beyond the territory of the Ninth Circuit and covers every person seeking asylum at the southern border, even persons with no connection to any of the plaintiffs in this case. I do so, however, only because there does not appear to me to be a sufficient distinction between this case and precedents that bind this panel, notably East Bay Sanctuary Covenant v. Trump (“Trump II”), 950 F.3d 1242, 1282-84 (9th Cir. 2020), and Innovation Law Lab. v. Wolf, 951 F.3d 1073, 1094-95 (9th Cir. 2020), to support a different conclusion. To the extent that our opinion in this case expresses agreement with or affirmative support for the reasoning behind the relevant portions of those opinions, I do not join this opinion.
MILLER, Circuit Judge, concurring in part and dissenting in part:
I agree with the court that the rule is invalid, and I concur in the court’s opinion except as to part V.C.1.a, which addresses the Attorney General’s statutory authority, and part V.D, which addresses the scope of the injunction. I write separately to elaborate on why, in my view, the rule is arbitrary and capricious, and to explain why the injunction should be limited to asylum seekers having a bona fide client relationship with the plaintiff organizations.

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I
The court holds that the rule exceeds the Attorney General’s authority under 8 U.S.C. § 1158. In doing so, the court reasons that the Attorney General’s interpretation of the statute is not entitled to deference under Chevron USA Inc. v. NRDC, Inc., 467 U.S. 837 (1984), because the Attorney General did not make a Chevron argument in his brief. But we have never held that Chevron is subject to waiver, and the District of Columbia Circuit has held that it is not. See Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 22–23 (D.C. Cir. 2019) (per curiam), cert. denied, 140 S. Ct. 789 (2020). I would refrain from deciding either that issue or the scope of the Attorney General’s statutory authority. The court’s conclusion that the rule is arbitrary and capricious is sufficient to resolve this case, and it is unnecessary for us to say more.
II
I agree with the court’s analysis of why the rule is arbitrary and capricious. I think it is worth emphasizing a few additional points about the administrative record and the agencies’ explanation of their decision-making process.
Under the Administrative Procedure Act, “[w]hen an administrative agency sets policy, it must provide a reasoned explanation for its action.” Judulang v. Holder, 565 U.S. 42, 45 (2011). “That is not a high bar, but it is an unwavering one.” Id. To clear it, an agency must “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made,’” and it may not “entirely fail[] to consider an important aspect of the problem” or “offer[] an explanation for its decision that runs

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counter to the evidence before the agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
The stated purpose of the rule is to “more efficiently identify[] aliens who are misusing the asylum system to enter and remain in the United States rather than legitimately seeking urgent protection from persecution or torture.” Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829, 33,831 (July 16, 2019) (codified at 8 C.F.R. §§ 208, 1003, 1208). The rule seeks to accomplish that objective by “restricting the claims of aliens who, while ostensibly fleeing persecution, chose not to seek protection at the earliest possible opportunity.” Id. at 33,839. The agencies reasoned that “[a]n alien’s decision not to apply for protection at the first available opportunity, and instead wait for the more preferred destination of the United States, raises questions about the validity and urgency of the alien’s claim and may mean that the claim is less likely to be successful.” Id. The key factual premise of that reasoning is that asylum in Mexico (or Guatemala) is indeed an “available” opportunity, so that legitimate asylum seekers can reasonably be expected to apply for protection there. But that premise is contradicted by the agencies’ own record.
First, as the district court correctly observed, “the unrefuted record establishes that [Mexico] is categorically not a ‘safe option[]’ for the majority of asylum seekers.” E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 956 (N.D. Cal. 2019) (quoting Matter of B-R-, 26 I. & N. Dec. 119, 122 (B.I.A. 2013)). To be clear, the district court based that conclusion not on evidence submitted by the plaintiffs in this litigation, but on the administrative record compiled by the

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agencies themselves. That record contains numerous reports from nongovernmental organizations describing the risks faced by asylum seekers in Mexico. For example, one notes that “[t]orture is inflicted by governmental security actors, while criminal organizations inflict extreme degrees of violence on these already vulnerable populations,” adding that “[m]igrants and refugees are often easy prey.” Another explains that “the prospect of being unlawfully detained [in Mexico] often pushes asylum-seekers to return to their country of origin, despite the risks they face upon return.” The United Nations High Commissioner for Refugees found “that almost 7 out of 10 women in Mexico have suffered violence,” and that “migrant, asylum-seeking, and refugee women are particularly vulnerable due to their national origin and their legal status in Mexico.” Another report echoed those concerns for children: “Many migrants are arbitrarily detained in poor conditions in processing facilities upon apprehension. . . . Particularly for children, the length and conditions of detention deter them from seeking asylum.”
Second, the district court correctly recognized that applicants seeking asylum in Mexico are often “wrongly returned to countries from which they fled persecution.” E. Bay Sanctuary Covenant, 385 F. Supp. 3d at 955. The district court cited a report from the administrative record that discussed how “the non-refoulement principle is systematically violated in Mexico,” often through “swift repatriations” taking place in less than 36 hours. Despite the rule’s conclusory statement that Mexico has a “robust protection regime,” 84 Fed. Reg. at 33,835, record evidence shows not only that conditions in Mexico are dire enough to discourage applicants from seeking asylum, but also that many who do are subject to refoulement.

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When asked at oral argument where the agencies addressed the issue of safety in Mexico, the government referred us to a single paragraph in the rule. That paragraph notes that Mexico “has expanded its capacity to adjudicate asylum claims” and has received an increasing number of such claims, but an increase in capacity or volume has little relevance to the issue of safety. 84 Fed. Reg. at 33,839–40. It also observes that Mexico is a party to the Refugee Convention and the Refugee Protocol. Id. at 33,839. That Mexico has joined those agreements bears little weight in the face of record evidence showing that it does not comply with them in practice.
Of course, the agencies do not have to agree with the reports of nongovernmental organizations. Had the agencies determined that the reports in the record were wrong, they could have said so. We would then have reviewed their factual determination for substantial evidence—a deferential standard under which we would have been required to accept the agencies’ finding unless the record compelled a contrary conclusion. See Dickinson v. Zurko, 527 U.S. 150, 162–63 (1999); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). In this context, that review would have been especially deferential because an agency’s assessment of conditions in another country involves an exercise of judgment on matters of foreign relations that we are poorly suited to second-guess. See Holder v. Humanitarian Law Project, 561 U.S. 1, 33–34 (2010); cf. INS v. Abudu, 485 U.S. 94, 110 (1988) (explaining that the administration of immigration laws can involve “sensitive political functions that implicate questions of foreign relations”). But we cannot defer to a finding the agencies never made.

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Alternatively, the agencies could have determined that, notwithstanding the safety risks to asylum seekers in Mexico, a bright-line rule like the one here offers offsetting advantages in ease of adjudication—a significant consideration given the overburdened immigration system at the southern border. It is up to the agencies, in the first instance, to balance the costs (denying meritorious claims of asylum seekers who were afraid to seek asylum in Mexico) and benefits (relieving burdens on the asylum system) of their actions. That balancing involves the exercise of policy judgment. Had the agencies engaged in it—offering “reasons that [could] be scrutinized by courts and the interested public,” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2576 (2019)—our review of their decision would be deferential. As long as an agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action,” the Supreme Court has made clear that “a court is not to substitute its judgment for that of the agency.” State Farm, 463 U.S. at 43; accord FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). But while the agencies discussed the “extraordinary strain on the nation’s immigration system” caused by asylum seekers at the southern border, that is only one side of the balance. 84 Fed. Reg. at 33,831. They said nothing at all about the other. Reasoned decision making requires consideration of the tradeoffs that accompany an exercise of policy judgment, and we cannot defer to a choice the agencies did not acknowledge making. See Dep’t of Homeland Sec. v. Regents of Univ. of Cal., No. 18-587, 2020 WL 3271746, *15 (U.S. June 18, 2020); Dep’t of Commerce, 139 S. Ct. at 2576; Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016).
The agencies’ deficient explanation is particularly troubling because the rule represents such a major change in

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policy—perhaps the most significant change to American asylum policy in a generation. Having compiled a record that contained extensive evidence of safety concerns, particularly with respect to Mexico, the agencies were required to give the safety issues more consideration than a single paragraph in the rulemaking that does not meaningfully engage with the critical question: whether an applicant could safely apply for asylum in Mexico. Because the agencies “entirely failed to consider an important aspect of the problem,” the rule is arbitrary and capricious. State Farm, 463 U.S. at 43.
III
Although I agree with the court that the rule is invalid, I do not agree that it was appropriate for the district court to enjoin its application to every person seeking asylum at the southern border, whether or not that person has any connection to the plaintiffs in this case.
In defending the scope of the injunction, the court emphasizes that it is not “nationwide” because it does not apply throughout the entire country but instead applies in “only four” States. Slip op. 52. The distinction is not reassuring. Although only four in number, those States include every part of the country in which the rule applies—all 1,954 miles of the United States-Mexico border, about 75 percent of which is outside of the Ninth Circuit. More importantly, the injunction is broad not only in a geographic sense but also because it applies universally to everyone affected by the rule, not just to the plaintiffs in this case. See Trump v. Hawaii, 138 S. Ct. 2392, 2425 n.1 (2018) (Thomas, J., concurring) (distinguishing “nationwide” injunctions from “universal” injunctions).

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There are reasons to question the appropriateness of universal injunctions. See, e.g., Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599–601 (2020) (Gorsuch, J., concurring in the grant of a stay); Trump v. Hawaii, 138 S. Ct. at 2424–29 (Thomas, J., concurring). Injunctions “must comply with longstanding principles of equity,” and courts of equity traditionally “did not provide relief beyond the parties to the case.” Trump v. Hawaii, 138 S. Ct. at 2426–27 (Thomas, J., concurring); see also Dep’t of Homeland Sec. v. New York, 140 S. Ct. at 600 (Gorsuch, J., concurring in the grant of a stay) (“Equitable remedies . . . are meant to redress the injuries sustained by a particular plaintiff in a particular lawsuit.”).
When a defendant’s conduct has injured a large class of potential plaintiffs, making “injunctive relief . . . appropriate respecting the class as whole,” the federal civil rules permit the certification of a class action. Fed. R. Civ. P. 23(b)(2). Such a class may be nationwide in scope. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979). But when the criteria of Rule 23 are not satisfied, granting class-wide relief anyway sidesteps that rule and its requirement that the district court conduct a “rigorous analysis” before certifying a class. WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)); see Zepeda v. INS, 753 F.2d 719, 730 n.1 (9th Cir. 1983) (explaining that plaintiffs “are not entitled to relief for people whom they do not represent,” and “[i]f this elementary principle were not true, there would be no need for class actions”).
Even accepting that a district court may sometimes enter an injunction that prohibits the government from applying a policy to persons other than the plaintiff, it remains the case

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that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994) (quoting Califano, 442 U.S. at 702); cf. Lewis v. Casey, 518 U.S. 343, 349–50 (1996). The injunction here does not satisfy that requirement.
Significantly, the plaintiffs are not themselves asylum seekers who are subject to the rule. Rather, they are organizations that provide assistance, advocacy, and legal services to potentially affected applicants. As the court explains, the plaintiffs allege that the rule will harm them by causing “a substantial loss of organizational funding” and by requiring them “to overhaul their programs and pursue more complex and time-and-resource intensive forms of relief, resulting in plaintiffs’ providing fewer services to fewer individuals.” Slip op. 48– 49. The court approvingly cites the district court’s conclusion, based on those allegations, that a universal injunction is necessary because a more limited injunction would require the plaintiffs “to divert resources to determine which of their clients were subject to the Rule” and “to redesign centralized workshops and templates.” Slip op. 53–54 . But those harms are no different from those that would be suffered by any advocacy organization practicing in an area relevant to a challenged government policy. They are insufficient to support the grant of a universal injunction here.
Under Kowalski v. Tesmer, 543 U.S. 125 (2004), organizations do not have third-party standing to assert the rights of potential future clients. Id. at 134 & n.5. If the plaintiff organizations cannot rely on the substantial harms suffered by individual non-clients who will be barred from seeking asylum under the rule, they should not be allowed to rely on the derivative—and far less substantial—harm that

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the organizations will suffer from not representing those potential clients in asylum proceedings. The harms suffered directly by the organizations, such as having to redesign workshops by providing different kinds of training, are similarly inadequate. It is surely easier to provide legal training when the law is uniform nationwide, but if that were enough, any plaintiff asserting an interest in teaching about the law would be entitled to a universal injunction. To the contrary, a plaintiff who lacks standing to challenge a government policy may not “manufacture standing” simply by “making an expenditure,” including an expenditure to teach others about the policy. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013).
Even if the harms asserted by the plaintiffs were sufficient to establish Article III standing with respect to the application of the rule to non-clients, they still must be weighed against the competing interests on the other side. See Madsen, 512 U.S. at 765. Because the plaintiffs’ harms supporting a universal injunction are so attenuated, they do not outweigh the government’s interest in a narrower one.
In upholding a universal injunction, the court relies heavily on our decision in Innovation Law Lab v. Wolf, 951 F.3d 1073 (9th Cir. 2020), petition for cert. filed (Apr. 10, 2020) (No. 19-1212). The Supreme Court has stayed the universal injunction that we affirmed in that case, which should perhaps give us pause about extending the decision to affirm a universal injunction here. Wolf v. Innovation Law Lab, 140 S. Ct. 1564 (2020). In any event, although we remain bound by Innovation Law Lab as circuit precedent, I disagree that it requires us to affirm an injunction as broad as the one imposed by the district court.

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As relevant here, in Innovation Law Lab we made two points. First, we reasoned that 5 U.S.C. § 706(2)(A), which directs a reviewing court to “set aside” agency action found to be unlawful, militates in favor of an injunction setting aside agency action across the board, not simply with respect to a specific plaintiff. 951 F.3d at 1094. That is a questionable interpretation of section 706, which is more naturally read not as a remedial provision but simply as an instruction to courts to disregard unlawful agency actions when deciding cases. See John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies, Yale J. on Reg. (Apr. 12, 2020), https://www.yalejreg.com/?bulletin/section-706-of-theadministrative-procedure-act?-does-not-call-for-universalinjunctions?-or-other-universal-remedies/. Indeed, we have not construed section 706 to require vacatur in every case in which an agency action is determined to be unlawful. See, e.g., Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989, 992 (9th Cir. 2012) (per curiam); accord Allied-Signal, Inc. v. NRC, 988 F.2d 146, 150–51 (D.C. Cir. 1993). Nor have we held that whenever vacatur is appropriate, a universal injunction is mandatory, a holding that would represent a major departure from historical practice. See Trump v. Hawaii, 138 S. Ct. at 2428–29 (Thomas, J., concurring).
Second, we noted in Innovation Law Lab that immigration law, in particular, is characterized by a need for uniformity such that an injunction should apply more broadly than might be appropriate in other contexts. 951 F.3d at 1094–95. Specifically, we reasoned that “the immigration laws of the United States should be enforced vigorously and uniformly.” Id. at 1095 (quoting Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015)). A concern for uniform administration of the immigration laws is a doubtful basis for

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imposing a universal injunction in the face of opposition from the agencies that have been charged by Congress with administering those laws, and that would bear the cost of the fragmented application of the rule they have promulgated. But again, even accepting the reasoning of Immigration Law Lab, it establishes only that “cases implicating immigration policy have a particularly strong claim for uniform relief,” not that a universal injunction is mandatory in every immigration case. Id. at 1094–95.
Thus, while Innovation Law Lab precludes us from saying that universal injunctions are never appropriate, it does not require us to say that they are always appropriate. We concluded in Innovation Law Lab only that the district court had not abused its discretion in entering an injunction in that case. And, crucially, in discussing the scope of the injunction, we said nothing at all about the harms asserted by the plaintiffs. The case involved both organizational and individual plaintiffs, but the government did not challenge their standing, and we discussed their claimed injuries only briefly. 951 F.3d at 1078–79. We did not evaluate their interest in a universal injunction or compare it to the government’s interest in a more limited one, and the other decisions cited by the court did not undertake such a comparison either. See, e.g., E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1265–68 (9th Cir. 2020); E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 766–67 (9th Cir. 2018). Our precedent therefore does not compel us to say that the harms asserted by these plaintiffs are sufficient to support the issuance of a universal injunction. For the reasons explained above, they are not.
I would restrict the injunction along the lines suggested by the government, so that it prohibits the application of the

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 Case 4:19-cv-04073-JST Document 134 Filed 01/28/21 Page 1 of 58

1 Lee Gelernt* Omar C. Jadwat*
2 Anand Balakrishnan* Ming Cheung**
3 ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT
4 125 Broad Street, 18th Floor New York, NY 10004
5 T: (212) 549-2660 F: (212) 549-2654
6 lgelernt@aclu.org ojadwat@aclu.org
7 abalakrishnan@aclu.org mcheung@aclu.org
8

Katrina Eiland (SBN 275701) Cody Wofsy (SBN 294179) Spencer Amdur (SBN 320069) Morgan Russell (SBN 296137) ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-0770 F: (415) 395-0950 keiland@aclu.org cwofsy@aclu.org samdur@aclu.org mrussell@aclu.org

9 Attorneys for Plaintiffs (Additional counsel listed on following page)

10

UNITED STATES DISTRICT COURT

11

NORTHERN DISTRICT OF CALIFORNIA

12 East Bay Sanctuary Covenant; Al Otro Lado; Innovation Law Lab; and Central American
13 Resource Center in Los Angeles,

Case No.: 4:19-cv-04073-JST

14

Plaintiffs,

FIRST AMENDED AND

15

v.

SUPPLEMENTAL COMPLAINT FOR

DECLARATORY AND INJUNCTIVE

16 Jeffrey A. Rosen, Acting Attorney General, in his

RELIEF

official capacity; U.S. Department of Justice;

17 James McHenry, Director of the Executive Office

for Immigration Review, in his official capacity;

18 the Executive Office for Immigration Review;

Peter Gaynor, Acting Secretary of Homeland

19 Security, in his official capacity; U.S. Department

of Homeland Security; Kenneth T. Cuccinelli,

20 Acting Director of the U.S. Citizenship and

Immigration Services, in his official capacity; U.S.

21 Citizenship and Immigration Services; Mark A.

Morgan, Acting Commissioner of U.S. Customs

22 and Border Protection, in his official capacity;

U.S. Customs and Border Protection; Tae D.

23 Johnson, Senior Official Performing the Duties of

the Director of Immigration and Customs

24 Enforcement, in his official capacity; Immigration

and Customs Enforcement; Chad Mizelle, Senior

25 Official Performing the Duties of the General

Counsel for Homeland Security, in his official

26 capacity,

Defendants.

27

28

Case 4:19-cv-04073-JST Document 134 Filed 01/28/21 Page 2 of 58

1
Melissa Crow*
2 SOUTHERN POVERTY LAW CENTER
1101 17th Street, NW Suite 705
3 Washington, D.C. 20036
T: (202) 355-4471
4 F: (404) 221-5857
melissa.crow@splcenter.org
5 6 7 8 9 10 11 12 13 14 15 Attorneys for Plaintiffs 16 *Admitted pro hac vice
**Pro hac vice application forthcoming
17 18 19 20 21 22 23 24 25 26 27 28

Baher Azmy** Angelo Guisado** Ghita Schwarz** CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 T: (212) 614-6464 F: (212) 614-6499 bazmy@ccrjustice.org aguisado@ccrjustice.org gschwarz@ccrjustice.org
Vasudha Talla (SBN 316219) Angélica Salceda (SBN 296152)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 T: (415) 621-2493 F: (415) 255-8437 vtalla@aclunc.org asalceda@aclunc.org

Case 4:19-cv-04073-JST Document 134 Filed 01/28/21 Page 3 of 58

INTRODUCTION 1

2

1. Defendants have re-imposed an unlawful ban on asylum that was previously enjoined

3 or vacated by two separate federal courts, including this Court. The new final rule (“Final Rule”),

4 which is set to take effect one day before the end of the current administration, suffers from the same

5 defects as the previously enjoined and vacated interim final rule (“Interim Rule”). Both iterations of
6 the policy violate this nation’s asylum laws by denying asylum to anyone who enters, attempts to
7 enter, or arrives in the United States through the southern border without having applied for and
8 9 been denied asylum in a country through which they transited, with limited exceptions. Neither
10 iteration contains a reasoned explanation, and both were promulgated in violation of the

11 Administrative Procedure Act’s (“APA”) notice-and-comment requirements and are contrary to law.

12 Furthermore, the Final Rule was published less than 60 days before its effective date, contrary to the

13 Congressional Review Act (“CRA”), and was issued by unlawfully appointed Department of

14 Homeland Security (“DHS”) officials; the Final Rule must therefore be vacated and enjoined on
15 those additional grounds.
16

17

2. The United States has a longstanding commitment under domestic and international

18 law to protecting people fleeing persecution from further harm.

19

3. The Immigration and Nationality Act reflects Congress’s carefully considered

20 balance between effectuating our broad, historic commitment to international humanitarian law

21 principles in the context of our asylum system and ensuring fairness and efficiency in the process. In
22 crafting our asylum laws, Congress sought to implement the principles in the 1951 Refugee
23
Convention, which was designed to avoid the horrors visited on refugees around World War II. 24

25

4. As part of our nation’s commitment to the protection of people fleeing persecution

26 and consistent with our international obligations, it is longstanding federal law that merely transiting

27 through a third country is not a basis to categorically deny asylum to refugees who arrive at our

28 shores.
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1

5. Specifically, Congress expressly provided in the Immigration and Nationality Act

2 (“INA”) that a noncitizen is ineligible for asylum in the United States only if she “was firmly

3 resettled in another country prior to arriving in the United States.” 8 U.S.C. § 1158(b)(2)(A)(vi).

4 The concept of firm resettlement—which involves far more than a mere transitory relationship with

5 a third country—dates back to international agreements crafted after World War II, and takes into

6
account the ties an individual fleeing persecution formed with another country and his or her
7
particular ability to enjoy safety and legal protection there.
8

9

6. Moreover, Congress expressly spoke to when an asylum seeker may be removed to a

10 third country and required to seek protection there: only where the United States and that country

11 have entered into a bilateral or multilateral agreement, the removal is pursuant to that agreement, and

12 there is a determination that the asylum seeker would not face persecution and “would have access to
13 a full and fair procedure for determining a claim to asylum” in that country. 8 U.S.C. 14
§ 1158(a)(2)(A).
15
7. Indeed, Congress made clear that noncitizens may apply for asylum regardless of
16 17 where they enter the United States, “whether or not at a designated port of arrival.” 8 U.S.C.
18 § 1158(a)(1). All asylum seekers coming from a country other than a country contiguous to the

19 United States who enter between ports of arrival necessarily transited through another country before

20 reaching the southern border. Congress therefore guaranteed that they, too, should be able to seek
21 asylum free of any categorical restriction based on their route to the United States. 22
8. Together, these provisions illustrate the careful balance Congress struck between
23 24 protecting vulnerable individuals from harm and sharing the burdens of asylum processing with
25 other countries in which safety and fair processing can be assured and are appropriate, and its

26 decision that only in specific narrow circumstances could a noncitizen’s transit or even residence in

27 a third country justify a denial of protection in the United States. 28

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1

9. Despite Congress’s clear commands, on July 16, 2019, then-Attorney General,

2 William Barr, and the then-purported Acting Secretary of DHS, Kevin McAleenan, promulgated an

3 interim final rule (“Interim Rule”) providing that noncitizens who transit through another country

4 prior to reaching the southern border of the United States are ineligible for asylum here. The Interim
5 Rule, which took effect on July 16, 2019, has only three narrow exceptions, for those who applied 6
for protection in a transit country and were denied it in a final judgment; who meet the definition of
7
a “victim of severe form of trafficking in persons”; or who transited only through countries that are
8 9 not parties to the 1951 Convention on the Status of Refugees, the 1967 Protocol Relating to the
10 Status of Refugees, or the Convention Against Torture. Mexico, which adjoins the southern border

11 of the United States, is a party to the 1951 Refugee Convention, the 1967 Refugee Protocol, and the

12 Convention Against Torture.

13

10. The Interim Rule took effect immediately, without following the APA’s notice-and-

14
comment requirements.
15
11. Both the Ninth Circuit and this Court subsequently held that the Interim Rule should
16

17 be preliminarily enjoined as arbitrary and capricious and contrary to law. E. Bay Sanctuary

18 Covenant v. Barr, 964 F.3d 832, 857-58 (9th Cir. 2020); E. Bay Sanctuary Covenant v. Barr, 385 F.

19 Supp. 3d 922, 930-31 (N.D. Cal. 2019). Defendants’ petition for rehearing en banc is currently

20 pending in the Ninth Circuit. Prior to the Ninth Circuit’s decision, the U.S. Supreme Court stayed

21 this Court’s injunction pending appeal without opining on the merits, Barr v. E. Bay Sanctuary

22
Covenant, 140 S. Ct. 3, 3 (2019).
23

24

12. On June 30, 2020, Judge Timothy J. Kelly on the U.S. District Court for the District

25 of Columbia vacated the Interim Rule nationwide because the agencies failed to comply with the

26 notice-and-comment requirement of the APA. Capital Area Immigrants’ Rights Coal. v. Trump

27 (“CAIR”), 471 F. Supp. 3d 25, 57, 60 (D.D.C. 2020). Although the government has appealed the 28

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1 decision vacating the Interim Rule, it did not seek a stay of that ruling and the Interim Rule is thus 2 currently not in effect nationwide.

3

13. On December 17, 2020, then-Attorney General Barr and then-Acting Secretary of

4 Homeland Security, Chad Wolf, published the Final Rule, which is practically identical to the

5 Interim Rule enjoined by this Court and the Ninth Circuit and vacated by Judge Kelly in the District

6
of Columbia. See 85 Fed. Reg. 82,260, 82,262. The Final Rule is set to take effect on January 19,

7
2021.
8

9

14. The Final Rule purports—but fails—to comply with the APA’s notice-and-comment

10 requirements. See 85 Fed. Reg. at 82,261. Although the Final Rule regards the Interim Rule as a

11 notice of proposed rulemaking for notice-and-comment purposes, the Interim Rule was issued by

12 McAleenan, who was then unlawfully serving as Acting DHS Secretary, rendering the Interim Rule

13 (and therefore the Final Rule) without force and effect. The agencies also unlawfully limited the
14
comment period to 30 days, frustrating Plaintiffs’ and the public’s efforts to fully address the new
15
and complex policy.
16

17

15. The Final Rule also violates the Congressional Review Act, which requires all major

18 rules be published at least 60 days before they take effect.

19

16. Like the Interim Rule, the Final Rule bars virtually every noncitizen fleeing

20 persecution from obtaining asylum in the United States if they passed through another country on
21 their way here, no matter the conditions or purpose of their journey through that country or their 22
prospect of protection, rights, or permanent legal status in that country. Accordingly, anyone fleeing
23 24 persecution from the ongoing humanitarian crisis in the countries that constitute the Northern
25 Triangle who does not apply for protection while en route—no matter how reasonable that

26 decision—will be categorically denied the opportunity to seek asylum in the United States and likely

27 forced to return to countries that are rife with danger and violence. The Final Rule is a part of a

28 continued, unlawful effort to significantly undermine, if not virtually repeal, the U.S. asylum system
4 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT, 4:19-cv-04073

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1 at the southern border, and cruelly closes our doors to refugees fleeing persecution, forcing them to 2 return to harm.

3

17. Like the Interim Rule, the Final Rule directly violates Congress’s clear requirement

4 that for a noncitizen to be denied asylum because of his or her relationship with a third country, the

5 noncitizen had to be firmly resettled in that third country or subject to a safe third country

6
agreement, as well as Congress’s requirement that asylum cannot be categorically denied based on

7
an asylum seeker’s route to the United States. It is also arbitrary and capricious.
8

9

18. Additionally, the Final Rule was approved and signed, respectively, by two DHS

10 officials who were unlawfully serving in an acting capacity, former Acting Secretary Wolf and

11 Acting General Counsel Chad Mizelle.

12

19. Because Wolf was not lawfully Acting DHS Secretary, the Final Rule is contrary to

13 law for that reason as well.
14
20. Although Wolf purported to delegate the authority to sign and publish the Final Rule
15
to Defendant Mizelle, he lacked the authority to do so and, in any event, Mizelle also has been
16

17 unlawfully performing his role as Acting DHS General Counsel.

18

21. The unlawful tenures of Wolf and Mizelle are independent reasons why the Final

19 Rule is contrary to law and must be set aside.

20

22. Plaintiffs accordingly seek a declaration that Defendants’ actions violate the INA, the

21 Federal Vacancies Reform Act (“FVRA”), the Homeland Security Act (“HSA”), the Appointments

22
Clause, the CRA, and the APA, and an order vacating and enjoining the Final Rule.
23

24

JURISDICTION AND VENUE

25

23. This case arises under the APA, 5 U.S.C. § 701, et seq., the FVRA, 5 U.S.C. § 3345,

26 et seq., the HSA, 6 U.S.C. § 111, et seq., the INA, 8 U.S.C. § 1101, et seq., the CRA, 5 U.S.C. § 801,

27 et seq., and the Appointments Clause of the United States Constitution, U.S. Const., Art. II, § 2, cl. 2.

28 This Court has subject matter jurisdiction under 28 U.S.C. § 1331.
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1

24. Venue is proper under 28 U.S.C. § 1391(e)(1) because the defendants are agencies of

2 the United States and officers of the United States acting in their official capacity and 1) at least one

3 plaintiff resides in this district; and/or 2) a substantial part of the events or omissions giving rise to

4 the claim occurred in this district.

5

PARTIES

6
25. Plaintiff East Bay Sanctuary Covenant (“EBSC”) is a nonprofit organization
7
incorporated in California. EBSC’s main office is in Berkeley, California.
8

9

26. EBSC was founded in 1982 to assist refugees fleeing the civil wars and violence in El

10 Salvador and Guatemala. EBSC’s mission is to offer sanctuary, support, community organizing

11 assistance, advocacy, and legal services to people escaping political persecution, terror, war,

12 intolerance, exploitation, and other violence. In particular, one of EBSC’s critical missions is to

13 assist individuals fleeing persecution in applying for asylum in the United States. EBSC also trains
14
and mentors law students and attorneys to help clients apply for asylum.
15
27. Plaintiff Al Otro Lado is a nonprofit, nonpartisan organization established in 2014
16
17 and incorporated in California.

18

28. Al Otro Lado is a legal services organization that serves indigent deportees, migrants,

19 refugees, and their families, and operates primarily in Southern California, and Tijuana, Mexico. Al

20 Otro Lado’s mission is to coordinate and provide screening, advocacy, and legal representation for

21 individuals in asylum and other immigration proceedings; to seek redress for civil rights violations;

22
and to provide assistance with other legal and social service needs.
23

24

29. Plaintiff Innovation Law Lab is a nonprofit organization that has projects in multiple

25 states, including an office in Oakland, California.

26

30. Innovation Law Lab seeks to advance the legal rights of immigrants and refugees in

27 the United States, with a focus on providing and facilitating representation to asylum seekers. 28

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1

31. Plaintiff Central American Resource Center (“CARECEN”) is a nonprofit

2 organization incorporated in California.

3

32. CARECEN’s mission is to empower Central Americans and all immigrants by

4 defending human and civil rights, working for social and economic justice and promoting cultural

5 diversity. CARECEN offers low-cost immigration legal services; community education programs;
6
and advocacy and organizing to achieve fair and more inclusive immigration, education, and labor
7
laws and policies in Los Angeles. A central part of CARECEN’s mission is to provide legal
8
9 counseling and representation to asylum seekers.

10

33. Defendant Jeffrey A. Rosen is the Acting Attorney General of the United States. He

11 is sued in his official capacity. In that capacity, he issued the interim final rule challenged in this

12 suit. The Attorney General is responsible for the administration of the immigration laws pursuant to

13 8 U.S.C. § 1103 and is empowered to grant asylum or other relief.
14
34. Defendant U.S. Department of Justice (“DOJ”) is a cabinet-level department of the
15
United States federal government.
16

17

35. Defendant James McHenry is the Director of the Executive Office for Immigration

18 Review (“EOIR”). He is sued in his official capacity.

19

36. Defendant EOIR is the sub-agency of DOJ that, through its immigration judges,

20 conducts limited review of negative credible fear determinations.

21

37. Defendant Peter Gaynor1 is the Acting Secretary of Homeland Security. He is sued

22
in his official capacity. In that capacity, he directs each of the component agencies within the
23

24 Department of Homeland Security. In his official capacity, Defendant Gaynor is responsible for the

25 administration of the immigration laws pursuant to 8 U.S.C. § 1103, and is empowered to grant

26 asylum and other immigration benefits.

27

28 1 By listing Defendants and their formal titles here and throughout this Complaint, Plaintiffs do not
concede that these officers are lawfully serving in those capacities. 7
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1

38. Defendant DHS is a cabinet-level department of the United States federal

2 government. Its components include U.S. Citizenship and Immigration Services (“USCIS”),

3 Customs and Border Protection (“CBP”), and Immigration and Customs Enforcement (“ICE”).

4

39. Defendant Kenneth T. Cuccinelli is the Acting Director of USCIS. He is sued in his

5 official capacity.

6
40. Defendant USCIS is the sub-agency of DHS that, through its asylum officers,
7
conducts interviews of individuals who apply for asylum.
8

9

41. Defendant Mark A. Morgan is the Acting Commissioner of CBP. He is sued in his

10 official capacity.

11

42. Defendant CBP is the sub-agency of DHS that is responsible for the initial processing

12 and detention of noncitizens who are apprehended near the U.S. border or who present themselves at

13 ports of entry.

14
43. Defendant Tae D. Johnson is the Senior Official Performing the Duties of the ICE
15
Director. He is sued in his official capacity.
16

17

44. Defendant ICE is the sub-agency of DHS that is responsible for carrying out removal

18 orders and overseeing immigration detention.

19

45. Defendant Chad Mizelle is the Senior Official Performing the Duties of the General

20 Counsel for Homeland Security. He is sued in his official capacity.

21

BACKGROUND

22 The U.S. Asylum System
23
46. Asylum affords protection to individuals who have a “well-founded fear of
24
25 persecution” on account of any one of five protected grounds: race, religion, nationality, political

26 opinion, or membership in a particular social group. 8 U.S.C. § 1158(b)(1)(A); 8 U.S.C.

27 § 1101(a)(42)(A). Withholding of removal also offers protection to individuals targeted on account

28

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1 of one of the five grounds, but it requires an applicant to show that such persecution is more likely 2 than not—a much higher standard of proof than that needed for asylum.

3

47. Congress also provided asylees with certain benefits that are critical to the

4 noncitizen’s safety and ability to successfully transition to a life free from persecution. See 8 U.S.C.
5 §§ 1159(b) (ability to adjust to the status of a lawful permanent resident); 1427 (ability to become a 6
United States citizen after being lawfully admitted for permanent residence). The spouse and
7
children of a person granted asylum are likewise eligible for asylum. 8 U.S.C. § 1158(b)(3). These
8 9 benefits are not available with certain other forms of relief from removal, like withholding of
10 removal.

11

48. There are three principal ways for an individual to seek asylum:

12

49. First, where a noncitizen is not in any kind of removal proceedings, his or her

13 application is “affirmative.” See 8 C.F.R. §§208.2(a), 208.9. He or she files an application with
14
USCIS, and has an interview with an asylum officer.
15
50. Second, a noncitizen in ordinary removal proceedings, see 8 U.S.C. § 1229a, may
16
17 apply for asylum as a form of relief from removal, 8 C.F.R. § 208.2(b). These applications are

18 referred to as “defensive” asylum applications.

19

51. Third, Congress established an alternative process, “expedited removal,” applicable to

20 certain noncitizens who are arriving at ports of entry or apprehended after entering without

21 inspection. See 8 U.S.C. § 1225(b)(1); see also Designating Aliens for Expedited Removal, 69 Fed.
22
Reg. 48,877 (Aug. 11, 2004) (expedited removal applicable to those who entered without inspection
23
24 and are apprehended within 14 days of entry and 100 miles of the border).

25

52. As part of the expedited removal system, a noncitizen who expresses a fear of return

26 to his or her home country is entitled to a “credible fear” screening interview. 8 U.S.C. §

27 1225(b)(1)(B). If the screening officer finds a “significant possibility” that the individual “could 28

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1 establish eligibility for asylum,” he or she is placed in regular removal proceedings and may apply 2 for asylum. Id.

3
U.S. Law on Asylum Seekers and Third Countries
4
53. Federal law provides several forms of protection for individuals fleeing persecution
5
and torture. These forms of protection include asylum, 8 U.S.C. § 1158; withholding of removal, 8
6
7 U.S.C. § 1231(b)(3); and protection under the Convention Against Torture, see Foreign Affairs
8 Reform and Restructuring Act of 1998 (“FARRA”), Pub. L. No. 105-277, div. G, Title XXII, §

9 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231); 8 C.F.R. § 208.18.

10

54. The modern asylum system was established by the Refugee Act of 1980, Pub. L. 96-

11 212, 94 Stat. 102, which was incorporated into the INA. The Act reflects “one of the oldest themes
12
in America’s history—welcoming homeless refugees to our shores,” and “gives statutory meaning to
13
14 our national commitment to human rights and humanitarian concerns.” Sen. Rep. No. 256, 96th

15 Cong., 1st Sess. 1 (1979), reprinted in U.S. Code Cong. and Admin. News 141, 141.

16

55. The statutory provisions governing asylum represent an effort by Congress to bring

17 the United States into compliance with its international obligations under the 1951 Refugee
18 Convention and the 1967 Protocol. 19
56. It is obvious and well understood that asylum seekers often pass through third
20
countries on their way to seeking refuge in the United States. Accordingly, in crafting the statutory
21 22 provisions governing asylum, Congress took care to ensure that noncitizens within our country or at
23 the border would be able to seek asylum even if they transited through another country to reach the

24 United States.

25

57. 8 U.S.C. § 1158(a)(1) provides: “Any alien who is physically present in the United

26 States or who arrives in the United States (whether or not at a designated port of arrival and
27
including an alien who is brought to the United States after having been interdicted in international
28

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1 or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with 2 this section or, where applicable, section 1225(b) of this title.” Congress thus was clear that entering

3 the United States at or between ports of arrival is not a basis to categorically deny asylum to

4 refugees. In so providing, Congress recognized that many asylum seekers would transit through
5 another country before reaching the United States. That is because, except for Mexicans arriving at 6
the southern border and Canadians arriving at the northern border, virtually all asylum seekers
7
arriving between ports of arrival at a land border necessarily transit through at least one other
8 9 country before reaching the United States. In guaranteeing that entering the United States at or
10 between ports of arrival could not be a basis for categorically denying asylum, Congress also

11 guaranteed that merely transiting through another country to reach the United States could not be a

12 categorical barrier either.

13

58. Congress also spoke directly to the circumstances when a noncitizen may be deemed

14
ineligible for asylum based on his or her relationship with a third country. 8 U.S.C. § 1158(b)(2)(A)
15
specifically provides that a noncitizen shall be ineligible for asylum if he or she “was firmly resettled
16

17 in another country prior to arriving in the United States.” The plain text of the statute, agency

18 regulations, and case law have long made clear that firm resettlement requires far more than merely

19 transiting through another country.

20

59. Under international law, firm resettlement requires more than transiting through a

21 third country. For example, the 1951 United Nations Convention Relating to the Status of Refugees
22
provides that it shall not apply to a person who “acquired a new nationality, and enjoys the
23
24 protection of the country of his new nationality” or “is recognized by the competent authorities of

25 the country in which he has taken residence as having the rights and obligations which are attached

26 to the possession of the nationality of that country.” Art. 1, §§ C(3), E, adopted July 28, 1951, 189

27 U.N.T.S. 150. 28

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1

60. In 1980, the former Immigration and Naturalization Service (“INS”) issued interim

2 regulations providing that a noncitizen would be considered firmly resettled “if he was offered

3 resident status, citizenship, or some other type of permanent resettlement by another nation and

4 traveled to and entered that nation as a consequence of his flight from persecution.” 8 C.F.R.

5 § 208.14 (1981). The regulations further provided for an exception if the asylum applicant
6
established “that the conditions of his residence in that nation were so substantially and consciously
7
restricted by the authority of the country of asylum/refuge that he was not in fact resettled.” Id.
8 9 Officers were to consider “the type of housing, whether permanent or temporary, made available to
10 the refugee, the types and extent of employment available to the refugee, and the extent to which the

11 refugee received permission to hold property and to enjoy other rights and privileges (such as travel

12 documentation, education, public relief, or naturalization) available to others resident in the
13 country.” Id. 14
61. The Attorney General amended the firm resettlement regulations in 1991. The
15
definition of firm resettlement provided in those regulations is substantially the same as the current
16
17 firm resettlement regulations set out at 8 C.F.R. §§ 208.15, 1208.15. The 1991 regulation provided

18 that a noncitizen would be “considered to be firmly resettled if, prior to arrival in the United States,

19 he entered into another nation with, or while in that nation received, an offer of permanent resident

20 status, citizenship, or some other type of permanent resettlement unless” he could establish that “his
21 entry into that nation was a necessary consequence of his flight from persecution, that he remained 22
in that nation only as long as was necessary to arrange onward travel, and that he did not establish
23 24 significant ties in that nation” or that “the conditions of his residence in that nation were so
25 substantially and consciously restricted by the authority of the country of refuge that he was not in

26 fact resettled.” 8 C.F.R. § 208.15 (revised Jan. 1, 1991). The regulation directed that the asylum

27 officer and/or immigration judge undertake an individualized inquiry and consider the following

28 factors: “the conditions under which other residents of the country live, the type of housing made
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1 available to the refugee, whether permanent or temporary, the types and extent of employment 2 available to the refugee, and the extent to which the refugee received permission to hold property

3 and to enjoy other rights and privileges, such as travel documentation including a right of entry

4 and/or reentry, education, public relief, or naturalization, ordinarily available to others resident in the
5 country.” Id. 6
62. Congress then adopted the current firm resettlement bar, 8 U.S.C.
7
§ 1158(b)(2)(A)(vi), in 1996, when it amended the INA in the Illegal Immigration Reform and
8 9 Immigrant Responsibility Act. In so doing, it codified the regulatory definition of “firm
10 resettlement.”

11

63. The implementing regulation on firm resettlement was finalized in 2000, and is

12 substantively identical to the 1991 version.2 It provides: “An alien is considered to be firmly
13 resettled if, prior to arrival in the United States, he or she entered into another country with, or while 14
in that country received, an offer of permanent resident status, citizenship, or some other type of
15
permanent resettlement unless he or she establishes: (a) That his or her entry into that country was a
16
17 necessary consequence of his or her flight from persecution, that he or she remained in that country

18 only as long as was necessary to arrange onward travel, and that he or she did not establish

19 significant ties in that country; or (b) That the conditions of his or her residence in that country were

20 so substantially and consciously restricted by the authority of the country of refuge that he or she
21 was not in fact resettled. In making his or her determination, the asylum officer or immigration judge 22
shall consider the conditions under which other residents of the country live; the type of housing,
23 24 whether permanent or temporary, made available to the refugee; the types and extent of employment
25 available to the refugee; and the extent to which the refugee received permission to hold property

26

27 2 Although the Trump administration recently attempted to alter the firm resettlement definition
through a separate rulemaking, 85 Fed. Reg. 80274, 80282-83, that rule has been preliminarily
28 enjoined, Pangea Legal Services v. U.S. Dep’t of Homeland Security, No. 20-CV-09253-JD, 2021
WL 75756, at *7 (N.D. Cal. Jan. 8, 2021). The 2000 regulatory definition thus remains operative. 13
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1 and to enjoy other rights and privileges, such as travel documentation that includes a right of entry or 2 reentry, education, public relief, or naturalization, ordinarily available to others resident in the

3 country.”

4

64. Furthermore, Congress also spoke directly to the circumstances when noncitizens

5 may be returned to a third country to have their asylum claims processed there. 8 U.S.C.
6
§ 1158(a)(2)(A) provides that the Attorney General may do so only when he or she “determines that
7
the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country (other than
8
9 the country of the alien’s nationality or, in the case of an alien having no nationality, the country of

10 the alien’s last habitual residence) in which the alien’s life or freedom would not be threatened on

11 account of race, religion, nationality, membership in a particular social group, or political opinion,

12 and where the alien would have access to a full and fair procedure for determining a claim to asylum
13 or equivalent temporary protection, unless the Attorney General finds that it is in the public interest 14
for the alien to receive asylum in the United States.”
15
65. These statutory provisions governing asylum and a noncitizen’s relationship to or
16 17 opportunity to apply for asylum in a third country, including 8 U.S.C. §§ 1158(a)(1), (b)(2)(A), and
18 (b)(2)(A)(vi), represent a carefully crafted effort by Congress to satisfy its domestic and international

19 obligations to protect those fleeing persecution and torture while also taking account of the need to

20 share the burden of protecting asylum seekers with those countries capable of offering safety and full
21 and fair asylum proceedings. 22
66. Our immigration laws track international humanitarian law, under which protection of
23 24 an individual fleeing persecution is paramount and individuals may not be required to seek
25 protection in a country where they lack a genuine guarantee of safety and access to a functioning

26 procedure, even if they transited through that country.

27

28

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1

67. The 1951 Refugee Convention and the 1967 Protocol do not require refugees to apply

2 for protection in the first country where it could have been sought and do not require refugees to be

3 returned to a country that was crossed in transit.

4

68. The United Nations High Commissioner for Refugees (“UNHCR”) has consistently

5 issued guidance on the “safe third country” concept, noting that the “primary responsibility to
6
provide protection rests with the State where asylum is sought.” Asylum should not be refused
7
“solely on the ground that it could be sought from another State,” and an asylum-seeker should not
8
9 be required “to seek asylum in a country with which he has not established any relevant links.”

10 UNHCR’s analysis provides significant guidance for courts on issues of refugee law.

11

69. UNHCR has also explained that the mere fact that a country is a party to the 1951

12 Convention and/or its 1967 Protocol does not allow one to be required to seek asylum in that
13 country. 14
70. Consistent with this long-standing guidance, UNHCR has publicly stated that the
15
transit ban at issue here jeopardizes the right to non-refoulement and ignores the lack of effective
16 17 international protection in transit countries. See UNHCR Deeply Concerned About New U.S.
18 Asylum Restrictions (July 15, 2019), https://www.unhcr.org/en-

19 us/news/press/2019/7/5d2cdf114/unhcr-deeply-concerned-new-asylum-restrictions.html.

20 The Interim Final Rule

21

71. On July 16, 2019, William Barr, in his former role as Attorney General, and Kevin

22 McAleenan, in his former role as Acting Secretary of Homeland Security, promulgated an interim
23
final rule pursuant to 8 U.S.C. § 1158(b)(2)(C), which provides that the Attorney General may “by
24
25 regulation establish additional limitations and conditions, consistent with [§ 1158], under which an

26 alien shall be ineligible for asylum,” and 8 U.S.C. § 1158(d)(5)(B), which provides that the Attorney

27

28

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1 General may “provide by regulation for any other conditions or limitations on the consideration of 2 an application for asylum not inconsistent with this chapter.”

3

72. The Interim Rule rendered ineligible for asylum noncitizens who transit through

4 another country before arriving in the United States, with extremely limited exceptions.

5

73. Specifically, the Interim Rule provided that “any alien who enters, attempts to enter,

6
or arrives in the United States across the southern land border on or after” the effective date of the
7
Interim Rule “after transiting through at least one country outside the alien’s country of citizenship,
8
9 nationality, or last lawful habitual residence en route to the United States,” shall be found ineligible

10 for asylum unless one of three conditions is met: (1) “The alien demonstrates that he or she applied

11 for protection from persecution or torture in at least one country outside the alien’s country of

12 citizenship, nationality, or last lawful habitual residence through which the alien transited en route to
13 the United States, and the alien received a final judgment denying the alien protection in such 14
country;” (2) “The alien demonstrates that he or she satisfies the definition of ‘victim of a severe
15
form of trafficking in persons’ provided in 8 C.F.R. 214.11;” or (3) “The only countries through
16
17 which the alien transited en route to the United States were, at the time of the transit, not parties to

18 the 1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol Relating

19 to the Status of Refugees, or the United Nations Convention against Torture and Other Cruel,

20 Inhuman or Degrading Treatment or Punishment.”

21

74. Under the Interim Rule, noncitizens subject to expedited removal who seek protection

22
would be screened by an asylum officer. The asylum officer would determine whether the
23

24 noncitizen was subject to the bar set out in the Interim Rule. If the asylum officer determines that

25 the noncitizen was subject to the bar, the asylum officer would deny asylum and then apply the

26 reasonable-fear standard, rather than the credible-fear asylum standard, to assess the noncitizen’s

27 claims for statutory withholding of removal and Convention Against Torture protection. A

28 noncitizen who passed the reasonable-fear screening would be placed in removal proceedings where
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1 they would be permitted to apply for withholding and/or Convention Against Torture protection. A 2 noncitizen could seek review of the asylum officer’s determination that he or she was subject to the

3 eligibility bar before an immigration judge. If the immigration judge affirmed the determination that

4 the bar applies, and that the noncitizen had failed to meet the reasonable fear standard, the applicant

5 would be subject to removal without any opportunity for judicial review.
6
75. The APA generally requires a period of public notice and comment on proposed
7
regulations to ensure that agency actions are transparent, lawful, and appropriately vetted. But
8 9 Defendants issued the Interim Rule without following this statutory obligation. Instead, Defendants
10 claimed “good cause” to bypass the notice-and-comment procedures normally required for a

11 rulemaking pursuant to 5 U.S.C. § 553(b)(B), and the 30-day waiting period that is required even

12 where notice and comment are not, 5 U.S.C. § 553(d). They also invoked the “foreign affairs”
13 exception to those procedures. 5 U.S.C. § 553(a)(1). 14
76. Both this Court and the Ninth Circuit have held that the Interim Rule should be
15
preliminarily enjoined because Plaintiffs were likely to succeed in showing that the Interim Rule was
16
17 contrary to law and arbitrary and capricious. E. Bay, 964 F.3d at 857-58; E. Bay, 385 F. Supp. 3d at

18 930-31.

19

77. Both this Court and the Ninth Circuit found that the Interim Rule was likely

20 inconsistent with 8 U.S.C. § 1158, in light of the paramount concern for safety evidenced in the
21 firm-resettlement (§ 1158(b)(2)(A)(vi)) and safe-third-country bars (§ 1158(a)(2)(A)). E. Bay, 964 22
F.3d at 846-49 (“A critical component of both bars is the requirement that the alien's ‘safe option’ be
23 24 genuinely safe.”); E. Bay, 385 F. Supp. 3d at 944-45 (“By contrast, the Rule does virtually nothing to
25 ensure that a third country is a ‘safe option.’”).

26

78. Both the Ninth Circuit and this Court held that the Interim Rule was likely arbitrary

27 and capricious because (1) the agencies’ conclusion that Mexico provides a safe option is

28 contradicted by the record and fails to address evidence that Mexico is unsafe for asylum seekers, (2)
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1 the agencies failed to justify the assumption that a noncitizen who failed to apply for asylum in a 2 third country is unlikely to have a meritorious asylum claim, and (3) the agencies failed to

3 adequately consider the effect of the Interim Rule on unaccompanied minors. E. Bay, 964 F.3d at

4 849-50; see also E. Bay, 385 F. Supp. 3d at 951-57.

5

79. On June 30, 2020, Judge Timothy J. Kelly on the U.S. District Court for the District

6
of Columbia rejected the agencies’ arguments for bypassing notice-and-comment procedures,
7
granted the plaintiffs’ motions for summary judgment, and vacated the Interim Rule on that basis.
8
9 CAIR, 471 F. Supp. 3d at 57, 60.

10 Issuance of the Nearly Identical Final Rule

11

80. On December 17, 2020, then-Acting Secretary of Homeland Security Chad Wolf and

12 former Attorney General William Barr issued the Final Rule, which is virtually identical to the

13 Interim Rule.

14

81. The Final Rule purports to comply with notice-and-comment requirements by

15
responding to public comments submitted within 30 days of the publication of the Interim Rule. 85
16

Fed. Reg. at 82,261.
17

18

82. The Final Rule makes only minor changes that fail to address any of the fatal defects

19 in the Interim Rule as identified by the Ninth Circuit and this Court and as alleged by Plaintiffs. See

20 id. at 82,262.

21

83. Specifically, the Final Rule provides that “any alien who enters, attempts to enter, or

22 arrives in the United States across the southern land border on or after July 16, 2019, after transiting
23
through at least one country outside the alien’s country of citizenship, nationality, or last lawful
24
25 habitual residence en route to the United States,” shall be found ineligible for asylum unless one of

26 three conditions is met: (1) “The alien demonstrates that he or she applied for protection from

27 persecution in at least one country outside the alien’s country of citizenship, nationality, or last

28 lawful habitual residence through which the alien transited en route to the United States and the alien

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1 received a final judgment denying the alien protection in such country;” (2) “The alien demonstrates 2 that he or she satisfies the definition of ‘victim of a severe form of trafficking in persons’ provided in

3 8 C.F.R. 214.11;” or (3) “The only country or countries through which the alien transited en route to

4 the United States were, at the time of the transit, not parties to the 1951 United Nations Convention

5 relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.” Id. at
6
82289-90.
7
84. Like the Interim Rule, the Final Rule does not require any individualized assessment
8 9 of the asylum system in the country or countries through which a noncitizen transited en route to the
10 United States, or any assessment of the asylum seeker’s protection claims or reasons for not seeking

11 protection in the transit country. It does not require an assessment of whether the transit country had

12 a functioning asylum system capable of processing the asylum seeker’s claim in a full and fair
13 manner; whether the country was able to offer the asylum seeker effective protection against 14
persecution or torture; whether the asylum seeker could even access—practically or legally—the
15
asylum system; whether the asylum system would recognize the asylum seeker’s particular claim for
16
17 protection; or why the asylum seeker otherwise did not apply for protection. If, for example, an

18 asylum seeker has a protection claim rooted in persecution based on sexual orientation but the transit

19 country does not offer asylum on that basis, the asylum seeker would nonetheless be subject to the

20 Interim Rule. So too if the asylum seeker faced threats to her safety in the transit country and

21 staying to apply for asylum and receive a final judgment would have required her to risk further

22
harm.
23

24

85. Indeed, many countries that are plainly unable to provide adequate protection to

25 asylum seekers and lack full and fair asylum systems nonetheless are signatories to international

26 refugee agreements. For example, countries such as Afghanistan, Chad, the Democratic Republic of

27 Congo, Iran, Somalia, and Sudan are signatories to the 1951 Refugee Convention. The U.S. State

28 Department has recognized in its Country Reports that many signatories to the Convention do not
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1 adequately protect refugees or lack adequate asylum processing systems. For example, Egypt is a 2 signatory to the Convention, but according to the State Department, Egypt’s “laws do not provide for
3 granting asylum or refugee status, and the government has not established a comprehensive legal
4 regime for providing protection to refugees.” Similarly, Angola is a signatory to the Convention, but 5 according to the State Department, “[t]he law provides for the granting of asylum or refugee status, 6
but the law did not function during the year.”
7
86. Like the Interim Rule, the Final Rule contains no exception for unaccompanied
8 9 children as defined in 6 U.S.C. § 279(g). They, too, must apply for protection in a country through 10 which they transit or will be deemed ineligible for asylum in the United States, irrespective of their
11 age, knowledge of or ability to understand the Interim Rule’s requirements, or knowledge of or
12 ability—practical or legal—to access the asylum system in a transit country. By contrast, Congress 13 expressly exempted unaccompanied children from the safe third country exception in the INA. See 8 14
U.S.C. § 1158(a)(2)(E).
15
87. Like the Interim Rule, the Final Rule arbitrarily disfavors certain asylum seekers,
16 17 particularly those without resources. Asylum seekers with the financial means, time, and other 18 resources required to obtain travel documents, a visa, and plane tickets to the United States are still
19 able to access asylum. But asylum seekers who are forced to flee immediately because of exigent
20 danger, and so lack the time to make such preparations, as well as asylum seekers without adequate 21 financial resources, will be denied. 22
88. The Final Rule contains only two minor substantive changes that do not impact
23 24 Plaintiffs’ claims. First, the Final Rule no longer exempts individuals who applied for and were 25 denied protection from torture in a third country; in other words, the exemption set forth in 8 C.F.R.
26 §§ 208.13(c)(4)(i), 1208.13(c)(4)(i) would be limited to individuals who applied for and were denied
27 asylum in a third country. 85 Fed. Reg. at 82,262, 82,289. Second, a third country’s status as a 28 signatory to the Convention Against Torture is no longer determinative of the country’s ability to
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1 provide asylum. Id. Accordingly, individuals subject to the Final Rule need not apply for protection 2 in a third country that is a signatory to the Convention Against Torture (but not a signatory to either

3 1951 Refugee Convention or the 1967 Refugee Protocol) in order to qualify for the exemption set

4 forth in 8 C.F.R. §§ 208.13(c)(4)(iii), 1208.13(c)(4)(iii). However, because the Final Rule is aimed

5 at asylum applicants arriving at the U.S.-Mexico border and Mexico is a signatory to 1951 Refugee
6
Convention and the 1967 Refugee Protocol, the elimination of the reference to the Convention
7
Against Torture has no practical impact on the operation of the rule. See E. Bay, 964 F.3d at 855
8 9 (“The Rule targets only asylum applicants entering at our southern border with Mexico.”). Thus, the
10 net effect of the changes in the Final Rule is to further narrow the Interim Rule’s already limited

11 exemptions, making it harder for asylum seekers at the southern border to comply with the policy.

12

89. The Final Rule continues to be inconsistent with the firm-resettlement and safe-third-

13 country bars.
14
90. The Final Rule again fails to adequately consider whether Mexico, Guatemala, or any
15
other transit country is in fact a safe option for asylum seekers.
16

17

91. The Final Rule continues to rest on an unsupported assumption that a noncitizen who

18 has failed to apply for asylum in a third country is unlikely to have a meritorious asylum claim.

19

92. The Final Rule again fails to adequately consider the effect of the policy on

20 unaccompanied minors.

21 The 30-Day Comment Period for the Final Rule Was Inadequate

22

93. The APA requires that the public be given a meaningful opportunity to participate in

23
rulemaking. 5 U.S.C. § 553.
24

25

94. The customary comment period is 60 days. See Exec. Order No. 13,653, 76 Fed.

26 Reg. 3,821, 3,821-22 (Jan. 18, 2011) (“To the extent feasible and permitted by law, each agency

27 shall afford the public a meaningful opportunity to comment . . . on any proposed regulation, with a

28 comment period that should generally be at least 60 days.”); Exec. Order No. 12,866, 58 Fed. Reg.

21 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT, 4:19-cv-04073

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1 51,735, 51,740 (Sep. 30, 1993) (“[E]ach agency should afford the public a meaningful opportunity to 2 comment on any proposed regulation, which in most cases should include a comment period of not

3 less than 60 days.”).

4

95. The agencies have failed to explain their decision to depart from the customary 60-

5 day period and to provide a comment period of only 30 days.
6
96. The agencies have failed to explain why a 60-day comment period was not feasible.
7
97. The policy set forth in the Interim Rule and the Final Rule is complex and requires
8
9 commenters to engage in extensive research and analysis of the asylum systems in potential transit

10 countries, to determine whether they may serve as safe options for asylum seekers.

11

98. The policy also has the effect of virtually eliminating asylum at the southern border,

12 which has wide-ranging impacts domestically, including on the economy and the labor market, not

13 to mention the effects on thousands of immigrant families hoping to use asylum to reunite with loved
14
ones. Those effects all require extensive research and analysis.
15
99. The shortened comment period prevented Plaintiffs from fully exploring the
16
17 significance of the policy and submitting more detailed comments than they did.

18 Defendants Failed to Publish the Final Rule At Least 60 Days Before Its Effective Date

19

100. The CRA prohibits any “major rule” from taking effect until at least 60 days after

20 publication of the rule in the Federal Register. 5 U.S.C. § 801(a)(3)(A).

21

101. A “major rule” is one that “is likely to result in” (i) “an annual effect on the economy

22 of $100,000,000 or more,” (ii) “a major increase in costs or prices for consumers, individual
23
industries, Federal, State, or local government agencies, or geographic regions,” or (iii) “significant
24
25 adverse effects on competition, employment, investment, productivity, innovation, or on the ability

26 of United States-based enterprises to compete with foreign-based enterprises in domestic and export

27 markets.” 5 U.S.C. § 804(2).

28

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1

102. As numerous studies have found, asylum seekers are a valuable source of labor for

2 key industries.

3

103. In 2019 alone, the United States received over 128,000 defensive asylum applications

4 and over 49,000 affirmative applications from non-Mexican nationals of Latin American origin,

5 almost all of whom would be denied asylum under the Final Rule. If even 10% of those asylum

6
seekers had even a minimum wage job, their annual economic impact would easily exceed

7
$100,000,000.
8

9

104. Indeed, one expert analysis concluded that even a two percent reduction in the

10 number of asylum seekers would easily cost the U.S. economy and fisc over $100 million, in the first

11 year alone.

12

105. The Final Rule asserts, without explanation, that it is not a “major rule” within the

13 meaning of the CRA. 85 Fed. Reg. at 82,289.
14
106. The Final Rule is scheduled to take effect less than 60 days from its date of
15
publication.
16
17 The Final Rule Was Issued by Unlawfully Appointed DHS Officers

18

107. The Final Rule was approved by then-Acting DHS Secretary, Chad Wolf. See 85

19 Fed. Reg. at 82,289 (“The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed

20 and approved this document . . . .”).

21

108. After approving the Final Rule, Wolf “delegat[ed] the authority to electronically sign

22 [the Final Rule] to Chad R. Mizelle, who is the Senior Official Performing the Duties of the General

23
Counsel for DHS, for purposes of publication in the Federal Register.” Id.
24

25

109. Both the Secretary and the General Counsel for DHS are offices that require

26 appointment by the President and advice and consent of the Senate. 6 U.S.C. § 112(a)(1) (“There is

27 a Secretary of Homeland Security, appointed by the President, by and with the advice and consent of

28 the Senate.”); § 113(a)(1)(J) (providing that the “General Counsel, who shall be the chief legal

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1 officer of the Department,” shall be “appointed by the President, by and with the advice and consent 2 of the Senate”).

3

110. Neither Wolf nor Mizelle has been confirmed by the Senate to his respective position,

4 and neither was lawfully serving in his respective acting role when the Final Rule was approved and

5 signed. Wolf’s nomination to serve as DHS Secretary was withdrawn; Mizelle has never been

6
formally nominated to serve as DHS General Counsel.

7
Legal Framework
8

9

111. Under the Appointments Clause, the President “shall nominate, and by and with the

10 Advice and Consent of the Senate, shall appoint . . . all other Officers, of the United States, whose

11 Appointments are not herein otherwise provided for, and which shall be established by Law.” U.S.

12 Const., Art. II, § 2, cl. 2.

13

112. Congress has also enacted various statutes that govern the appointment of acting

14
officials, including the FVRA, a generally applicable law, and the HSA, a DHS-specific statute.
15

113. The FVRA specifies the categories and tenures of individuals who may serve in an
16

17 acting capacity when a Senate-confirmed position, such as DHS Secretary or General Counsel, is

18 vacant. See 5 U.S.C. §§ 3345-3349d.

19

114. Under the FVRA, the “first assistant” to the vacant office automatically assumes the

20 acting role unless the President designates another official in accordance with the Act’s
21 requirements. 5 U.S.C. § 3345(a)(1). 22
115. Barring certain exceptions, an acting official may not serve beyond 210 days after the
23 24 position becomes vacant. 5 U.S.C. § 3346(a). One exception is that an official may serve in an
25 acting capacity “once a . . . nomination for the office is submitted to the Senate, from the date of

26 such nomination for the period that the nomination is pending in the Senate.” 5 U.S.C. § 3346(a)(2).

27 Once the allotted period has elapsed, the FVRA mandates that “the office shall remain vacant.” See

28 5 U.S.C. § 3348(b).
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1

116. Barring certain exceptions not applicable here, an individual whose nomination is

2 pending in the Senate may not serve pursuant to the FVRA in an acting capacity in the office for

3 which their nomination is pending. 5 U.S.C. § 3345(b)(1)(B).

4

117. Actions taken by officers acting in violation of the FVRA “shall have no force or

5 effect” and “may not be ratified.” 5 U.S.C. § 3348(d).
6
118. The FVRA is the “exclusive means” for designating acting officials for Senate-
7
confirmed positions, unless another statute “expressly” authorizes another mechanism. 5 U.S.C.
8
9 § 3347(a).

10

119. The HSA sets out the order of succession for vacancies arising in the position of

11 Secretary of Homeland Security. 6 U.S.C. § 113(a)(1)(A), (F); § 113(g). The Deputy Secretary and

12 then the Under Secretary for Management are each designated as “first assistant” to their immediate
13 superiors—a reference to the FVRA, see 5 U.S.C. § 3345(a)(1)—and are therefore first and second 14
in line to serve as Acting Secretary. 6 U.S.C. §§ 113(a)(1)(F), (g)(1).
15
120. In addition, “the Secretary may designate” other DHS officers “in a further order of
16 17 succession to serve as Acting Secretary” if the first two offices in the order of succession are vacant.
18 6 U.S.C. § 113(g)(2).

19

121. An Acting Secretary is an inferior officer, who may perform the duties of a principal

20 officer for only a limited period of time.

21

122. Indefinite, interim service as an Acting Secretary violates the Appointments Clause’s

22
requirement that principal officers be nominated by the President and confirmed by the Senate.
23

24

123. An Acting Secretary, as an inferior officer, may not lawfully designate another Acting

25 Secretary.

26

Wolf’s and McAleenan’s Unlawful Tenures as Acting DHS Secretary

27

28

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1

124. There has not been a Senate-confirmed DHS Secretary since the departure of former

2 Secretary Kirstjen Nielsen on April 10, 2019. This is the longest cabinet-level vacancy in U.S.

3 history.

4

125. On September 10, 2020, President Trump nominated Wolf to serve as DHS Secretary

5 and submitted his nomination for Senate confirmation. The White House later announced the

6
withdrawal of Wolf’s nomination on January 7, 2021, and Wolf thereafter resigned, effective

7
January 11, 2021, at 11:59 P.M.
8

9

126. Because Wolf was not first assistant to the DHS Secretary, he could not, pursuant to

10 the FVRA, lawfully serve as Acting DHS Secretary during the pendency of his nomination. See 5

11 U.S.C. § 3345(b)(1).

12

127. Wolf was not lawfully designated as Acting Secretary under the HSA because his

13 predecessors failed to properly modify the order of succession under the HSA to place him in the
14
role. In fact, neither McAleenan, who issued the Interim Rule, nor Wolf, who issued the Final Rule,
15
was validly serving as Acting Secretary at the time of their respective actions.
16

17

128. At least six district courts have held that Wolf’s predecessor, McAleenan, lacked

18 authority to designate Wolf as Acting Secretary. See Pangea Legal Services v. DHS, No. 20-cv-

19 9253, 2021 WL 75756, at *5 (N.D. Cal. Jan. 8, 2021); La Clinica De La Raza v. Trump, No. 19-cv-

20 4980, 2020 WL 7053313, at *6-7 (N.D. Cal. Nov. 25, 2020); Batalla Vidal v. Wolf, No. 16-cv-4756,
21 2020 WL 6695076, at *8 (E.D.N.Y. Nov. 14, 2020); Nw. Immigrant Rights Project v. USCIS, No. 22
19-cv-3283, 2020 WL 5995206, at *24 (D.D.C. Oct. 8, 2020) ; Immigrant Legal Resource Center
23 24 (ILRC) v. Wolf, No. 20-cv-5883, 2020 WL 5798269, at *7-9 (N.D. Cal. Sept. 29, 2020); Casa de
25 Maryland, Inc. v. Wolf, No. 20-cv-2118, 2020 WL 5500165, at *23 (D. Md. Sept. 11, 2020).

26

129. At the time of Nielsen’s resignation, DHS had two different orders of succession, one

27 of which was applicable to any vacancy caused by a resignation and another to any vacancy caused

28 by an emergency. See DHS Delegation No. 106 (Revision No. 08.5), DHS Orders of Succession and
26 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT, 4:19-cv-04073

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1 Delegations of Authority (Apr. 10, 2019); Exec. Order No. 13,753, 81 Fed. Reg. 90,667 (Dec. 9, 2 2016). Prior to her resignation, Nielsen designated the CBP Commissioner (then McAleenan) as the

3 next in line to serve as Acting Secretary in the event of an emergency, but not in the event of a

4 resignation. Upon Nielsen’s resignation, McAleenan assumed the role of Acting Secretary, even

5 though the rightful successor pursuant to the resignation line of succession was Director of the

6
Cybersecurity and Infrastructure Security Agency (formerly known as Under Secretary for National
7
Protection and Programs) Christopher Krebs.
8

9

130. On July 12, 2019, McAleenan issued the Interim Rule despite having unlawfully

10 assumed the office of Acting Secretary. 84 Fed. Reg. at 33,829, 33,845.

11

131. On November 8, 2019, the 212th day after Nielsen left office, McAleenan attempted

12 to revise DHS Delegation 106 to consolidate the emergency and resignation orders of succession
13 under the HSA, 6 U.S.C. § 113(g)(2). DHS Delegation No. 106, Revision No. 8.6, DHS Orders of 14
Succession and Delegations of Authority (Nov. 8, 2019) (“November Delegation”).
15
132. The November Delegation was apparently intended to install Wolf as McAleenan’s
16 17 successor, by elevating in the order of succession the office that Wolf occupied at the time (Under
18 Secretary for Strategy, Policy, and Plans).

19

133. Because McAleenan was not lawfully serving as Acting Secretary, however, he

20 lacked the authority to issue the November Delegation. The previous line of succession—in which
21 Wolf was not next in line—therefore remained in effect. 22
134. Moreover, the HSA empowers only a Senate-confirmed DHS Secretary to change the
23 24 order of succession. See 6 U.S.C. § 113(g)(2). Thus, even if McAleenan had been properly elevated
25 to Acting Secretary by Nielsen, he was without statutory authority to modify the order of succession.

26

135. Accordingly, both McAleenan’s Interim Rule and change to the order of succession

27 in the November Delegation lacked force and effect. 28

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1

136. On November 13, 2019, McAleenan resigned as CBP Commissioner and as Acting

2 DHS Secretary.

3

137. Even though the November Delegation was invalid, Wolf purported to assume the

4 role of Acting Secretary upon McAleenan’s resignation.

5

138. On August 14, 2020, the Government Accountability Office (“GAO”) concluded that

6
neither McAleenan nor Wolf had been lawfully performing the functions of Acting DHS Secretary.
7
See GAO, No. B-331650, Decision: Matter of Department of Homeland Security—Legality of
8
9 Service of Acting Secretary of Homeland Security (“GAO Decision”) (Aug. 14, 2020),

10 https://tinyurl.com/yyf2eqew. Per the GAO Decision, DHS’s succession orders at the time of

11 Nielsen’s resignation assigned the Acting Secretary role to a different official (Mr. Krebs), thereby

12 precluding McAleenan from lawfully serving as Acting Secretary. Id. As such, the GAO concluded

13 that McAleenan had not validly served as Acting Secretary and that his designation of Wolf as his
14
successor was therefore also invalid. Id.
15
139. Notwithstanding the GAO decision, Wolf continued his unlawful service.
16

17

140. On September 10, 2020, President Trump nominated Wolf to serve as DHS Secretary

18 and submitted his nomination for Senate confirmation.

19

141. According to a memorandum issued by Wolf, if McAleenan’s November Delegation

20 had been invalid, Peter Gaynor, the Administrator of the Federal Emergency Management Agency

21 (“FEMA”) would have become Acting DHS Secretary by operation of law. 85 Fed. Reg. 59,651,

22
59,653 (Sept. 23, 2020).
23

24

142. On the day of Wolf’s nomination, Gaynor issued a memo titled, “Order Designating

25 the Order of Succession for Secretary of Homeland Security” (“Gaynor Memo”). See Letter by

26 DHS, Batalla Vidal, No. 16-cv-4756, Dkt. 341 (E.D.N.Y. Nov. 13, 2020) (addressing sequence of

27 events). In that order, Gaynor purported to exercise authority under 6 U.S.C. § 113(g)(2) to adopt

28 the same November Delegation that McAleenan had issued to re-install Wolf as Acting Secretary.
28 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT, 4:19-cv-04073

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1

143. On November 14, 2020, Gaynor reissued the same memo because the original memo

2 may have been issued before Gaynor could have assumed the office of Acting Secretary. See Peter

3 T. Gaynor, Order Designating the Order of Succession for the Secretary of Homeland Security (Nov.

4 14, 2020). He again purported to exercise “any authority vested in [him] as Acting Secretary”

5 pursuant to the order of succession in place when Secretary Nielsen resigned in April 2019 and to

6
use that authority to re-amend the order of succession to re-assign the Acting Secretary role to Wolf.
7
Id.
8

9

144. Under both iterations of the Gaynor Memo, Wolf purportedly became Acting DHS

10 Secretary, effective immediately. Following the Gaynor memos, Wolf attempted to ratify actions

11 taken during his and McAleenan’s unlawful tenures, including McAleenan’s issuance of the Interim

12 Rule. See DHS, Ratification of Department Actions (Nov. 16, 2020); DHS, Ratification of Certain
13 Actions (Nov. 16, 2020). 14
145. However, Gaynor lacked the authority to adopt the November Delegation. Like
15
McAleenan before him, even assuming Gaynor served momentarily as Acting Secretary, he lacked
16 17 authority to change the order of succession, an authority granted only to a Senate-confirmed
18 Secretary of Homeland Security. The Gaynor Memo’s adoption of the November Delegation was

19 thus without legal force, unlawful, and otherwise a nullity.

20

146. Even if an Acting Secretary could change the further order of succession, Gaynor

21 never assumed the role of Acting Secretary. He was never sworn in, and DHS never submitted any
22
notice to Congress that Administrator Gaynor was serving as Acting Secretary, as it has done for
23
24 past Acting Secretaries.

25

147. And even assuming Gaynor did assume the role of Acting Secretary, Gaynor did not

26 resign as FEMA Administrator or Acting Secretary or otherwise create a new vacancy in the role of

27 Acting Secretary that would trigger the order of succession and a transfer of duties to Wolf. 28

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1

148. Wolf, therefore, was never lawfully designated to serve as Acting Secretary pursuant

2 to 6 U.S.C. § 113(g)(2)’s further order of succession, and thus never lawfully assumed the functions

3 and duties of Acting Secretary.

4

149. Even if he did assume the role of Acting Secretary, Wolf could not lawfully ratify

5 prior actions that had no force or effect under the FVRA. 5 U.S.C. § 3348(d)(2).

6
150. On December 17, 2020, Wolf purported to approve the Final Rule despite not

7
lawfully serving as Acting Secretary.
8

9

151. By that point, 617 days had also elapsed since the vacancy created by former

10 Secretary Nielsen’s departure, nearly three times the FVRA’s 210-day limit on acting service.

11

152. Moreover, Wolf’s purported indefinite service as Acting DHS Secretary violated the

12 Appointments Clause, because Wolf was acting as a principal officer without being confirmed by the
13 Senate to the role. 14
153. Because Wolf was not lawfully serving as Acting Secretary, his ratification of the
15
Interim Rule was ineffective. Even if Wolf had been lawfully serving as Acting DHS Secretary
16
17 when he issued the ratification memos, ratification was barred by the FVRA. See 5 U.S.C.

18 § 3348(d)(2).

19

154. Because Wolf was not lawfully serving as Acting Secretary, his approval of the Final

20 Rule is also contrary to law.

21

155. On January 7, 2021, the White House announced that Wolf’s nomination as DHS

22
Secretary had been withdrawn.
23

24

156. On January 11, 2021, Wolf announced his resignation as Acting Secretary, effective

25 that night at 11:59 P.M., citing the number of “meritless” court rulings that he was unlawfully

26 serving as Acting Secretary. Prior to his resignation, Wolf purported to designate, under the HSA, a

27 new order of succession that would install Gaynor as the next Acting DHS Secretary. See DHS,

28 Ratification, at 2 (Jan. 14, 2021),
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1 https://www.dhs.gov/sites/default/files/publications/20_0113_undersecretary-wolf-ratification2 delegable-prior-actions.pdf. Because Wolf was unlawfully serving as Acting Secretary and because

3 only a Senate-confirmed Secretary may alter the order of succession, Wolf’s designation of Gaynor

4 was ineffective.

5

157. Gaynor then purported to assume the role of Acting DHS Secretary, pursuant to both

6
the original line of succession governing resignation-related vacancies (that McAleenan and Gaynor
7
purportedly eliminated) and Wolf’s new, unlawful order of succession. Id.
8

9

158. Although Wolf purported to resign as Acting Secretary, he resumed his prior role as

10 Under Secretary for Strategy, Policy, and Plans.

11

159. The day after Wolf’s resignation as Acting Secretary, Gaynor delegated the full

12 extent of the Secretary’s rulemaking authority to Wolf. DHS Delegation No. 23028, Delegation to

13 the Under Secretary for Strategy, Policy, and Plans (Jan. 12, 2021),

14
https://www.dhs.gov/sites/default/files/publications/20_0112_delegation-23028-final-rules-
15
regulations-other-matters.pdf.
16

17

160. Two days later, on January 14, 2021, Wolf issued what would be his third ratification

18 memo, approving each and every of his previously unauthorized actions as Acting Secretary, as well

19 certain of McAleenan’s unauthorized rulemaking, including the Interim Rule. DHS, Ratification

20 (Jan. 14, 2021), https://www.dhs.gov/sites/default/files/publications/20_0113_undersecretary-wolf-
21 ratification-delegable-prior-actions.pdf. 22
161. Gaynor and Wolf’s latest maneuver to circumvent constitutional and statutory limits
23 24 on their authority is barred by the FVRA, violates the Appointments Clause, and is contrary to basic
25 principles of ratification.

26

27

28

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1

Defendant Mizelle’s Unlawful Tenure as Acting General Counsel of DHS

2

162. After he originally approved the Final Rule, Wolf delegated authority to

3 electronically sign the Final Rule for purposes of the Federal Register to Defendant Mizelle, in the

4 latter’s capacity as the official discharging the duties of General Counsel for DHS.

5

163. Although Defendants have referred to Mizelle as the “Senior Official Performing the

6
Duties of the General Counsel for DHS,” rather than “Acting General Counsel for DHS,” Mizelle
7
has been performing duties reserved for the General Counsel and is therefore acting as General
8
9 Counsel, notwithstanding his formal title.3

10

164. The General Counsel for DHS is a position requiring Senate confirmation. 6 U.S.C.

11 § 113(a)(1)(J).

12

165. Any vacancy in the office of General Counsel for DHS is therefore subject to the

13 FVRA’s requirements, including the statute’s 210-day limit on the service of acting officers. 5
14
U.S.C. § 3345(a) (making FVRA applicable to any office for which an appointment “is required to
15
be made by the President, by and with the advice and consent of the Senate”); id. § 3346 (providing
16

17 an aggregate limit of 210 days for service by acting officers, starting from the date of the vacancy).

18

166. The most recent Senate-confirmed General Counsel for DHS, John Mitnick, was fired

19 on September 17, 2019.

20

167. To date, the President has not formally submitted to the Senate the nomination of any

21 individual to serve as General Counsel for DHS.
22
168. The 210-day period during which an acting official may discharge the duties of
23
24 General Counsel therefore elapsed on April 15, 2020, more than eight months before Mizelle signed

25 the Final Rule on December 17, 2020.

26

27
3 Notably, Mizelle’s publicly available LinkedIn page identifies his present title as “Acting General
28 Counsel.” Chad Mizelle, LinkedIn (last visited Jan. 3, 2021), https://www.linkedin.com/in/chad-
mizelle-36366917. 32
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1

169. Because Mizelle is performing the duties of General Counsel for DHS in violation of

2 the FVRA’s 210-day limit on acting service, his signature on the Final Rule is without force and

3 effect, and the Final Rule was published in the Federal Register without the requisite authority. See

4 5 U.S.C. § 553(d) (substantive rules may not take effect until at least 30 days after required

5 publication).

6
170. Wolf’s ratification memo dated January 14, 2021, was unlawful, ineffective, and, in

7
any event, does not purport to ratify Mizelle’s unauthorized signing of the Final Rule.
8

9 The Administration’s Persistent Attacks on Asylum Seekers

10

171. The Interim and Final Rules bear stark resemblance to the November 8, 2018 interim

11 final rule (“2018 Rule”), also enacted pursuant to 8 U.S.C. § 1158(b)(2)(C), and President Trump’s

12 signed 2018 Proclamation entitled “Presidential Proclamation Addressing Mass Migration Through

13 the Southern Border of the United States” (“2018 Proclamation”). The 2018 Rule provided that all
14 persons subject to a presidential proclamation concerning the southern border issued pursuant to the 15
INA § 212(f), 8 U.S.C. § 1182(f), or INA § 215(a)(1), 8 U.S.C. § 1185(a)(1), were ineligible for
16
asylum. The Proclamation suspended the entry of all persons entering without inspection at the
17
18 southern border.

19

172. Together, the 2018 Rule and 2018 Proclamation barred people from obtaining asylum

20 if they entered the United States somewhere along the southern border other than a designated port

21 of arrival—in direct violation of Congress’s clear command that manner of entry cannot constitute a
22 categorical asylum bar. 23
173. On November 9, 2018, East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law
24 25 Lab, and Central American Resource Center—the same Plaintiffs in this action—challenged the
26 procedural and substantive validity of the 2018 Rule. On December 19, 2018, the district court

27 granted a preliminary injunction preventing the government from taking any action to continue to

28 implement the 2018 Rule. The order remains in effect pending a final judgment and is before the

33 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT, 4:19-cv-04073

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1 Ninth Circuit on the merits. On December 21, 2018, the U.S. Supreme Court denied the 2 government’s request for a stay pending appeal of the district court’s order granting a temporary

3 restraining order.

4

174. The Final Rule serves to bar a similar group of people in a categorical fashion—

5 noncitizens who transit through another country prior to reaching the southern border. Indeed, the
6
Final Rule is more draconian than its 2018 counterpart because it forecloses the protection of asylum
7
to those who seek asylum even at a port of entry. As such, asylum seekers coming from a country
8
9 other than a country contiguous to the United States—such as those from the Northern Triangle—are

10 left with only two more limited forms of protection—withholding of removal and protection under

11 the Convention Against Torture—regardless of whether they present themselves at a port of arrival.

12

175. The Final Rule is the latest in a series of attacks on asylum seekers and yet another

13 attempt to undermine the statutory provisions governing asylum
14
Asylum Seekers at the Southern Border
15
Dire Conditions in Central America Have Prompted Many to Seek Refuge Elsewhere
16
176. Individuals who arrive at the southern border seeking protection in the United States
17
18 through the asylum process, including children, are fleeing some of the most dangerous countries in

19 the world.

20

177. Although asylum seekers come to the southern border from all over the world, many

21 come from El Salvador, Guatemala, and Honduras, countries known as the “Northern Triangle.”

22 According to a recent report from UNHCR, these countries are experiencing epidemic levels of

23
violence. Human rights groups have compared the levels of violence in this region to those typically
24
seen in war zones.
25

26

178. Those who leave often are running from life-threatening situations, leaving

27 everything behind to make a dangerous journey. In particular, violence against women by criminal

28

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1 armed groups has escalated dramatically in Central America, and those governments have been 2 unable or unwilling to provide effective protection.

3

179. Asylum seekers fleeing their home countries in Central America face an arduous

4 journey to the United States, involving a high risk of violence, including sexual assault, along the

5 way.

6
180. Many asylum seekers from Central American have no choice but to travel by land to
7
the United States due to documentation requirements that would be necessary to board a plane, as
8
9 well as financial constraints.

10

181. The vast majority of asylum seekers from Central America thus arrive at the southern

11 border after traveling by land across one or more countries. Those coming from Guatemala

12 necessarily transit through Mexico, and those coming from El Salvador and Honduras transit through

13 Guatemala and Mexico.
14
182. Many of the migrants coming to the southern border have legitimate claims to
15
asylum.
16

17

183. According to DHS statistics, in fiscal year 2018, 75 percent of individuals from El

18 Salvador, Guatemala, Honduras, and Mexico who were subject to a credible fear screening by an

19 asylum officer were found to have a significant possibility of establishing that they have been

20 persecuted or have a well-founded fear of persecution if returned to their country.

21

184. Between fiscal years 2017 and 2019, 10,943 people from El Salvador, Guatemala,

22
and Honduras were granted asylum affirmatively, and 12,359 people from those countries were
23

24 granted asylum defensively.

25

Guatemala Is Not Safe for Asylum Seekers and Lacks a Fair, Functioning Asylum System

26

185. For most asylum seekers, remaining in Guatemala and seeking protection there is not

27 an option. The country lacks a full and fair asylum processing system, and is often extremely

28 dangerous for migrants.
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1

186. According to the U.S. State Department, rape, violence against women, trafficking,

2 violence against LGBTQ persons, gang recruitment of children, and corruption are serious issues in

3 Guatemala.

4

187. The State Department’s Overseas Security Advisory Council reports that “Guatemala

5 remains among the most dangerous countries in the world” and has an “alarmingly high murder rate”

6
that “appears driven by narco-trafficking activity, gang-related violence, a heavily armed population,
7
and police/judicial system unable to hold many criminals accountable.”
8

9

188. Guatemala was in the top four countries whose nationals were granted asylum in the

10 United States in fiscal years 2015, 2016, and 2017.

11

189. Guatemala’s asylum system is new and barely functioning.

12

190. According to the U.S. State Department, UNHCR “reported that identification and

13 referral mechanisms for potential asylum seekers” in Guatemala “were inadequate,” and “[b]oth

14
migration and police authorities lacked adequate training concerning the rules for establishing
15
refugee status.”
16

17

191. According to the UNHCR, only 262 people applied for refugee status in Guatemala

18 between January and November 2018, and that number was a 75 percent increase from the prior

19 year. Since 2015, Guatemala has received on average fewer than 100 cases per year for asylum

20 processing. In the last two years, it has only decided roughly 20 to 30 asylum cases. There are very

21 few officials working on the asylum process in Guatemala, and its capacity to handle asylum claims

22
is extremely limited.
23

24

192. The Final Rule is silent as to Guatemala’s asylum system and ability to protect

25 migrants from persecution or torture. Cf. 85 Fed. Reg. at 82,276 (responding to concerns about

26 safety in Mexico, Guatemala, and other transit countries by stating that asylum seekers should “seek

27 aid from the government in the country in which the individuals have been targeted”). 28

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1

193. The Final Rule also ignores the obvious impact of recent Hurricanes Eta and Iota on

2 Central American governments’ capacity to offer asylum to nationals of other countries. According

3 to USAID, Central American governments currently lack sufficient capacity to provide basic post-

4 disaster relief due to widespread damage and food shortages. USAID, Latin America – Storms (Dec.

5 11, 2020), https://www.usaid.gov/sites/default/files/documents/12.11.2020_USAID-

6
BHA_Latin_America_Storms_Fact_Sheet_8.pdf.

7
Mexico Is Not Safe for Asylum Seekers and Lacks a Fair, Functioning Asylum System
8

9

194. For most asylum seekers, remaining in Mexico and seeking protection there is not an

10 option. The country lacks a full and fair asylum processing system, and is often extremely

11 dangerous for migrants.

12

195. According to the U.S. State Department’s 2017 Mexico Country Report, “violence

13 against migrants by government officers and organized criminal groups” is one of “[t]he most
14
significant human rights issues” in Mexico. The State Department also reported in 2018 that the
15
dangers that forced many Central American migrants to flee their homes are likewise present in
16

17 Mexico, as the presence of Central American gangs has “spread farther into the country and

18 threatened migrants who had fled the same gangs in their home countries,” that there were reports of

19 migrants being victimized “by criminal groups and in some cases by police, immigration officers,

20 and customs officials,” that “[t]here were media reports that criminal groups kidnapped
21 undocumented migrants to extort money from migrants’ relatives or force them into committing 22
criminal acts on their behalf,” that “[t]here were numerous instances of armed groups limiting the
23 24 movements of migrants, including by kidnapping and homicides,” and that there were “5,824
25 reported crimes against migrants” and “99 percent of the crimes were unresolved” at the federal

26 level.

27

196. Migrants in Mexico are at risk of kidnapping, disappearance, trafficking, and sexual

28 assault, among other harms. Lesbian, gay, bisexual, and transgender persons, as well as people with
37 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT, 4:19-cv-04073

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1 indigenous heritage, regularly have been subject to persecution in Mexico. Children in particular are 2 at risk of robbery, sexual violence, kidnapping, femicide, extortion, and threats.

3

197. Mexico experienced its highest number of murders recorded in 2018, up 33% from

4 2017, which previously was the highest number recorded.

5

198. President Trump has himself acknowledged that Mexico is not a safe place, tweeting

6
on January 31, 2019: “Very sadly, Murder cases in Mexico in 2018 rose 33% from 2017, to 33,341.”

7
He further stated that the situation in Mexico is “[w]orse even than Afghanistan.”
8

9

199. The asylum system in Mexico is not adequate to protect the rights of asylum seekers.

10 Among other problems, Central American asylum seekers in Mexico face a substantial risk of being

11 involuntarily repatriated to the countries they have fled. Intergovernmental and human rights

12 organizations have documented widespread instances of Mexican officials returning Central
13 American migrants to their home countries despite their fears of persecution or torture, without any 14
meaningful process.
15
200. The U.S. Department of State has noted “incidents in which immigration agents had
16
17 been known to threaten and abuse migrants to force them to accept voluntary deportation and

18 discourage them from seeking asylum.” It further noted that “NGOs reported bribes sometimes

19 influenced the adjudication of asylum petitions and requests for transit visas.”

20

201. Data from the Mexican government indicates that very few of the children who are

21 apprehended by Mexican immigration authorities are recognized as refugees or given other formal
22
protection in Mexico, and that Mexican immigration authorities routinely fail to inform detained
23
24 children about their right to seek protection and fail to adequately screen them for refugee

25 recognition.

26

202. Despite Mexican law prohibiting the detention of children for migration purposes,

27 many children continue to be detained by Mexico’s immigration agency. Conditions in Mexican

28 detention centers have been widely reported to be harmful to children and in violation of
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1 international law. Mexico also sometimes deports unaccompanied children to danger, in many cases 2 in violation of its own child protection laws.

3

203. President Trump recently encouraged Mexico to deport individuals who arrived on

4 “caravans” regardless of their claims for asylum or other forms of protection: “Mexico should move

5 the flag waving Migrants, many of whom are stone cold criminals, back to their countries. Do it by

6
plane, do it by bus, do it anyway [sic] you want, but they are NOT coming into the U.S.A. We will

7
close the Border permanently if need be.”
8

9

204. The Final Rule fails to grapple with the overwhelming evidence that Mexico is not

10 safe for asylum seekers. It offers no analysis or evidence as to the adequacy of Mexico’s asylum

11 system and ability to protect migrants from persecution or torture in practice. It notes only that

12 asylum applications there have increased and references the existence of Mexico’s formal asylum
13 laws. 14
205. Despite the growing number of asylum applications, Mexico’s Commission for
15
Refugee Assistance (“COMAR”) has not grown its personnel or its budget accordingly. Mexico’s
16
17 asylum system is strained as a result. COMAR routinely fails to make decisions within the time

18 limits provided by Mexico law and had a backlog of more than 35,000 asylum claims as of June

19 2020.

20 Harms to Plaintiffs

21

206. Plaintiffs are nonprofit organizations that provide assistance to asylum seekers,

22
including those who came to the United States after transiting through another country. The Final
23

24 Rule will cause each Plaintiff significant harm.

25

207. Plaintiff East Bay Sanctuary Covenant provides legal and social services to

26 immigrants and refugees within the jurisdiction of the San Francisco Asylum Office, including

27 applicants in California, Washington, and Oregon. It offers clients legal assistance in affirmative

28 asylum applications; provides social services; and helps train professionals to assist immigrant and
39 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT, 4:19-cv-04073

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1 refugee communities. EBSC’s affirmative asylum program is a key part of the organization’s 2 mission, is its most important program, and accounts for nearly half of its organizational budget.

3 Since 1992, EBSC has filed nearly 5,000 affirmative asylum cases. Over 97 percent of those

4 adjudicated cases have been granted.

5

208. A substantial percentage of clients in EBSC’s affirmative asylum program come to

6
the United States through the southern land border after transiting through a third country en route to

7
seek asylum in the United States. Most of those clients fled persecution in Central America.
8

9

209. EBSC works mainly with low-income and poor individuals from around the world,

10 and works especially closely with vulnerable populations including victims of gender-based violence

11 and domestic violence, indigenous Guatemalans, LGBT individuals, those affected by HIV/AIDS,

12 and unaccompanied children.

13

210. Funding for EBSC’s affirmative asylum program is based in part on the number of

14
cases EBSC handles per year, and the number of clients EBSC anticipates serving. EBSC
15

experienced harm including frustration of its mission and diversion of resources as a result of the
16

17 Interim Rule. The Final Rule will also significantly harm EBSC as an organization, seriously

18 frustrate EBSC’s mission, and cause it to divert organizational resources. As a result of the policy

19 going into effect again, EBSC will have to expend significant resources to adjust to the shifting

20 regulatory landscape and substantially reduce its affirmative asylum practice, thus reducing the

21 number of clients it can serve and frustrating its mission of serving asylum seekers fleeing

22
persecution and violence regardless of their manner of entry, means of entry, or travel route.
23

24

211. EBSC also will have to divert significant resources to, among other things,

25 understanding the policy and its impact on the communities EBSC serves, and educating and

26 advising its staff, clients, and prospective clients accordingly. To properly counsel new prospective

27 clients who seek its affirmative asylum services going forward, EBSC will need to invest resources

28 in training multiple intake staff not only to screen for asylum eligibility based on the Final Rule, but
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1 to conduct detailed screenings for alternative forms of relief to facilitate referrals or other forms of 2 assistance as appropriate. These alternative forms of relief, including withholding of removal and

3 Convention Against Torture protection, require a far greater expenditure of staff resources per client.

4

212. Under the new policy, EBSC will no longer be able to train law students to handle

5 affirmative asylum cases, or would have to substantially reduce its training program, which

6
frustrates its mission of helping to train legal professionals to assist individuals fleeing violence and

7
persecution.
8

9

213. The Final Rule also jeopardizes EBSC’s funding streams, which depend in large part

10 on per-case funding for affirmative asylum applications, many of which will be rendered ineligible

11 for asylum under the Final Rule If EBSC is no longer able to handle affirmative asylum cases for

12 individuals who enter after transiting through another country, it will face a marked decrease in its
13 budget and will have to significantly cut its program and staff, or dramatically overhaul its program 14
to provide types of assistance it is not currently equipped or trained to provide. The grant that funds
15
EBSC’s work is only to serve people who make under 250 percent of the poverty guidelines. In
16
17 practice, the few noncitizens who will remain eligible to apply affirmatively for asylum under the

18 new Rule will mostly be those who have visas of some kind and could travel to the U.S. by air and

19 so likely fall outside of the population it is EBSC’s mission to serve and outside of the income

20 requirements for EBSC’s services.

21

214. Plaintiff Al Otro Lado serves indigent deportees, migrants, refugees and their

22
families, principally in Los Angeles and San Diego, California, and Tijuana, Mexico. Al Otro
23

24 Lado’s mission is to provide screening, advocacy, and legal representation for individuals in asylum

25 and other immigration proceedings, to seek redress for civil rights violations, and to assist deportees,

26 refugees, and other indigent immigrants with legal and social service needs. Through its Border

27 Rights Project, Al Otro Lado hosts legal orientation workshops and provides information about the

28 U.S. asylum system to migrants who wish to seek asylum in the United States. Its staff accompanies
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1 some asylum seekers who wish to present themselves to CBP officers at the San Ysidro Port of 2 Entry, represent them at their credible/reasonable fear interviews, and assist them with their pro se I-

3 589 asylum applications.

4

215. Al Otro Lado routinely provides representation or other assistance to asylum seekers

5 who have entered the United States after transiting through another country. Since the effective date

6
of the Interim Rule, Al Otro Lado has served approximately two thousand clients who transited

7
through another country en route to the United States.
8

9

216. The Final Rule will similarly frustrate Al Otro Lado’s mission and will force Al Otro

10 Lado to divert significant resources away from its other programs. Because individuals who enter

11 after transiting through another country are categorically ineligible for asylum under the Final Rule,

12 Al Otro Lado will once again have to revamp its representation strategy, overhaul the materials it
13 uses to train pro bono attorneys, and evaluate the eligibility of each of its clients for other types of 14
immigration relief. It will also have to expend resources to litigate eligibility issues, including under
15
the higher standard governing withholding of removal, resulting in additional hearings and time
16
17 spent on each case.

18

217. Like the Interim Rule, the Final Rule will require Al Otro Lado to engage in a

19 massive community education campaign to inform client communities about the significance of the

20 transit ban policy.

21

218. The Final Rule also jeopardizes some of Al Otro Lado’s most critical funding

22
streams.
23

24

219. Most of Al Otro Lado’s asylum clients are families traveling with minor children.

25 Because they will be ineligible for asylum under the new policy, spouses and minor children can no

26 longer be counted as derivatives in a single application. Al Otro Lado must now prepare separate

27 cases for each family member, exponentially increasing the number of hours required to prepare a

28 family’s case.
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1

220. The Final Rule, like the Interim Rule, will significantly slow down our client intake

2 process because of the time it takes to explain the transit policy to clients. When the Interim Rule

3 was in effect, clients were often shocked to learn that they were required to apply for asylum in

4 countries as unsafe as Mexico and Guatemala. Explaining the transit ban was more time-consuming

5 relative to other border policies, as was the process of drafting declarations addressing each country

6
through which each client had transited. The Final Rule will again make intake more difficult and

7
time-consuming.
8

9

221. Because Al Otro Lado receives funding on a per case basis, the fact that withholding

10 and Convention Against Torture claims are more difficult to prove and require more time and greater

11 legal resources means that the Final Rule, like the Interim Rule, will require the organization to

12 expend many more hours without a corresponding increase in funding.

13

222. Plaintiff Innovation Law Lab serves asylum seekers across the United States,

14
including by providing workshops to individuals seeking to apply for asylum pro se, advocating for
15

the release of detained asylum seekers, providing direct representation to asylum seekers, and
16

17 coordinating pro bono representation to asylum seekers. Innovation Law Lab has staff and offices

18 from which it provides services in California, Oregon, Washington, Arizona, Texas, Illinois, and

19 Florida. It also coordinates pro bono representation of asylum seekers in California, Georgia, New

20 Mexico, North Carolina, Oregon, and Texas through its “Centers of Excellence.” These Centers of

21 Excellence provide support to noncitizens and their pro bono attorneys including legal, technical,

22
and strategic assistance in the preparation and presentation of claims.
23

24

223. The majority of the asylum seekers Innovation Law Lab serves transit through

25 another country en route to the United States. Accordingly, the Interim Rule frustrated Innovation

26 Law Lab’s mission of serving asylum seekers and caused the diversion of organizational resources,

27 including by requiring it to revise its resources, templates, instructional guides, training materials,

28 and trainings.
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1

224. The Final Rule will further frustrate Innovation Law Lab’s mission to serve asylum

2 seekers, including those from Central America and others who must transit through a third country,

3 and will require Innovation Law Lab to again divert its limited resources. The majority of people

4 Innovation Law Lab serves are asylum seekers, and the majority of those asylum-seeking clients

5 have traveled through a country other than their country of origin on their way to the United States

6
and did not seek asylum in the countries through which they transited. The Final Rule thus will

7
make a high percentage of the asylum seekers Innovation Law Lab serves ineligible for asylum.
8

9

225. The Final Rule will also, among other things, require Innovation Law Lab to entirely

10 rework the advice and guidance it provides in its legal services workshops, and respond to a flood of

11 inquiries and uncertainty from the immigrant communities Innovation Law Lab serves regarding the

12 attempt to change asylum law. The Final Rule will also make a significant percentage of Innovation
13 Law Lab’s new pro bono cases a great deal more complicated and will require it to reevaluate relief 14
eligibility in all of the cases that it screens and mentors. And because withholding of removal and
15
Convention Against Torture relief claims have a higher standard of proof than asylum, do not allow
16
17 for derivative applications, and are more time-consuming to handle, the Centers of Excellence may

18 begin to lose more cases, requiring a shift of significant resources toward mentoring pro bono

19 attorneys on complicated appeals.

20

226. Innovation Law Lab also will have to deploy expensive and limited engineering

21 resources to recode its software to create new analytical modeling to account for the Final Rule.
22
Innovation Law Lab publishes materials for pro bono attorneys and asylum applicants, including
23
24 printed guides, worksheets, training videos, self-help videos, and other resources that are used

25 around the country. The Final Rule will require Innovation Law Lab to substantially revise this

26 material and create new learning engagements and materials on the Final Rule.

27

227. Thousands of individuals rely on the Innovation Law Lab’s systems. The Final Rule

28 will require the organization to divert its limited resources away from other projects and priorities.
44 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT, 4:19-cv-04073

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1

228. Plaintiff CARECEN provides immigration legal services to clients throughout

2 Southern California. These services include affirmative and defensive representation for asylum

3 seekers. CARECEN also educates immigrants through citizenship classes, trainings to develop

4 organizing and advocacy skills, and workshops to facilitate the integration of immigrants into their

5 communities. CARECEN also helps to organize immigrant communities to advocate for their rights
6
on specific policy issues. CARECEN is headquartered in Los Angeles, with permanent offices in
7
the San Fernando Valley (Van Nuys) and San Bernardino, as well as over 20 offsite locations
8
9 throughout Los Angeles and Orange Counties.

10

229. Like the Interim Rule, the Final Rule will seriously harm CARECEN in multiple

11 respects, and frustrate CARECEN’s mission and divert organizational resources.

12

230. One hundred percent of CARECEN’s current clients seeking asylum transited

13 through a third country en route to the United States, approximately 25% of whom entered after July
14
16, 2019. Accordingly, many of CARECEN’s current clients—and virtually all of its clients in the
15
future—would be subjected to the Final Rule. The organization would be unable to fulfill its
16
17 mission to assist those clients—including some of its current clients who entered after July 16,

18 2019—in submitting their asylum applications to USCIS or pursuing their asylum claims as part of

19 their removal proceedings, because they would no longer be eligible.

20

231. CARECEN will instead be forced to assist clients in applying for withholding and

21 Convention Against Torture protection only, a much more resource-intensive process. Additionally,
22
because the evidentiary standard for withholding and CAT is higher, the inability to pursue asylum
23
24 will also likely lead to a greater number of losses in immigration court, and a greater number of

25 appeals that must be filed by attorneys. The additional staff time required to handle each case

26 because of the more stringent standards for withholding and CAT and lack of derivative applications

27 will again require diverting resources from other critical areas of work. 28

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1

232. The impact of the Interim Rule on CARECEN’s operations is indicative of the harm

2 that the Final Rule will cause. Due to the Interim Rule, CARECEN’s attorneys had to reduce their

3 caseloads so that they could devote sufficient time and resources towards advancing the more

4 stringent withholding and Convention Against Torture claims, which were the exclusive avenues for

5 relief for many of our clients. As one example, CARECEN represented a Ukrainian husband and
6
wife in their removal proceedings. Absent the transit ban, CARECEN would have pursued an
7
asylum claim for one spouse, with the other as a derivative on the application. But because they
8 9 were made ineligible for asylum by the Interim Rule, CARECEN had to expend additional
10 resources, including representing the wife on the appeal of the denial of her withholding claim,

11 before ultimately obtaining asylum and derivative relief for both spouses after the Interim Rule was

12 vacated.

13

233. Indeed, because of the resource drain caused by the Interim Rule, CARECEN had to

14
stop nearly all intake of new clients so that it could focus on existing, resource-intensive withholding
15

and Convention Against Torture cases. When the Interim Rule was in effect, CARECEN was forced
16

17 to reject 10 to 20 callers seeking representation per month, twice the typical number of rejections.

18

234. The inability to intake more cases meant that CARECEN could not obtain additional

19 funding, which is primarily provided on a per-case basis.

20

235. The Final Rule will cause CARECEN to again divert resources to training staff and

21 counseling current and prospective clients about the effects of the transit ban. Like the Interim Rule,
22
the Final Rule will require CARECEN to contact all impacted clients and counsel them on their
23
24 options. CARECEN also operates a hotline to provide general information to the broader immigrant

25 community. The reinstatement of the transit ban in the form of this Final Rule after the Interim Rule

26 was vacated will create considerable confusion in our clients and in the immigrant communities we

27 serve, generate significant inquiries at our offices and on our hotline, and require workshops to

28 address and explain the changes to the community.
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1

236. Plaintiffs have also been harmed because the brief 30-day post-Interim Rule comment

2 period prevented Plaintiffs from submitting their own separate comments, which would have been

3 more detailed and contained additional information about specific harms to their organizations and

4 clients had the agency provided more for public comments.

5

FIRST CLAIM FOR RELIEF

6

(Violation of Immigration and Nationality Act and Administrative Procedure Act)

7

237. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

8
238. The Immigration and Nationality Act provides that “[a]ny alien who is physically
9
present in the United States or who arrives in the United States (whether or not at a designated port
10

11 of arrival . . . ), irrespective of such alien’s status, may apply for asylum in accordance with this

12 section or, where applicable, section 1225(b) of this title.” 8 U.S.C. § 1158(a)(1).

13

239. The Immigration and Nationality Act further provides that a noncitizen is ineligible

14 for asylum if he or she “was firmly resettled in another country prior to arriving in the United
15 States.” 8 U.S.C. § 1158(b)(2)(A)(vi). 16
240. The Immigration and Nationality Act likewise provides that asylum is not available to
17
a noncitizen “if the Attorney General determines that the alien may be removed, pursuant to a
18 19 bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in
20 the case of an alien having no nationality, the country of the alien's last habitual residence) in which

21 the alien’s life or freedom would not be threatened on account of race, religion, nationality,

22 membership in a particular social group, or political opinion, and where the alien would have access

23 to a full and fair procedure for determining a claim to asylum or equivalent temporary protection,
24
unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the
25
26 United States.” 8 U.S.C. § 1558(a)(2)(A).

27

241. Any additional condition or limitation on asylum established by the Attorney General

28 must be “consistent with” § 1158. See 8 U.S.C. § 1158(b)(2)(C); see also id. § 1158(d)(5)(B)

47 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT, 4:19-cv-04073

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1 (requiring that “any other conditions or limitations on the consideration of an application for 2 asylum” be “not inconsistent with this chapter”).

3

242. The Administrative Procedure Act, 5 U.S.C. § 706, provides that a Court “shall hold

4 unlawful and set aside agency action, findings, and conclusions found to be – (A) arbitrary,

5 capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to

6
constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction,
7
authority, or limitations, or short of statutory right.”
8

9

243. The Final Rule is contrary to law, including 8 U.S.C. §§ 1158(a)(1), 1158(a)(2)(A),

10 and 1158(b)(2)(A)(vi).

11

SECOND CLAIM FOR RELIEF

12

(Violation of Administrative Procedure Act)

13

244. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

14
245. The APA requires notice and a meaningful opportunity for comment prior to the
15
promulgation of regulations. 5 U.S.C. §§ 553(b), (c). The Attorney General and Acting Secretary of
16

17 Homeland Security failed to provide notice and an opportunity to comment in a timely manner.

18

246. The Interim Rule was not an adequate notice of proposed rulemaking because former

19 Acting Secretary McAleenan lacked authority to issue it and former Acting Secretary Wolf failed to

20 effectively ratify it.

21

247. Even if the Interim Rule provided adequate notice of proposed rulemaking, it failed to

22
provide the customary 60-day comment period.
23

24

248. Defendants failed to explain why the customary 60-day period was not practicable or

25 why a shorter period was necessary.

26

249. The agencies have not adequately explained, whether in the Interim Rule or the Final

27 Rule, the applicability of the good-cause or foreign-affairs exceptions to notice and comment. 28

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1

THIRD CLAIM FOR RELIEF

2

(Violation of Congressional Review Act and Administrative Procedure Act)

3

250. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

4

251. As a “major rule,” the Final Rule needed to be published at least 60 days before it

5 takes effect. 5 U.S.C. §§ 801(a)(3), 804(2).
6
252. The Final Rule was published on December 17, 2020.
7
253. The Final Rule is set to take effect on January 19, 2021, only 33 days after
8
9 publication.

10

254. Defendants have failed to explain why the Final Rule is not a “major rule.” See 85

11 Fed. Reg. at 82,289.

12

255. Accordingly, the Final Rule must be set aside as “not in accordance with law” and “in

13 excess of statutory . . . authority.” 5 U.S.C. § 706(2)(A), (C).

14
FOURTH CLAIM FOR RELIEF
15
(Violation of Administrative Procedure Act, Arbitrary & Capricious)
16

17

256. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

18

257. The APA provides that courts “shall . . . hold unlawful and set aside agency action”

19 that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5

20 U.S.C. § 706(2)(A).

21

258. Among other reasons, the Final Rule is arbitrary and capricious because, in adopting

22
it, Defendants have failed to articulate a reasoned explanation for their decision, which represents a
23

24 change in the agencies’ longstanding policy; considered factors that Congress did not intend to be

25 considered; entirely failed to consider important aspects of the problem; and offered explanations for

26 their decision that run counter to the evidence before the agency.

27

28

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1

FIFTH CLAIM FOR RELIEF

2

(Violation of the Homeland Security Act, 6 U.S.C. § 113(g)(2) and the APA, 5 U.S.C. § 706(2)(A), (C))

3

259. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

4
260. The Secretary of Homeland Security must be appointed by the President with the
5
advice and consent of the Senate. 6 U.S.C. § 112(a)(1).
6

7

261. The FVRA is the “exclusive means” for authorizing an acting official, unless an

8 alternative statutory provision “expressly” authorizes certain other mechanisms to fill positions in an

9 acting capacity temporarily. 5 U.S.C. § 3347(a).

10

262. The HSA provides that “the Secretary may designate such other officers of the

11 Department in further order of succession to serve as Acting Secretary.” 6 U.S.C. § 113(g)(2).
12
263. McAleenan and, subsequently, Wolf both improperly assumed the position of Acting
13
14 Secretary in violation of the order of succession as it existed following Nielsen’s resignation.

15 Accordingly, neither had legal authority to serve as Acting DHS Secretary, and neither had authority

16 to issue or ratify either the Interim Rule or the Final Rule.

17

264. Additionally, even if McAleenan had been properly serving as Acting Secretary, he

18 did not have authority to change the order of succession under the HSA to place Wolf next in line
19
because the HSA reserves the authority to change the succession order to Secretaries and not to
20
Acting Secretaries. 6 U.S.C. § 113(g)(2). Accordingly, the November Delegation under which Wolf
21
22 purportedly assumed the role of Acting Secretary was invalid.

23

265. The memo issued by Peter Gaynor, which attempted again to elevate Wolf to Acting

24 Secretary on September 10, 2020, and again on November 14, 2020, was itself unlawful under 6

25 U.S.C. § 113(g)(2), because Gaynor did not properly assume the role of Acting Secretary. Even if
26 he did, as an Acting Secretary, Gaynor did not have authority to change the order of succession. 27
266. Wolf thus did not, at any point, become Acting DHS Secretary.
28

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1

267. Because Wolf never became Acting Secretary and because an Acting Secretary may

2 not alter DHS’s order of succession, his attempt to install Gaynor on January 11, 2021, was also

3 ineffective.

4

268. Because Wolf was not Acting DHS Secretary when he approved the Final Rule on

5 December 17, 2020, the Final Rule is unlawful, without force and effect ab initio pursuant to 5
6
U.S.C. § 3348(d)(1), and must be set aside as “not in accordance with law” and “in excess of . . .
7
authority” under the APA. 5 U.S.C. § 706(2)(A), (C). See also 6 U.S.C. § 112(e) (identifying
8
9 “issuance of regulations” as a “function” of the DHS Secretary); see also 8 U.S.C. § 1103(a)(3)

10 (assigning powers and duties of the Secretary to include establishing regulations). Wolf’s unlawful

11 actions as Acting Secretary may not be ratified, see 5 U.S.C. § 3348(d), and in any event, Wolf’s

12 ratification attempts were invalid.

13

SIXTH CLAIM FOR RELIEF

14
(Violation of the Time Limitation of the Federal Vacancies Reform Act,

15

5 U.S.C. § 3346(a), and the APA, 5 U.S.C. § 706(2)(A), (C))

16

269. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

17

270. The Secretary of Homeland Security is an officer who must be appointed by the

18
President with the advice and consent of the Senate. 6 U.S.C. § 112(a)(1).
19
271. Congress enacted the FVRA to reclaim its “Appointments Clause power” and reassert
20

21 its authority over temporary appointments. See Sw. Gen., Inc. v. NLRB, 796 F.3d 67, 70 (D.C. Cir.

22 2015), aff’d, 137 S. Ct. 929 (2017).

23

272. Under the FVRA, an acting official may not fill a vacancy beyond 210 days from the

24 date the vacancy occurs. 5 U.S.C. § 3346(a)(1).

25

273. The office of DHS Secretary became vacant upon Secretary Nielsen’s resignation on

26
April 10, 2019. The 210-day time limit for an Acting Secretary therefore expired on November 6,
27

2019.
28

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1

274. Because McAleenan’s November Delegation was issued on November 9, 2019, after

2 the 210 days permitted by the FVRA, the November Delegation purporting to elevate Wolf to Acting

3 Secretary had no “force or effect.” 5 U.S.C. § 3348(d)(1).

4

275. Additionally, Wolf’s ratification of the Interim Rule and his approval of the Final

5 Rule are similarly invalid because both occurred outside of the 210-day period allowed under the
6
FVRA.
7
276. Accordingly, Wolf was unlawfully serving as Acting Secretary when he issued the
8
9 Final Rule.

10

277. The Final Rule must therefore be declared without force and effect under the FVRA,

11 5 U.S.C. § 3348(d)(1), and set aside as “not in accordance with law” and “in excess of … authority”

12 under the APA. 5 U.S.C. § 706(2)(A), (C). Wolf’s and McAleenan’s unlawful actions may not be

13 ratified, see 5 U.S.C. § 3348(d), and in any event, Wolf’s ratification attempts were invalid.

14
SEVENTH CLAIM FOR RELIEF
15
(Violation of the Appointments Clause and the APA, 5 U.S.C. § 706(2)(B))
16

17

278. All of the foregoing allegations are repeated and realleged as if fully set forth herein.

18

279. The appointment of an Acting DHS Secretary with an indefinite term of office

19 violates the Appointments Clause of the United States Constitution, and the Acting DHS Secretary’s

20 actions must be set aside as contrary to law.

21

280. The Appointments Clause provides that principal officers of the United States,

22
including heads of executive departments, must be appointed by the President “by and with the
23

24 Advice and Consent of the Senate.” U.S. Const. art. II, § 2, cl. 2.

25

281. An acting officer—who is carrying out the functions of a principal officer—is an

26 inferior officer and may serve in that capacity only for a limited time.

27

282. As head of department, the Secretary of Homeland Security is a principal officer.

28

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1

283. By purporting to exercise the functions and duties of the Secretary of Homeland

2 Security free from any time limitation, McAleenan, Wolf, and Gaynor have sought to serve as

3 principal officers. Because they were not nominated by the President or confirmed by the Senate,

4 their service as principal officers violated the Appointments Clause.

5

284. On December 17, 2020, when Wolf purported to approve the Final Rule, the office of

6
the Secretary of Homeland Security had been vacant without a permanent appointee for 617 days.
7
285. Wolf became the longest-serving Secretary of DHS under this administration, acting
8
9 or otherwise, surpassing both John Kelly and Kirstjen Nielsen, the two Senate-confirmed Secretaries

10 of DHS.

11

286. Wolf’s tenure became indistinguishable from that of a permanent, Senate-confirmed

12 DHS Secretary, making him a principal officer.

13

287. Thus, even if Wolf’s service as Acting Secretary of Homeland Security was

14
consistent with the HSA and FVRA, his indefinite ascension to that office without the advice and
15

consent of the Senate violated the Appointments Clause.
16

17

288. Because Wolf’s purported service as Acting DHS Secretary was in violation of the

18 Appointments Clause, his approval of the Final Rule was unlawful.

19

289. Similarly, when former Acting Secretary McAleenan, also serving without time

20 limitation, purported to issue the Interim Rule, which was adopted by the Final Rule with minor
21 changes, he lacked the authority to do so and violated the Appointments Clause. 22
290. Wolf may not circumvent the constitutional limit on his service as Acting Secretary
23 24 by purporting to take a subordinate role and exercising via delegation the functions assigned to the
25 Secretary of DHS.

26

291. The Final Rule is therefore invalid and must be vacated as contrary to law and

27 constitutional authority, 5 U.S.C. § 706(2)(B). Wolf’s and McAleenan’s unlawful actions may not

28 be ratified, see 5 U.S.C. § 3348(d), and in any event, Wolf’s ratification attempts were invalid.
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1

EIGHTH CLAIM FOR RELIEF

2

(Violation of the Time Limitation of the Federal Vacancies Reform Act, 5 U.S.C. § 3346(a), and the APA, 5 U.S.C. § 706(2)(A), (C))

3
292. All of the foregoing allegations are repeated and realleged as if fully set forth herein.
4
293. Wolf purported to delegate authority to electronically sign the Final Rule to
5

6 Defendant Mizelle, in the latter’s capacity as the official discharging the duties of General Counsel

7 for DHS. 85 Fed. Reg. at 82,289.

8

294. An appointment as General Counsel for DHS requires advice and consent of the

9 Senate, 6 U.S.C. § 113(a)(1)(J).

10

295. Any vacancy in the office of General Counsel for DHS is therefore subject to the

11
FVRA’s requirements, including the 210-day limit on interim service of an acting official. 5 U.S.C.
12

13 § 3345(a); id. § 3346.

14

296. The most recent Senate-confirmed General Counsel for DHS, John Mitnick, was fired

15 on September 17, 2019.

16

297. By December 17, 2020, when Mizelle purported to sign the Final Rule on Wolf’s

17 behalf, 457 days had elapsed, more than twice the maximum period allowed under the FVRA.
18
298. Mizelle was not lawfully performing the functions and duties of the office of General
19
Counsel for DHS, which, under the FVRA, was required to remain vacant after 210 days. 5 U.S.C.
20
21 § 3348(b).

22

299. Because Mizelle’s acting service violated the FVRA, his attempt to sign the Final

23 Rule on Wolf’s behalf was without force and effect.

24

300. Because Mizelle could not lawfully perform the functions and duties of the General

25 Counsel for DHS, Wolf’s attempt to delegate authority to Mizelle, in his official capacity as the
26
Senior Official Performing the Duties of the General Counsel for DHS, was ineffective.
27

28

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1

301. Because of Mizelle was not lawfully serving as an officer or employee of DHS, Wolf

2 could not lawfully delegate the Secretary’s functions to Mizelle. See 6 U.S.C.§ 112(b)(1) (limiting

3 the delegation of “any of the Secretary’s functions to any officer, employee, or organizational unit of

4 the Department”).

5

302. Because Mizelle was without statutory authority to sign the Final Rule on Wolf’s

6
behalf, the publication of the Final Rule was unauthorized.
7
303. Because the Final Rule has not been lawfully published, the APA precludes it from
8

9 taking effect. See 5 U.S.C. § 553(d).

10

304. Accordingly, the Final Rule must be set aside as “not in accordance with law” and “in

11 excess of statutory . . . authority” under the APA. 5 U.S.C. § 706(2)(A), (C). Mizelle’s

12 unauthorized signing of the Final Rule may not be ratified, see 5 U.S.C. § 3348(d), and in any event,

13 Wolf’s ratification was invalid and did not purport to ratify Mizelle’s signature.

14
PRAYER FOR RELIEF
15
WHEREFORE, Plaintiffs respectfully pray for the following relief:
16

17

a. A declaration pursuant to 28 U.S.C. § 2201 that the Final Rule is unlawful and invalid;

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b. Postponement and stay of the Final Rule’s effective date pending judicial review under 5

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U.S.C. § 705;

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c. An order vacating the Final Rule;

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d. A preliminary and permanent injunction enjoining Defendants, their officials, agents,

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employees, assigns, and all persons acting in concert or participating with them from
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implementing or enforcing the Final Rule;

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e. An order awarding Plaintiffs costs of suit, and reasonable attorneys’ fees and expenses

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pursuant to any applicable law;

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f. Such other and further relief as the Court deems equitable, just, and proper.

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55 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT, 4:19-cv-04073

Case 4:19-cv-04073-JST Document 134 Filed 01/28/21 Page 58 of 58

1 Dated: January 28, 2021

2

Lee Gelernt* Omar Jadwat*

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Anand Balakrishnan* Ming Cheung**

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AMERICAN CIVIL LIBERTIES UNION FOUNDATION

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IMMIGRANTS’ RIGHTS PROJECT 125 Broad St., 18th Floor

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New York, NY 10004 T: (212) 549-2660

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F: (212) 549-2654 lgelernt@aclu.org

8

ojadwat@aclu.org abalakrishnan@aclu.org

9 mcheung@aclu.org

10

Melissa Crow* SOUTHERN POVERTY LAW CENTER

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1101 17th Street, NW Suite 705 Washington, D.C. 20036

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T: (202) 355-4471 F: (404) 221-5857

13 melissa.crow@splcenter.org

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Respectfully submitted,
/s/ Katrina Eiland Katrina Eiland (SBN 275701) Cody Wofsy (SBN 294179) Spencer Amdur (SBN 320069) Morgan Russell (SBN 296137) AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-1198 F: (415) 395-0950 keiland@aclu.org cwofsy@aclu.org samdur@aclu.org mrussell@aclu.org
Vasudha Talla (SBN 316219) Angélica Salceda AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 T: (415) 621-2493 F: (415) 255-8437 vtalla@aclunc.org asalceda@aclunc.org
Baher Azmy** Angelo Guisado** Ghita Schwarz** CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 Telephone: (212) 614-6464 Facsimile: (212) 614-6499 bazmy@ccrjustice.org aguisado@ccrjustice.org gschwarz@ccrjustice.org

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23 Attorneys for Plaintiffs

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**Admitted pro hac vice ** Pro hac vice application forthcoming

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56 FIRST AMENDED AND SUPPLEMENTAL COMPLAINT, 4:19-cv-04073