Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 1 of 27
APPEAL,RELATE,STAYED
U.S. District Court California Northern District (Oakland) CIVIL DOCKET FOR CASE #: 4:18−cv−06810−JST

East Bay Sanctuary Covenant et al v. Trump et al Assigned to: Judge Jon S. Tigar Relate Case Case: 4:19−cv−04073−JST
Case in other court: USCA#:18−17274
USCA#:18−17436 Cause: 05:702 Administrative Procedure Act
Plaintiff

Date Filed: 11/09/2018 Jury Demand: None Nature of Suit: 465 Other Immigration Actions Jurisdiction: U.S. Government Defendant

East Bay Sanctuary Covenant

represented by 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 ATTORNEY TO BE NOTICED

Angelo Guisado Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212−614−6464 Fax: 212−614−6499 Email: aguisado@ccrjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED

Baher Azmy Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 (212) 614−6464 Fax: (212) 614−6499 Email: bazmy@ccrjustice.org ATTORNEY TO BE NOTICED

Celso Javier Perez ACLU Foundation IRP 125 Broad Street New York, NY 10004 646−905−8935 Email: cperez@aclu.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: 09/20/2019

Cody H. Wofsy ACLU Immigrants' Rights Project 39 Drumm Street

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San Francisco, CA 94111 415−343−0785 Fax: 415−395−0950 Email: cwofsy@aclu.org ATTORNEY TO BE NOTICED
Ghita Schwarz Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212−614−6445 Fax: 212−614−6499 Email: gschwarz@ccrjustice.org PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer C. Newell ACLU Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343−0774 Fax: (415) 395−0950 Email: jnewell@aclu.org TERMINATED: 01/28/2020
Judy Rabinovitz ACLU Foundation Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004−2400 (212) 549−2618 Fax: (212) 549−2654 Email: Jrabinovitz@aclu.org ATTORNEY TO BE NOTICED
Julie Michelle Veroff ACLU Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343−0778 Fax: (415) 395−0950 Email: jveroff@aclu.org ATTORNEY TO BE NOTICED
Mary Catherine Bauer Southern Poverty Law Center 1000 Preston Avenue Charlottesville, VA 22903 (470) 606−9307 Fax: (404) 221−5857 Email: mary.bauer@splcenter.org ATTORNEY TO BE NOTICED
Melissa E Crow American Immigration Council 1331 G St. NW Suite 200 Washington, DC 20005 202−507−7523 Fax: 202−742−5619 Email: melissa.crow@splcenter.org ATTORNEY TO BE NOTICED

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Plaintiff Al Otro Lado

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 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 ATTORNEY TO BE NOTICED
represented by Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angelo Guisado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy (See above for address) ATTORNEY TO BE NOTICED
Celso Javier Perez (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/20/2019
Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) TERMINATED: 01/28/2020

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Plaintiff Innovation Law Lab

Judy Rabinovitz (See above for address) ATTORNEY TO BE NOTICED
Julie Michelle Veroff (See above for address) ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) ATTORNEY TO BE NOTICED
Melissa E Crow (See above for address) ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) ATTORNEY TO BE NOTICED
Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED
Vasudha Talla (See above for address) ATTORNEY TO BE NOTICED
represented by Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angelo Guisado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy (See above for address) ATTORNEY TO BE NOTICED
Celso Javier Perez (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/20/2019
Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) TERMINATED: 01/28/2020

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Plaintiff Central American Resource Center

Judy Rabinovitz (See above for address) ATTORNEY TO BE NOTICED
Julie Michelle Veroff (See above for address) ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) ATTORNEY TO BE NOTICED
Melissa E Crow (See above for address) ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) ATTORNEY TO BE NOTICED
Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED
Vasudha Talla (See above for address) ATTORNEY TO BE NOTICED
represented by Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angelo Guisado (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Baher Azmy (See above for address) ATTORNEY TO BE NOTICED
Celso Javier Perez (See above for address) ATTORNEY TO BE NOTICED
Christine Patricia Sun (See above for address) TERMINATED: 09/20/2019
Cody H. Wofsy (See above for address) ATTORNEY TO BE NOTICED
Ghita Schwarz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Jennifer C. Newell (See above for address) TERMINATED: 01/28/2020

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 6 of 27
Judy Rabinovitz (See above for address) ATTORNEY TO BE NOTICED
Julie Michelle Veroff (See above for address) ATTORNEY TO BE NOTICED
Mary Catherine Bauer (See above for address) ATTORNEY TO BE NOTICED
Melissa E Crow (See above for address) ATTORNEY TO BE NOTICED
Omar C. Jadwat (See above for address) ATTORNEY TO BE NOTICED
Spencer Elijah Wittmann Amdur (See above for address) ATTORNEY TO BE NOTICED
Vasudha Talla (See above for address) ATTORNEY TO BE NOTICED

V. Defendant President of U.S. Donald J. Trump

represented by 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 Email: scott.g.stewart@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer U.S. Department of Justice Civil Division, Office of Immigration Litigation P.O. Box 878 Washington, DC 20044 202−598−8770 Email: christina.p.greer@usdoj.gov ATTORNEY TO BE NOTICED
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 ATTORNEY TO BE NOTICED
Francesca M Genova

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Defendant Attorney General Mathew Whitaker
Defendant Dir. EOIR James McHenry
Defendant Executive Office for Immigration Review (EOIR)

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 Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer (See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer (See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer (See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 8 of 27

Defendant Secretary of DHS Kirstjen M. Nielsen
Defendant Dir. USCIS Lee Francis Cissna
Defendant U.S. Citizenship and Immigration Services
Defendant Commissioner U.S.CBP Kevin K. McAleenan

represented by Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer (See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Francesca M Genova (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer (See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
represented by Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer (See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer

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Defendant U.S Customs and Border Protection
Defendant Acting Dir. U.S.ICE Ronald D. Vitiello
Defendant U.S. Immigration and Customs Enforcement

(See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer (See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer (See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer (See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address)

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Defendant U.S. Department of Justice
Defendant U.S. Department of Homeland Security
Amicus State of Washington Amicus Immigration Reform Law Institute

ATTORNEY TO BE NOTICED
represented by Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer (See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
Thomas Benton York United States Department of Justice, Civil Division Office of Immigration Litigation, District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 (202) 598−6073 Fax: (202) 305−7000 Email: thomas.b.york@usdoj.gov ATTORNEY TO BE NOTICED
represented by Scott G. Stewart (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christina P Greer (See above for address) ATTORNEY TO BE NOTICED
Erez R. Reuveni (See above for address) ATTORNEY TO BE NOTICED
Francesca M Genova (See above for address) ATTORNEY TO BE NOTICED
represented by Megan Dy Lin Washington Attorney General's Office PO Box 40100 Olympia, WA 98504 3104977100 Email: mlin@perkinscoie.com ATTORNEY TO BE NOTICED
represented by Francesca M Genova (See above for address)

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 11 of 27

Amicus Office of United Nations High Commissioner for Refugees
Amicus Immigration Law Professors

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lawrence John Joseph Law Office of Lawrence J. Joseph 1250 Connecticut Avenue, NW Suite 700 Washington, DC 20036 United Sta 202−355−9452 Fax: 202−318−2254 Email: ljoseph@larryjoseph.com ATTORNEY TO BE NOTICED
represented by Brian Hauck Jenner and Block LLP 633 W. 5th St. Suite 3500 Los Angeles, CA 90071 213−239−5100 Email: bhauck@jenner.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Patrick W Pearsall Jenner & Block LLP 1099 New York Avenue, NW Washington, DC 20001 202−639−6000 Email: PWPearsall@jenner.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by David Charles Marcus Wilmer Cutler Pickering Hale & Dorr LLP 350 South Grand Avenue, Suite 2100 Los Angeles, CA 90071 213−443−5300 Fax: 213−443−5400 Email: david.marcus@wilmerhale.com ATTORNEY TO BE NOTICED
Peter Simon Margulies Roger Williams University School of Law 10 Metacom Avenue Bristol, RI 02806 401−258−6086 Email: pmargulies@rwu.edu PRO HAC VICE ATTORNEY TO BE NOTICED
Shoba Wadhia Penn State Law 329 Innovation Blvd., Suite 118 University Park, PA 16802 814−865−3823 Email: SSW11@psu.edu PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 12 of 27

Amicus National Center for Lesbian Rights
Amicus Asian Law Alliance
Amicus Bet Tzedek Amicus CASA Amicus Central American Refugee Center

represented by Julie Wilensky National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 415−392−6257 Fax: 415−392−8442 Email: jwilensky@nclrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amy Whelan National Center for Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 415−392−6257 Fax: 415−392−8442 Email: awhelan@nclrights.org ATTORNEY TO BE NOTICED
Shannon Minter National Center For Lesbian Rights 870 Market Street, Suite 370 San Francisco, CA 94102 415−392−6257 Fax: 415−392−8442 Email: sminter@nclrights.org ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV Simpson Thacher & Bartlett LLP 2475 Hanover Street Palo Alto, CA 94304 (650) 251−5025 Fax: (650) 251−5002 Email: hfrahn@stblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lee Gelernt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Amicus City Bar Justice Center
Amicus Dolores Street Community Services
Amicus Empire Justice Center
Amicus Her Justice
Amicus HIAS and Council Migration Services, Inc. of Philadelphia
Amicus Immigrant Justice Corps
Amicus Immigrant Legal Resource Center
Amicus International Refugee Assistance Project
Amicus LatinoJustice PRLDEF
Amicus Legal Aid Society of New York

represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 14 of 27

Amicus Loyola Immigrant Justice Clinic
Amicus Make the Road New York
Amicus New York Immigration Coalition
Amicus Public Law Center
Amicus Safe Passage Project
Amicus The Legal Project
Amicus Torture Abolition Survivors Support Coalition
Amicus University of California, Irvine School of Law Immigrant Rights
Amicus UnLocal, Inc.
Amicus Public Citizen, Inc.

ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Harrison J. Frahn , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David Sidney Shaffer Nahmias Impact Fund

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Amicus State of California

125 University Avenue, Suite 102 Berkeley, CA 94710 (510) 845−3473 Fax: (510) 845−3654 Email: dnahmias@impactfund.org ATTORNEY TO BE NOTICED
Jocelyn Dion Larkin Impact Fund 125 University Avenue, Suite 102 Berkeley, CA 94710 510−845−3473 x306 Fax: 510−845−3654 Email: jlarkin@impactfund.org TERMINATED: 01/04/2019
Lindsay Polastri Nako Impact Fund 125 University Avenue, Suite 102 Berkeley, CA 94710 510−845−3473 ext. 307 Fax: 510−845−3654 Email: lnako@impactfund.org ATTORNEY TO BE NOTICED
Rebecca Harriet Smullin Public Citizen Litigation Group 1600 20th Street, NW Washington, DC 20009 202−588−7714 Fax: 202−588−7795 Email: rsmullin@citizen.org ATTORNEY TO BE NOTICED
represented by James F. Zahradka , II California Department of Justice Bureau of Children's Justice California State Attorney General's Office 1515 Clay Street, 20th Floor Oakland, CA 946120550 (510) 879−1247 Fax: (510) 622−2121 Email: james.zahradka@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/09/2018
11/09/2018

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief (Immigration Action) against All Defendants, (Filing Fee: $400.00, receipt number 0971−12836235). Filed by Al Otro Lado, East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center. (Attachments: #(1) Civil Cover Sheet)(Newell, Jennifer) (Filed on 11/9/2018) (Entered: 11/09/2018)
2 Case assigned to Magistrate Judge Donna M. Ryu.
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.

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11/09/2018 11/09/2018 11/09/2018 11/09/2018 11/09/2018 11/09/2018
11/09/2018 11/13/2018
11/13/2018 11/13/2018
11/13/2018 11/14/2018 11/14/2018

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 11/23/2018. (as, COURT STAFF) (Filed on 11/9/2018) (Entered: 11/09/2018)
3 Proposed Summons. (Newell, Jennifer) (Filed on 11/9/2018) (Entered: 11/09/2018)
4 NOTICE of Appearance by Cody H. Wofsy (Wofsy, Cody) (Filed on 11/9/2018) (Entered: 11/09/2018)
5 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 26DE7N7T.) Filing fee previously paid on 11/9/2018 filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Gelernt, Lee) (Filed on 11/9/2018) (Entered: 11/09/2018)
6 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12838766.) filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Rabinovitz, Judy) (Filed on 11/9/2018) (Entered: 11/09/2018)
7 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12838819.) filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Jadwat, Omar) (Filed on 11/9/2018) (Entered: 11/09/2018)
8 MOTION for Temporary Restraining Order filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Attachments: # 1 Memorandum In Support of a Temporary Restraining Order, # 2 Declaration Adam Isacson, # 3 Declaration of Daniel Sharp, # 4 Declaration of Erika Pinheiro, # 5 Declaration of Guy Goodwin−Gill, # 6 Declaration of Stephen Manning, # 7 Declaration of Michael Smith, # 8 Proposed Order, # 9 Common)(Newell, Jennifer) (Filed on 11/9/2018) (Entered: 11/09/2018)
13 CLERK'S NOTICE of Impending Reassignment to U.S. District Judge. (napS, COURT STAFF) (Filed on 11/9/2018) (Entered: 11/13/2018)
9 ORDER REASSIGNING CASE. Case reassigned to Judge Jon S. Tigar for all further proceedings. Magistrate Judge Donna M. Ryu no longer assigned to the case. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras. Signed by Executive Committee on 11/13/2018. (Attachments: # 1 Notice of Eligibility for Video Recording)(jmlS, COURT STAFF) (Filed on 11/13/2018) (Entered: 11/13/2018)
10 Certificate of Interested Entities by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab (Newell, Jennifer) (Filed on 11/13/2018) (Entered: 11/13/2018)
11 SCHEDULING ORDER re 8 MOTION for Temporary Restraining Order filed by East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center, Al Otro Lado. Responses due by 11/15/2018. Replies due by 11/16/2018. Motion Hearing set for 11/19/2018 at 9:30 AM in San Francisco, Courtroom 9, 19th Floor before Judge Jon S. Tigar. Signed by Judge Jon S. Tigar on November 13, 2018. (wsn, COURT STAFF) (Filed on 11/13/2018) (Entered: 11/13/2018)
12 NOTICE of Appearance by Erez R. Reuveni (Reuveni, Erez) (Filed on 11/13/2018) (Entered: 11/13/2018)
14 NOTICE of Appearance by Vasudha Talla (Talla, Vasudha) (Filed on 11/14/2018) (Entered: 11/14/2018)
15 NOTICE of Appearance by Christine Patricia Sun (Sun, Christine) (Filed on 11/14/2018) (Entered: 11/14/2018)

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11/14/2018 11/14/2018 11/14/2018 11/14/2018 11/14/2018
11/15/2018 11/15/2018 11/15/2018 11/15/2018 11/15/2018 11/15/2018 11/15/2018

16 Clerk's Notice of Video Recording Request. Video Camera hearing set for 11/19/2018 at 9:30 AM. Objections to Video Recording due 11/16/2018 by 12:00 PM. (wsn, COURT STAFF) (Filed on 11/14/2018) (Entered: 11/14/2018)
17 CERTIFICATE OF SERVICE by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab (Wofsy, Cody) (Filed on 11/14/2018) (Entered: 11/14/2018)
18 Summons Issued as to All Defendants. (msrS, COURT STAFF) (Filed on 11/14/2018) (Entered: 11/14/2018)
19 Consent MOTION to File Amicus Curiae Brief on Shortened Time filed by State of Washington. Motion Hearing set for 11/14/2018 06:00 PM before Judge Jon S. Tigar. Responses due by 11/14/2018. Replies due by 11/14/2018. (Attachments: # 1 Exhibit Brief of Amicus Curiae)(Lin, Megan) (Filed on 11/14/2018) (Entered: 11/14/2018)
20 ORDER GRANTING MOTION TO FILE AMICUS CURIAE BRIEF Before the Court is an Administrative Motion for Leave to File an Amicus Brief in support of Plaintiffs' request for a temporary restraining order, filed by the States of Washington, Massachusetts, New York, and California (the "States"). ECF No. 19. The motion includes the proposed amicus brief as an exhibit. See ECF No. 19−1. The States represent that Defendants do not oppose the motion, provided that the proposed amicus brief is fewer than ten pages and this motion was filed by 6:00 p.m. on November 14, 2018. ECF No. 19 at 2. The States have complied with these requirements. See ECF No. 19−1. "There are no strict prerequisites that must be established prior to qualifying for amicus status; an individual seeking to appear as amicus must merely make a showing that his participation is useful to or otherwise desirable to the court." In re Roxford Foods Litig., 790 F. Supp. 987, 997 (E.D. Cal. 1991) (citation omitted). Having reviewed the proposed amicus brief, the Court grants the States' motion for leave to file. The States shall file their proposed amicus brief, see ECF No. 19−1, as soon as practicable, and in any event, no later than November 15, 2018 by 12:00 p.m. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 11/14/2018)
21 ORDER UNSEALING DOCKET. Signed by Judge Jon S. Tigar on November 14, 2018. (wsn, COURT STAFF) (Filed on 11/15/2018) (Entered: 11/15/2018)
22 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY LEE GELERNT PRO HAC VICE by Judge Jon S. Tigar granting 5 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 11/15/2018) (Entered: 11/15/2018)
23 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY OMAR JADWAT PRO HAC VICE by Judge Jon S. Tigar granting 7 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 11/15/2018) (Entered: 11/15/2018)
24 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY JUDY RABINOVITZ PRO HAC VICE by Judge Jon S. Tigar granting 6 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 11/15/2018) (Entered: 11/15/2018)
25 First MOTION for leave to appear in Pro Hac Vice Baher Azmy ( Filing fee $ 310, receipt number 0971−12848902.) filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Attachments: # 1 Certificate/Proof of Service Certificate Good Standing)(Azmy, Baher) (Filed on 11/15/2018) (Entered: 11/15/2018)
26 ORDER GRANTING APPLICATION FOR ADMISSION OF BAHER AZMY PRO HAC VICE by Judge Jon S. Tigar granting 25 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 11/15/2018) (Entered: 11/15/2018)
27 OPPOSITION/RESPONSE (re 8 MOTION for Temporary Restraining Order ) filed byLee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 18 of 27

11/16/2018 11/16/2018 11/16/2018 11/16/2018 11/16/2018 11/16/2018 11/16/2018 11/16/2018
11/16/2018
11/16/2018 11/18/2018 11/19/2018

Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 Proposed Order)(Reuveni, Erez) (Filed on 11/15/2018) (Entered: 11/15/2018)
28 First MOTION for leave to appear in Pro Hac Vice Angelo Guisado ( Filing fee $ 310, receipt number 0971−12854228.) filed by Al Otro Lado. (Attachments: # 1 Exhibit Certificate of Good Standing)(Guisado, Angelo) (Filed on 11/16/2018) (Entered: 11/16/2018)
29 NOTICE of Appearance by Scott G. Stewart (Stewart, Scott) (Filed on 11/16/2018) (Entered: 11/16/2018)
30 NOTICE of Appearance by Julie Michelle Veroff (Veroff, Julie) (Filed on 11/16/2018) (Entered: 11/16/2018)
31 NOTICE of Appearance by Celso Javier Perez (Perez, Celso) (Filed on 11/16/2018) (Entered: 11/16/2018)
32 NOTICE REGARDING VIDEO RECORDING re: 16 Clerk's Notice of Video Recording Request. All parties have consented to the video recording of the proceeding. (wsn, COURT STAFF) (Filed on 11/16/2018) (Entered: 11/16/2018)
33 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY ANGELO GUISADO PRO HAC VICE by Judge Jon S. Tigar granting 28 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 11/16/2018) (Entered: 11/16/2018)
34 MOTION for Leave to File Amicus Brief on Jurisdictional Issues in Support of Defendants filed by Immigration Reform Law Institute. (Attachments: # 1 Proposed Order Proposed Order, # 2 Exhibit Proposed Amicus Brief, # 3 Certificate/Proof of Service COS)(Joseph, Lawrence) (Filed on 11/16/2018) (Entered: 11/16/2018)
35 REPLY (re 8 MOTION for Temporary Restraining Order ) filed byAl Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Attachments: # 1 Declaration of Chavla, # 2 Declaration of Cutlip−Mason, # 3 Declaration of Griffey, # 4 Declaration of Isacson, # 5 Declaration of Love, # 6 Declaration of Manning, # 7 Declaration of Penman, # 8 Declaration of Pinheiro, # 9 Declaration of Rodriguez, # 10 Declaration Seyler)(Gelernt, Lee) (Filed on 11/16/2018) (Entered: 11/16/2018)
36 ORDER GRANTING MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF Amicus Curiae Immigration Reform Law Institutes (IRLI) has filed a motion for leave to file an amicus brief. ECF No. 34. The brief seeks to support Defendants' arguments that Plaintiffs lack standing to bring their lawsuit. ECF No. 34−2 at 5. The motion was filed less than 90 minutes before Plaintiffs' reply brief was due, and in fact Plaintiffs' reply brief has now been filed. Nonetheless, given the importance of the case and to ensure full consideration of all the relevant issues, the Court GRANTS the motion. IRLI's brief is not deemed filed. IRLI must file its brief by Saturday, November 16, 2018, at 5:00 p.m. IRLI's brief appears to repeat arguments already made by the Government, as IRLI acknowledges. ECF No. 34 at 4. Plaintiffs might therefore conclude that no response is necessary. Should they wish to file one, however, they may do so by Sunday, November 18, 2018, at 4:00 p.m. Any such response must not exceed four pages, the length of IRLI's brief. (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 11/16/2018)
37 Brief re 36 Order on Motion for Leave to File,,,, Amicus Brief filed as previously lodged as ECF 34−2 filed byImmigration Reform Law Institute. (Related document(s) 36 ) (Joseph, Lawrence) (Filed on 11/16/2018) (Entered: 11/16/2018)
38 NOTICE of Appearance by Francesca M Genova (Genova, Francesca) (Filed on 11/18/2018) (Entered: 11/18/2018)
39 Minute Entry for proceedings held before Judge Jon S. Tigar: Motion Hearing held on 11/19/2018 re 8 MOTION for Temporary Restraining Order filed by East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center, Al Otro Lado. Total Time in Court: 1 hour, 19 minutes. Court Reporter:

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 19 of 27

11/19/2018 11/19/2018 11/19/2018 11/19/2018 11/20/2018
11/20/2018
11/20/2018 11/21/2018 11/26/2018 11/27/2018 11/27/2018

Belle Ball. (wsn, COURT STAFF) (Date Filed: 11/19/2018) (Entered: 11/19/2018)
40 First MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−12859792.) filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Attachments: # 1 Exhibit Certificate of Good Standing)(Schwarz, Ghita) (Filed on 11/19/2018) (Entered: 11/19/2018)
41 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY GHITA SCHWARZ PRO HAC VICE by Judge Jon S. Tigar granting 40 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 11/19/2018) (Entered: 11/19/2018)
42 Joint MOTION to File Amicus Curiae Brief to Deem Amicus Brief Filed filed by State of Washington. Motion Hearing set for 11/19/2018 04:00 PM before Judge Jon S. Tigar. Responses due by 11/19/2018. Replies due by 11/19/2018. (Lin, Megan) (Filed on 11/19/2018) (Entered: 11/19/2018)
43 ORDER GRANTING TEMPORARY RESTRAINING ORDER; ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION by Judge Jon S. Tigar granting 8 Motion for TRO. Stipulation or proposals due by 11/26/2018. Order to Show Cause Hearing set for 12/19/2018 at 9:30 AM in Courtroom 9, 19th Floor, San Francisco, before Judge Jon S. Tigar. (wsn, COURT STAFF) (Filed on 11/19/2018) (Entered: 11/19/2018)
44 TRANSCRIPT ORDER for proceedings held on 11/19/2018 before Judge Jon S. Tigar by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Immigration Reform Law Institute, Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker, for Court Reporter Belle Ball. (Genova, Francesca) (Filed on 11/20/2018) (Entered: 11/20/2018)
45 Transcript of Proceedings held on November 19, 2018, before Judge Jon S. Tigar. Court Reporter Belle Ball, CSR, CRR, RDR, telephone number (415)373−2529, belle_ball@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 44 Transcript Order,, ) Release of Transcript Restriction set for 2/19/2019. (Related documents(s) 44 ) (ballbb15S, COURT STAFF) (Filed on 11/20/2018) (Entered: 11/20/2018)
46 TRANSCRIPT ORDER for proceedings held on 11/19/2018 before Judge Jon S. Tigar by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab, for Court Reporter Belle Ball. (Wofsy, Cody) (Filed on 11/20/2018) (Entered: 11/20/2018)
47 MOTION for Leave to Appear in Pro Hac Vice Mary Bauer, (Filing Fee: $310.00, receipt number 0971−12867291) filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Newell, Jennifer) (Filed on 11/21/2018) (Entered: 11/21/2018)
48 STIPULATION WITH [PROPOSED] ORDER filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Attachments: #(1) [Proposed] Order)(Gelernt, Lee) (Filed on 11/26/2018) (Entered: 11/26/2018)
49 ORDER GRANTING APPLICATION FOR ADMISSION OF ATTORNEY MARY BAUER PRO HAC VICE by Judge Jon S. Tigar; granting 47 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 11/27/2018) (Entered: 11/27/2018)
50 SCHEDULING ORDER. Plaintiffs' motion for preliminary injunction due 12/3/2018. Amicus briefs in support of Plaintiffs or neither party due 12/5/2018. Defendants' opposition due 12/12/2018 by 12:00 PM. Amicus briefs in support of Defendants due 12/12/2018 by 12:00 PM. Plaintiffs' reply due 12/14/2018. Motion

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 20 of 27

11/27/2018
11/27/2018
11/27/2018
11/27/2018 11/27/2018 11/28/2018
11/28/2018 11/29/2018 11/29/2018 11/29/2018 11/29/2018

Hearing set for 12/19/2018 at 2:00 PM in San Francisco, Courtroom 9, 19th Floor before Judge Jon S. Tigar. Signed by Judge Jon S. Tigar on November 27, 2018. (wsnS, COURT STAFF) (Filed on 11/27/2018) (Entered: 11/27/2018)
51 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. Appeal of Order on Motion for TRO, 43 − (Appeal Fee: FEE WAIVED). (Reuveni, Erez) (Filed on 11/27/2018) (Entered: 11/27/2018)
52 Emergency MOTION to Stay re 43 Order on Motion for TRO, filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. Motion Hearing set for 1/3/2019 10:00 AM before Judge Jon S. Tigar. Responses due by 12/11/2018. Replies due by 12/18/2018. (Attachments: # 1 Proposed Order)(Reuveni, Erez) (Filed on 11/27/2018) (Entered: 11/27/2018)
53 Emergency MOTION to Shorten Time For Decision on Motion to Stay Pending Appeal filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: # 1 Proposed Order)(Reuveni, Erez) (Filed on 11/27/2018) (Entered: 11/27/2018)
54 ORDER by Judge Jon S. Tigar granting in part 53 Emergency MOTION to Shorten Time. Plaintiffs' opposition to 52 Emergency MOTION to Stay re 43 Order on Motion for TRO due by 11/29/2018 at 5:00 p.m. The Court will rule on the motion to stay by the end of 11/30/2018. (jstlc3, COURT STAFF) (Filed on 11/27/2018) (Entered: 11/27/2018)
Set/Reset Deadlines as to 52 Emergency MOTION to Stay re 43 Order on Motion for TRO. Responses due 11/29/2018 by 5:00 PM. (wsn, COURT STAFF) (Filed on 11/27/2018) (Entered: 11/28/2018)
55 STIPULATION WITH [PROPOSED] ORDER re 50 Order filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Reuveni, Erez) (Filed on 11/28/2018) (Entered: 11/28/2018)
56 ORDER RE: STIPULATED EXTENSION FOR PRODUCTION OF ADMINISTRATIVE RECORD re 55 STIPULATION WITH PROPOSED ORDER. Signed by Judge Jon S. Tigar on November 28, 2018. (wsn, COURT STAFF) (Filed on 11/28/2018) (Entered: 11/28/2018)
57 NOTICE of Appearance by Thomas Benton York (York, Thomas) (Filed on 11/29/2018) (Entered: 11/29/2018)
Set/Reset Deadlines. Motion Hearing set for 12/19/2018 at 9:30 AM in San Francisco, Courtroom 9, 19th Floor before Judge Jon S. Tigar. Correcting docketing error. Time of hearing set by the Order at docket number 50 . (wsn, COURT STAFF) (Filed on 11/29/2018) (Entered: 11/29/2018)
58 NOTICE of Appearance by Christina P Greer (Greer, Christina) (Filed on 11/29/2018) (Entered: 11/29/2018)
59 OPPOSITION/RESPONSE to (re 52 Emergency MOTION to Stay re 43 Order on Motion for TRO) filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Gelernt, Lee) (Filed on 11/29/2018)

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 21 of 27

11/29/2018
11/30/2018 12/03/2018 12/03/2018 12/03/2018 12/03/2018 12/04/2018 12/04/2018 12/04/2018 12/04/2018
12/04/2018 12/04/2018
12/05/2018

(Entered: 11/29/2018)
60 NOTICE filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker of Filing of the Administrative Record (Greer, Christina) (Filed on 11/29/2018) (Entered: 11/29/2018)
61 ORDER DENYING MOTION FOR STAY PENDING APPEAL by Judge Jon S. Tigar; denying 52 Motion to Stay. (wsn, COURT STAFF) (Filed on 11/30/2018) (Entered: 11/30/2018)
62 NOTICE of Appearance by Brian Hauck on behalf of United Nations High Commissioner for Refugees (Hauck, Brian) (Filed on 12/3/2018) (Entered: 12/03/2018)
63 MOTION for Leave to Appear in Pro Hac Vice, (Filing Fee: $310.00, receipt number 0971−12893705) filed by United Nations High Commissioner for Refugees. (Attachments: #(1) Certificate of Good Standing)(Pearsall, Patrick) (Filed on 12/3/2018) (Entered: 12/03/2018)
64 ORDER by Judge Jon S. Tigar granting 63 Motion for Pro Hac Vice. (wsnS, COURT STAFF) (Filed on 12/3/2018) (Entered: 12/03/2018)
65 NOTICE of Appearance by Spencer Elijah Wittmann Amdur (Amdur, Spencer) (Filed on 12/3/2018) (Entered: 12/03/2018)
66 MOTION for Leave to Appear in Pro Hac Vice for Melissa Crow, (Filing Fee: $310.00, receipt number 0971−12896080) filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Newell, Jennifer) (Filed on 12/4/2018) (Entered: 12/04/2018)
67 ORDER by Judge Jon S. Tigar granting 66 Motion for Pro Hac Vice. (wsnS, COURT STAFF) (Filed on 12/4/2018) (Entered: 12/04/2018)
68 MOTION for Leave to Appear in Pro Hac Vice, (Filing Fee: $310.00, receipt number 0971−12898756) filed by Immigration Law Professors. (Attachments: #(1) Certificate in Good Standing)(Margulies, Peter) (Filed on 12/4/2018) (Entered: 12/04/2018)
69 USCA Case Number 18−17274 for 51 Notice of Appeal filed by Ronald D. Vitiello, U.S. Department of Homeland Security, Executive Office for Immigration Review (EOIR), U.S. Department of Justice, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James McHenry, Matthew G. Whitaker, U.S Customs and Border Protection, Kevin K. McAleenan, Kirstjen M. Nielsen, Lee Francis Cissna & Donald J. Trump. (tnS, COURT STAFF) (Filed on 12/4/2018) (Entered: 12/04/2018)
70 ORDER by Judge Jon S. Tigar granting 68 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 12/4/2018) (Entered: 12/04/2018)
71 MOTION for Preliminary Injunction filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. Motion Hearing set for 12/19/2018 09:30 AM in San Francisco, Courtroom 09, 19th Floor before Judge Jon S. Tigar. Responses due by 12/12/2018. Replies due by 12/14/2018. (Attachments: # 1 Proposed Order, # 2 Declaration Corrected Pinheiro Supp., # 3 Declaration Alvarez, # 4 Declaration Joint Former Officials, # 5 Declaration Slack, # 6 Declaration Mitchell−Bennett, # 7 Declaration Brane, # 8 Declaration Ramos, # 9 Declaration Penman Supp., # 10 Declaration Smith Supp., # 11 Declaration Manning Second Supp.)(Gelernt, Lee) (Filed on 12/4/2018) (Entered: 12/04/2018)
72 First MOTION for Leave to Appear in Pro Hac Vice, (Filing Fee: $310.00, receipt number 0971−12900213) filed by Immigration Law Professors. (Attachments: #(1) Exhibit Certificate in Good Standing)(Wadhia, Shoba) (Filed on 12/5/2018) (Entered: 12/05/2018)

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 22 of 27

12/05/2018 12/05/2018 12/05/2018 12/05/2018 12/05/2018 12/05/2018
12/05/2018 12/05/2018 12/05/2018 12/05/2018 12/06/2018
12/06/2018

73 ORDER by Judge Jon S. Tigar granting 72 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 12/5/2018) (Entered: 12/05/2018)
74 NOTICE of Appearance by Julie Wilensky for proposed Amicus NCLR et al. (Wilensky, Julie) (Filed on 12/5/2018) (Entered: 12/05/2018)
75 MOTION for Leave to File Brief of Amici Curiae NCLR et al. filed by National Center for Lesbian Rights. (Attachments: # 1 Proposed Brief of Amici Curiae, # 2 Proposed Order)(Wilensky, Julie) (Filed on 12/5/2018) (Entered: 12/05/2018)
76 NOTICE of Appearance by David Charles Marcus as Counsel for Amici Curiae Professors of Immigration Law (Marcus, David) (Filed on 12/5/2018) (Entered: 12/05/2018)
77 MOTION for Leave to File Amicus Brief filed by Immigration Law Professors. (Attachments: # 1 Proposed Order)(Marcus, David) (Filed on 12/5/2018) (Entered: 12/05/2018)
78 AGREED MOTION OF TWENTY−THREE ORGANIZATIONS REPRESENTING ASYLUM SEEKERS FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF filed by Asian Law Alliance, Bet Tzedek, CASA, Central American Refugee Center, City Bar Justice Center, Dolores Street Community Services, Empire Justice Center, Her Justice, HIAS and Council Migration Services, Inc. of Philadelphia, Immigrant Justice Corps, Immigrant Legal Resource Center, International Refugee Assistance Project, LatinoJustice PRLDEF, Legal Aid Society of New York, Loyola Immigrant Justice Clinic, Make the Road New York, New York Immigration Coalition, Public Law Center, Safe Passage Project, The Legal Project, Torture Abolition Survivors Support Coalition, University of California, Irvine School of Law Immigrant Rights, UnLocal, Inc.. Motion Hearing set for 12/19/2018 09:30 AM in San Francisco, Courtroom 09, 19th Floor before Judge Jon S. Tigar. Responses due by 12/19/2018. Replies due by 12/19/2018. (Attachments: # 1 Proposed Order, # 2 Exhibit A − Amicus Brief)(Frahn, Harrison) (Filed on 12/5/2018) (Entered: 12/05/2018)
79 Brief in Support of re 77 MOTION for Leave to File Amicus Brief filed by Immigration Law Professors. (Related document(s) 77 ) (Marcus, David) (Filed on 12/5/2018) (Entered: 12/05/2018)
80 Amicus Curiae APPEARANCE entered by Jocelyn Dion Larkin on behalf of Public Citizen Litigation Group. (Attachments: # 1 Amicus Curiae Brief, # 2 Certification of Interested Entities, # 3 Corporate Disclosure)(Larkin, Jocelyn) (Filed on 12/5/2018) (Entered: 12/05/2018)
81 MOTION for Leave to File Amicus Curiae Brief filed by Office of United Nations High Commissioner for Refugees. (Attachments: #(1) Amicus Curiae Brief)(Pearsall, Patrick) (Filed on 12/5/2018) (Entered: 12/05/2018)
82 MOTION for Leave to File Amicus Curiae Brief of the States of California, Washington, Massachusetts, New York, Connecticut, Hawaii, Illinois, Maryland, Minnesota, New Jersey, Oregon, Vermont, and the District of Columbia filed by State of California. (Attachments: # 1 Exhibit 1: States' Proposed Amicus Brief, # 2 Proposed Order)(Zahradka, James) (Filed on 12/5/2018) (Entered: 12/05/2018)
83 ORDER GRANTING IN PART LEAVE TO FILE AMICUS BRIEFS by Judge Jon S. Tigar; granting 75 Motion for Leave to File; granting 77 Motion for Leave to File; granting 78 Motion to File Amicus Curiae Brief; granting 80 Motion to File Amicus Curiae Brief. The Court further orders Defendants to file any objections to the 81 MOTION for Leave to File Amicus Curiae Brief filed by United Nations High Commissioner for Refugees or 82 MOTION for Leave to File Amicus Curiae Brief of the States of California, Washington, Massachusetts, New York, Connecticut, Hawaii, Illinois, Maryland, Minnesota, New Jersey, Oregon, Vermont, and the District of Columbia proposed briefs by 5:00 pm on December 7, 2018. (wsn, COURT STAFF) (Filed on 12/6/2018) (Entered: 12/06/2018)
Set/Reset Deadlines as to 81 MOTION for Leave to File Amicus Curiae Brief, 82 MOTION for Leave to File Amicus Curiae Brief of the States of California, Washington, Massachusetts, New York, Connecticut, Hawaii, Illinois, Maryland, Minnesota, New Jersey, Oregon, Vermont, and the District of Columbia. Responses due 12/7/2018 by 5:00 PM. (wsn, COURT STAFF) (Filed on 12/6/2018) (Entered:

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 23 of 27

12/06/2018 12/07/2018
12/07/2018 12/12/2018 12/12/2018
12/13/2018 12/13/2018 12/13/2018 12/14/2018 12/14/2018

12/06/2018)
84 NOTICE OF ERRATA regarding ECF No. 71−8 (Notice of Corrected Declaration) filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Attachments: #(1) Declaration of Nicole Ramos)(Gelernt, Lee) (Filed on 12/6/2018) (Entered: 12/06/2018)
85 Statement of Non−Opposition to re 81 MOTION for Leave to File Amicus Curiae Brief, re 82 MOTION for Leave to File Amicus Curiae Brief of the States of California, Washington, Massachusetts, New York, Connecticut, Hawaii, Illinois, Maryland, Minnesota, New Jersey, Oregon, Vermont, and the District of Columbia − RESPONSE to Court's Order on Amicus Filings filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Related document(s) 81 , 82 ) (Reuveni, Erez) (Filed on 12/7/2018) (Entered: 12/07/2018)
86 ORDER GRANTING LEAVE TO FILE AMICUS BRIEFS by Judge Jon S. Tigar; granting 81 Motion for Leave to File; granting 82 Motion for Leave to File. (wsnS, COURT STAFF) (Filed on 12/7/2018) (Entered: 12/07/2018)
87 OPPOSITION/RESPONSE to (re 71 MOTION for Preliminary Injunction ) filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: #(1) [Proposed] Order)(Reuveni, Erez) (Filed on 12/12/2018) (Entered: 12/12/2018)
88 MOTION to Strike 71 MOTION for Preliminary Injunction, re 35 Reply to Opposition/Response, re 8 MOTION for Temporary Restraining Order filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. Responses due by 12/26/2018. Replies due by 1/2/2019. (Attachments: #(1) [Proposed] Order)(Greer, Christina) (Filed on 12/12/2018) (Entered: 12/12/2018)
89 Consent MOTION for Extension of Time to File Response/Reply to Motion to Strike Extra−Record Evidence filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Attachments: # 1 Proposed Order)(Gelernt, Lee) (Filed on 12/13/2018) (Entered: 12/13/2018)
90 ORDER by Judge Jon S. Tigar granting in part and denying in part 89 Motion for Extension of Time to File Response/Reply re 88 MOTION to Strike. Responses due by 5:00 p.m. on 12/15/2018. Replies due by 5:00 p.m. on 12/16/2018. (jstlc1S, COURT STAFF) (Filed on 12/13/2018) (Entered: 12/13/2018)
91 ORDER of USCA as to 51 Notice of Appeal filed by Ronald D. Vitiello, U.S. Department of Homeland Security, Executive Office for Immigration Review (EOIR), U.S. Department of Justice, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James McHenry, Matthew G. Whitaker, U.S Customs and Border Protection, Kevin K. McAleenan, Kirstjen M. Nielsen, Lee Francis Cissna, Donald J. Trump. (tnS, COURT STAFF) (Filed on 12/13/2018) (Entered: 12/13/2018)
Set/Reset Deadlines as to 88 MOTION to Strike. Responses due 12/15/2018 by 5:00 PM. Replies due 12/16/2018 by 5:00 PM. (wsn, COURT STAFF) (Filed on 12/14/2018) (Entered: 12/14/2018)
92 REPLY (re 71 MOTION for Preliminary Injunction ) filed byAl Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Gelernt, Lee) (Filed on 12/14/2018) (Entered: 12/14/2018)

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 24 of 27

12/15/2018 12/16/2018
12/17/2018 12/18/2018 12/18/2018 12/19/2018 12/19/2018 12/26/2018
12/27/2018 12/27/2018

93 OPPOSITION/RESPONSE to (re 88 MOTION to Strike 71 MOTION for Preliminary Injunction, re 35 Reply to opposition/Response, re 8 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 12/15/2018) (Entered: 12/15/2018)
94 REPLY (re 88 MOTION to Strike 71 MOTION for Preliminary Injunction, re 35 Reply to Opposition/Response, re 8 MOTION for Temporary Restraining Order) filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. (Attachments: #(1) Proposed Order Updated)(Greer, Christina) (Filed on 12/16/2018) (Entered: 12/16/2018)
95 SUMMONS Returned Executed by Al Otro Lado, East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center Served Upon All Defendants. (Newell, Jennifer) (Filed on 12/17/2018) (Entered: 12/17/2018)
96 USCA ORDER − Dissenting in Part as to 51 Notice of Appeal filed by Ronald D. Vitiello, U.S. Department of Homeland Security, Executive Office for Immigration Review (EOIR), U.S. Department of Justice, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James McHenry, Matthew G. Whitaker, U.S Customs and Border Protection, Kevin K. McAleenan, Kirstjen M. Nielsen, Lee Francis Cissna, Donald J. Trump. (tnS, COURT STAFF) (Filed on 12/18/2018) (Entered: 12/18/2018)
97 ORDER of USCA Denying Government's Emergency Motion for a Stay Pending Appeal as to 51 Notice of Appeal filed by Ronald D. Vitiello, U.S. Department of Homeland Security, Executive Office for Immigration Review (EOIR), U.S. Department of Justice, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James McHenry, Matthew G. Whitaker, U.S Customs and Border Protection, Kevin K. McAleenan, Kirstjen M. Nielsen, Lee Francis Cissna, Donald J. Trump. (tnS, COURT STAFF) (Filed on 12/18/2018) (Entered: 12/18/2018)
98 Minute Entry for proceedings held before Judge Jon S. Tigar: Show Cause Hearing held on 12/19/2018, Motion Hearing held on 12/19/2018 re 71 MOTION for Preliminary Injunction filed by East Bay Sanctuary Covenant, Innovation Law Lab, Central American Resource Center, Al Otro Lado. Total Time in Court: 41 minutes. Court Reporter: Jo Ann Bryce. (wsn, COURT STAFF) (Date Filed: 12/19/2018) (Entered: 12/19/2018)
99 ORDER GRANTING PRELIMINARY INJUNCTION by Judge Jon S. Tigar; granting 71 Motion for Preliminary Injunction; denying 88 Motion to Strike. Case Management Statement due by 3/11/2019. Initial Case Management Conference set for 3/18/2019 at 2:00 PM in San Francisco, Courtroom 9, 19th Floor. (wsn, COURT STAFF) (Filed on 12/19/2018) (Entered: 12/19/2018)
100 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Matthew G. Whitaker. Appeal of Order on Motion for Preliminary Injunction, Order on Motion to Strike 99 − (Appeal Fee: FEE WAIVED) (Reuveni, Erez) (Filed on 12/26/2018) (Entered: 12/26/2018)
101 ORDER of USCA as to 51 Notice of Appeal filed by Ronald D. Vitiello, U.S. Department of Homeland Security, Executive Office for Immigration Review (EOIR), U.S. Department of Justice, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James McHenry, Matthew G. Whitaker, U.S Customs and Border Protection, Kevin K. McAleenan, Kirstjen M. Nielsen, Lee Francis Cissna, Donald J. Trump. (tnS, COURT STAFF) (Filed on 12/27/2018) (Entered: 12/27/2018)
102 USCA Case Number 18−17436 for 100 Notice of Appeal filed by Ronald D. Vitiello, U.S. Department of Homeland Security, Executive Office for Immigration Review

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 25 of 27

12/27/2018 01/04/2019 01/04/2019 02/04/2019 02/04/2019 02/11/2019
02/11/2019
02/14/2019 02/19/2019

(EOIR), U.S. Department of Justice, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James McHenry, Matthew G. Whitaker, U.S Customs and Border Protection, Kevin K. McAleenan, Kirstjen M. Nielsen, Lee Francis Cissna, Donald J. Trump. (tnS, COURT STAFF) (Filed on 12/27/2018) (Entered: 12/27/2018)
103 ORDER of USCA as to 100 Notice of Appeal filed by Ronald D. Vitiello, U.S. Department of Homeland Security, Executive Office for Immigration Review (EOIR), U.S. Department of Justice, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James McHenry, Matthew G. Whitaker, U.S Customs and Border Protection, Kevin K. McAleenan, Kirstjen M. Nielsen, Lee Francis Cissna, Donald J. Trump. (tnS, COURT STAFF) (Filed on 12/27/2018) (Entered: 12/27/2018)
104 NOTICE of Change In Counsel by Lindsay Polastri Nako (Attachments: # 1 Proposed Order Permitting withdrawal and addition of counsel for amicus curiae Public Citizen, Inc.)(Nako, Lindsay) (Filed on 1/4/2019) (Entered: 01/04/2019)
105 ORDER PERMITTING WITHDRAWAL AND ADDITION OF COUNSEL FOR AMICUS CURIAE PUBLIC CITIZEN, INC. re 104 Notice of Change In Counsel filed by Public Citizen, Inc. Signed by Judge Jon S. Tigar on January 4, 2019. (wsn, COURT STAFF) (Filed on 1/4/2019) (Entered: 01/07/2019)
106 Transcript Designation Form for proceedings held on 12/19/2018 before Judge Jon S. Tigar, re 100 Notice of Appeal,, Transcript due by 2/8/2019. (Genova, Francesca) (Filed on 2/4/2019) (Entered: 02/04/2019)
107 TRANSCRIPT ORDER for proceedings held on 12/19/2018 before Judge Jon S. Tigar by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Mathew Whitaker, for Court Reporter Jo Ann Bryce. (Genova, Francesca) (Filed on 2/4/2019) (Entered: 02/04/2019)
108 Transcript of Proceedings held on 12/19/18, before Judge Jon S. Tigar. Court Reporter Jo Ann Bryce, telephone number 510−910−5888, joann_bryce@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 90 days. 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 107 Transcript Order,, ) Release of Transcript Restriction set for 5/13/2019. (Related documents(s) 107 ) (jabS, COURTSTAFF) (Filed on 2/11/2019) (Entered: 02/11/2019)
109 MOTION to Stay Proceedings filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Mathew Whitaker. Motion Hearing set for 3/18/2019 02:00 PM before Judge Jon S. Tigar. Responses due by 2/25/2019. Replies due by 3/4/2019. (Genova, Francesca) (Filed on 2/11/2019) (Entered: 02/11/2019)
110 ADMINISTRATIVE MOTION to Consider Whether Cases Should Be Related, Pursuant to Civil L.R. 7−11 filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. (Attachments: #(1) Declaration of Jennifer Chang Newell, #(2) [Proposed] Order)(Gelernt, Lee) (Filed on 2/14/2019) (Entered: 02/14/2019)
111 OPPOSITION/RESPONSE to (re 110 Administrative MOTION to Consider Whether Cases Should Be Related, Pursuant to Civil L.R. 7−11) filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, Donald J. Trump, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D.

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 26 of 27

02/20/2019 03/05/2019 03/05/2019 07/16/2019 07/16/2019 07/17/2019
07/17/2019 07/18/2019
07/26/2019
08/21/2019

Vitiello, Mathew Whitaker. (Reuveni, Erez) (Filed on 2/19/2019) (Entered: 02/19/2019)
112 CLERK'S NOTICE re 110 ADMINISTRATIVE MOTION to Consider Whether Cases Should Be Related. The court has reviewed the motion and determined that no cases are related and no reassignments shall occur. (wsn, COURT STAFF) (Filed on 2/20/2019) (Entered: 02/20/2019)
113 ORDER GRANTING MOTION TO STAY PROCEEDINGS by Judge Jon S. Tigar; granting 109 Motion to Stay. (wsn, COURT STAFF) (Filed on 3/5/2019) (Entered: 03/05/2019)
114 CLERK'S NOTICE VACATING HEARING. The Case Management Conference set for 3/18/2019 is vacated. (This is a text−only entry generated by the court. There is no document associated with this entry.) (wsnS, COURT STAFF) (Filed on 3/5/2019) (Entered: 03/05/2019)
115 ADMINISTRATIVE MOTION to Consider Whether Cases Should be Related filed by Al Otro Lado, Central American Resource Center, East Bay Sanctuary Covenant, Innovation Law Lab. Responses due by 7/22/2019. (Attachments: # 1 Declaration, # 2 Proposed Order)(Veroff, Julie) (Filed on 7/16/2019) (Entered: 07/16/2019)
116 ORDER TO FILE OPPOSITION TO MOTION TO RELATE. Signed by Judge Jon S. Tigar on July 16, 2019. (jstlc1S, COURT STAFF) (Filed on 7/16/2019) (Entered: 07/16/2019)
117 OPPOSITION/RESPONSE to (re 115 ADMINISTRATIVE MOTION to Consider Whether Cases Should be Related) filed by Lee Francis Cissna, Executive Office for Immigration Review (EOIR), Kevin K. McAleenan, James McHenry, Kirstjen M. Nielsen, U.S Customs and Border Protection, U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of Justice, U.S. Immigration and Customs Enforcement, Ronald D. Vitiello, Mathew Whitaker. (Reuveni, Erez) (Filed on 7/17/2019) (Entered: 07/17/2019)
118 Order by Judge Jon S. Tigar granting 115 Administrative Motion to Relate Cases 18−cv−06810−JST and 19−cv−04073−WHO. 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: 07/17/2019)
119 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)
120 ORDER of USCA as to 51 Notice of Appeal 18−17274, filed by Ronald D. Vitiello, U.S. Department of Homeland Security, Executive Office for Immigration Review (EOIR), U.S. Department of Justice, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James McHenry, U.S Customs and Border Protection, Kevin K. McAleenan, Kirstjen M. Nielsen, Mathew Whitaker, Donald J. Trump, Lee Francis Cissna. (Attachments: # 1 Superseding Order) (wsnS, COURT STAFF) (Filed on 7/26/2019) (Entered: 07/26/2019)
121 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.

Case: 4:18-cv-6810 As of: 03/10/2020 10:15 AM PDT 27 of 27

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.

09/19/2019 09/20/2019 01/24/2020 01/27/2020
01/28/2020 01/28/2020 02/28/2020 02/28/2020

Judge Tigar's case assignments will be updated to reflect the correct office assignment (for example: 3:19−cv−00123−JST will now be 4:19−cv−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)
122 NOTICE of Change In Counsel by Vasudha Talla (Talla, Vasudha) (Filed on 9/19/2019) (Entered: 09/19/2019)
*** Attorney Christine Patricia Sun terminated. 122 NOTICE OF CHANGE INCOUNSEL. (jmlS, COURT STAFF) (Filed on 9/20/2019) (Entered: 09/20/2019)
123 NOTICE of Change In Counsel by Lee Gelernt Notice of Withdrawal of Counsel (Gelernt, Lee) (Filed on 1/24/2020) (Entered: 01/24/2020)
Electronic filing error. Case division and case location information are incorrect. The correct information, per the ECF notification sent August 21, 2019, is Oakland Division and the case number should be 4:18−cv−6810 JST. Please re−file in its entirety. Re: 123 Notice of Change In Counsel filed by East Bay Sanctuary Covenant, Central American Refugee Center, Innovation Law Lab, Al Otro Lado (jmlS, COURT STAFF) (Filed on 1/27/2020) (Entered: 01/27/2020)
124 Notice of Withdrawal of Counsel by Lee Gelernt (Gelernt, Lee) (Filed on 1/28/2020) Modified on 1/28/2020 (jmlS, COURT STAFF). (Entered: 01/28/2020)
*** Attorney Jennifer C. Newell terminated. 124 Notice of Withdrawal. (jmlS, COURT STAFF) (Filed on 1/28/2020) (Entered: 01/28/2020)
125 ORDER of USCA Appellants motion for judicial notice, dkt. 24, is granted as to 102 USCA Case Number, 69 USCA Case Number, (jmlS, COURT STAFF) (Filed on 2/28/2020) (Entered: 02/28/2020)
126 USCA Opinion as to 100 Notice of Appeal,, filed by Ronald D. Vitiello, U.S. Department of Homeland Security, Executive Office for Immigration Review (EOIR), U.S. Department of Justice, U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration Services, James McHenry, U.S Customs and Border Protection, Kevin K. McAleenan, Kirstjen M. Nielsen, Mathew Whitaker, Donald J. Trump, Lee Francis Cissna, 51 Notice of Appeal,, filed by Ronald D. Vitiello, U.S. Department of Homeland Security, Executive Office for Immigration Review (EOIR), U.S. Immigration and Customs Enforcement, U.S. Department of Justice, James McHenry, U.S. Citizenship and Immigration Services, U.S Customs and Border Protection, Kevin K. McAleenan, Kirstjen M. Nielsen, Mathew Whitaker, Lee Francis Cissna, Donald J. Trump (jmlS, COURT STAFF) (Filed on 2/28/2020) (Entered: 02/28/2020)

 
 Case 3:18-cv-06810-JST Document 1 Filed 11/09/18 Page 1 of 20

1 Lee Gelernt* Judy Rabinovitz*
2 Omar C. Jadwat* Anand Balakrishnan*
3 Celso Perez**(SBN 304924) 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 jrabinovitz@aclu.org ojadwat@aclu.org
8 abalakrishnan@aclu.org cperez@aclu.org
9

Jennifer Chang Newell (SBN 233033) Cody Wofsy (SBN 294179) Julie Veroff** (SBN 310161) ACLU FOUNDATION IMMIGRANTS’ RIGHTS PROJECT 39 Drumm Street San Francisco, CA 94111 T: (415) 343-0770 F: (415) 395-0950 jnewell@aclu.org cwofsy@aclu.org jveroff@aclu.org

10 Attorneys for Plaintiffs (Additional counsel listed on following page)

11

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

12 East Bay Sanctuary Covenant; Al Otro Lado;

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

Case No.:

14 Plaintiffs,

15 v.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

16 Donald J. Trump, President of the United States, in

17 his official capacity; Matthew G. Whitaker, Acting IMMIGRATION ACTION Attorney General, in his official capacity; U.S.

18 Department of Justice; James McHenry, Director of the Executive Office for Immigration Review,

19 in his official capacity; the Executive Office for Immigration Review; Kirstjen M. Nielsen,

20 Secretary of Homeland Security, in her official capacity; U.S. Department of Homeland Security;

21 Lee Francis Cissna, Director of the U.S. Citizenship and Immigration Services, in his

22 official capacity; U.S. Citizenship and Immigration Services; Kevin K. McAleenan,

23 Commissioner of U.S. Customs and Border Protection, in his official capacity; U.S. Customs

24 and Border Protection; Ronald D. Vitiello, Acting Director of Immigration and Customs

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

26 Defendants.

27

28

Case 3:18-cv-06810-JST Document 1 Filed 11/09/18 Page 2 of 20

1
2 Melissa Crow*
SOUTHERN POVERTY LAW CENTER
3 1666 Connecticut Avenue NW, Suite 100
Washington, D.C. 20009
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 forthcoming
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 Telephone: (212) 614-6464 Facsimile: (212) 614-6499 bazmy@ccrjustice.org aguisado@ccrjustice.org gschwarz@ccrjustice.org
Christine P. Sun (SBN 218701) Vasudha Talla (SBN 316219)
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

Case 3:18-cv-06810-JST Document 1 Filed 11/09/18 Page 3 of 20

INTRODUCTION 1

2

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

3 federal law specifically guarantees that “[a]ny alien who is physically present in the United States or

4 who arrives in the United States,” at a designated port of entry or not, is entitled to apply for asylum.

5 8 U.S.C. § 1158(a)(1). Consistent with its international obligations, Congress was specific and clear:
6 Entering without inspection is not a basis to categorically deny asylum to refugees.
7 2. Despite this clear congressional command, on November 8, 2018, the Acting
8 Attorney General and Secretary of Homeland Security promulgated an interim final rule (“rule”)
9
10 providing that all persons subject to a presidential proclamation concerning the southern border

11 issued pursuant to Immigration and Nationality Act (“INA”) § 212(f), 8 U.S.C. § 1182(f), or INA

12 § 215(a)(1), 8 U.S.C. § 1185(a)(1), are ineligible for asylum. The next day, the President signed a

13 Proclamation entitled “Presidential Proclamation Addressing Mass Migration Through the Southern

14 Border of the United States” that suspends the entry of all persons entering without inspection at the
15 southern border.
16

17

3. Together, the rule and Proclamation bar people from obtaining asylum if they enter

18 the United States somewhere along the southern border other than a designated port of arrival—in

19 direct violation of Congress’s clear command that manner of entry cannot constitute a categorical

20 asylum bar. In addition, the Acting Attorney General and Secretary of Homeland Security
21 promulgated the rule without the required procedural steps and without good cause for immediately 22
putting the rule into effect. 23
4. Plaintiffs seek a declaration that these actions violate the INA and the Administrative 24
25 Procedure Act (“APA”), and an order enjoining the Proclamation and the rule.

26

27

28 1
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-06810-JST Document 1 Filed 11/09/18 Page 4 of 20

1

JURISDICTION AND VENUE

2

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

3 et seq. This Court has subject matter jurisdiction under 28 U.S.C. § 1331.

4

6. Venue is proper under 28 U.S.C. § 1391(e)(1) because the defendants are agencies of

5 the United States and officers of the United States acting in their official capacity and 1) at least one

6
plaintiff resides in this district; and/or 2) a substantial part of the events or omissions giving rise to
7
the claim occurred in this district.
8

9

PARTIES

10

7. Plaintiff East Bay Sanctuary Covenant (“ESBC”) is a nonprofit organization

11 incorporated in California. ESBC’s main office is in Berkeley, California.

12

8. ESBC was founded in 1982 to assist refugees fleeing the civil wars and violence in El

13 Salvador and Guatemala. ESBC’s mission is to offer sanctuary, support, community organizing
14
assistance, advocacy, and legal services to people escaping political persecution, terror, war,
15
intolerance, exploitation, and other violence. In particular, one of ESBC’s critical missions is to
16
17 assist individuals fleeing persecution in applying for asylum and other humanitarian relief in the

18 United States. EBSC also trains and mentors law students and attorneys to help clients apply for

19 asylum.

20

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

21 and incorporated in California.
22
10. Al Otro Lado is a legal services organization that serves indigent deportees, migrants,
23
24 refugees, and their families, and operates primarily in Los Angeles, California, and Tijuana, Mexico.

25 Al Otro Lado’s mission is to coordinate and provide screening, advocacy, and legal representation

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

27 violations; and to provide assistance with other legal and social service needs. 28

2 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-06810-JST Document 1 Filed 11/09/18 Page 5 of 20

1

11.

2 states.

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

3

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

4 the United States, with a focus on providing representation to asylum seekers.

5

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

6
organization incorporated in California.
7
14. CARECEN’s mission is to empower Central Americans and all immigrants by
8
9 defending human and civil rights, working for social and economic justice and promoting cultural

10 diversity. CARECEN offers low-cost immigration legal services, community education programs,

11 and advocacy and organizing to achieve fair and more inclusive immigration, education, and labor

12 laws and policies in Los Angeles.

13

15. Defendant Donald Trump is the President of the United States. He is sued in his

14
official capacity. In that capacity, he issued the Proclamation challenged in this suit.
15

16. Defendant Matthew G. Whitaker is the Acting Attorney General of the United States.
16

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

18 suit. The Attorney General is responsible for the administration of the immigration laws pursuant to

19 8 U.S.C. § 1103 and is empowered to grant asylum or other relief.

20

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

21 United States federal government.
22
18. Defendant James McHenry is the Director of the Executive Office for Immigration
23
24 Review (“EOIR”). He is sued in his official capacity.

25

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

26 conducts limited review of negative credible fear determinations.

27

20. Defendant Kirstjen M. Nielsen is the Secretary of Homeland Security. She is sued in

28 her official capacity. In that capacity, she issued the interim final rule challenged in this suit. She
3 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 directs each of the component agencies within the Department of Homeland Security. In her official 2 capacity, Defendant Nielsen is responsible for the administration of the immigration laws pursuant to

3 8 U.S.C. § 1103, and is empowered to grant asylum or other relief.

4

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

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

6
Immigration Services (“USCIS”), Customs and Border Protection (“CBP”), and Immigration and
7
Customs Enforcement (“ICE”).
8

9

22. Defendant Lee Francis Cissna is the Director of USCIS. He is sued in his official

10 capacity.

11

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

12 conducts interviews of individuals who apply for asylum.

13

24. Defendant Kevin K. McAleenan is the Commissioner of CBP. He is sued in his

14
official capacity.
15
25. Defendant CBP is the sub-agency of DHS that is responsible for the initial processing
16

17 and detention of noncitizens who are apprehended near the U.S. border.

18

26. Defendant Ronald D. Vitiello is the Acting Director of ICE. He is sued in his official

19 capacity.

20

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

21 orders and overseeing immigration detention.
22
BACKGROUND
23
Obligations to Asylum Seekers Under Domestic and International Law
24
28. Federal law provides several forms of protection for individuals fleeing persecution
25
26 and torture. These forms of protection include asylum, 8 U.S.C. § 1158; withholding of removal, 8

27 U.S.C. § 1231(b)(3); and protection under the Convention Against Torture, see Foreign Affairs

28

4 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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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

29. 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

30. In crafting the statutory provisions governing asylum, Congress took care to ensure

10 that noncitizens within our country or at the border would be able to apply for asylum, regardless of

11 their manner of arrival at or entry within our borders. 8 U.S.C. § 1158(a)(1) specifically provides

12 that

13

“[a]ny alien who is physically present in the United States or who arrives in the United States

14

(whether or not at a designated port of arrival and including an alien who is brought to the

United States after having been interdicted in international or United States waters),

15

irrespective of such alien’s status, may apply for asylum in accordance with this section or,

where applicable, section 1225(b) of this title.”
16

17

31. Accordingly, the Board of Immigration Appeals has long held that “an alien’s manner

18 of entry or attempted entry . . . should not be considered in such a way that the practical effect is to

19 deny [asylum] relief in virtually all cases.” Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).

20

32. The statutory provisions governing asylum, including 8 U.S.C. § 1158(a)(1),

21 represent an effort by Congress to bring the United States into compliance with its international

22
obligations under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees.
23

24

33. Asylum affords protection to individuals who have a “well-founded fear of

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

5 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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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 higher standard of proof than that needed for asylum.

3

34. Asylum is also associated with certain benefits that are critical to the noncitizen’s

4 safety and ability to successfully transition to a life free from persecution. See 8 U.S.C. §§ 1159(b)
5 (ability to adjust to the status of a lawful permanent resident); 1427 (ability to become a United 6
States citizen after being lawfully admitted for permanent residence). Critically, 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

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

12

36. 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
37. 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

38. 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

39. 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

6 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-06810-JST Document 1 Filed 11/09/18 Page 9 of 20

1 establish eligibility for asylum,” he or she is placed in regular removal proceedings and given an 2 opportunity to apply for asylum. Id. 3 The New Proclamation and Interim Final Rule

4

40. On November 8, 2018, Defendant Whitaker, in his role as Acting Attorney General,

5 and Defendant Nielsen, in her role as Secretary of Homeland Security, promulgated an interim final
6 rule pursuant to 8 U.S.C. § 1158(b)(2)(C), a provision of the INA that gives the Attorney General the 7
power to “by regulation establish additional limitations and conditions, consistent with [§ 1158],
8
under which an alien shall be ineligible for asylum,” and 8 U.S.C. § 1158(d)(5)(B), a provision of
9 10 the INA that gives the Attorney General the power to “provide by regulation for any other conditions
11 or limitations on the consideration of an application for asylum not inconsistent with this chapter.”

12

41. The rule renders ineligible for asylum noncitizens whose entry is prohibited by a

13 proclamation or order of the President issued pursuant to INA § 212(f), 8 U.S.C. § 1182(f), or INA
14 § 215(a)(1), 8 U.S.C. § 1185(a)(1), that concerns the southern border. 15
42. The APA generally requires a period of public notice and comment on proposed
16
regulations, to ensure that agency actions are transparent, lawful, and appropriately vetted.
17 18 Nevertheless, the Defendants claimed “good cause” to bypass the notice-and-comment procedures
19 normally required for a rulemaking pursuant to 5 U.S.C. § 553(b)(B), and the 30-day waiting period

20 that is required even where notice and comment are not, 5 U.S.C. § 553(d). They also invoked the

21 “foreign affairs” exception to those procedures. 5 U.S.C. § 553(a)(1).

22

43. The next day, November 9, 2018, President Trump issued a Proclamation entitled

23
“Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United
24

25 States.” The Proclamation was issued pursuant to 8 U.S.C. §§ 1182(f) and 1185(a), and suspends

26 the entry of persons entering without inspection along the southern border.

27

28

7 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

44. Together, these actions render ineligible for asylum any noncitizen who enters the

2 United States without inspection at the southern border. Plaintiffs are harmed by these actions,

3 which undermine their missions and cause them to divert resources.

4 Asylum Seekers at the Southern Border

5

Dire Conditions in Central America Have Prompted Many to Seek Refuge Elsewhere

6

45. Individuals who arrive at the southern border seeking protection in the United States

7 through the asylum process are fleeing some of the most dangerous countries in the world. 8
46. Although asylum seekers come to the southern border from all over the world, many
9
come from El Salvador, Guatemala, and Honduras, countries known as the “Northern Triangle.”
10
11 According to a recent report from the United Nations High Commissioner for Refugees, these

12 countries are experiencing epidemic levels of violence. Human rights groups have compared the

13 levels of violence in this region to those typically seen in war zones.

14

47. Those who leave often are running from life-or-death situations, leaving everything

15
behind to make a dangerous journey. In particular, violence against women by criminal armed
16
groups has escalated dramatically in Central America, and those governments have been unable or
17

18 unwilling to provide effective protection.

19

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

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

21 way.

22

49. Although those traveling by land cross through Mexico before reaching the United

23
States, for many, remaining in Mexico is not an option. Rates of violence in Mexico have been
24
increasing as of late; 2017 was the deadliest year on record, with more than 23,000 murder
25

26 investigations opened.

27

28

8 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

50. Refugees in Mexico are at risk of kidnapping, disappearance, trafficking, and sexual

2 assault, among other harms. Lesbian, gay, bisexual, and transgender persons, as well as people with

3 indigenous heritage, regularly have been subject to persecution in Mexico.

4

51. Many of the migrants coming to the southern border have legitimate claims to

5 asylum.
6
52. According to the United Nations High Commissioner for Refugees, in fiscal year
7
2015, 82 percent of the women from El Salvador, Guatemala, Honduras, and Mexico who were
8 9 subject to a credible fear screening by an asylum officer were found to have a significant possibility
10 of establishing eligibility for asylum or protection under the Convention Against Torture.

11

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

12 Honduras were granted asylum affirmatively, and 3,502 people from those countries were granted
13 asylum defensively.
14
Seeking Refuge at a Port of Entry is Difficult to Impossible for Many People
15
54. Many people seeking refuge in the United States cannot reasonably present at a port
16 17 of entry and instead must enter elsewhere along the southern border. This is so for a variety of
18 reasons.

19

55. Many refugees lack significant formal education, and are unaware that there are

20 designated locations for crossing into the United States.

21

56. Even those refugees who know that designated ports of arrival exist often have no

22
idea where they are or how to find them.
23
57. Ports of entry are also difficult to access even for those who know how to find them.
24

25

58. Even when noncitizens seeking access to the U.S. asylum process present themselves

26 at official ports of entry along the southern border, U.S. government officials often deny them access

27 to U.S. ports of entry and turn them away, thus forcing asylum seekers to attempt unauthorized

28 crossings at the border.

9 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

59. Plaintiff Al Otro Lado, as well as other nongovernmental organizations and news

2 outlets, has documented numerous cases in which CBP officials have arbitrarily denied and/or

3 unreasonably delayed access to the asylum process to individuals seeking asylum by presenting

4 themselves at ports of entry along the U.S.-Mexico border.

5

60. Asylum seekers presenting at ports of entry are turned back by CBP through a

6
number of tactics, including threats, intimidation, and coercion; physical force; physical obstruction;
7
and deliberate misinformation.
8

9

61. Noncitizens seeking asylum who present at a port of entry also may have to wait

10 several days or even weeks to present their claims to an immigration officer.

11

62. Asylum seekers who wish to present at the San Ysidro Port of Entry are currently

12 waiting an average of four to six weeks in Tijuana due to an alleged lack of CBP capacity to process
13 asylum seekers. 14
63. Asylum processing has dramatically slowed down at ports of entry in recent months.
15
64. For instance, earlier this summer, only six asylum seekers were processed each day at
16 17 the port of entry in Nogales, despite a backlog of more than 100 people waiting in Mexico to apply,
18 and even though the port is capable of holding 47 people at a time.

19

65. Similarly, at the port of entry in Brownsville, Texas, there were reports that officials

20 were processing between zero and three people per day.

21

66. These delays in processing asylum seekers can be life-threatening, as individuals are

22
often vulnerable to violence and exploitation while they wait to be processed.
23

24

67. The region of Mexico near the border with the United States is a particularly violent

25 area with limited law enforcement capacity.

26

68. Asylum seekers turned back from a port of entry have been raped, beaten, and

27 kidnapped and held for ransom by cartel members waiting outside. 28

10 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

69.

2 them.

Even shelters outside ports of entry are not always safe, as cartels often infiltrate

3

70. Asylum seekers who need to reach safety as quickly as possible thus often feel

4 compelled to enter the United States along the border, outside of a port of entry, in order to escape

5 their persecutors and the violence on Mexico’s side of the border.

6
Overall Migration at the Southern Border is Down
7
71. In general, migration at the southern border is far lower than it was in recent years.
8

9

72. The number of migrants apprehended by Border Patrol officials at the U.S.-Mexico

10 border in 2017 is the lowest annual number since 1972.

11

73. In fiscal year 2018, CBP processed 1.25 million fewer people arriving at the southern

12 border than in fiscal year 2000.

13

74. Despite the drop in processing, CBP’s budget is twice what it was in 2000. Whereas

14
the Border Patrol’s budget in 2000 was $1.055 billion, its budget in 2016 was $3.801 billion.
15
75. CBP’s staffing has also increased. The number of Border Patrol agents at the
16

17 southwest border is almost double the number in 2000, from 8,580 agents in fiscal year 2000, when

18 the number of apprehensions was four times higher than it is now, to 16,605 agents in fiscal year

19 2017.

20

76. Each officer is thus apprehending and processing far fewer individuals than in years

21 past. In 2017, the average U.S. Border Patrol agent apprehended only 18 migrants along the U.S.-

22
Mexico border all year, or one every 20 days.
23

24

77. Those asylum seekers who are apprehended upon their arrival and then released into

25 the United States after passing their credible fear interviews overwhelmingly show up for their

26 immigration court hearings. According to data from the Department of Justice, in fiscal year 2017,

27 89% of asylum seekers appeared for their hearings. 28

11 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 Harms to Plaintiffs

2

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

3 including those who have entered between ports of entry and seek asylum affirmatively before the

4 USCIS. The new rule and Proclamation cause each Plaintiff significant harm.

5

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

6
immigrants and refugees within the jurisdiction of the San Francisco Asylum Office, including
7
applicants in California, Washington, and Oregon. It offers clients legal assistance in applying for
8
9 affirmative asylum; provides social services; and helps train professionals to assist immigrant and

10 refugee communities.

11

80. EBSC’s affirmative asylum program is a key part of the organization’s mission, and

12 accounts for nearly half of its organizational budget. Since 1992, ESBC has filed nearly 5,000
13 affirmative asylum cases. Over 97 percent of those cases have been granted. 14
81. An estimated 80 percent of the clients in ESBC’s affirmative asylum program entered
15
between ports of entry. Most of those clients fled persecution in Central America and Mexico.
16 17 ESBC currently has around 35 clients who entered without inspection and expect to file for

18 affirmative asylum in the upcoming months.

19

82. Funding for ESBC’s affirmative asylum program is based in part on the number of

20 cases ESBC handles per year, and the number of clients ESBC anticipates serving.

21

83. The new rule and Proclamation seriously frustrate ESBC’s mission and cause it to

22
divert organizational resources.
23

24

84. As a result of the new policy, ESBC will have to divert significant resources to,

25 among other things, understanding the new policy and its impact on the communities ESBC serves,

26 and educating and advising its staff, clients, and prospective clients accordingly. To properly

27 counsel new prospective clients who seek its affirmative asylum services going forward, ESBC will

28 need to invest resources in training multiple intake staff not only to screen for asylum eligibility
12 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 based on the new rule, but to conduct detailed screenings for alternative forms of relief to facilitate 2 referrals or other forms of assistance as appropriate.

3

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

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

5 frustrates its mission of helping to train legal professionals to assist individuals fleeing violence and

6
persecution.
7
86. The new policy also directly frustrates EBSC’s mission of providing assistance and
8
9 support to individuals fleeing persecution and violence.

10

87. The new policy jeopardizes ESBC’s funding streams. If ESBC is no longer able to

11 handle affirmative asylum cases for individuals who enter without inspection, it will face a marked

12 decrease in its budget and will have to significantly cut its program and staff, or dramatically

13 overhaul its program to provide types of assistance is it not currently equipped or trained to provide.
14
88. Plaintiff Al Otro Lado routinely provides representation or other assistance to asylum
15
seekers who have entered the United States between ports of entry.
16

17

89. With the new policy, Defendants have frustrated Al Otro Lado’s mission and have

18 forced Al Otro Lado to divert significant resources away from its other programs. Because

19 individuals who enter without inspection at the southern border are now categorically ineligible for

20 asylum under the rule and Proclamation, Al Otro Lado has to revamp its representation strategy,

21 overhaul the materials it uses to train pro bono attorneys, and evaluate the eligibility of each of its
22
clients for other types of immigration relief. It also has to expend resources to brief eligibility
23
24 issues, resulting in additional hearings and time spent on each case.

25

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

26 streams.

27

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

28 Because they will be ineligible for asylum under the new policy, spouses and minor children can no
13 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-06810-JST Document 1 Filed 11/09/18 Page 16 of 20

1 longer be counted as derivatives in a single application. Al Otro Lado must now prepare separate 2 cases for each family member, exponentially increasing the number of hours required to prepare a

3 family’s case.

4

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

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

6
technical, and strategic assistance in the preparation and presentation of claims. These projects are

7
established in Georgia, Kansas, Missouri, North Carolina, and Oregon.
8

9

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

10 resources. The vast majority of people Innovation Law Lab serves are asylum seekers. The new

11 policy will, among other things, require Innovation Law Lab to entirely rework the advice and

12 guidance it provides in pro se workshops, and respond to a flood of inquiries and uncertainty from

13 the immigrant communities Innovation Law Lab serves regarding the attempt to change asylum law.
14
It will also require Innovation Law Lab to evaluate eligibility for other types of relief in all of the
15
cases that it screens and mentors.
16

17

94. The changes created by the new asylum rule will have a substantial impact on the

18 Innovation Law Lab. For example, the Law Lab will have to deploy expensive and limited

19 engineering resources to recode its software to create new analytical modeling to account for the

20 new rule. The Innovation Law Lab publishes materials for pro bono attorneys and asylum
21 applicants, including printed guides, worksheets, training videos, self-help videos, and other 22
resources that are used around the country. The new asylum rule will require the Innovation Law
23 24 Lab to substantially revise this material and create new learning engagements and materials on the
25 asylum rule.

26

95. Thousands of individuals rely on the Innovation Law Lab’s systems; the new asylum

27 rule will require the organization to divert its limited resources away from other projects and

28 priorities. For example, Innovation Law Lab will have to divert its attention away from the
14 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 noncitizen population who remain eligible for asylum under the new policy and who will remain in 2 desperate need of Innovation Law Lab’s services. Innovation Law Lab will also have to divert its

3 limited resources away from developing additional, new technologies to support and improve the

4 rights of immigrants.

5

96. Plaintiff CARECEN provides immigration legal services to clients throughout

6
Southern California. These services include affirmative and defensive representation for asylum
7
seekers. CARECEN also educates immigrants through citizenship classes, trainings to develop
8
9 organizing and advocacy skills, and workshops to facilitate the integration of immigrants into their

10 communities. CARECEN also helps to organize immigrant communities to advocate on behalf of

11 their rights on specific policy items.

12

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

13 handles per year, and the number it anticipates serving. The rule and Proclamation will seriously
14
harm CARECEN in multiple respects, and frustrate CARECEN’s mission and divert organizational
15
resources.
16

17

98. For example, CARECEN’s mission as it relates to affirmative asylum applicants will

18 be frustrated because the organization will be unable to assist asylum seekers who entered between

19 ports of entry because they will no longer be eligible for asylum. CARECEN’s representation of

20 individuals who enter between ports of entry and seek asylum while in removal proceedings also

21 will be compromised, and CARECEN will be forced to assist them in applying for withholding and
22
CAT. The additional staff time required to handle such cases because of the more stringent standards
23
24 for withholding and CAT will require diverting resources from other critical areas of work.

25

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

26 prospective clients about the effects of the new policy.

27

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

28 comment. If Defendants had provided an opportunity for notice and comment before the rule,
15 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 Plaintiffs could have informed Defendants of their serious objections to the rule, and they may have

2 convinced Defendants to adopt a different approach.

3

FIRST CLAIM FOR RELIEF

4

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

5

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

6

102. The Immigration and Nationality Act provides, with certain exceptions not relevant

7 here, that “[a]ny alien who is physically present in the United States or who arrives in the United
8
States (whether or not at a designated port of arrival and including an alien who is brought to the
9
United States after having been interdicted in international or United States waters), irrespective of
10 11 such alien’s status, may apply for asylum in accordance with this section or, where applicable,

12 section 1225(b) of this title.” 8 U.S.C. § 1158(a)(1).

13

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

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

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

16
constitutional right, power, privilege, or immunity; [or] (C) in excess of statutory jurisdiction,
17
authority, or limitations, or short of statutory right.”
18

19

104. The Proclamation and the rule are contrary to law, including 8 U.S.C. § 1158(a)(1).

20

105. The President’s power to suspend or restrict entry pursuant to INA § 212(f) does not

21 encompass the ability to limit the forms of relief available to noncitizens once they have entered the

22 country, nor does his power pursuant to INA § 215(a)(1).

23

106. The rule exceeds the authority delegated to the Attorney General by Congress in

24
8 U.S.C §§ 1158(b)(2)(C) and (d)(5)(B). The Attorney General lacks the authority to issue asylum
25

26 bars as broad as the President’s § 212(f) entry suspension authority permits.

27

28

16 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1

SECOND CLAIM FOR RELIEF

2

(Violation of Administrative Procedure Act)

3

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

4

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

5 regulations. 5 U.S.C. §§ 553(b), (c). The Acting Attorney General and Secretary of Homeland
6
Security failed to provide notice and an opportunity to comment in a timely manner.
7
109. The APA requires that a regulation be published “no less than 30 days before its
8 9 effective date.” 5 U.S.C. § 553(d). The Acting Attorney General and Secretary of Homeland

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

11

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

12 articulated reasons sufficient to shown good cause why these requirements are inapplicable, nor is

13 the foreign affairs exception applicable.

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 Proclamation and interim final rule are

18

unlawful and invalid;

19

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

20

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

21

implementing or enforcing the Proclamation or interim final rule;

22
c. An order awarding Plaintiffs costs of suit, and reasonable attorneys’ fees and expenses
23

24

pursuant to any applicable law;

25

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

26

27

28

17 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:18-cv-06810-JST Document 1 Filed 11/09/18 Page 20 of 20

1 Dated: November 9, 2018

2

Lee Gelernt* Judy Rabinovitz*

3

Omar Jadwat* Anand Balakrishnan*

4

Celso Perez** (SBN 304924) AMERICAN CIVIL LIBERTIES UNION

5

FOUNDATION IMMIGRANTS’ RIGHTS PROJECT

6

125 Broad St., 18th Floor New York, NY 10004

7

T: (212) 549-2660 F: (212) 549-2654

8

lgelernt@aclu.org jrabinovitz@aclu.org

9

ojadwat@aclu.org abalakrishnan@aclu.org

10 cperez@aclu.org

11

Melissa Crow* SOUTHERN POVERTY LAW CENTER

12

1666 Connecticut Avenue NW, Suite 100 Washington, D.C. 20009

13

T: (202) 355-4471 F: (404) 221-5857

14 melissa.crow@splcenter.org

15

Mary Bauer* SOUTHERN POVERTY LAW CENTER

16

1000 Preston Avenue Charlottesville, VA 22903

17

T: (470) 606-9307 F: (404) 221-5857

18 mary.bauer@splcenter.org

19 Attorneys for Plaintiffs

20

*Pro hac vice application forthcoming **Application for admission forthcoming

21

Respectfully submitted,
/s/Jennifer Chang Newell Jennifer Chang Newell (SBN 233033) Cody Wofsy (SBN 294179) 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 jnewell@aclu.org cwofsy@aclu.org jveroff@aclu.org
Christine P. Sun (SBN 218701) Vasudha Talla (SBN 316219) AMERICAN CIVIL LIBERTIES UNION OF NORTHERN CALIFORNIA, INC. 39 Drumm Street San Francisco, CA 94111 T: (415) 621-2493 F: (415) 255-8437 csun@aclu.org vtalla@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

22

23

24

25

26

27

28

18 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

 
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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, et al.,

8

Plaintiffs,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

12

Case No. 18-cv-06810-JST
ORDER GRANTING TEMPORARY RESTRAINING ORDER; ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION
Re: ECF No. 8

13

The Immigration and Naturalization Act (“INA”) “deals with one of the oldest and most

14 important themes in our Nation’s history: welcoming homeless refugees to our shores,” and it

15 “give[s] statutory meaning to our national commitment to human rights and humanitarian

16 concerns.” 125 Cong. Rec. 23231-32 (Sept. 6, 1979). As part of that commitment, Congress has

17 clearly commanded in the INA that any alien who arrives in the United States, irrespective of that

18 alien’s status, may apply for asylum – “whether or not at a designated port of arrival.” 8 U.S.C.

19 § 1158(a)(1).

20

Notwithstanding this clear command, the President has issued a proclamation, and the

21 Attorney General and the Department of Homeland Security have promulgated a rule, that allow

22 asylum to be granted only to those who cross at a designated port of entry and deny asylum to

23 those who enter at any other location along the southern border of the United States. Plaintiff

24 legal and social service organizations, Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado,

25 Innovation Law Lab, and Central American Resource Center of Los Angeles (collectively, the

26 “Immigration Organizations”), now ask the Court to stop the rule from going into effect. ECF No.

27 8. The Court will grant the motion.

28

The rule barring asylum for immigrants who enter the country outside a port of entry

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1 irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of

2 the President’s authority, he may not rewrite the immigration laws to impose a condition that

3 Congress has expressly forbidden. Defendants’ claims that the rule can somehow be harmonized

4 with the INA are not persuasive.

5

Also, Plaintiffs and the immigrants they represent will suffer irreparable injury if the rule

6 goes into effect pending resolution of this case. Asylum seekers will be put at increased risk of

7 violence and other harms at the border, and many will be deprived of meritorious asylum claims.

8 The government offers nothing in support of the new rule that outweighs the need to avoid these

9 harms.

10

The Court addresses the parties’ various arguments, and explores the Court’s reasons for

11 granting Plaintiffs’ motion, more fully below.

12 I. BACKGROUND

13

A. Asylum Framework

14

Asylum is a protection granted to foreign nationals already in the United States or at the

15 border who meet the international law definition of a “refugee.” Congress has currently extended

16 the ability to apply for asylum to the following non-citizens:

17

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

18

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

after having been interdicted in international or United States

19

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

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

20

this title.

21 8 U.S.C. § 1158(a)(1). Congress has also created exceptions for aliens who (1) may be removed

22 to a safe third country, (2) did not apply within one year of arriving in the United States, or (3)

23 have previously been denied asylum, absent a material change in circumstances or extraordinary

24 circumstances preventing the alien from filing a timely application. Id. § 1158(a)(2).

25

To obtain asylum status, applicants must clear three hurdles. First, applicants must

26 establish that they qualify as refugees who have left their country “because of persecution or a

27 well-founded fear of persecution on account of race, religion, nationality, membership in a

28 particular social group, or political opinion,” id. § 1101(a)(42)(A), and that their status in one of 2

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1 those groups “was or will be at least one central reason” for the persecution, id. § 1158(b)(1)(A);

2 see also id. § 1158(b)(1)(B).

3

Second, Congress has established a series of statutory bars to eligibility for asylum, such as

4 an applicant’s role in persecuting members of protected groups or “reasonable grounds for

5 regarding the alien as a danger to the security of the United States.” Id. § 1158(b)(2)(A). In

6 addition, Congress authorized the Attorney General to “by regulation establish additional

7 limitations and conditions, consistent with [8 U.S.C. § 1158], under which an alien shall be

8 ineligible for asylum under [id. § 1158(b)(1)].” Id. § 1158(b)(2)(C). If “the evidence indicates”

9 that one of these statutory or regulatory bars applies, the applicant bears the burden of proving that

10 it does not. 8 C.F.R. § 1240.8(d).

11

Finally, even if an applicant satisfies those two requirements, the decision to grant asylum

12 relief is ultimately left to the Attorney General’s discretion, see I.N.S. v. Aguirre-Aguirre, 526

13 U.S. 415, 420 (1999); Delgado v. Holder, 648 F.3d 1095, 1101 (9th Cir. 2011), subject to the

14 court of appeals’ review for whether the Attorney General’s decision was “manifestly contrary to

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

16

If an alien is granted asylum status, the Attorney General must refrain from removing the

17 alien and must grant the alien authorization to work in the United States. Id. § 1158(c)(1)(A)-(B).

18 The alien’s spouse and children may also “be granted the same status as the alien if

19 accompanying, or following to join, such alien.” Id. § 1158(b)(3)(A). Asylum status also 20 provides a path to citizenship.1 Still, asylum is not irrevocable. The Attorney General may

21 terminate an alien’s asylum status based on changed circumstances, a subsequent determination

22 that a statutory bar applies, or under various other conditions. Id. § 1158(c)(2).

23

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

24 U.S. immigration law. With some exceptions,2 an alien is entitled to withholding of removal if

25

26

1 After one year, asylum refugees may apply for adjustment of status to lawful permanent residents, provided they meet certain conditions. See id. § 1159(b)-(c). Lawful permanent

27 residents may apply for citizenship after five years of continuous residence. Id. § 1427(a).

28 2 An alien is not eligible for withholding of removal if

3

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1 “the Attorney General decides that the alien’s life or freedom would be threatened in that country

2 because of the alien’s race, religion, nationality, membership in a particular social group, or

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

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

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

6 Cir. 2014).

7

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

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

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

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

11 other person acting in an official capacity,” id. § 1208.18(a)(1). Though these latter two forms of

12 relief require the applicant to meet a higher bar, they are mandatory rather than discretionary. See

13 Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005).

14

B. Challenged Actions

15

On November 9, 2018, the federal government took two actions that are the subject of this

16 dispute.

17

First, the Department of Justice (“DOJ”) and Department of Homeland Security (“DHS”)

18 published a joint interim final rule, entitled “Aliens Subject to a Bar on Entry Under Certain

19 Presidential Proclamations; Procedures for Protection Claims” (the “Rule”). 83 Fed. Reg. 55,934

20 (Nov. 9, 2018) (to be codified at 8 C.F.R. pts. 208, 1003, 1208). The Rule adds an “[a]dditional

21

22

(i) the alien ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual's race,

23

religion, nationality, membership in a particular social group, or political opinion;

24

(ii) the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the

25

United States; (iii) there are serious reasons to believe that the alien committed a

26

serious nonpolitical crime outside the United States before the alien arrived in the United States; or

27

(iv) there are reasonable grounds to believe that the alien is a danger to the security of the United States.

28 8 U.S.C. § 1231(b)(3)(B). 4

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1 limitation on eligibility for asylum” that applies to “applications filed after November 9, 2018.”

2 Id. at 55,952. Under the Rule, an alien is categorically ineligible for asylum “if the alien is subject

3 to a presidential proclamation or other presidential order suspending or limiting the entry of aliens

4 along the southern border with Mexico that is issued pursuant to subsection 212(f) or 215(a)(1) of

5 the Act on or after November 9, 2018 and the alien enters the United States after the effective date

6 of the proclamation or order contrary to the terms of the proclamation or order.” Id. (to be 7 codified at 8 C.F.R. §§ 208.13(c)(3), 1208.13(c)(3)).3

8

The Rule also amends the regulations governing credible fear determinations in expedited

9 removal proceedings. “Although DHS has generally not applied existing mandatory bars to 10 asylum in credible-fear determinations,”4 the Rule’s bar applies in such proceedings. 83 Fed. Reg.

11 at 55,947. Accordingly, for an alien subject to the new bar, “the asylum officer shall enter a

12 negative credible fear determination with respect to the alien’s application for asylum.” Id. (to be

13 codified at 8 C.F.R. § 208.30(e)(5)). The asylum officer will then proceed to evaluate the alien’s

14 claim for withholding of removal or protection under CAT by assessing whether the alien has

15 demonstrated a “reasonable fear of persecution or torture.” Id. If the asylum officer finds that this

16 standard is not met, the alien will be removed unless an immigration judge determines upon

17 review that (1) the alien is not actually subject to the categorical bar, i.e. did not enter in violation

18 of a presidential proclamation or order or (2) the alien satisfies the reasonable fear standard. See

19 id. (to be codified at 8 C.F.R. § 1208.30(g)(1)).

20

In promulgating the Rule, the agencies claimed exemption from the Administrative

21 Procedure Act’s (“APA”) notice-and-comment requirements. See 5 U.S.C. § 553(b)-(d). In so

22 doing, they invoked § 553(a)(1)’s “military or foreign affairs function” exemption and

23 § 553(b)(B)’s “good cause” exemption. 83 Fed. Reg. at 55,949-51. They also invoked

24

25

3 This categorical bar does not apply only if the Presidential proclamation or order contains an explicit exception to the bar. See 83 Fed. Reg. at 55,952 (to be codified at 8 C.F.R.

26

§§ 208.13(c)(3), 1208.13(c)(3)) (“This limitation on eligibility does not apply if the proclamation or order expressly provides that it does not affect eligibility for asylum, or expressly provides for a

27 waiver or exception that makes the suspension or limitation inapplicable to the alien.”).

28

4 Under the current regulations, DHS places aliens subject to mandatory bars in full removal proceedings. 8 C.F.R. § 208.30(e)(5).

5

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1 § 553(d)(3)’s “good cause” waiver of the thirty-day grace period that is usually required before a

2 newly promulgated rule goes into effect. Id. at 55,949-50. The Court discusses the proffered

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

4

Second, the President of the United States issued a presidential proclamation, entitled

5 “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the 6 United States” (the “Proclamation”).5 Asserting the President’s authority under the Immigration

7 and Nationality Act, 8 U.S.C. §§ 1182(f), 1185(a), the Proclamation suspended “[t]he entry of any

8 alien into the United States across the international boundary between the United States and 9 Mexico” for ninety days. Proclamation § 1.6 The Proclamation applies only to aliens who enter

10 after its issuance, id. § 2(a), and expressly exempts “any alien who enters the United States at a

11 port of entry and properly presents for inspection,” id. § 2(b).

12

The combined effect of the Rule and the Proclamation is that any alien who enters the

13 United States across the southern border at least over the next ninety days, except at a designated

14 port of entry, is categorically ineligible to be granted asylum.

15

C. Procedural History

16

That same day, the Immigration Organizations filed this lawsuit against Defendants,7 ECF

17

18 5 See Whitehouse.gov, Presidential Proclamation Addressing Mass Migration Through the

19

Southern Border of the United States, (November 9, 2018), available at https://www.whitehouse.gov/presidential-actions/presidential-proclamation-addressing-mass-

20 migration-southern-border-united-states/.

21

6 The Proclamation expires earlier if the United States reaches “an agreement [that] permits the United States to remove aliens to Mexico in compliance with the terms of section 208(a)(2)(A) of

22

the INA (8 U.S.C. [§] 1158(a)(2)(A)).” Proclamation § 1. It may also extend for a longer period of time, however. The Proclamation requires the “Secretary of State, the Attorney General, and

23

the Secretary of Homeland Security [to] jointly submit to the President . . . a recommendation on whether an extension or renewal of the suspension or limitation on entry in section 1 of this

24 proclamation is in the interests of the United States.” Proclamation § 2(d).

25

7 Defendants are President Donald Trump, DOJ, Acting Attorney General Matthew Whitaker, the Executive Office for Immigration Review (“EOIR”), EOIR Director James McHenry, DHS,

26

Secretary of Homeland Security Kirstjen Nielsen, U.S. Citizenship and Immigration Services (“USCIS”), USCIS Director Lee Cissna, Customs and Border Protection (“CBP”), CBP

27

Commissioner Kevin McAleenan, Immigration and Customs Enforcement (“ICE”), and Acting ICE Director Ronald Vitiello. Compl. ¶¶ 13-27. Individual Defendants are sued in their official

28 capacities.

6

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1 No. 1 (“Compl.”), and immediately moved for a TRO, ECF No. 8. The Organizations allege two

2 claims: (1) a claim under 5 U.S.C. § 706(2), that the Rule is an invalid regulation because it is

3 inconsistent with 8 U.S.C. § 1158, Compl. ¶¶ 101-106; and (2) a claim that Defendants violated

4 the APA’s notice-and-comment provisions, see 5 U.S.C. § 553, Compl. ¶¶ 107-110.

5

The case was assigned to the undersigned on November 13, 2018, and the Court set a

6 hearing on the TRO for November 19, 2018. ECF Nos. 9, 11. Defendants filed their opposition

7 on November 15, 2018, ECF No. 27, and the Immigration Organizations filed a reply on 8 November 16, 2018, ECF No. 35.8 The Court also permitted the states of Washington,

9 Massachusetts, New York, and California (the “States”) to file an amicus brief in support of the 10 TRO. ECF No. 20.9 The Court likewise permitted the Immigration Reform Law Institute

11 (“IRLI”) to file an amicus brief in opposition. ECF No. 37.

12 II. JURISDICTION

13

The Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331.

14 III. THRESHHOLD CHALLENGES

15

A. Article III Standing

16

The Court addresses as a threshold matter the Immigration Organizations’ standing to

17 bring this lawsuit. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101-02 (1998).

18

1. Legal Standard

19

Article III standing requires that a “plaintiff must have (1) suffered an injury in fact, (2)

20 that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be

21

22

8 The Immigration Organizations included declarations and other evidence with, and made a third party standing argument in, their reply that they did not submit with their opening brief. Because

23

Defendants neither objected to this material nor requested an opportunity to respond to it, the Court has considered the Immigration Organizations’ reply brief in full. See Cincinnati Ins. Co. v.

24

Harry Johnson Plumbing & Excavating Co., No. 4:16-CV-5090-LRS, 2017 WL 5639944, at *1 (E.D. Wash. Oct. 23, 2017) (affirming consideration of new evidence on reply when an opposing

25

party did not object); see also Quillar v. CDCR, No. 2:04-CV-01203-KJM, 2012 WL 4210492, at *3 n.2 (E.D. Cal. Sept. 19, 2012) (“Plaintiff has not responded to Anderson’s second declaration

26

or moved to strike it despite having ample time.”), aff’d sub nom. Quillar v. Hill, 582 F. App’x 736 (9th Cir. 2014).

27 9 After the Court granted the motion for leave to file an amicus brief, the States failed to re-file the

28

brief as a separate docket entry pursuant to the Court’s order. At the hearing, the Court deemed the brief filed without objection.

7

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1 redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

2 “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally

3 protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or

4 hypothetical.’” Id. at 1548 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Lujan,

5 504 U.S. at 560).

6

Because “[t]he party invoking federal jurisdiction bears the burden of establishing these

7 elements,” they are “an indispensable part of the plaintiff’s case.” Lujan, 504 U.S. at 561.

8 Accordingly, “each element must be supported in the same way as any other matter on which the

9 plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the

10 successive stages of the litigation.” Id. at 561. A TRO requires a “clear showing of each element

11 of standing.” Townley v. Miller, 722 F.3d 1128, 1133 (9th Cir. 2013). “At this very preliminary

12 stage of the litigation, [the Immigration Organizations] may rely on the allegations in their

13 Complaint and whatever other evidence they submitted in support of their TRO motion to meet

14 their burden.” Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir.), reconsideration en banc

15 denied, 853 F.3d 933 (9th Cir. 2017), and reconsideration en banc denied, 858 F.3d 1168 (9th Cir. 16 2017), and cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448 (2017).10

17

Where, as here, an organization seeks to sue on its own behalf, rather than in a

18 representative capacity, the Court “conduct[s] the same [standing] inquiry as in the case of an

19 individual.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982); see also ECF No. 35

20 at 8 (relying on direct harm to Immigration Organizations); Compl. ¶¶ 78-100 (same).

21

2. Discussion

22

Defendants argue that the Immigration Organizations lack a cognizable Article III injury.

23 ECF No. 27 at 17-18. The Immigration Organizations respond that the Rule causes them injury

24 because it impairs their funding, frustrates their missions, and forces them to divert resources to

25 address the Rule’s impacts. ECF No. 35 at 8-10.

26

27 10 Where a party fails to establish standing to seek affirmative preliminary relief, such as a

28

preliminary injunction, that failure “requires denial of the motion for preliminary injunction, not dismissal of the case.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015).

8

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1

These asserted injuries are the types of injuries alleged in Havens, 455 U.S. at 379.

2 Havens involved the challenge by an equal-housing organization called HOME under the Fair

3 Housing Act, 42 U.S.C. § 3604, to a realtor’s “racial steering” practices, i.e., providing false

4 information to prospective renters based on race. Id. at 366, 388. HOME alleged, on its own

5 behalf, that the realtor’s practices had “frustrated its efforts to assist equal access to housing

6 through counseling and other referral services” and that the organization had been forced to

7 respond by “devot[ing] significant resources to identify and counteract the defendant’s [sic]

8 racially discriminatory steering practices.” Id. at 379 (alteration in original) (citation omitted).

9 The Supreme Court agreed that if the alleged violations had “perceptibly impaired HOME’s

10 ability to provide counseling and referral services for low-and moderate-income homeseekers,

11 there can be no question that the organization has suffered injury in fact.” Id. Further, the Havens

12 Court explained, “[s]uch concrete and demonstrable injury to the organization’s activities – with

13 the consequent drain on the organization’s resources – constitutes far more than simply a setback

14 to the organization’s abstract social interests.” Id.

15

Following Havens, the Ninth Circuit has held that an organization may establish injury on

16 its own behalf where “a challenged statute or policy frustrates the organization’s goals and

17 requires the organization ‘to expend resources in representing clients they otherwise would spend

18 in other ways.’” Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d

19 936, 943 (9th Cir. 2011) (en banc) (quoting El Rescate Legal Servs., Inc. v. Exec. Office of

20 Immigration Review, 959 F.2d 742, 748 (9th Cir. 1991)). But it has warned that “an organization

21 cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of

22 resources on that very suit.” Fair Hous. of Marin v. Combs, 285 F.3d 899, 903 (9th Cir. 2002)

23 (citation omitted).

24

As a threshold matter, Defendants’ arguments that Havens and its progeny apply with less

25 force here are not persuasive. To the extent Defendants and IRLI suggest that these cases are

26 limited to the FHA context, numerous Ninth Circuit cases demonstrate otherwise. See, e.g., Nat’l

27 Council of La Raza v. Cegavske, 800 F.3d 1032, 1035 (9th Cir. 2015) (lawsuit for violations of

28 National Voter Registration Act); Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 9

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1 2013) (preemption challenge to state law restricting transportation of illegal aliens); City of

2 Redondo Beach, 657 F.3d at 940 (First Amendment challenge to city ordinance). Nor is Havens’s

3 rule confined to cases where Congress confers a special “legally cognizable interest,” such as

4 truthful information, upon the organization. ECF No. 27 at 18; see also ECF No. 37 at 7. In Valle

5 de Sol, for instance, plaintiffs argued that the state law was preempted by federal immigration law.

6 732 F.3d at 1012. There was no suggestion that the Supremacy Clause or the immigration statutes

7 gave plaintiffs a right to operate aid programs. Cf. id. at 1018.

8

As IRLI notes, some individual appellate judges have criticized certain applications of the

9 Havens test as impermissibly diluting the standing inquiry. See ECF No. 37 at 6 (citing People for

10 the Ethical Treatment of Animals v. U.S. Dep’t of Agric. (“PETA”), 797 F.3d 1087, 1099 (D.C.

11 Cir. 2015) (Millett, J., dubitante); Animal Legal Def. Fund v. U.S. Dep’t of Agric., 632 F. App’x

12 905, 908 (9th Cir. 2015) (Chabria, J., concurring)); see also Fair Hous. Council of San Fernando

13 Valley v. Roommate.com, LLC, 666 F.3d 1216, 1224 (9th Cir. 2012) (Ikuta, J., dissenting). As an

14 initial matter, the Court is “bound to follow binding Ninth Circuit precedent unless the U.S.

15 Supreme Court or the Ninth Circuit en banc reverses course,” Siegal v. Gamble, No. 13-CV-

16 03570-RS, 2016 WL 1085787, at *9 n.2 (N.D. Cal. Mar. 21, 2016); see also Miller v. Gammie,

17 335 F.3d 889, 893 (9th Cir. 2003) (en banc), so it cannot rest its ruling on expressions of doubt or

18 disagreement by individual panel members. Regardless, the Court concludes the concerns raised

19 by those judges are not present here.

20

Primarily, those judges have expressed concern that the application of Havens “has drifted

21 away from the requirement that an organization actually suffer an injury.” Fair Hous. Council,

22 666 F.3d at 1225 (Ikuta, J., dissenting); see also PETA, 797 F.3d at 1101 (Millet, J., dubitante)

23 (explaining that the defendant agency had not “torn down, undone, devalued or otherwise

24 countermanded the organization’s own activities,” but rather had failed “to facilitate or subsidize

25 through governmental enforcement the organization’s vindication of its own interests”). Judge

26 Ikuta, for instance, criticized prior cases finding that “an organization with a social interest in

27 advancing enforcement of a law was injured when the organization spent money enforcing that

28 law,” reasoning that this was in fact the mission of the organization. Fair Hous. Council, 666 F.3d 10

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1 at 1226. Nonetheless, Judge Ikuta agreed that the Ninth Circuit has “correctly recognized that

2 organizations have standing to sue on their own behalf when a defendant’s actions impair the

3 organization’s ability to function as an organization,” such as by impairing its “interest in

4 recruiting members, obtaining funding, or collecting dues.” Id. at 1224-25. In her view, Havens

5 represented an equally cognizable form of impairment, where an organization’s “purpose is to

6 provide a specified type of service and a defendant’s actions hinder the organization from

7 providing that core service.” Id. at 1225.

8

The Court distills two warnings from these critiques. First, there are doubts whether the

9 frustration of an organization’s mission is a concrete harm unless “a defendant’s actions impair the

10 organization’s ability to function as an organization” by inhibiting the organization’s acquisition

11 of resources – such as members or funding – or by “hinder[ing] the organization from providing

12 [its] core service.” Id. at 1225; see also Animal Legal Defense Fund, 632 F. App’x at 909

13 (Chabria, J., concurring) (suggesting that Ninth Circuit precedent should be read “to require the

14 organization to show that it was ‘forced’ to divert resources to avoid or counteract an injury to its

15 own ability to function” (emphasis added) (quoting City of Redondo Beach, 657 F.3d at 943)).

16 Second, there are similar concerns that the organization’s diversion of resources must be to efforts

17 that are outside of the organization’s “core” services, rather than redirecting from one core

18 organizational priority to another. Fair Hous. Council, 666 F.3d at 1225.

19

Here, the Immigration Organizations have demonstrated the requisite organizational injury.

20 First, their mission has been frustrated in numerous cognizable ways. The record reveals that the

21 government has an established policy of limiting the number of people who may present asylum

22 claims at ports of entry – called “metering” – and that this policy currently results in lengthy

23 delays, some eclipsing six weeks. See, e.g., ECF No. 8-4 ¶¶ 32-34; ECF No. 19-1 at 6-10; No. 35-

24 3 at 17-28; ECF No. 35-4 ¶¶ 5-9; ECF No. 35-5 ¶¶ 5-7. Under this practice, border officials at

25 official ports of entry turn away asylum seekers and other migrants and force them to return at a

26 later date. ECF No. 35-3 at 17 (quoting DHS Secretary Kirstjen Nielsen). The record further

27 establishes that unaccompanied children seeking asylum, who are among the Immigration

28 Organizations’ clients, are entirely barred from presenting their claims at a port of entry. See ECF 11

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1 No. 35-8 ¶¶ 4, 10, 13. Because of the Rule, the Organizations’ clients with potentially meritorious

2 asylum claims are significantly delayed or wholly unable to pursue those claims, which are the

3 Organizations’ core service. The inability of an organization’s constituency to gain access to or

4 participate in the organization’s core services is a well-recognized impairment of an organization’s

5 ability to function. The en banc Ninth Circuit recognized such an injury to day-laborer organizing

6 entities in City of Redondo Beach, where a local ordinance prohibiting public solicitation of

7 employment prevented day laborers from making their availability known and discouraged

8 potential employers from hiring them. 657 F.3d at 943.

9

Moreover, the Immigration Organizations’ funding is directly tied to their ability to pursue

10 affirmative asylum claims on a per-case basis. See ECF No. 8-3 ¶ 7; ECF No. 8-4 ¶ 11; ECF No.

11 8-7 ¶¶ 15-16. The Rule’s impairment of the Organizations’ ability to pursue asylum cases

12 therefore impairs their functioning by jeopardizing their funding, an independently sufficient

13 injury. See Constr. Indus. Ass’n of Sonoma Cty. v. City of Petaluma, 522 F.2d 897, 903 (9th Cir.

14 1975) (holding that a construction association suffered cognizable injury from a “restriction on

15 building” where its members “contribute[d] dues to the Association in a sum proportionate to the

16 amount of business the builders d[id] in the area”).

17

Second, the Immigration Organizations have been forced to respond by diverting resources

18 to efforts that exceed the scope of their core services. Plaintiff Al Otro Lado, for instance, has

19 expended significant staff resources to accompany its minor clients full-time in order to safeguard

20 them from various dangers in border towns. ECF No. 35-8 ¶¶ 14-16; see also ECF No. 8-4 ¶¶ 38-

21 40; ECF No. 35-3 ¶ 5. This is sufficient to satisfy Havens. See City of Redondo Beach, 657 F.3d

22 at 943 (finding sufficient diversion of “time and resources spent in assisting day laborers during

23 their arrests and meeting with workers about the status of the ordinance would have otherwise 24 been expended toward [the organization’s] core organizing activities”).11 Moreover, to the extent

25

26

11 Because the Court concludes that the expenditure of resources on non-legal services to protect clients is sufficiently outside of Al Otro Lado’s core services, it need not reach the question

27

whether the reallocation of resources from asylum claims to other forms of immigration relief or retraining its personnel falls outside of the Immigration Organizations’ core services. But see

28

Valle de Sol, 732 F.3d at 1018 (relying on diversion of “staff and resources to educating [organization’s] members about the [challenged] law”).

12

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1 that the Immigration Organizations will simply have fewer resources because of a loss of funding,

2 an additional showing of diversion is unnecessary. See City of Petaluma, 522 F.2d at 903.

3

Defendants’ remaining standing argument appears to be that Plaintiffs’ harms are “self-

4 inflicted” or “speculative.” ECF No. 27 at 17. As to the self-inflicted point, Havens and similar

5 cases recognize that the diversion of resources to avoid injury to the organization’s interests is not

6 truly voluntary for the purposes of injury. Further, Clapper v. Amnesty International USA, 568

7 U.S. 398 (2013), does not support Defendants’ position. There, the Supreme Court rejected as

8 inadequate for Article III plaintiffs’ “highly speculative fear” that the government would (1) ever

9 seek to intercept communications from plaintiffs’ foreign clients, (2) do so based on the type of

10 surveillance challenged; (3) have its request authorized by a court; (4) successfully obtain

11 communications; and (5) obtain specific communications that involved plaintiffs. Id. at 410.

12 Because this fear of intercepted communications was too speculative, plaintiffs’ use of resources

13 to take precautions against that surveillance was likewise not cognizable. Id. at 416 (“In other

14 words, respondents cannot manufacture standing merely by inflicting harm on themselves based

15 on their fears of hypothetical future harm that is not certainly impending.”). Here, the

16 Immigration Organizations’ fears have already materialized because, as described above, their

17 function is currently impaired by the Rule. Moreover, given the demonstrated obstacles to

18 pursuing asylum cases under the current regime, the Court also finds that the Immigration

19 Organizations’ loss of per-case funding is certainly impending.

20

Accordingly, the Court concludes that the Immigration Organizations have made a clear

21 showing of a cognizable injury. Though not challenged by Defendants, the Court further finds

22 that these injuries are fairly traceable to the Rule and likely to be redressed by the relief sought.

23

B. Third-Party Standing

24

The Immigration Organizations further argue that they have third-party standing to assert

25 the legal rights of their clients “who are seeking to enter the country to apply for asylum but are

26 being blocked by the new asylum ban.” ECF No. 35 at 13.

27

1. Legal Standard

28

The default rule is that “a litigant must assert his or her own legal rights and interests, and

13

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1 cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v. Ohio, 499

2 U.S. 400, 410 (1991). In order to depart from that rule and assert a third party’s right: (1) “[t]he

3 litigant must have suffered an ‘injury in fact’”; (2) “the litigant must have a close relationship to

4 the third party”; and (3) “there must exist some hindrance to the third party’s ability to protect his

5 or her own interests.” Id. at 410-11 (citation omitted).

6

2. Discussion

7

The Court concludes that the Immigration Organizations have third-party standing to assert

8 their clients’ interests.

9

First, as discussed above, the Organizations have adequately demonstrated an injury in

10 fact.

11

Second, the Organizations’ attorney-client relationship is “one of special consequence,”

12 which the Supreme Court has recognized as sufficient to support third-party standing. Caplin &

13 Drysdale, Chartered v. United States, 491 U.S. 617, 624 n.3 (1989); see also U.S. Dep’t of Labor

14 v. Triplett, 494 U.S. 715, 720 (1990) (“A restriction upon the fees a lawyer may charge that

15 deprives the lawyer’s prospective client of a due process right to obtain legal representation falls

16 squarely within this principle.”). Moreover, the Organizations rely on an “existing attorney-client

17 relationship,” rather than a “hypothetical” one with “as yet unascertained” clients. Kowalski v.

18 Tesmer, 543 U.S. 125, 131 (2004).

19

Finally, the Court has little difficulty finding a “genuine obstacle” to the Organizations’

20 clients asserting their own rights. See Singleton v. Wulff, 428 U.S. 106, 116 (1976) (“If there is

21 some genuine obstacle to such assertion, however, the third party’s absence from court loses its

22 tendency to suggest that his right is not truly at stake, or truly important to him, and the party who

23 is in court becomes by default the right’s best available proponent.”). As discussed above, the

24 record is replete with reports of the government preventing asylum-seekers from presenting

25 themselves at ports of entry to begin the asylum process, including DHS Secretary Nielsen’s own

26 statement confirming that this is the government’s official practice. See, e.g., ECF No. 35-3 at 17-

27 28. In addition to these delays, Plaintiff Al Otro Lado submitted a declaration stating that its

28 unaccompanied minor clients are categorically barred from applying at ports of entry. ECF No. 14

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1 ¶¶ 4-5, 10. Nor do the Organizations’ clients have other avenues for review. At the hearing, the

2 Organizations asserted, and Defendants did not dispute, that asylum seekers whose applications

3 were denied on the basis of the Rule would be unable to litigate the lawfulness of the Rule in their 4 immigration proceedings or otherwise.12

5

Powers explains that a court must consider whether third parties will be able to vindicate

6 their rights “[a]s a practical matter.” 499 U.S. at 414. Powers involved a facially available

7 remedy, as a juror excluded for racial reasons could bring such a suit but would often lack the

8 incentive to do so or overcome certain difficulties of proof. Id. Where, as here, the practical

9 difficulties involve the ability, rather than incentive to assert rights, the obstacle is even greater.

10 Moreover, the Court must consider the time-sensitive nature of the claims. See Singleton, 428

11 U.S. at 117. Asylum seekers’ claims naturally carry with them some urgency, which is only

12 compounded by the dangerous conditions in border towns. See ECF No. 35-8 ¶¶ 14-15. If the

13 Immigration Organizations are not permitted to raise their clients’ rights, their clients may never

14 have the chance to do so. See ECF No. 8-4 ¶¶ 38-39 (noting record-high murder rate in border

15 town and past instances where “[a]sylum seekers turned back from a port of entry have been

16 kidnapped and held for ransom by cartel members waiting outside”).

17

The Court therefore concludes that the Immigration Organizations have standing to assert

18 their clients’ rights.

19

C. Statutory Standing/Zone of Interests

20

Defendants also argue that Immigration Organizations do not come within the “zone of

21 interests” of the statutes on which their claims are based. ECF No. 27 at 18-20.

22

1. Legal Standard

23

The zone-of-interests test requires a court “to determine, using traditional tools of statutory

24 interpretation, whether a legislatively conferred cause of action encompasses a particular

25 plaintiff’s claim.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127

26 (2014). A court “presume[s] that a statute ordinarily provides a cause of action ‘only to plaintiffs

27

28

12 The Court reaches no independent conclusion on this point but accepts the parties’ assertion for purposes of this motion.

15

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1 whose interests fall within the zone of interests protected by the law invoked.’” Bank of Am.

2 Corp. v. City of Miami, 137 S. Ct. 1296, 1302 (2017) (quoting Lexmark, 572 U.S. at 129).

3

Here, the Immigration Organizations allege claims under the APA. See Compl. ¶¶ 101,

4 106, 108-109. The APA provides a cause of action to “[a] person suffering legal wrong because

5 of agency action, or adversely affected or aggrieved by agency action within the meaning of a

6 relevant statute.” 5 U.S.C. § 702. The relevant zone of interests is not that of the APA itself, but

7 the underlying statute. See Havasupai Tribe v. Provencio, 906 F.3d 1155, 1166 (9th Cir. 2018).

8

“[I]n the APA context, . . . the test is not ‘especially demanding.’” Lexmark, 572 U.S. at

9 130 (quoting Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209,

10 225 (2012)). Rather, the Supreme Court has “conspicuously included the word ‘arguably’ in the

11 test to indicate that the benefit of any doubt goes to the plaintiff,” and has explained that it

12 “forecloses suit only when a plaintiff’s ‘interests are so marginally related to or inconsistent with

13 the purposes implicit in the statute that it cannot reasonably be assumed that’ Congress authorized

14 that plaintiff to sue.” Id. (quoting Match-E-Be-Nash-She-Wish Band, 567 U.S. at 225)). But

15 “what comes within the zone of interests of a statute for purposes of obtaining judicial review of

16 administrative action under the ‘generous review provisions’ of the APA may not do so for other

17 purposes.” Bennett v. Spear, 520 U.S. 154, 163 (1997) (citation omitted). The Court must answer

18 this question “not by reference to the overall purpose of the Act in question,” but by interpreting

19 “the statutory provision whose violation forms the legal basis for [the] complaint.” Id. at 175-76

20 (emphasis and citation omitted).

21

2. Discussion

22

Litigants with third-party standing may satisfy the zone-of-interests inquiry by reference to

23 the third parties’ rights. See FAIC Secs., Inc. v. United States, 768 F.2d 352, 357-58 (D.C. Cir.

24 1985) (Scalia, J.).

25

Because the Immigration Organizations are asserting the rights of their clients as potential

26 asylum seekers, they easily satisfy the APA’s lenient zone-of-interests inquiry. See Match-E-Be-

27 Nash-She-Wish Band, 567 U.S. at 225; Patel v. U.S. Citizenship & Immigration Servs., 732 F.3d

28 633, 636 (6th Cir. 2013) (“Given that § 1153(b)(3) expressly provides for issuance of employment 16

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1 visas directly to qualified aliens, it is arguable, to say the least, that a qualified alien who wants an

2 employment visa is within that provision’s zone of interests.”); Doe v. Trump, 288 F. Supp. 3d

3 1045, 1068 (W.D. Wash. 2017) (finding that because “[m]aking provisions for the resettlement

4 and absorption of refugees into the United States is the core mission of” plaintiff social service

5 organizations, those “organizations’ interests in effectuating refugee resettlement and absorption

6 falls within the zone of interest protected by the INA and the Refugee Act of 1980”).

7 IV. MOTION FOR TEMPORARY RESTRAINING ORDER

8

A. Legal Standard

9

The Court applies a familiar four-factor test on both a motion for a temporary restraining

10 order and a motion for a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush &

11 Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). A plaintiff seeking either remedy “must establish that

12 he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of

13 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the

14 public interest.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.

15 2009) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008)). Injunctive relief is “an

16 extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled

17 to such relief.” Winter, 555 U.S. at 22.

18

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

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

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

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

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

23 that the injunction is in the public interest.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d

24 1127, 1135 (9th Cir. 2011).

25

B. Likelihood of Success on the Merits

26

As an initial matter, the parties agree that the Proclamation does not render any alien

27 ineligible for asylum. ECF No. 27 at 31; ECF No. 35 at 18. On that understanding, the

28 Immigration Organizations have clarified that they do not challenge the Proclamation as exceeding 17

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1 the President’s authority under 8 U.S.C. § 1182(f). ECF No. 35 at 18-19. This case therefore does

2 not present the question whether 8 U.S.C. § 1182(f) authorizes the President to directly limit

3 asylum eligibility by proclamation.

4

1. Validity of the Rule

5

The Immigration Organizations’ claim that the Rule is inconsistent with the statute

6 presents a straightforward question of statutory interpretation.13 Does Congress’s grant of

7 rulemaking authority in 8 U.S.C. § 1158(b)(2)(C) permit the Attorney General to adopt a

8 categorical bar to asylum eligibility based on a characteristic that Congress specified does not

9 impact an alien’s ability to apply for asylum?

10

a. Legal Standard

11

Where a plaintiff alleges that, as a result of an erroneous legal interpretation, the agency’s

12 action was “not in accordance with the law,” 5 U.S.C. § 706(2)(A), or “in excess of statutory

13 jurisdiction, authority, or limitations, or short of statutory right,” id. § 706(2)(C), courts apply the

14 framework for review first established in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467

15 U.S. 837 (1984). See Nw. Envtl. Advocates v. U.S. E.P.A., 537 F.3d 1006, 1014 (9th Cir. 2008).

16

Under Chevron, the Court considers “whether Congress has directly spoken to the precise

17 question at issue. If the intent of Congress is clear, that is the end of the matter.” Campos-

18 Hernandez v. Sessions, 889 F.3d 564, 568 (9th Cir. 2018) (quoting Chevron, 467 U.S. at 842). In

19 other words, the Court asks “whether, ‘applying the normal tools of statutory construction,’ the

20 statute is ambiguous.” Sung Kil Jang v. Lynch, 812 F.3d 1187, 1190 (9th Cir. 2015) (quoting INS

21 v. St. Cyr, 533 U.S. 289, 321 n.4 (2001)). Second, “if the statute is silent or ambiguous with

22 respect to the specific issue, the question for the court is whether the agency’s answer is based on

23 a permissible construction of the statute.” Campos-Hernandez, 889 F.3d at 568 (quoting Chevron, 24 467 U.S. at 843).14

25

26

13 At the hearing, the parties agreed that resolution of this question is entirely separate from the validity or sufficiency of the justifications for the Rule.

27

14 The Chevron framework applies here because (1) “it appears that Congress delegated authority to the agency generally to make rules carrying the force of law,” and (2) “the agency interpretation

28

claiming deference was promulgated in the exercise of that authority.” Marmolejo-Campos v. Holder, 558 F.3d 903, 908 (9th Cir. 2009) (en banc) (quoting United States v. Mead Corp., 533

18

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b. Discussion 1
“The first and most important canon of statutory construction is the presumption ‘that a 2
legislature says in a statute what it means and means in a statute what it says there.’” In re 3
Pangang Grp. Co., LTD., 901 F.3d 1046, 1056 (9th Cir. 2018) (quoting Conn. Nat. Bank v. 4
Germain, 503 U.S. 249, 253 (1992)). A court “must read the words in their context and with a 5
view to their place in the overall statutory scheme.” King v. Burwell, 135 S. Ct. 2480, 2489 6
(2015) (citation omitted). 7
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility
8 Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546, which “abolished the
9 distinction between exclusion and deportation procedures and created a uniform proceeding
10 known as ‘removal.’” Vartelas v. Holder, 566 U.S. 257, 262 (2012). “Congress made
11 ‘admission’ the key word, and defined admission to mean ‘the lawful entry of the alien into the
12 United States after inspection and authorization by an immigration officer.’” Id. (quoting 8 U.S.C.
13 § 1101(a)(13)(A)). As part of IIRIRA, Congress provided that “[a]n alien present in the United
14 States without being admitted or paroled, or who arrives in the United States at any time or place
15 other than as designated by the Attorney General, is inadmissible.” 8 U.S.C. § 1182(6)(A)(i)
16 (emphasis added). Aliens who enter illegally are therefore inadmissible under IIRIRA. See id.
17 However, separately from the question of admissibility, Congress has clearly commanded
18 that immigrants be eligible for asylum regardless of where they enter. Prior to IIRIRA, asylum
19 was potentially available to “an alien physically present in the United States or at a land border or
20 port of entry, irrespective of such alien’s status.” 8 U.S.C. § 1158(a) (1980). In IIRIRA, Congress
21 amended § 1158(a) to provide that “[a]ny alien who is physically present in the United States or
22 who arrives in the United States (whether or not at a designated port of arrival and including an
23 alien who is brought to the United States after having been interdicted in international or United
24 States waters), irrespective of such alien’s status, may apply for asylum in accordance” with
25 § 1158 and § 1225(b). 8 U.S.C. § 1158(a) (emphasis added).15 In short, Congress’s amendment to
26

27 U.S. 218, 226-27 (2001)). The Court notes, however, that Defendants do not claim that the Rule is

28

entitled to Chevron deference. 15 Congress also amended 8 U.S.C. § 1225(a)(1) in substantially the same manner, providing that

19

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1 § 1158(a) specifically captured within its scope all aliens who violated § 1182(6)(A)(i). Congress

2 provided that this violation would render those aliens inadmissible but would have no effect on

3 their ability to apply for asylum.

4

Congress’s determination that place of entry not be disqualifying to an application for

5 asylum is consistent with the treaty obligations underlying § 1158’s asylum provisions. Congress

6 enacted the Refugee Act of 1980, including 8 U.S.C. § 1158, “to bring United States refugee law

7 into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19

8 U.S.T. 6223, T.I.A.S. No. 6577, to which the United States acceded in 1968.” I.N.S. v. Cardoza-

9 Fonseca, 480 U.S. 421, 436-37 (1987). “The Protocol incorporates the substantive provisions of

10 Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees (the

11 Convention), July 5, 1951, 189 U.N.T.S. 150.” Delgado v. Holder, 648 F.3d 1095, 1100 (9th Cir.

12 2011) (en banc). Because the Protocol is not “self-executing,” it “does not have the force of law in

13 American courts.” Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009). Nonetheless, it provides “a

14 useful guide in determining congressional intent in enacting the Refugee Act.” Id. (citation

15 omitted); see also Cardoza-Fonseca, 480 U.S. at 436-37.

16

Of particular relevance here, Article 31 of the Protocol provides:

17

The Contracting States shall not impose penalties, on account of

their illegal entry or presence, on refugees who, coming directly

18

from a territory where their life or freedom was threatened in the

sense of [A]rticle 1, enter or are present in their territory without

19

authorization, provided they present themselves without delay to the

authorities and show good cause for their illegal entry or presence. 20

19 U.S.T. at 6275 (emphasis added).

21

Considering the text and structure of the statute, as well as the interpretive guide of the

22

U.N. Protocol, reveals Congress’s unambiguous intent. The failure to comply with entry

23

requirements such as arriving at a designated port of entry should bear little, if any, weight in the

24

asylum process. The Rule reaches the opposite result by adopting a categorical bar based solely

25

26 “[a]n alien present in the United States who has not been admitted or who arrives in the United

27

States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters) shall be

28

deemed for purposes of this chapter an applicant for admission.” Inadmissible aliens are generally placed in full removal proceedings. See §§ 1225(b)(2)(A), 1229.

20

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1 on the failure to comply with entry requirements.

2

Defendants maintain that the Rule is nonetheless “consistent with” the statute.

3 § 1158(b)(2)(C). First, Defendants contend that even if Congress unambiguously stated that

4 manner of entry has no effect on an alien’s ability to apply for asylum, it can be the sole factor by

5 which the alien is rendered ineligible. ECF No. 27 at 26-27. The argument strains credulity. To

6 say that one may apply for something that one has no right to receive is to render the right to apply

7 a dead letter. There simply is no reasonable way to harmonize the two.

8

Clearly, the Attorney General may deny eligibility to aliens authorized to apply under

9 § 1158(a)(1), whether through categorical limitations adopted pursuant to § 1158(b)(2)(C) or by 10 the exercise of discretion in individual cases.16 But Congress’s judgment that manner of entry

11 should have no impact on ability to apply necessarily implies some judgment that manner of entry

12 should not be the basis for a categorical bar that would render § 1158(a)(1)’s terms largely

13 meaningless. Basic separation of powers principles dictate that an agency may not promulgate a

14 rule or regulation that renders Congress’s words a nullity. Mohasco Corp. v. Silver, 447 U.S. 807,

15 825 (1980) (“As we have held on prior occasions, [an agency’s] ‘interpretation’ of the statute

16 cannot supersede the language chosen by Congress.”).

17

Next, Defendants argue that because the agency is permitted to give manner of entry some

18 weight, see Matter of Pula, 19 I & N. Dec. at 474, then Defendants could give it conclusive

19 weight. ECF No. 27 at 28-29. As with Defendants’ prior argument, this one fails because it runs

20 headlong into the contrary language of the statute. And Defendants’ reliance on Lopez v. Davis,

21 531 U.S. 230 (2001), is misplaced. Though Lopez approved the Bureau of Prisons’ categorical

22

23 16 For this reason, many of Defendants’ arguments are based on strawmen. The Immigration

24

Organizations do not argue that the Attorney General cannot adopt any limits that render ineligible aliens who are authorized to apply for asylum. Cf. ECF No. 27 at 27-28. Nor do the Immigration

25

Organizations argue that the statute prohibits the Attorney General from adopting categorical bars that do not conflict with § 1158(a)’s text and Congress’s underlying judgment. See ECF No. 35 at

26

19. Therefore, it is immaterial that the Attorney General has previously adopted a categorical bar on fraud in the application. See ECF No. 27 at 30 (citing Nijjar v. Holder, 689 F.3d 1077, 1082

27

(9th Cir. 2012)). It is difficult, moreover, to see much conflict with the statute posed by a limitation that permits termination of asylum if “[t]here is a showing of fraud in the alien’s

28

application such that he or she was not eligible for asylum at the time it was granted,” 8 C.F.R. § 208.24(a)(1), which simply reinforces the eligibility criteria that are already in place.

21

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1 rule denying early release to certain prisoners, id. at 243-44, the rule in “Lopez applies only when

2 Congress has not spoken to the precise issue and the statute contains a gap.” Toor v. Lynch, 789

3 F.3d 1055, 1064 (9th Cir. 2015) (citation omitted). Congress has done so here.

4

Not only does the Rule flout the explicit language of the statute, it also represents an

5 extreme departure from prior practice. The BIA had previously held that the “manner of entry or

6 attempted entry is a proper and relevant discretionary factor to consider,” but that “it should not be

7 considered in such a way that the practical effect is to deny relief in virtually all cases.” Matter of

8 Pula, 19 I. & N. Dec. 467, 473 (BIA 1987). Numerous Circuits have approved of Matter of Pula

9 and have further emphasized that illegal entry deserves little weight in the asylum inquiry. See,

10 e.g., Hussam F. v. Sessions, 897 F.3d 707, 718 (6th Cir. 2018) (“Here, Petitioner certainly should

11 have been more forthcoming with immigration officials. But under Pula, the Board’s analysis

12 may not begin and end with his failure to follow proper immigration procedures.”); Zuh v.

13 Mukasey, 547 F.3d 504, 511 n.4 (4th Cir. 2008); Huang v. I.N.S., 436 F.3d 89, 100 (2d Cir. 2006)

14 (“As with peripheral embellishments, if illegal manner of flight and entry were enough

15 independently to support a denial of asylum, we can readily take notice, from the facts in

16 numerous asylum cases that come before us, that virtually no persecuted refugee would obtain

17 asylum. It follows that Wu’s manner of entry, on the facts in this record, could not bear the

18 weight given to it by the IJ.”). In particular, the Ninth Circuit has repeatedly observed that in

19 exercising discretion to grant asylum, the agency should take into account that bona fide asylum

20 seekers may feel compelled to violate immigration laws “to gain entry to a safe haven,” and “that

21 deception ‘does not detract from but supports [a] claim of fear of persecution.’” Mamouzian v.

22 Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004) (quoting Akinmade v. I.N.S., 196 F.3d 951, 955 (9th

23 Cir. 1999)); Gulla v. Gonzales, 498 F.3d 911, 917 (9th Cir. 2007) (same). True, consideration of

24 this admittedly unweighty factor, in conjunction with other factors, might lead to denial of asylum

25 in an individual case. But that does not make Congress’s command in § 1158(a) ambiguous.

26

Finally, Defendants suggest that, even if the manner of entry deserves little weight as a

27 general matter, violation of a Presidential proclamation is of particularly grave consequence and is

28 therefore distinct from an “ordinary” entry violation. The asserted distinction is not supported by 22

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1 evidence or authority. And if what Defendants intend to say is that the President by proclamation

2 can override Congress’s clearly expressed legislative intent, simply because a statute conflicts

3 with the President’s policy goals, the Court rejects that argument also. No court has ever held that

4 § 1182(f) “allow[s] the President to expressly override particular provisions of the INA.” Trump

5 v. Hawaii, 138 S. Ct. 2392, 2411 (2018).

6

Furthermore, the Court observes that the Rule itself actually gives the President the ability

7 to issue even more restrictive proclamations that would then be given conclusive weight in the

8 asylum context. At the moment, aliens may enter and apply for asylum only because the current

9 Proclamation expressly says so. See Proclamation § 2(b). By simply incorporating by reference

10 any future proclamations, the Rule gives the President plenary authority to halt asylum claims

11 entirely along the southern border, subject only to the requirements of § 1182(f).

12

There is little reason to think Congress intended this result. Congress located the

13 President’s authority to suspend entry in § 1182, which governs admissibility, not asylum. To the

14 extent that Congress delegated authority to limit asylum eligibility, it conferred that authority on

15 the Attorney General, who, unlike the President, is subject to the procedural requirements of the

16 APA. See Franklin v. Massachusetts, 505 U.S. 788, 800 (1992). When Congress wanted to

17 delegate authority directly to the President in immigration matters, it did so. See, e.g., 8 U.S.C.

18 § 1182(f); cf. Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 173 (1993) (“The reference to the

19 Attorney General in the statutory text [of 8 U.S.C. § 1253(h)(1) (1988)] is significant not only

20 because that term cannot be reasonably construed to describe either the President or the Coast

21 Guard, but also because it suggests that it applies only to the Attorney General’s normal

22 responsibilities in the INA.”). Here, it did not. “In such circumstances, the President may still

23 give directions to executive agencies, and he can usually fire a recalcitrant agency head. But he

24 cannot take away the agency’s statutory authority or exercise it himself.” Main St. Legal Servs.,

25 Inc. v. Nat’l Sec. Council, 811 F.3d 542, 558 (2d Cir. 2016). This too, is unambiguously

26 foreclosed by the statute.

27

Accordingly, for the foregoing reasons, the Court concludes that the Immigration

28 Organizations are likely to succeed on the merits of their 5 U.S.C. § 706(2) claim. 23

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1

2. Notice-and-Comment Requirements

2

Because the Immigration Organizations are likely to succeed on the merits of their claim

3 that the Rule is invalid, the Court need not reach their notice-and-comment claim in order to grant

4 relief. Nonetheless, mindful of the preliminary stage of the proceedings, the Court analyzes this

5 additional basis for standing.

6

a. Legal Standard

7

The APA requires agencies to publish notice of proposed rules in the Federal Register and

8 then allow “interested persons an opportunity to participate in the rule making through submission

9 of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C.

10 § 553(c). “The essential purpose of according [§] 553 notice and comment opportunities is to

11 reintroduce public participation and fairness to affected parties after governmental authority has

12 been delegated to unrepresentative agencies.” Batterton v. Marshall, 648 F.2d 694, 703 (D.C. Cir.

13 1980). Accordingly, agencies may not treat § 553 as an empty formality. Rather, “[a]n agency

14 must consider and respond to significant comments received during the period for public

15 comment.” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015). It is therefore

16 “antithetical to the structure and purpose of the APA for an agency to implement a rule first, and

17 then seek comment later.” United States v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010)

18 (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).17

22

Nonetheless, the APA contains some limited exceptions to the notice-and-comment

23 requirements. As relevant here, § 553 does not apply “to the extent that there is involved – a . . .

24

25 17 Indeed, the Congressional Research Service has explained that “[a]lthough the APA sets the

26

minimum degree of public participation the agency must permit, [matters] of great importance, or those where the public submission of facts will be either useful to the agency or a protection to the

27

public, should naturally be accorded more elaborate public procedures.” Vanessa K. Burrows & Todd Garvey, Cong. Research Serv., R41546, A Brief Overview of Rulemaking and Judicial

28 Review 1 (2011) (internal quotation marks and citation omitted).

24

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1 foreign affairs function of the United States.” 5 U.S.C. § 553(a)(1). In addition, an agency need

2 not comply with notice and comment when it “for good cause finds (and incorporates the finding

3 and a brief statement of reasons therefor in the rules issued) that notice and public procedure

4 thereon are impracticable, unnecessary, or contrary to the public interest.” Id. § 553(b)(B).

5

Section 553(d) also provides that a promulgated final rule shall not go into effect for at

6 least thirty days. Independently of this good-cause exception to notice and comment, an agency

7 may also waive this grace period “for good cause found and published with the rule.” Id.

8 § 553(d)(3).

9

An agency’s legal conclusions regarding whether § 553 notice-and-comment procedures

10 are required are not entitled to deference. Reno-Sparks Indian Colony v. E.P.A., 336 F.3d 899,

11 909 n.11 (9th Cir. 2003); see also Sorenson Commc’ns Inc. v. F.C.C., 755 F.3d 702, 706 (D.C.

12 Cir. 2014) (“[O]ur review of the agency’s legal conclusion of good cause is de novo.”).

13

b. Foreign Affairs

14

The Rule invokes the foreign affairs exception, stating that “Presidential proclamations . . .

15 at the southern border necessarily implicate our relations with Mexico, including sensitive and

16 ongoing negotiations with Mexico about how to manage our shared border.” 83 Fed. Reg. at

17 55,950. Accordingly, the Rule explains, the then-anticipated proclamation “would be inextricably

18 related to any negotiations over a safe-third-country agreement . . . , or other similar

19 arrangements,” and the Rule would be “an integral part of ongoing negotiations with Mexico and

20 Northern Triangle countries over how to address the influx of tens of thousands of migrants.” Id.

21

The Court cannot accept the Rule’s first assumption that a relationship to Presidential

22 proclamations regarding immigration “necessarily implicate[s]” the foreign affairs exception. Id.

23 (emphasis added). In Yassini v. Crosland, the Ninth Circuit cautioned that “[t]he foreign affairs

24 exception would become distended if applied to [an immigration enforcement agency’s] actions

25 generally, even though immigration matters typically implicate foreign affairs.” 618 F.2d 1356,

26 1360 n.4 (9th Cir. 1980) (per curiam). Accordingly, the Ninth Circuit stated that in those cases,

27 “[f]or the exception to apply, the public rulemaking provisions should provoke definitely

28 undesirable international consequences.” Id. Other Circuits have likewise warned that the foreign 25

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1 affairs exception cannot be given too much breadth in the immigration context. See City of New

2 York v. Permanent Mission of India to United Nations, 618 F.3d 172, 202 (2d Cir. 2010) (“While

3 immigration matters typically implicate foreign affairs at least to some extent, it would be

4 problematic if incidental foreign affairs effects eliminated public participation in this entire area of

5 administrative law.” (internal quotation marks and citation omitted)); Jean v. Nelson, 711 F.2d

6 1455, 1478 (11th Cir. 1983) (“Not every request for international cooperation seriously may be

7 called ‘foreign policy.’”), dismissed in relevant part as moot, 727 F.2d 957, 984 (11th Cir. 1984)

8 (en banc). As the Second Circuit observed, “[t]his approach accords with Congress’s admonition

9 in the legislative history of the APA not to interpret the phrase ‘ “foreign affairs function” . . .

10 loosely . . . to mean any function extending beyond the borders of the United States.’” City of

11 New York, 618 F.3d at 202 (quoting S. Rep. No. 79-752, at 13 (1945)). Therefore, that the Rule

12 addresses entry and asylum does not, standing alone, immunize it from notice and comment. Cf.

13 Doe v. Trump, 288 F. Supp. 3d 1045, 1075 (W.D. Wash. 2017) (observing that “8 C.F.R. part 207,

14 the regulations implementing the Refugee Act of 1980, and subsequent amendments . . . were

15 subject to notice and comment before they were codified” (citing Aliens and Nationality; Refugee

16 and Asylum Procedures, 46 Fed. Reg. 45,116 (Sept. 10, 1981)).

17

The Rule also states that it represents “an integral part of ongoing negotiations” with

18 Mexico and the Northern Trainable countries regarding migrants. 83 Fed. Reg. at 55,950.

19 Defendants assert that the foreign affairs exception therefore applies because the Rule is “linked

20 intimately with the Government’s overall political agenda concerning relations with another

21 country.” ECF No. 27 at 25 (quoting Am. Ass’n of Exporters & Importers-Textile & Apparel Grp.

22 v. United States, 751 F.2d 1239, 1249 (Fed. Cir. 1985)); see also Yassini, 618 F.2d at 1360

23 (analyzing whether the agency official was “in effect announcing his own foreign policy, or

24 merely implementing the expressed foreign policy of the President”). The Court accepts for the

25 purposes of argument that the Rule was part of the President’s larger coordinated effort in the

26 realm of immigration.

27

But the Court must also consider the counterfactual, namely, whether “definitely

28 undesirable international consequences” would result from following rulemaking procedures. 26

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1 Yassini, 618 F.2d at 1360 n.4.18 Defendants rely on Rajah v. Mukasey, where the Second Circuit

2 found obvious undesirable consequences that would result from rulemaking regarding the

3 agency’s designation of specific groups of aliens as required to register under a post-September

4 11th data collection program. 544 F.3d 427, 437 (2d Cir. 2008). Publicly debating why certain

5 nations’ citizens posed a greater threat risked compromising sensitive intelligence, impairing

6 relationships with those countries, and unduly slowing the response to potential terrorist attacks.

7 Id. However, Defendants do not explain how information that would be revealed through the

8 rulemaking process would harm foreign policy interests.

9

Instead, Defendants’ argument reduces to the need for speed and flexibility in the

10 President’s ongoing negotiations with Mexico and other countries. See ECF No. 27 at 25

11 (explaining that harm would result “because large numbers of aliens are transiting through Mexico

12 right now and Mexico’s prompt help in addressing the situation is needed immediately”).

13 Defendants do not say in their opposition, and were unable to explain at the hearing, how

14 eliminating notice and comment would assist the United States in its negotiations. And it cannot

15 be the case that simply stating that something will have an effect makes that effect likely or even

16 possible, particularly where there is no apparent logical connection between dispensing with

17 notice and comment and achieving a foreign affairs goal. Pending further information produced in

18 the administrative record, the Court concludes that at this preliminary stage, there are at least

19

20

18 The Court agrees with Defendants that, unlike with the good cause exception, 5 U.S.C. § 553(a)(1) does not require the agency to state the reasons for the foreign affairs exception in the

21

published rule. ECF No. 27 at 25; cf. § 553(b)(B) (“[W]hen the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) . . . .” The

22

Second Circuit’s statement that an agency has no obligation to state its reasons in the rule “when the consequences are seemingly as evident,” as in Rajah, therefore adds nothing to the analysis.

23 544 F.3d at 437.

24

Nonetheless, when the use of the exception is challenged by litigation, courts have generally required the agency to defend the applicability of the exception by pointing to evidence

25

of undesirable foreign policy consequences. See, e.g., Yassini, 618 F.2d at 1360 n.4; Jean, 711 F.2d at 1478 (emphasizing that “[t]he government at trial offered no evidence of undesirable

26

international consequences that would result if rulemaking were employed”); Doe v. Trump, 288 F. Supp. 3d 1045, 1076 (W.D. Wash. 2017) (“The court is simply unwilling to apply the exception

27

without some evidence to support its application.”); but see Raoof v. Sullivan, 315 F. Supp. 3d 34, 44 (D.D.C. 2018) (reasoning that regulation of exchange visitor program “certainly relates to the

28

foreign affairs and diplomatic duties conferred upon the Secretary of State and the State Department” without requiring additional evidence).

27

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1 “serious questions going to the merits” of this claim. Alliance for the Wild Rockies, 632 F.3d at

2 1135.

3

c. Good Cause

4

An agency “must overcome a high bar if it seeks to invoke the good cause exception to

5 bypass the notice and comment requirement.” Valverde, 628 F.3d at 1164. In other words, the

6 exception applies “only in those narrow circumstances in which ‘delay would do real harm.’” Id.

7 at 1165 (quoting Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982)). Courts must

8 conduct this analysis on a “case-by-case [basis], sensitive to the totality of the factors at play.” Id.

9 at 1164 (quoting Alcaraz v. Block, 746 F.2d 593, 612 (9th Cir. 1984)). “[T]he good cause

10 exception should be interpreted narrowly, so that the exception will not swallow the rule.”

11 Buschmann, 676 F.2d at 357 (citation omitted).

12

Here, the Rule invokes the good cause exception “to avoid creating an incentive for aliens

13 to seek to cross the border” during the notice-and-comment period. 83 Fed. Reg. at 55,950. It

14 cited the same rationale for waiving the 30-day grace period. Id. The Rule reasons that when

15 aliens illegally cross into the United States, it causes harm because they may evade detection

16 entirely or, if apprehended, could “take advantage of a second opportunity to remain in the United

17 States by making credible-fear claims in expedited-removal proceedings.” Id. Further, even if

18 their fears were not found credible, “they are likely to be released into the interior pending

19 [additional] proceedings that may not occur for months or years.” Id. The Rule emphasizes that

20 these harms are particularly acute given the “large numbers of migrants – including thousands of

21 aliens traveling in groups, primarily from Central America – expected to attempt entry at the

22 southern border in the coming weeks.” Id. The incentive to cross illegally “would make more

23 dangerous their already perilous journeys, and would further strain CBP’s apprehension

24 operations.” Id.

25

The Rule assumes that knowledge that the government was proposing to restrict asylum

26 would encourage more asylum seekers to cross illegally in the interim. As a matter of social

27 psychology, this makes some intuitive sense. In applying the foreign affairs exception, American

28 Association of Exporters and Importers recognized that “prior announcement of [the agency’s] 28

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1 intention to impose stricter quotas pending consultations creates an incentive for foreign interests

2 and American importers to increase artificially the amount of trade in textiles prior to a final

3 administrative determination.” 751 F.2d at 1249. But the Court cannot give this fact the same

4 weight it had in Exporters, particularly because migrants seeking asylum in the United States have

5 neither the same access to information nor the same ability to adjust their behavior as the

6 international corporations in that case. Aliens who enter illegally are already subject to criminal

7 and civil penalties, see 8 U.S.C. § 1325, which the government has been prosecuting under a

8 “zero-tolerance” policy, see ECF No. 35-3 at 12. Some record evidence indicates that some of

9 those aliens nonetheless cross illegally for reasons that may be unaffected by the Rule’s additional

10 penalties, such as a lack of awareness of entry requirements or by imminent necessity caused by,

11 among other things, threats of immediate violence from criminal groups near the border. ECF No.

12 8-4 ¶¶ 26-28; ECF No. 35-4 ¶ 12.

13

At this preliminary stage, the Court concludes that assessing the reasonableness of the

14 Rule’s linchpin assumption in this context would be premature given the fluid state of the record

15 in this fast-moving litigation. The parties represent that the record will soon be much more robust.

16 The Immigration Organizations explained at the hearing that they are continually discovering new

17 evidence as to the facts on the ground at the border, which they intend to submit. For their part,

18 Defendants have not yet had an opportunity to produce the administrative record, but they

19 represented that they were prepared to do so within a matter of days. The Court therefore

20 concludes that, at this time, there are at least serious questions going to the merits as to whether

21 Defendants have met the “high bar” required for the good cause exception. Valverde, 628 F.3d at 22 1164.19

23

C. Irreparable Harm

24

The Immigration Organizations “must establish that irreparable harm is likely, not just

25 possible, in order to obtain a [TRO].” Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1172 (9th

26

27 19 The Rule offered the same rationale for dispensing with the notice-and-comment requirements

28

and the thirty-day grace period, and the parties do not distinguish between the two good cause exceptions in this motion.

29

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1 Cir. 2011) (citation omitted). This factor focuses on “whether the harm to Plaintiffs [i]s

2 irreparable,” rather than “the severity of the harm.” Ariz. Dream Act Coal. v. Brewer, 757 F.3d

3 1053, 1068 (9th Cir. 2014). “There must be a ‘sufficient causal connection’ between the alleged

4 irreparable harm and the activity to be enjoined, and showing that ‘the requested injunction would

5 forestall’ the irreparable harm qualifies as such a connection.” Nat’l Wildlife Fed’n v. Nat’l

6 Marine Fisheries Serv., 886 F.3d 803, 819 (9th Cir. 2018) (quoting Perfect 10, Inc. v. Google,

7 Inc., 653 F.3d 976, 981-82 (9th Cir. 2011)). But the plaintiff “need not further show that the

8 action sought to be enjoined is the exclusive cause of the injury.” Id. (quoting M.R. v. Dreyfus,

9 697 F.3d 706, 728 (9th Cir. 2012)).

10

Because the Immigration Organizations have standing to assert their clients’ rights, the

11 Court considers the irreparable injury to the asylum-seekers. In the context of stays pending

12 removal, the Ninth Circuit has observed that “[i]n asylum, withholding of removal and CAT cases,

13 the claim on the merits is that the individual is in physical danger if returned to his or her home

14 country.” Leiva-Perez, 640 F.3d at 969. Accordingly, “[c]onsideration of the likelihood of such

15 treatment,” regardless of whether other factors would render the alien ineligible for relief, “should

16 be part of the irreparable harm inquiry.” Id.

17

As discussed above, the record establishes that, while the Rule is in effect, these asylum

18 seekers experience lengthy or even indefinite delays waiting at designated ports of entry along the

19 southern border. See, e.g., ECF No. 35-5 ¶¶ 4-5; ECF No. 35-8 ¶ 13. The record thus belies

20 Defendants’ contention that “[t]he rule and proclamation do not prevent any individual alien from

21 seeking asylum.” ECF No. 27 at 32. The Court may consider harms that flow from the Rule, even

22 if the Rule is not the “exclusive cause.” Nat’l Wildlife Fed’n, 886 F.3d at 819 (citation omitted).

23 Further, the record reveals that asylum seekers experience high rates of violence and harassment

24 while waiting to enter, as well as the threat of deportation to the countries from which they have

25 escaped. See, e.g., ECF No. 35-3 at 1-2, 29-30; ECF No. 35-4 ¶ 6; ECF No. 35-8 ¶¶ 7, 11. These

26 harms are both irreparable and likely to occur.

27

Defendants argue that any harm can be avoided by simply violating the policy, because the

28 only loss then is “a discretionary benefit to which [asylum seekers] are never entitled” and “they 30

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1 remain eligible for mandatory protections from removal.” ECF No. 27 at 32. This argument

2 ignores several basic facts. First, Congress has determined that the right to bring an asylum claim

3 is valuable, regardless of whether it is discretionary. Second, and more importantly, the

4 application of the Rule will result in the denial of meritorious claims for asylum that would

5 otherwise have been granted. That means that persons who are being persecuted on the basis of

6 their religion, race, or other qualifying characteristic, to whom the United States would otherwise

7 have offered refuge, will be forced to return to the site of their persecution. Moreover, aliens who

8 violate the Rule are placed in expedited removal proceedings under 8 U.S.C. § 1225(b)(1)(B), see

9 83 Fed. Reg. at 55,943, where they receive far fewer procedural protections to review the

10 application of that standard. See Vasquez v. Holder, 635 F.3d 563, 566 (1st Cir. 2011) (“The lack

11 of procedural protections accompanying expedited removal stands in contrast to the significant

12 process, specified in 8 U.S.C. § 1229a, that is required to effectuate a formal removal.”). Finally,

13 although discretionary, a grant of asylum confers additional important benefits not provided by

14 withholding of removal or CAT protection, such as the ability to proceed through the process with

15 immediate family members, see 8 U.S.C. § 1158(b)(3), and a path to citizenship, see id.

16 §§ 1159(b)-(c), 1427(a). The Defendants ignore these very real harms.

17

In addition, the Immigration Organizations allege that they were deprived of the

18 opportunity to offer comments on the Rule. Courts have recognized that the loss of such

19 opportunity may constitute irreparable injury while a rule promulgated in violation of § 553 is in

20 effect, provided that plaintiffs suffer some additional concrete harm as well. See, e.g., California

21 v. Health & Human Servs., 281 F. Supp. 3d 806, 830 (N.D. Cal. 2017) (“Every day the IFRs stand

22 is another day Defendants may enforce regulations likely promulgated in violation of the APA’s

23 notice and comment provision, without Plaintiffs’ advance input.”). Otherwise, “section 553

24 would be a dead letter.” N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 17 (D.D.C. 2009)

25 (quoting Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 95 (D.C. Cir. 2002)). As

26 discussed above, the Rule frustrates the Immigration Organizations’ missions and forces them to

27 divert resources outside of their core services. Moreover, if the Court were to ultimately find the

28 Rule invalid or procedurally defective, any interim harm “would not be susceptible to remedy.” 31

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1 Health & Human Servs., 281 F. Supp. 3d at 830; cf. 5 U.S.C. § 702 (waiving sovereign immunity

2 for “relief other than money damages”).

3

Accordingly, the Court finds that the Immigration Organizations have made a clear

4 showing that it is likely that they and their clients will suffer irreparable harm absent a TRO.

5

D. Balance of the Equities and the Public Interest

6

The Court turns to the final two Winter factors. “When the government is a party, these

7 last two factors merge.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).

8

Here, the balance of the equities and the public interest favor granting a TRO. As

9 discussed extensively throughout this Order, potential asylum seekers are exposed to numerous

10 harms while waiting to present their claims, including not only physical privations like physical

11 assault but also the loss of valuable, potentially meritorious claims for asylum. The Rule, when

12 combined with the enforced limits on processing claims at ports of entry, leaves those individuals

13 to choose between violence at the border, violence at home, or giving up a pathway to refugee

14 status.

15

The Court acknowledges Defendants’ argument that “[t]he government’s interest in

16 efficient administration of the immigration laws at the border also is weighty.” Landon v.

17 Plascencia, 459 U.S. 21, 34 (1982). But as Landon explained, “control over matters of

18 immigration is a sovereign prerogative, largely within the control of the executive and the

19 legislature.” Id. (emphasis added). The Court must also consider that the Immigration

20 Organizations are likely to succeed on the merits of their claim that the Rule contravenes

21 Congress’s judgment to give full consideration to asylum seekers’ claims regardless of their

22 failure to comply with entry requirements. See Fish v. Kobach, 840 F.3d 710, 756 (10th Cir.

23 2016) (recognizing that Congress’s clear statutory commands balancing competing interests

24 “demonstrate Congress’s determination that the public interest” will be best served in that

25 manner). The executive’s interest in deterring asylum seekers – whether or not their claims are

26 meritorious – on a basis that Congress did not authorize carries drastically less weight, if any.

27

Defendants also contend that maintaining the Rule serves the public interest because,

28 absent the Rule, aliens will continue to cross the border in a dangerous manner. ECF No. 27 at 32. 32

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1 The Rule’s sole reference to the danger presented by crossings appears in a quote from a 2004

2 rule, with no explanation as to how the situation may have evolved in the intervening fourteen

3 years. See id. at 55,950 (“There continues to be an ‘urgent need to deter foreign nationals from

4 undertaking dangerous border crossings, and thereby prevent the needless deaths and crimes

5 associated with human trafficking and alien smuggling operations.’” (quoting Designating Aliens

6 for Expedited Removal, 69 Fed. Reg. 44,877, 48878 (Aug. 11, 2004)). The Rule contains no

7 discussion, let alone specific projections, regarding the degree to which it will alleviate these

8 harms. On the other side of the scale, the Court must weigh the extensive record evidence of the

9 danger experienced by asylum seekers waiting to cross in compliance with the Rule. See, e.g.,

10 ECF No. 35-3 at 1-2, 29-32; ECF No. 35-4 ¶¶ 10-11; ECF No. 35-5 ¶ 5; ECF No. 35-8 ¶ 15.

11

Finally, the Court considers the administrative burden to Defendants of maintaining the

12 status quo. The Court initially notes that “[a]ny administrative burden [injunctive relief] places on

13 the government is greatly minimized by the fact that the government already has a process in place

14 for adjudicating” asylum applications for aliens who enter in violation of a Presidential

15 proclamation. Saravia v. Sessions, 280 F. Supp. 3d 1168, 1201 (N.D. Cal. 2017), aff’d, 905 F.3d

16 1137 (9th Cir. 2018). And by the Rule’s own estimate, the Rule would reduce Defendants’

17 burdens to administer the immigration system, but would also add some offsetting burdens, such

18 as increased resources towards detaining aliens pending expedited removal. 83 Fed. Reg. at 19 55,947.20 The Court finds that the burden of the existing system does not outweigh the harms that

20 flow from the Rule.

21

Accordingly, the Court will grant the motion for a TRO.

22

E. Scope of Relief

23

Finally, the Court considers the scope of relief due.

24

1. Geographic Scope

25

Defendants contend that the Court should limit any injunctive relief to “remedying

26

27

20 At this preliminary stage, the Court need not determine the extent to which the Rule’s assessment of administrative burdens of the existing system is contradicted by the record. But see

28 ECF No. 35-9.

33

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1 Plaintiffs’ particular alleged resource-allocation harms.” ECF No. 27 at 34. As explained above,

2 however, the Immigration Organizations also assert the rights of their asylum seeker clients in this 3 proceeding.21

4

The scope of the remedy is dictated by the scope of the violation. Where a law is

5 unconstitutional on its face, and not simply in its application to certain plaintiffs, a nationwide

6 injunction is appropriate. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“[T]he scope of

7 injunctive relief is dictated by the extent of the violation established, not by the geographical

8 extent of the plaintiff.”). Moreover, as another court has observed, the Supreme Court’s recent

9 decision in Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2082 (2017),

10 “validates the nationwide application of the preliminary injunction for certain contexts.” City of

11 Chicago v. Sessions, No. 17 C 5720, 2017 WL 4572208, at *2 (N.D. Ill. Oct. 13, 2017). Like

12 International Refugee Assistance Project, this case involves government policy on entering the

13 country. Given the need for uniformity in immigration law, the Court concludes that a nationwide

14 injunction is equally desirable here.

15

A “nationwide injunction . . . is [also] compelled by the text of the Administrative

16 Procedure Act, which provides in relevant part:

17

To the extent necessary to decision and when presented, the reviewing court shall

decide all relevant questions of law, interpret constitutional and statutory

18

provisions, and determine the meaning or applicability of the terms of an agency

action. The reviewing court shall ... (2) hold unlawful and set aside agency action,

19

findings, and conclusions found to be—(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law . . . .” 20

21 490 F.3d 687, 699 (9th Cir. 2007) (citing 5 U.S.C. § 706) (emphasis added in original), aff’d in

22 part, rev’d in part on other grounds sub nom. Summers v. Earth Island Inst., 555 U.S. 488 (2009);

23 see also Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409-10 (D.C. Cir. 1998)

24 (“We have made clear that ‘[w]hen a reviewing court determines that agency regulations are

25 unlawful, the ordinary result is that the rules are vacated – not that their application to the

26

27 21 Defendants also do not explain how such a limitation would work in practice, for example,

28

whether the clients of the Plaintiff firms would have special rights that other immigrants would not have and what effect that would have on the uniformity of the immigration laws.

34

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1 individual petitioners is proscribed.’” (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n. 21

2 (D.C.Cir.1989)). Because the Court here concludes as a preliminary matter that the Rule is

3 unlawful because it conflicts with the INA, it is unlawful as applied to anyone. The Court will

4 issue a nationwide injunction.

5

2. Expedited Removal Procedures

6

Defendants suggest in passing in their opposition, ECF No. 27 at 33, and reiterated at the

7 hearing, that 8 U.S.C. § 1252(e)(3) limits the scope of the relief the Court may issue.22 As an

8 initial matter, the Court could simply enjoin the Rule as it amends asylum eligibility in 8 C.F.R.

9 §§ 208.13, 1208.13, without disturbing any expedited removal procedures. Defendants have

10 provided no authority to support the proposition that any rule of asylum eligibility that may be

11 applied in expedited removal proceedings is swallowed up by § 1252(e)(3)’s limitations. That

12 interpretation would expand that provision well beyond “section 1225(b) . . . and its

13 implementation.” 8 U.S.C. § 1252(e)(3).

14

Moreover, even if the Court’s TRO enjoined the Rule’s amendments to the expedited

15 removal regulations, it is not clear that this provision applies to the Immigration Organizations’

16 APA claims. See M.M.M. ex rel. J.M.A. v. Sessions, 319 F. Supp. 3d 290, 293, 296 (D.D.C. 2018)

17 (transferring 5 U.S.C. § 706(2) claim but concluding that it must retain exclusive jurisdiction over

18 8 U.S.C. § 1252(e)(3) claim).

19

20 22 In relevant part, 8 U.S.C. § 1252(e)(3) provides:

21

(3) Challenges on validity of the system

22

(A) In general

23

Judicial review of determinations under section 1225(b) of this title

24

and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall

25

be limited to determinations of – . . . .

26

(ii) whether such a regulation, or a written policy directive, written

27

policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not

28

consistent with applicable provisions of this subchapter or is otherwise in violation of law.

35

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1

Given the lack of support for Defendants’ position, the Court declines to limit its relief on

2 that basis.

3

CONCLUSION

4

For the foregoing reasons, the Court GRANTS the Immigration Organizations’ motion for

5 a temporary restraining order. The Court hereby ENJOINS Defendants and their officers, agents,

6 servants, employees, and attorneys, and any other person or entity subject to their control or acting

7 directly or indirectly in concert or participation with Defendants from taking any action continuing

8 to implement the Rule and ORDERS Defendants to return to the pre-Rule practices for processing

9 asylum applications.

10

This Temporary Restraining Order shall take effect immediately and shall remain in effect

11 until December 19, 2018 or further order of this Court.

12

ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION

13

Defendants, and each of them, is hereby ORDERED TO SHOW CAUSE on December 19,

14 2018, at 9:30 a.m., or as soon thereafter as counsel may be heard23 in the courtroom of the

15 Honorable Jon S. Tigar, located at 450 Golden Gate Avenue, San Francisco, California, why they,

16 and each of them, and their officers, agents, servants, employees, and attorneys, and any other

17 person or entity subject to their control or acting directly or indirectly in concert or participation

18 with Defendants, should not be enjoined from taking any action continuing to implement the Rule

19 and ordered to return to the pre-Rule practices for processing asylum applications, pending the

20 final disposition of this action.

21

Rule 65(c) of the Federal Rules of Civil Procedure provides that a district court may grant

22 a preliminary injunction “only if the movant gives security in an amount that the court considers

23

24 23 25 26 27

When a temporary restraining order is issued with notice and after a hearing . . . the 14-day limit for such orders issued without notice does not apply. See Horn Abbot Ltd. v. Sarsaparilla Ltd., 601 F.Supp. 360, 368 n. 12 (N.D.Ill.1984). Nevertheless, absent consent of the parties, “[a] court may not extend a ‘TRO’ indefinitely, even upon notice and a hearing.” Id.

28 Pac. Kidney & Hypertension, LLC v. Kassakian, 156 F. Supp. 3d 1219, 1223 (D. Or. 2016).

36

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1 proper to pay the costs and damages sustained by any party found to have been wrongfully

2 enjoined or restrained.” Fed. R. Civ. P. 65(c). The district court retains discretion “as to the

3 amount of security required, if any.” Johnson v. Couturier, 572 F.3d 1067, 1086 (9th Cir. 2009)

4 (internal quotation marks and citations omitted) (emphasis in original). Here, Defendants have not

5 requested a bond, much less supported the issuance of a bond in any fixed amount. Also, the

6 Court find that balance of equities weighs strongly in favor of the Plaintiffs. Further, there is a

7 significant public interest underlying this action. Accordingly, the Court finds it appropriate to

8 waive a bond. See Reed v. Purcell, No. CV 10-2324-PHX-JAT, 2010 WL 4394289, at *5 (D.

9 Ariz. Nov. 1, 2010) (“In the present case, Defendants have not requested a bond, nor have they

10 submitted any evidence regarding their likely damages.”); Taylor-Failor v. County. of Hawaii, 90

11 F. Supp. 3d 1095, 1103 (D. Haw. 2015) (“Plaintiffs are individuals of limited financial means and

12 there is a significant public interest underlying this action.”); Elliott v. Kiesewetter, 98 F.3d 47, 60

13 (3d Cir. 1996) (“Where the balance of . . . equities weighs overwhelmingly in favor of the party

14 seeking the injunction, a district court has the discretion to waive the Rule 65(c) bond

15 requirement.”).

16

By November 26, 2018, the parties must submit either a stipulation, or competing

17 proposals, for a briefing schedule in advance of the December 19 hearing. The schedule must

18 contain not only the briefs the parties will file and the due dates for those briefs, but also a

19 deadline for the production of the administrative record and for any discovery either party may

20 wish to conduct. The parties may also request the Court continue the December 19 hearing to a

21 later date and continue the TRO in effect. Unless they make such a request, however, no briefing

22 deadline in the parties’ proposal(s) may occur later than December 14, 2018 at 5:00 p.m.

23

IT IS SO ORDERED.

24 Dated: November 19, 2018

25

______________________________________

26

JON S. TIGAR

United States District Judge

27

28 37

 
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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. 18-cv-06810-JST

et al.,

8

Plaintiffs,

9

v.

ORDER GRANTING PRELIMINARY INJUNCTION

10 DONALD J. TRUMP, et al.,

Re: ECF No. 71, 88

11

Defendants.

12

13

Once again, the parties are before the Court regarding a rule issued recently by the

14 Attorney General and the Department of Homeland Security. The rule, in combination with a

15 Presidential proclamation, makes anyone who crosses the southern border of the United States

16 somewhere other than a designated port of entry ineligible for asylum.

17

Plaintiffs previously asked the Court to issue a temporary restraining order against the new

18 rule. After considering the arguments on both sides and holding a hearing, the Court found the

19 rule was inconsistent with the will of Congress as expressed in the United States’ immigration

20 statutes. Specifically, the rule conflicts with Congress’s command that an alien “physically

21 present in the United States or who arrives in the United States . . . whether or not at a designated

22 port of arrival” may apply for asylum. 8 U.S.C. § 1158(a)(1) (emphasis added). Furthermore, the

23 Court found the rule is probably invalid for the additional reason that the Government failed to

24 allow Plaintiffs and other interested members of the public to provide comments about the rule

25 before it went into effect. The Court also found that the plaintiff immigration organizations had

26 the right to bring this lawsuit, and that allowing the rule to remain in effect while this case was

27 pending was not in the public interest because of the harms that would befall both the plaintiff

28 organizations and immigrants who were legitimately seeking asylum. Accordingly, this Court

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United States District Court Northern District of California

1 issued a temporary restraining order preventing the regulation from going into effect. A few

2 weeks later, the Ninth Circuit denied a stay and left that order in place.

3

The Plaintiffs now seek a preliminary injunction that would keep the new rule from going

4 into effect for an extended period of time. As set forth below, the arguments on both sides are

5 nearly identical to those made earlier to this Court and to the Ninth Circuit. Moreover, what new

6 evidence and argument there is largely supports Plaintiffs’ position. If anything, the inconsistency

7 between the new regulation and the immigration laws has been stated more clearly. The harms to

8 those seeking asylum are also even clearer, and correspondingly the public interest more plainly

9 supports injunctive relief. Not surprisingly then, the result of the present motion is the same: the

10 Court again concludes that Plaintiffs have established an overwhelming likelihood that the new

11 rule barring asylum is invalid. Accordingly, the Court will grant Plaintiffs’ request for a

12 preliminary injunction.

13 I. BACKGROUND

14

A. Nature of the Dispute

15

The Court has previously set forth the relevant legal framework and the challenged

16 executive actions, ECF No. 43, and it need not repeat them in great detail here. In brief, on

17 November 9, 2018, the Department of Justice (“DOJ”) and Department of Homeland Security

18 (“DHS”) published a joint interim final rule, entitled “Aliens Subject to a Bar on Entry Under

19 Certain Presidential Proclamations; Procedures for Protection Claims” (the “Rule”). 83 Fed. Reg.

20 55,934 (Nov. 9, 2018) (to be codified at 8 C.F.R. pts. 208, 1003, 1208). The Rule makes an alien

21 categorically ineligible for asylum if the alien enters the United States in violation of “a

22 presidential proclamation or other presidential order suspending or limiting the entry of aliens

23 along the southern border with Mexico.” Id. at 55,952 (to be codified at 8 C.F.R. §§ 208.13(c)(3),

24 1208.13(c)(3)). On the same day, the President of the United States issued such a proclamation

25 (the “Proclamation”),1 suspending the entry of any alien into United States along the southern

26

27

1 See Whitehouse.gov, Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States, (November 9, 2018), available at

28

https://www.whitehouse.gov/presidential-actions/presidential-proclamation-addressing-massmigration-southern-border-united-states/.

2

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1 border for ninety days, except for “any alien who enters the United States at a port of entry and

2 properly presents for inspection.” Proclamation § 2(b). Taken together, the Rule and the

3 Proclamation “create an operative rule of decision for asylum eligibility” that denies asylum to all

4 aliens who fail to enter at a designated port of entry. E. Bay Sanctuary Covenant v. Trump, -- F.3d

5 --, No. 18-17274, 2018 WL 6428204, at *15 (9th Cir. Dec. 7, 2018).

6

B. Procedural History

7

Four legal and social service immigration organizations, Plaintiffs East Bay Sanctuary

8 Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center of Los

9 Angeles (“CARECEN”) (collectively, the “Organizations”), challenged the Rule, arguing that it

10 was inconsistent with provisions of the Immigration and Naturalization Act (“INA”), 8 U.S.C.

11 § 1158, and that the agencies had failed to comply with the notice-and-comment provisions of the

12 Administrative Procedure Act (“APA”), 5 U.S.C. § 553. ECF No. 1.

13

1. The Court’s TRO

14

On November 19, 2018, the Court granted the Organizations’ motion for a temporary

15 restraining order (“TRO”). ECF No. 43. The Court concluded that the case was justiciable

16 because the Organizations had Article III standing to bring this challenge and third-party standing

17 to assert the rights of their clients, and that their asserted interests arguably fell within the zone of

18 interests protected by the INA. Id. at 13-17. Turning to the preliminary relief factors, the Court

19 held that the Organizations were likely to succeed on the merits of their claim that the Rule was

20 inconsistent with the INA, because the Rule purported to deny asylum eligibility on a ground that

21 Congress had clearly stated could not be disqualifying. Id. at 19-23. Further, the Court concluded

22 that the Organizations had at least raised serious questions going to the merits of their claims that

23 the agencies lacked a basis to assert the foreign affairs or good cause exceptions to the APA’s

24 notice-and-comment requirements. Id. at 27-29.

25

On the remaining equitable factors, the Court found that the Organizations’ clients would

26 suffer irreparable harm while the Rule was in place, id. at 30-31, and that the Organizations

27

28 3

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1 themselves would be irreparably injured in light of the loss of opportunity to exercise their

2 procedural rights and the Rule’s substantive harm to their operations, id. at 31. Finally, the Court

3 concluded that the equities and the public interest weighed in favor of preliminary relief. Id. at 32-

4 33.

5

“Given the need for uniformity in immigration law,” the Court determined that a

6 nationwide injunction was appropriate, particularly given Defendants’ failure to provide a more

7 narrow but workable alternative. Id. at 34 & n.21. The Court therefore issued a TRO, to remain in

8 place until December 19, 2018, and ordered Defendants to show cause why a preliminary

9 injunction should not issue. Id. at 36.

10

On November 27, 2018, Defendants appealed the TRO to the Ninth Circuit and filed a

11 motion requesting that the Court stay the TRO pending appeal. ECF Nos. 51, 52. After receiving

12 briefing from the parties, the Court denied the motion on November 30, 2018. ECF No. 61.

13

2. The Ninth Circuit’s Denial of a Stay

14

The next day, Defendants filed a motion for a stay pending appeal with the Ninth Circuit.

15 E. Bay Sanctuary Covenant v. Trump, No. 18-17274 (9th Cir.), ECF No. 4. On December 7, 2018,

16 a divided motions panel of the Ninth Circuit denied the stay in a published order. E. Bay

17 Sanctuary Covenant, -- F.3d --, No. 18-17274, 2018 WL 6428204 (9th Cir. Dec. 7, 2018).

18

The Ninth Circuit first held that the TRO possessed the necessary characteristics to be

19 treated “as an appealable preliminary injunction.” Id. at *9.

20

Second, the Ninth Circuit held that the Organizations had Article III and statutory standing

21 to pursue their claims. The court concluded that the Organizations lacked third-party standing

22 because their clients did “not have standing to assert a right to cross the border illegally, to seek

23 asylum or otherwise.” Id. at *10. The Ninth Circuit agreed, however, that the Organizations

24 satisfied the Article III requirements for organizational standing because the Rule “frustrated their

25 mission of providing legal aid to affirmative asylum applicants” and required the Organizations to

26 divert resources from their other initiatives. Id. at *11. The court also held that the Organizations

27 suffered an independently sufficient cognizable harm because they had shown “that the Rule will

28 cause them to lose a substantial amount of funding.” Id. at *12. Finally, the Ninth Circuit held 4

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1 that the Organizations had statutory standing to pursue their APA claims because their interests

2 arguably fell within the zone of interests protected by the INA. Id. at *13.

3

Turning to the merits of Defendants’ stay request, the panel majority held that Defendants

4 had not made the requisite showing, because the Rule was likely inconsistent with the plain

5 language of 8 U.S.C. § 1158(a)(1) and the structure of the INA. Id. at *15-16. The majority

6 further observed that, even if the statute were ambiguous, the Rule’s interpretation was likely

7 unreasonable in light of a practical understanding of the circumstances under which refugees seek

8 asylum, as reflected in international treaty obligations and precedent from numerous Circuits. Id.

9 at *16-17. Finally, the majority rejected Defendants’ argument that the Proclamation provided a

10 valid basis for the Rule. Id. at *18.

11

The majority further found that Defendants were unlikely to succeed on the merits of the

12 foreign affairs exception, noting that “courts have disapproved the use of the foreign affairs

13 exception where the Government has failed to offer evidence of consequences that would result

14 from compliance with the APA’s procedural requirements.” Id. at *19. The majority concluded

15 that “the connection between negotiations with Mexico and the immediate implementation of the

16 Rule is not apparent on this record” and invited Defendants “to expand the record on this issue”

17 before this Court. Id. The majority reached a similar conclusion regarding the good cause

18 exception. Concerning Defendants’ argument that “the ‘very announcement’ of the Rule itself

19 would give aliens a reason to ‘surge’ across the southern border,” the majority concluded that

20 Defendants’ “reasoning is only speculative at this juncture,” and that “[a]bsent additional

21 evidence, this inference is too difficult to credit.” Id. at *20.

22

On the remaining stay factors, the majority found that Defendants had failed to show a

23 likely irreparable injury. Id. at *21. The majority addressed the final two factors only briefly. It

24 noted that “a stay of the district court’s order would not preserve the status quo: it would upend it,

25 as the TRO has temporarily restored the law to what it had been for many years prior to November

26 9, 2018,” and that the Plaintiffs would suffer real harm if the rule were not enjoined. Id. The

27 majority acknowledged that there were weighty public interests on both sides, but that “when

28 considered alongside the Government’s failure to show irreparable harm, the final two factors do 5

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1 not weigh in favor of a stay.” Id.

2

Finally, the majority rejected Defendants’ argument that the nationwide scope of the

3 Court’s injunctive relief was inappropriate. The majority explained that, “[i]n immigration

4 matters, we have consistently recognized the authority of district courts to enjoin unlawful policies

5 on a universal basis.” Id. at 22. The majority pointed out, moreover, that Defendants had

6 “‘fail[ed] to explain how the district court could have crafted a narrower [remedy]’ that would

7 have provided complete relief to the Organizations.” Id.

8

Judge Leavy concurred in the majority’s conclusion that the TRO was appealable and in its

9 standing analysis, but he dissented on the merits of the stay. E. Bay Sanctuary Covenant v.

10 Trump, No. 18-17274, slip op. at 1 (9th Cir. Dec. 7, 2018) (Leavy, J., dissenting in part).

11

3. Application for a Stay to the Supreme Court

12

On December 11, 2018, Defendants applied to the Supreme Court for a stay pending

13 appeal, which application was referred to Justice Kagan. Trump v. E. Bay Sanctuary Covenant,

14 No. 18A615 (U.S. 2018). On December 17, 2018, the Organizations filed their response. Id.

15 Defendants filed a reply today, December 19, 2018. Id. As of the signing of this order, that

16 application remains pending.

17

4. Motion for Preliminary Injunction

18

On December 4, 2018, while Defendants’ appeal was pending, the Organizations filed a

19 motion for a preliminary injunction. ECF No. 71. The Court also permitted six amicus curiae to 20 file briefs in support of an injunction. See ECF Nos. 83, 86.2 In addition to their opposition to the

21 injunction, Defendants filed a separate motion to strike various materials that the Organizations

22 attached to the injunction motion or incorporated into the record. ECF No. 88.

23 II. EFFECT OF INTERVENING DECISIONS

24

The Court starts its analysis by recognizing that, in light of its own prior order and the

25

26

27

2 The amici are two different groups of immigration aid organizations, ECF Nos. 75, 78; a coalition of law professors, ECF No. 77; Public Citizen, Inc., ECF No. 80; the United Nations

28

High Commissioner for Refugees, ECF No. 81; and a coalition of twelve States and the District of Columbia, ECF No. 82.

6

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1 Ninth Circuit’s recent decision, it does not decide this motion on a blank slate.3

2

As the parties generally seem to agree, the Court must abide by the reasoning in the Ninth

3 Circuit’s denial of a stay, which likewise addressed the issues before the Court through the lens of

4 preliminary injunctive relief. See, e.g., ECF No. 87 at 14 (“[A]lthough Plaintiffs and this Court

5 previously relied extensively on third-party standing, the Ninth Circuit has rejected this basis for

6 standing.”); ECF No. 92 at 3 n.2 (“Plaintiffs respectfully disagree with the Ninth Circuit’s

7 conclusion that they do not have third-party standing to sue, and preserve the argument for

8 appeal.” (citation omitted)).

9

“Under the law of the case doctrine, a court will generally refuse to reconsider an issue

10 that has already been decided by the same court or a higher court in the same case.” Gonzalez v.

11 Arizona, 677 F.3d 383, 390 n.4 (9th Cir. 2012) (en banc). A court may deviate from the law of the

12 case only where “(1) the decision is clearly erroneous and its enforcement would work a manifest

13 injustice, (2) intervening controlling authority makes reconsideration appropriate, or

14 (3) substantially different evidence was adduced at a subsequent trial.” Id. (citation omitted). The

15 Ninth Circuit has instructed that a “district court should abide by ‘the general rule’ that our

16

17

3 Because the Ninth Circuit concluded that it would “treat the [Court’s] order as an appealable preliminary injunction,” E. Bay Sanctuary Covenant, 2018 WL 6428204, at *9, an active appeal of

18

the Court’s TRO remains pending. Though not addressed by the parties, the Court must examine the extent of its own jurisdiction.

19 It is well established that “[t]he filing of a notice of appeal is an event of jurisdictional significance

20

– it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Rodriguez v. County of Los Angeles, 891 F.3d

21

776, 790 (9th Cir. 2018) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). Though “more accurately characterized as [a] ‘mandatory claim-processing rule[],’” this

22

principle still limits the Court’s authority. Id. (quoting Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 17 (2017)).

23 Nonetheless, a district court has the authority “to grant a second injunction pending an

24

interlocutory appeal of the first.” Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001); see also Fed. R. Civ. P. 62(d). And in addition to that authority, a district court “may act to assist

25

the court of appeals in the exercise of its jurisdiction,” Davis v. United States, 667 F.2d 822, 824 (9th Cir. 1982), such as by “fil[ing] written findings of fact and conclusions of law in support of

26

the preliminary injunction order” on appeal, Thomas v. County of Los Angeles, 978 F.2d 504, 507 (9th Cir. 1992), as amended (Feb. 12, 1993). Finally, the Court notes that the TRO – the order on

27

appeal – expires by its own terms on December 19, 2018, or upon issuance of this order, ECF No. 43 at 36, and the Ninth Circuit expressly contemplated that the Court would examine certain

28

issues in light of further development of the factual record. Under these circumstances, the Court concludes that it has the authority to grant the relief requested.

7

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1 decisions at the preliminary injunction phase do not constitute the law of the case,” but that “[a]ny

2 of our conclusions on pure issues of law, however, are binding.” Ranchers Cattlemen Action

3 Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir.

4 2007) (citations omitted). Accordingly, “[t]he district court must apply this law to the facts anew

5 with consideration of the evidence presented” in further proceedings. Id.

6

Though the Ninth Circuit’s preliminary injunction rulings on mixed questions of law and

7 fact do not constitute law of the case, they are “‘law of the circuit’ and, therefore, . . . relevant” as

8 binding precedent. Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1076 n.5 (9th Cir. 2015) (quoting

9 Gonzalez, 677 F.3d at 389 n.4). Under the “law of the circuit” rule, “a published decision of [the

10 Ninth Circuit] constitutes binding authority which must be followed unless and until overruled by

11 a body competent to do so,” Gonzalez, 677 F.3d at 390 n.4, subject only to limited exceptions, see

12 id. (citing Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); Nat’l Cable & 13 Telecommc’ns Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)).4

14

These principles dictate that, absent the exceptional circumstances outlined above, the

15 Court should not revisit pure issues of law already decided by the Ninth Circuit and should

16 reconsider mixed questions of law and fact only where new facts render the case legally

17 distinguishable from the record presented on appeal.

18 III. MOTION TO STRIKE

19

As an additional threshold matter, the Court considers Defendants’ motion to strike. ECF

20 No. 88. On November 29, 2018, Defendants submitted the administrative record. ECF No. 60. In

21 response to the Organizations’ motion for a preliminary injunction, Defendants filed a motion to

22 strike various attached or incorporated materials, arguing that they were improper extra-record

23 evidence in this administrative review case. ECF No. 88. Defendants agree that the Organizations

24 may submit this evidence “to demonstrate organizational standing or cognizable irreparable

25

26 4 Pending further guidance from a higher court, the Court must accord the motions panel’s

27

decision the same weight. In this context, the Ninth Circuit has held that a motions panel’s published decision constitutes precedent that “binds future panels the same as does a merits

28

panel’s published opinion.” Lair v. Bullock, 798 F.3d 736, 747 (9th Cir. 2015) (citing Lair v. Bullock, 697 F.3d 1200, 1204, 1206 (9th Cir. 2012) (motions panel granting stay pending appeal)).

8

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1 harm,” but object to its consideration “for any other purpose.” Id. at 6. The parties dispute

2 whether the Court may consider evidence beyond the administrative record for (1) the merits of

3 the Organizations’ notice-and-comment challenges; (2) the preliminary injunction factors

4 regarding the balance of the equities and the public interest; and (3) third-party standing.

5

The Court turns first to the question of the merits. The APA instructs that, in reviewing

6 § 706 challenges, “the court shall review the whole record or those parts of it cited by a party.” 5

7 U.S.C. § 706. Therefore, to the extent practicable, a court should determine a plaintiff’s likelihood

8 of success on the merits of such a challenge based on the administrative record. See Am.

9 Bioscience, Inc. v. Thompson, 243 F.3d 579, 582 (D.C. Cir. 2001) (holding that the district court

10 abused its discretion in denying a preliminary injunction by using “the parties’ written or oral

11 representations to discern the basis on which the [agency] acted” instead of “calling for the

12 administrative record”). Where review is limited to the administrative record, the Ninth Circuit

13 nonetheless permits consideration of “material outside of the administrative record in four narrow

14 circumstances:”

15

1) where the extra-record evidence is “necessary to determine

whether the agency has considered all relevant factors and has

16

explained its decision”;

2) where “the agency has relied on documents not in the record”;

17

3) where “supplementing the record is necessary to explain technical

terms or complex subject matter”; or

18

4) where “plaintiffs make a showing of agency bad faith.”

19 Cachil Dehe Band of Wintun Indians of Colusa Indian Cmty. v. Zinke, 889 F.3d 584, 600 (9th Cir.

20 2018) (quoting Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1451 (9th

21 Cir. 1996)). Even where the Court allows such supplementary evidence, “[c]onsideration of the

22 evidence to determine the correctness or wisdom of the agency’s decision is not permitted, even if

23 the court has also examined the administrative record.” Asarco, Inc. v. U.S. Envtl. Prot. Agency,

24 616 F.2d 1153, 1160 (9th Cir. 1980).

25

Defendants assert that the Organizations’ notice-and-comment claims for violations of 5

26 U.S.C. § 553 arise under § 706(2)(D), which empowers a court to set aside agency action

27 undertaken “without observance of procedure required by law,” and are therefore governed by

28 § 706’s record requirement. ECF No. 88 at 12; see also Yassini v. Crosland, 618 F.2d 1356, 1360 9

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1 (9th Cir. 1980) (addressing claim that action “should be declared void under 5 U.S.C. s 706(2)(D)”

2 because it was not promulgated with notice and comment). The Organizations do not contend

3 otherwise.

4

Because, as discussed below, the Court concludes that Defendants have likely failed to

5 justify the foreign affairs exception on the administrative record, it does not decide whether the

6 Organizations’ evidence is admissible for that purpose. See Lands Council v. Powell, 395 F.3d

7 1019, 1030 (9th Cir. 2005). As to good cause, the Organizations have not met their “burden of

8 demonstrating that a relevant exception applies.” San Luis & Delta-Mendota Water Auth. v.

9 Locke, 776 F.3d 971, 993 (9th Cir. 2014). The Organizations state, without additional

10 explanation, that their evidence “identif[ies] relevant factor the agency did not consider.” ECF

11 No. 93 at 9 & n.7. This is not sufficient. Moreover, much of this evidence seems related to the

12 merits of the Rule itself, rather than the relevant question whether good cause existed to dispense

13 with notice and comment. Accordingly, the Court does not consider this evidence when reviewing

14 good cause.

15

Next, the Court considers the use of extra-record evidence for assessing the balance of the

16 equities and the public interest. Defendants have cited no authority suggesting that § 706 limits

17 the scope of the evidence that may be considered for those equitable factors.5 Defendants’

18 position likewise lacks any support in the text of the APA. See United States v. Alisal Water

19 Corp., 431 F.3d 643, 654 (9th Cir. 2005) (“[T]he court will not generally infer restrictions on

20 inherent judicial authority from congressional silence: [U]nless a statute in so many words, or by

21 a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of

22 that jurisdiction is to be recognized and applied.” (second alteration in original) (internal

23 quotations marks and citation omitted)). 5 U.S.C. § 706 instructs a reviewing court to determine

24 whether agency action has been “unlawfully withheld or unreasonably delayed,” id. § 706(1), or

25 whether the agency’s “action, findings, and conclusions are,” for instance, “arbitrary and

26

27

5 Defendants simply argue that certain cases did not directly address the issue or the Government conceded it, but provide no court adopting their position. ECF No. 94 at 8-9 (citing, e.g., Eco

28

Tour Adventures, Inc. v. Zinke, 249 F. Supp. 3d 360, 370 n.7 (D.D.C. 2017); Earth Island Inst. v. Evans, 256 F. Supp. 2d 1064, 1078 n.16 (N.D. Cal. 2003)).

10

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1 capricious” or “without observance of procedure required by law,” id. § 706(2). Immediately

2 thereafter, § 706 states: “In making the foregoing determinations, the court shall review the whole

3 record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial

4 error.” (emphasis added). Moreover, Defendants cannot plausibly suggest that a court can assess

5 “the balance of hardships between the parties,” All. for the Wild Rockies v. Cottrell, 632 F.3d

6 1127, 1137 (9th Cir. 2011) (emphasis added), based solely on the administrative record. See also

7 League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton, 752 F.3d 755,

8 765 (9th Cir. 2014) (“Balancing the equities in this case requires comparison between the

9 irreparable environmental harms pled by the LOWD plaintiffs, on the one hand, and the economic

10 interests of the intervenors, on the other hand.”).6 The Court therefore denies Defendants’ motion

11 as to these purposes.7

12

Finally, in their reply, Defendants raise for the first time numerous additional objections

13 based on the Federal Rules of Evidence. See ECF No. 94 at 15, 17-19. The Court ordinarily

14 disfavors new arguments on reply. See Hefler v. Wells Fargo & Co., No. 16-CV-05479-JST, 2018

15 WL 1070116, at *9 (N.D. Cal. Feb. 27, 2018) (citing Ass’n of Irritated Residents v. C & R

16 Vanderham Dairy, 435 F.Supp.2d 1078, 1089 (E.D. Cal. 2006)). Because the Court does not rely

17 on the evidence that Defendants argue is inadmissible as hearsay or not based on personal

18 knowledge, it need not address these late objections further.

19

20

21

22 6 Consideration of the public interest at the preliminary relief stage is not, of course, an

23

opportunity to litigate the merits of the agency’s decision with extra-record evidence. But limiting the scope of interests to those considered by the agency would not serve the larger public interest.

24

And Defendants’ proposed evidentiary rule would be particularly counter-productive where the disputed agency action is the foregoing of notice-and-comment procedures, as no entity would

25

have been given the opportunity to put its views or interests before the agency and thus, into the record.

26 7 Defendants also contend that the Court must strike evidence related to third-party standing in

27

light of the Ninth Circuit’s ruling on the merits of that theory. Given the fact that the parties are concurrently litigating this case before this Court, the Ninth Circuit, and the Supreme Court, the

28

Court finds it imprudent to reach a final decision on the scope of the record regarding this issue at this preliminary stage.

11

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1 IV. STANDING

2

A. Article III Standing

3

In their opposition, Defendants renew their argument that the Organizations lack standing.

4 ECF No. 87 at 14-16.

5

The Ninth Circuit concluded that the Organizations had organizational standing under

6 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), which requires an organization to “show[]

7 that, independent of the litigation, the challenged ‘policy frustrates the organization’s goals and

8 requires the organization to expend resources in representing clients they otherwise would spend

9 in other ways.’” E. Bay Sanctuary Covenant, 2018 WL 6428204, at *11 (quoting Comite de

10 Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011) (en

11 banc)). The Ninth Circuit cited a number of harms to the Organizations that it found legally

12 cognizable and sufficient to established standing under Havens. See id. at 11-12. Noting a court’s

13 ongoing duty to assure its jurisdiction, see Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-

14 84, the Ninth Circuit pointed out that “[s]hould facts develop in the district court that cast doubt on

15 the Organizations’ standing, the district court is, of course, free to revisit this question.” Id. at *9.

16

Accordingly, the Court considers whether the current factual record continues to support

17 the Ninth Circuit’s legal analysis. It does.

18

The Organizations have provided ample evidence explaining how the Rule impairs their

19 core programs. For instance, East Bay’s affirmative asylum program involves filing cases with

20 the U.S. Citizenship and Immigration Services rather than an immigration court, and accounts for

21 almost half of East Bay’s organizational budget. ECF No. 8-7 ¶ 8-9. Moreover, because 80

22 percent of these individuals have historically entered without inspection, id., “[i]f these individuals

23 became categorically ineligible for asylum, East Bay would lose a significant amount of business

24 and suffer a concomitant loss of funding.” E. Bay Sanctuary Covenant, 2018 WL 6428204, at

25 *12. The record continues to show that East Bay must take costly adaptive measures. ECF No. 8-

26 7 ¶¶ 17-19. In support of this motion, East Bay further explains that it faces serious obstacles to

27 changing its mission to represent asylum seekers who comply with the Proclamation. First, East

28 Bay is located near Berkeley, California, and “[m]ost of the asylum seekers who enter at a port of 12

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1 entry remain detained in detention facilities near the border” hundreds of miles away. ECF No.

2 71-10 ¶ 7. Moreover, those individuals who are released will be placed in removal proceedings

3 and ineligible to apply for affirmative asylum. Id. ¶ 8-9.

4

Innovation Law Lab has likewise experienced difficulty implementing its programs

5 because its operations are not located near the border, and it has expended significant resources to

6 send staff to the border as it attempts to shift its programs. ECF No. 71-11 ¶ 4, 14. It has also

7 been forced to devote resources to develop new software and guidance tools to operate in a more

8 time-sensitive environment with fewer technological resources. Id. ¶¶ 9-10.

9

Like East Bay, CARECEN has explained that it will be “forced at the client intake stage to

10 conduct detailed screenings for alternative forms of relief to facilitate referrals or other forms of

11 assistance.” E. Bay Sanctuary Covenant, 2018 WL 6428204, at *11; ECF No. 71-3 ¶ 5.

12

Al Otro Lado has provided evidence that it currently has twenty unaccompanied minors as

13 clients who are not allowed to present their claims at a port of entry and are therefore wholly

14 unable to seek asylum under the Rule. ECF No. 71-8 ¶¶ 4-6. Because the Rule prevents these

15 clients from entering between ports of entry to seek asylum, Al Otro Lado has devoted significant

16 resources to “address[ing] the non-legal needs of [its] unaccompanied minor clients,” such as

17 chaperoning them and arranging shelter and transportation. Id. ¶¶ 10-14.

18

In addition, the record indicates that it will become more expensive on a per-case basis for

19 the Organizations to represent clients who enter in violation of the Proclamation “because other

20 forms of relief from removal – such as withholding of removal and relief under the Convention

21 Against Torture – do not allow a principal applicant to file a derivative application for family

22 members.” E. Bay Sanctuary Covenant, 2018 WL 6428204, at *11. This will greatly increase the

23 number of cases the Organizations must pursue to accomplish the same goals. ECF No. 8-3 ¶ 11;

24 ECF No. 8-4 ¶ 13; ECF No. 71-11 ¶ 16.

25

The record also supports the second basis for standing identified by the Ninth Circuit – a

26 “showing that the Rule will cause [the Organizations] to lose a substantial amount of funding.” E.

27 Bay Sanctuary Covenant, 2018 WL 6428204, at *12. East Bay receives a grant from the state of

28 California that is directly tied to number of asylum cases it pursues. ECF No. 8-7 ¶ 11. Similarly, 13

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1 Al Otro Lado receives state funding “at a fixed per-case rate to represent individuals in bond

2 proceedings,” but the Rule renders aliens ineligible for bond for at least six months. ECF No. 8-4

3 ¶¶ 10-11. The Innovation Law Lab also receives government funding that will become less

4 effective as cases become more expensive and time consuming. ECF No. 71-11 ¶¶ 15-16.

5

Defendants do not dispute the factual basis for these harms. Instead, Defendants continue

6 to argue that these harms are legally insufficient, ignoring the Ninth Circuit’s decision to the

7 contrary. For instance, Defendants contend that the Organizations have no cognizable injury

8 because they “remain free to represent any aliens who enter the country illegally.” ECF No. 87 at

9 15. But Defendants do not address the Ninth Circuit’s explanation, supported by the record, of

10 why pursuing alternative avenues of relief would frustrate the Organization’s core missions,

11 require them to divert resources, and impair their funding. See E. Bay Sanctuary Covenant, 2018

12 WL 6428204, at *11-12.8 For the reasons previously stated by this Court and the Ninth Circuit,

13 these arguments lack merit.9

14

Accordingly, the Court concludes that the Organizations have standing for their

15 substantive and procedural claims. See id. at *12 & n.8.

16

B. Zone of Interests

17

Defendants also renew their argument that the Organizations’ claims are not arguably

18 within the zone of interests protected by the INA. ECF No. 87 at 16-18.

19

The Ninth Circuit concluded that “the Organizations’ claims ‘are, at the least, arguably

20

21 8 Defendants’ contention that the Organizations “have no legally protected interest in preventing

22

the federal government from taking actions that might affect their funding” misstates the inquiry. ECF No. 87 at 15. The question is not whether the Organizations (or any other entity affected by

23

government regulation) have a legal right to maintain the current asylum system or their respective missions or business models. Rather, the question is whether the Organizations have an injury to

24

their interests “that is (a) concrete and particularized and (b) actual or imminent” such that they are proper plaintiffs to litigate the issue whether the Rule unlawfully changes the system. Friends of

25

the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000); see also Massachusetts v. E.P.A., 549 U.S. 497, 517 (2007) (“At bottom, the gist of the question of

26

standing is whether petitioners have such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so

27 largely depends for illumination.” (internal quotation marks and citation omitted)).

28

9 The Organizations properly concede that the Ninth Circuit’s ruling on third-party standing is controlling, indicating their intent to press the argument on appeal. ECF No. 92 at 3 n.2.

14

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1 within the zone of interests’ protected by the INA.” E. Bay Sanctuary Covenant, 2018 WL

2 6428204, at *13 (quoting Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1303 (2017))

3 (emphasis in original). “Whether a plaintiff comes within ‘the zone of interests’ is an issue that

4 requires [courts] to determine, using traditional tools of statutory interpretation, whether a

5 legislatively conferred cause of action encompasses a particular plaintiff’s claim.” Lexmark Int’l,

6 Inc. v. Static Control Components, Inc., 572 U.S. 118, 127 (2014). The Ninth Circuit’s ruling

7 decided a legal issue that the Court cannot re-adjudicate de novo.

8

Defendants acknowledge the Ninth Circuit’s adverse decision on this point, ECF No. 87

9 at 17 n.2, but nonetheless press the same arguments before this Court. For instance, the Ninth

10 Circuit “reject[ed] the Government’s invitation to rely on” INS v. Legalization Assistance Project

11 of L.A. Cty., 510 U.S. 1301, 1305 (1993) (O’Connor, J., in chambers), and Immigrant Assistance

12 Project of L.A. Cty. v. INS, 306 F.3d 842, 867 (9th Cir. 2002), finding both distinguishable. E.

13 Bay Sanctuary Covenant, 2018 WL 6428204 at *13 n.10. Yet Defendants continue to treat

14 Legalization Assistance Project as controlling. See ECF No. 87 at 17-18.10 The Court rejects

15 Defendants’ arguments for the reasons provided by the Ninth Circuit. See E. Bay Sanctuary

16 Covenant, 2018 WL 6428204 at *13-14.

17 V. MOTION FOR PRELIMINARY INJUNCTION

18

A. Legal Standard

19

The Court applies a familiar four-factor test on both a motion for a temporary restraining

20 order and a motion for a preliminary injunction. See Stuhlbarg Int’l Sales Co. v. John D. Brush &

21 Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001).

22

Preliminary relief is “an extraordinary remedy that may only be awarded upon a clear

23 showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. To obtain preliminary

24 injunctive relief, the moving party must show: (1) a likelihood of success on the merits; (2) a

25 likelihood of irreparable harm to the moving party in the absence of preliminary relief; (3) that the

26

27

10 For the same reason, Defendants’ reliance on Northwest Immigrant Rights Project v. U.S. Citizenship & Immigration Services, 325 F.R.D. 671 (W.D. Wash. 2016), is unpersuasive. The

28

court there found the claims at issue “analogous to the claims that Justice O’Connor confronted” in Legalization Assistance Project. Id. at 688.

15

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1 balance of equities tips in favor of the moving party; and (4) that an injunction is in the public

2 interest. Id. at 20. “[S]erious questions going to the merits and a balance of hardships that tips

3 sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the

4 plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the

5 public interest.” All. for the Wild Rockies, 632 F.3d at 1135 (internal quotation marks omitted).

6

B. Likelihood of Success on the Merits

7

1. Validity of the Rule

8

In arguing that the Rule is consistent with the INA, Defendants largely repackage the same

9 arguments previously made to the Ninth Circuit and this Court. ECF No. 87 at 18-22. The

10 arguments failed to persuade the Court the first time. And this district court is not in a position to

11 review the Court of Appeals’ statutory interpretation. Notwithstanding, Defendants’ arguments

12 remain unpersuasive.

13

Defendants continue to rely on the following undisputed points: (1) asylum is a

14 discretionary benefit; (2) the Attorney General may adopt categorical bars to asylum eligibility,

15 see 8 U.S.C. § 1158(b)(2)(C); and (3) manner of entry may be considered on a case-by-case basis,

16 see Matter of Pula, 19 I. & N. Dec. 467 (BIA 1987). ECF No. 87 at 19-21. Like the Ninth

17 Circuit, the Court continues to find these points unresponsive to the statutory conflict at hand. The

18 Rule purports to deny asylum eligibility to any alien crossing other than at a port of entry. By

19 contrast, section 1158 states clearly that an alien may apply for asylum when she is “physically

20 present in the United States” or “arrives in the United States (whether or not at a designated port

21 of arrival . . . .)” 8 U.S.C. § 1158(a)(1) (emphasis added). It would be hard to imagine a more

22 direct conflict. As the Court previously stated when denying Defendants’ motion for stay, “where

23 ‘Congress unambiguously stated that manner of entry has no effect on an alien’s ability to apply

24 for asylum,’ Defendants cannot plausibly contend that ‘it can be the sole factor by which the alien

25 is rendered ineligible.’” ECF No. 61 at 5 (quoting ECF No. 43 at 21); see also 8 U.S.C.

26 § 1158(a)(1).

27

The BIA’s policy prior to Matter of Pula is immaterial to this question. See ECF No. 87 at

28 20-21 (citing Matter of Salim, 18 I. & N. Dec. 311, 315-16 (BIA 1982)). Even under the 16

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1 framework established in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

2 U.S. 837, 843 (1984), an agency’s interpretation carries no weight if it conflicts with a statute that

3 a court determines to be unambiguous. See Brand X Internet Servs., 545 U.S. at 982.

4

Moreover, Defendants err in discounting the Ninth Circuit’s discussion of why the Rule

5 “cannot be considered a reasonable effort to interpret or enforce the current provisions of the INA”

6 as directed at a claim not raised by the Organizations. E. Bay Sanctuary Covenant, 2018 WL

7 6428204, at *16 (citing Chevron, 467 U.S. at 843). Given the citation to Chevron, the Court

8 understands the Ninth Circuit to have concluded, in the alternative, that the Rule would fail at

9 Chevron step two because it is not a reasonable interpretation of the statute. As the Ninth Circuit

10 explained, it has held that “the way in which [the alien] entered this country is worth little if any

11 weight in the balancing of positive and negative factors,” id. at *16 (alteration in original) (quoting

12 Mamouzian v. Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004)), and it is far from “alone in [its]

13 view of the relevance of illegal entry to an alien’s eligibility for asylum,” id. at *17 (collecting

14 cases); see also ECF No. 43 at 22 (same).

15

In this discussion, the Ninth Circuit also noted that 8 U.S.C. § 1158(a)(1) “reflects our

16 understanding of our treaty obligation to not ‘impose penalties [on refugees] on account of their

17 illegal entry or presence.’” E. Bay Sanctuary Covenant, 2018 WL 6428204, at *16 (alteration in

18 original) (quoting 1951 Convention Relating to the Status of Refugees, art. XXXI, § 1, July 28,

19 1951, 189 U.N.T.S. 150, 174).11 Defendants argue again that the Rule does not impose a

20 “penalty” under Article 31(1) and that the Article does not apply to refugees who pass through a

21 third country. ECF No. 87 at 21-22. Defendants’ reliance on out-of-circuit authority considering

22 a different question of statutory interpretation is not compelling, given the Ninth Circuit’s contrary

23 view. See id. (citing Mejia v. Sessions, 866 F.3d 573, 588 (4th Cir. 2017)).

24

Defendants also fail to grapple with the reasoned views expressed in the United Nations

25 High Commissioner for Refugees’ (“UNHCR”) amicus brief, see ECF No. 81-1 at 18 (“UNHCR’s

26

27

11 The United States acceded to the 1967 United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, which “incorporates the substantive provisions of

28

Articles 2 through 34 of the [Convention].” Delgado v. Holder, 648 F.3d 1095, 1100 (9th Cir. 2011) (en banc).

17

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1 view is that the concept of impermissible ‘penalties’ in Article 31(1) encompasses civil or

2 administrative penalties as well as civil ones.” (citing also B010 v. Canada, [2015] 3 S.C.R. 704,

3 729 (Can.))); id. at 18 n.4 (“Article 31(1) should also be interpreted to include those who transit

4 through a third country before seeking asylum.”). Though not binding, see I.N.S. v. Aguirre-

5 Aguirre, 526 U.S. 415, 427 (1999), the UNCHR’s “analysis provides significant guidance for

6 issues of refugee law.” Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005) (citing I.N.S. v.

7 Cardozo-Fonseca, 480 U.S. 421, 439-40 (1987)). This guidance alone distinguishes this case

8 from the brief discussions in the cases on which the Rule relied. See Mejia, 866 F.3d at 573

9 (“[Petitioner] offers no support for her contention that denying illegal re-entrants the ability to

10 apply for asylum constitutes a ‘penalty,’ a key term undefined by the Protocol.”); Cazun v.

11 Attorney Gen. United States, 856 F.3d 249, 257 (3d Cir. 2017) (finding that “neither the text of the

12 Article nor its history clearly indicates that the reinstatement bar, which does not imprison or fine

13 aliens, is the sort of criminal ‘penalty’ forbidden”).

14

In sum, Defendants have provided no basis to depart from this Court and the Ninth

15 Circuit’s conclusions on this issue.

16

2. Notice-and-Comment Requirements

17

Because the Organizations have demonstrated a likelihood of success on their claim that

18 the Rule is substantively invalid, the Court need not reach the notice-and-comment exceptions.

19 But given the Ninth Circuit’s expressed expectation that the Court would evaluate these claims on

20 a fuller record, the Court discusses them briefly to develop the record for appellate review.12

21

a. Foreign Affairs

22

Defendants’ arguments in support of the foreign affairs exception are largely devoted to

23

24

12 In evaluating developments subsequent to the Court’s prior order, the Court notes that the participation of amici in this case validates the observation that “[t]he greater the public interest in

25

a rule, the greater reason to allow the public to participate in its formation.” Hoctor v. U.S. Dep’t of Agric., 82 F.3d 165, 171 (7th Cir. 1996). For instance, as just noted, the Court has received the

26

analysis of the U.N. High Commissioner on Refugees – views that were not provided to the courts on which the Rule relied for its conclusions about consistency with Article 31(1). Cf. 83 Fed. Reg.

27

at 55,939. Similarly, the Court has received input regarding the public interest from numerous States who bear many of the primary responsibilities of accommodating asylum seekers, both

28

those who are granted asylum and those who are released pending the adjudication of their applications. See ECF No. 82-1.

18

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1 arguing that “the Court was wrong to require an evidentiary showing that undesirable international

2 consequences would result from following the rulemaking procedures” and that the justifications

3 set forth in the Rule’s preamble are facially sufficient. ECF No. 87 at 22-24. Neither contention

4 can be sustained in light of the Ninth Circuit’s order. The Ninth Circuit concluded that “the

5 connection between negotiations with Mexico and the immediate implementation of the Rule

6 [wa]s not apparent on th[e] record” before it – including the text of the Rule and its preamble –

7 and invited the Government to demonstrate the purported connection with further evidence before

8 this Court. E. Bay Sanctuary Covenant, 2018 WL 6428204, at *19. Moreover, as Defendants

9 forcefully contend in their motion to strike, the Court’s review is governed by 5 U.S.C. § 706 and

10 its instruction to consider the “whole record.” See ECF No. 88 at 12 (“[T]he APA itself makes

11 clear that judicial review of [the Organizations’ foreign affairs and good cause] claim[s] should be

12 limited to the administrative record . . . .” (citing § 706); ECF No. 94 at 10 (same).

13

Defendants now cite two portions of the administrative record. First, Defendants cite

14 remarks by President Trump on November 1, 2018, announcing in general terms the Rule’s

15 upcoming implementation. See ECF No. 87 at 24 (citing AR 484-91). These remarks do not

16 mention negotiations with Mexico. Rather, the President largely focused on domestic

17 consequences, such as the number of asylum applicants, the merits of their claims, and the length

18 of time to adjudicate their cases. See, e.g., AR 486 (“The overwhelming majority of claims are

19 rejected by the courts, but by that time, the alien has usually long since disappeared into our

20 country.”). To the extent the President discussed the Mexican government, his remarks do not

21 indicate that foregoing notice and comment “encourages Mexico to take account of th[e] aliens

22 and to cooperate with the United States.” ECF No. 87 at 24. Rather, the President indicated that

23 Mexico had already attempted to do so, but repeatedly stated that its efforts had been ineffective.

24 See AR 485 (stating that “[t]he government of Mexico has generously offered asylum, jobs,

25 education, and medical care for people within the caravan, but many members of the caravan have

26 refused those offers”); AR 488 (“Anybody throwing stones, rocks – like they did to Mexico and

27 the Mexican military, Mexican police, where they badly hurt police and soldiers of Mexico – we

28 will consider that a firearm.”); AR 489 (“All we know is they’re pretty tough people when they 19

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1 can blast through the Mexican military and Mexican police. They’re pretty tough people. Even

2 Mexico said, ‘Wow, these are tough people.’ I don’t want them in our country. Women want

3 security. Men don’t want them in our country. But the women do not want them. Women want

4 security. You look at what these women are looking for. They want to have security. They don’t

5 want to have these people in our country. And they’re not going to be in our country.”).

6 Defendants have identified no indication in these remarks that additional efforts from the Mexican

7 government were possible or likely forthcoming, let alone contingent to any degree upon

8 “immediate publication of the Rule, instead of announcement of a proposed rule followed by a

9 thirty-day period of notice and comment.” E. Bay Sanctuary Covenant, 2018 WL 6428204, at

10 *19.13

11

Second, Defendants cite a 2004 Memorandum of Understanding (“MOU”) between

12 Mexico and the United States. AR 92-96. This MOU was discussed in the Rule, which explained

13 that “since 2004, the United States and Mexico have been operating under a memorandum

14 understanding concerning the repatriation of Mexican nationals,” and that “Article 6 . . . reserves

15 the movement of third-country nationals through Mexico and the United States for further bilateral

16 negotiations.” 83 Fed. Reg. at 55,950 n.15. Providing a copy of the MOU, with no additional

17 information or explanation, does not come any closer to revealing the connection the Ninth Circuit

18 found lacking on the face of the Rule.

19

Because Defendants have failed to articulate the connection demanded by the Ninth

20 Circuit, the Court concludes that the Organizations are likely to succeed on the merits of this

21 claim.

22

b. Good Cause

23

Defendants similarly suggest that the Court may not look beyond the Rule’s facial

24 justifications to determine whether good cause exists. ECF No. 87 at 25. Again, this is flatly

25 inconsistent with the Ninth Circuit’s conclusion that “the Government’s contention that the ‘very

26

27

13 Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999), on which Defendants rely, involved different considerations regarding the availability of a selective prosecution claim in

28

the deportation context, and therefore does not alter the showing required by the Ninth Circuit to justify the foreign affairs exception.

20

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1 announcement’ of the Rule itself would give aliens a reason to ‘surge’ across the southern border

2 in numbers greater than is currently the case” was, “[a]bsent additional evidence, . . . too difficult

3 to credit.” E. Bay Sanctuary Covenant, 2018 WL 6428204, at *20; see also California v. Azar, --

4 F.3d --, No. 18-15144, 2018 WL 6566752, at *11 (9th Cir. Dec. 13, 2018) (“This is speculation

5 unsupported by the administrative record and is not sufficient to constitute good cause.”). If the

6 Court cannot look beyond the Rule, then Defendants simply lose this point. See E. Bay Sanctuary

7 Covenant, 2018 WL 6428204, at *20 (“Again, the Government is free to supplement the record

8 and renew its arguments in the district court.”).

9

The Court must also reject Defendants’ reliance on the invocation of good cause for prior

10 rulemakings not before the Court. See Azar, 2018 WL 6566752, at *11 (“[P]rior invocations of

11 good cause to justify different [rules] – the legality of which are not challenged here – have no

12 relevance.”).

13

Turning to the administrative record, Defendants cite a newspaper article14 indicating that,

14 when the United States halted its policy of “separating parents from their children” due to the

15 controversy it engendered, smugglers told potential asylum seekers that “the Americans do not jail

16 parents who bring children – and to hurry up before they might start doing so again.” AR 391.

17 The article further indicates that the number of asylum seekers entering as families has risen in

18 proportion to that of single adults and suggests a link to knowledge of those policies. AR 393.

19 Reviewing this report with deference to the agencies’ views, it at least supports the inference that

20 smugglers might similarly communicate the Rule’s potentially relevant change in U.S.

21 immigration policy, albeit in non-technical terms. The Court concludes the Government has

22 identified a “rational connection between the facts found and the choice made” to promulgate the

23 interim rule on an emergency basis, United States v. Valverde, 628 F.3d 1159, 1168 (9th Cir.

24

25 14 Nick Miroff & Carolyn Van Houten, The border is tougher to cross than ever. But there’s still

26

one way into America, The Washington Post (Oct. 24, 2018). The Court notes that, in Defendants’ motion to strike, they contend that another Washington Post article by the same author is

27

inadmissible because it “constitute[s] layers and layers of hearsay.” ECF No. 94 at 19-20 & n.17 (citing Nick Miroff & Missy Ryan, Army assessment of migrant caravans undermines Trump’s

28

rhetoric, Washington Post (Nov. 2, 2018)). The Court notes the irony but nonetheless considers the article on which Defendants rely.

21

Case 3:18-cv-06810-JST Document 99 Filed 12/19/18 Page 22 of 30

United States District Court Northern District of California

1 2010) (citation omitted), and that the Government is likely to prevail on its claim regarding the

2 good cause exception.

3

C. Irreparable Injury

4

Because the Ninth Circuit has held that the Organizations lack third-party standing, the

5 Court considers only whether the Organizations themselves have made a sufficient showing of

6 irreparable harm.

7

The Court’s “analysis focuses on irreparability, ‘irrespective of the magnitude of the

8 injury.’” Azar, 2018 WL 6566752, at *14 (quoting Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725

9 (9th Cir. 1999)). “A threat of irreparable harm is sufficiently immediate to warrant preliminary

10 injunctive relief if the plaintiff ‘is likely to suffer irreparable harm before a decision on the merits

11 can be rendered.’” Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1023 (9th Cir. 2016) (quoting

12 Winter, 555 U.S. at 22).

13

Defendants argue that the Organizations’ economic harms do not qualify, relying on cases

14 involving “the temporary loss of income, ultimately to be recovered.” Sampson v. Murray, 415

15 U.S. 61, 89 (1974). But as the Ninth Circuit recently reiterated, the general rule that “[e]conomic

16 harm is not normally considered irreparable” does not apply where there is no adequate remedy to

17 recover those damages, such as in APA cases. Azar, 2018 WL 6566752, at *14 (citing 5 U.S.C.

18 § 702); see also Idaho v. Coeur d’Alene Tribe, 794 F.3d 1039, 1046 (9th Cir. 2015) (reasoning

19 that “the State would likely suffer irreparable harm to its economic and public policy interests”

20 because “the Tribe’s sovereign immunity likely would bar the State from recovering monetary

21 damages incurred during the course of this litigation”). Given the injuries described above, the

22 Organizations “have established a likelihood of irreparable harm” based on their showing of

23 serious “ongoing harms to their organizational missions,” including diversion of resources and the

24 non-speculative loss of substantial funding from other sources. Valle del Sol Inc. v. Whiting, 732

25 F.3d 1006, 1029 (9th Cir. 2013); see also Azar, 2018 WL 6566752, at *14 (“As we previously

26 explained in our analysis of standing, the harm is not speculative; it is sufficiently concrete and

27 supported by the record.”). Defendants’ repetition of their standing arguments, ECF No. 87 at 29,

28 is unconvincing. 22

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United States District Court Northern District of California

1

Finally, “[t]hat the [Organizations] promptly filed an action following the issuance of the

2 [Rule] also weighs in their favor” for the irreparable harm analysis. Azar, 2018 WL 6566752, at

3 *14.

4

Accordingly, the Court concludes that the Organizations have demonstrated a likelihood of

5 irreparable injury.

6

D. Balance of the Equities and the Public Interest

7

Turning to the balance of the equities and the public interest, the Court continues to find

8 that these factors favor preliminary relief.

9

The Ninth Circuit has provided substantial guidance on the equities involved. First, as the

10 court observed, an injunction would essentially preserve the status quo by “temporarily restor[ing]

11 the law to what it ha[s] been for many years prior to November 9, 2018,” and avert irreparable

12 harm to the Organizations. E. Bay Sanctuary Covenant, 2018 WL 6428204, at *21. Moreover,

13 the Ninth Circuit has already rejected Defendants’ argument that an injunction irreparably

14 “‘undermines the separation of powers by blocking’ an action of the executive branch.” Id. at *21;

15 see ECF No. 87 at 27 (“The injunction undermines the separation of powers by blocking the

16 Executive Branch’s lawful use of its authority . . . .”). The court likewise rejected the proposition

17 that enjoining the Rule will “irreparably thwart[]” Defendants’ goals of discouraging illegal

18 border crossings. E. Bay Sanctuary Covenant, 2018 WL 6428204, at *21; see also id.

19 (“[Injunctive relief] does not prohibit the Government from combating illegal entry into the United

20 States, and vague assertions that the Rule may ‘deter’ this conduct are insufficient. Moreover,

21 there is evidence in the record suggesting that the Government itself is undermining its own goal

22 of channeling asylum-seekers to lawful entry by turning them away upon their arrival at our ports

23 of entry.”).

24

The Ninth Circuit further noted that “aspects of the public interest favor both sides,” given

25 that “the public has a ‘weighty’ interest ‘in efficient administration of the immigration laws at the

26 border’” – counterbalanced here by an “interest in ensuring that ‘statutes enacted by [their]

27 representatives’ are not imperiled by executive fiat.” E. Bay Sanctuary Covenant, 2018 WL

28 6428204, at *21 (first quoting Landon v. Plasencia, 459 U.S. 21, 34 (1982); then quoting 23

Case 3:18-cv-06810-JST Document 99 Filed 12/19/18 Page 24 of 30

United States District Court Northern District of California

1 Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers)). For the following

2 reasons, the Court concludes that additional considerations tip the public interest sharply in favor

3 of injunctive relief.

4

First, the Court must consider “the public’s interest in ensuring that we do not deliver

5 aliens into the hands of their persecutors.” Leiva-Perez v. Holder, 640 F.3d 962, 971 (9th Cir.

6 2011) (per curiam). The Rule contemplates that, despite its “severe downstream consequences,”

7 E. Bay Sanctuary Covenant, 2018 WL 6428204, at *21, many of an estimated 70,000 aliens per

8 year will still cross between ports of entry. 83 Fed. Reg. at 55,948. As a logical consequence of

9 applying the higher reasonable-fear standard to those aliens, the Rule recognizes that some “aliens

10 who would have previously received a positive credible-fear determination [will] now receive . . .

11 a negative credible-fear and reasonable-fear determination,” not because they have no credible

12 fear, but because they did not comply with the Rule. Id. at 55,947. Those aliens will be removed,

13 regardless whether they have otherwise meritorious asylum claims.15 The administrative record

14 underscore the dangers of returning those aliens to the country of persecution. See, e.g., AR 178

15 (“Furthermore, being deported can be a death sentence as migrants and refugees are sent back to

16 the same violence they are fleeing from.”); 393 (“Migrant advocates have documented cases of

17 rejected asylum applicants being killed after they were sent back.”).16

18

Second, “[w]here a valid law speaks to the proper level of deference to a particular public

19 interest, it controls.” Inst. of Cetacean Research v. Sea Shepherd Conservation Soc’y, 725 F.3d

20 940, 946 (9th Cir. 2013). The INA and its implementation of the U.N. Protocol reflect the balance

21

22

15 The Government’s fiscal year 2018 statistics provide some indication of the magnitude of this injury. “[O]f 34,158 case completions in FY2018 that began with a credible-fear claim, 71%

23

resulted in a removal order, and asylum was granted in . . . 17%.” ECF No. 87 at 26 (citing 83 Fed. Reg. at 55,935, 55,946). This means that asylum was granted to over 5,000 persons. Even if

24

the Proclamation and Rule resulted in an across-the-board reduction of asylum claims of only 25 percent, more than 1,250 refugees with meritorious claims – persons facing persecution based on

25

“race, religion, nationality, membership in a particular social group, or political opinion,” 8 U.S.C. §§ 1101(a)(42), 1158(b)(1) – will never be heard on the merits. That extinguishment is contrary to

26

the public interest. 16 See also AR 175 (“Many returnees who fled violence fear returning to their neighborhood.

27

Upon return, women are often targeted and experience direct threats from gang members, often the same individuals who drove the families to flee. . . . Most of the women interviewed for this

28

report revealed that upon return they were forced to live in hiding as a way to protect themselves from violent groups.”).

24

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United States District Court Northern District of California

1 Congress struck between the public interests in rendering aliens who enter illegally inadmissible

2 and subject to criminal and civil penalties, 8 U.S.C. §§ 1182(a)(6)(A)(i), 1325(a)-(b), and

3 notwithstanding such conduct, preserving their ability to seek asylum, id. §§ 1158(a)(1),

4 1225(b)(1)(A)(i)-(ii), (B). Because the Rule upends that balance in a likely unlawful manner, it is

5 “at loggerheads with the public interest of the United States.” Inst. of Cetacean Research, 725

6 F.3d at 946.

7

There is undoubtedly also a substantial public interest in preventing the unnecessary deaths

8 of asylum seekers who attempt to cross between ports of entry. Though Defendants do not cite the

9 administrative record, their extra-record evidence demonstrates that deaths at the border are a 10 serious, longstanding, and ongoing problem. See ECF No. 87 at 26 & n.8.17 Further, the

11 administrative record highlights that the dangers faced by asylum seekers begin far from the U.S.

12 border. See AR 157 (“68.3 percent of the migrant and refugee populations entering Mexico

13 reported being victims of violence during their transit toward the United States.”), 160 (“The

14 violence experienced by the population of the [Northern Triangle of Central America] is not unlike

15 that of individuals living through war.”). But Defendants have not shown that the Rule actually

16 addresses these problems. And even if it did so in some small measure, that would not justify the

17 usurpation of Congressional authority. As the Ninth Circuit noted: “There surely are enforcement

18 measures that the President and the Attorney General can take to ameliorate the crisis, but

19 continued inaction by Congress is not a sufficient basis under our Constitution for the Executive to

20 rewrite our immigration laws.” E. Bay Sanctuary Covenant, 2018 WL 6428204, at *18.

21

Accordingly, the Court concludes that the Winter factors favor a preliminary injunction.

22

E. Scope of Relief

23

1. Statutory Constraints

24

The Court next turns to the proper scope of the injunction. Defendants argue that 8 U.S.C.

25

26 17 Pursuant to its resolution of Defendants’ motion to strike, the Court takes judicial notice of the

27

extra-record information cited by Defendants to consider the public interest, see ECF No. 87 at 26 n.8, because it is contained in publicly available government documents and the Organizations do

28

not dispute the truth of the information. See Kater v. Churchill Downs Inc., 886 F.3d 784, 788 n.3 (9th Cir. 2018).

25

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United States District Court Northern District of California

1 § 1252(e)(3) inhibits the Court’s ability to enjoin the portion of the Rule amending expedited

2 removal or credible fear proceedings. ECF No. 87 at 30.18

3

The Court agrees with Defendants that it lacks the authority to enjoin “procedures and

4 policies adopted by the Attorney General to implement the provisions of section 1225(b)(1) of

5 [Title 8].” 8 U.S.C. § 1252(a)(2)(A)(iv) (emphasis added); see also id. § 1252(e)(3). But

6 Defendants have not shown that these provisions immunize the primary asylum eligibility portions

7 of the Rule from judicial review. As the Court previously noted, “Defendants have provided no

8 authority to support the proposition that any rule of asylum eligibility that may be applied in

9 expedited removal proceedings is swallowed up” by these restrictions. ECF No. 43 at 35.

10 Defendants make no attempt to argue that the Attorney General’s exercise of authority under 8

11 U.S.C. § 1158(b)(2)(C) to establish conditions “under which an alien shall be ineligible for asylum

12 under [§ 1158(b)(1)]” constitutes the “implement[ation]” of § 1225(b)(1). See id.

13 § 1252(a)(2)(A)(iv).19

14

Congress did not impose this restriction on review of claims pertaining to § 1158, such as

15 the ones at issue here, or on asylum determinations in other proceedings, see 8 U.S.C. § 1229; 8

16 C.F.R. § 208.9. As the Supreme Court has observed, where “Congress wanted [a] jurisdictional

17 bar to encompass [particular] decisions [under the Illegal Immigration Reform and Immigrant

18 Responsibility Act of 1996 (“IIRIRA”)] . . . . it expressed precisely that meaning.” Kucana v.

19

20

18 Defendants suggest that the Ninth Circuit did not address the issue “given its other rulings,” ECF No. 87 at 30, but a review of Defendants’ appellate briefing reveals that Defendants did not

21

raise this argument, save for citing § 1252(e)(3) in a string citation on a different point, see E. Bay Sanctuary Covenant, No. 18-17274 (9th Cir.), ECF No. 4-1 at 26-27; ECF No. 9 at 12.

22 19 Similarly, Defendants do not contend that § 1252(f)(1)’s limitation on injunctive relief

23

regarding “the operations of the provisions of part IV of this subchapter,” 8 U.S.C. §§ 1221-1232, applies to § 1158. See also Gonzales v. Dep’t of Homeland Sec., 508 F.3d 1227, 1233 (9th Cir.

24

2007) (“Section 1252(f)(1) does not prohibit the current injunction because . . . it directly implicates the adjustment of status provision which falls under part V of subchapter II,

25

notwithstanding that a reinstatement proceeding [under part IV] may be a collateral consequence of an unsuccessful adjustment application.”); Catholic Soc. Servs., Inc. v. I.N.S., 232 F.3d 1139,

26

1150 (9th Cir. 2000) (en banc) (“However, the district court in this case issued the preliminary injunction under 8 U.S.C. § 1255a, located in part V, ‘Adjustment and Change of Status.’

27

Therefore, by its terms, the limitation on injunctive relief does not apply to the preliminary injunction granted by the district court.”). Nor do Defendants argue that the Organizations’ claims

28 “aris[e] from any action taken or proceeding brought to remove an alien.” 8 U.S.C. § 1252(b)(9).

26

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United States District Court Northern District of California

1 Holder, 558 U.S. 233, 248 (2010). It is therefore unlikely that a challenge to the Attorney

2 General’s exercise of § 1158 rulemaking authority falls within § 1252(a)(2)(A)(iv) or (e)(3). See

3 id. at 249 (“[W]here Congress includes particular language in one section of a statute but omits it

4 in another section of the same Act, it is generally presumed that Congress acts intentionally and

5 purposely in the disparate inclusion or exclusion.” (alteration in original) (quoting Nken v. Holder,

6 556 U.S. 418, 430 (2009)). And contrary to Defendants, ECF No. 87 at 30, the Court cannot rely

7 on generalized assertions about Congress’s intent to limit judicial review rather than the actual

8 language of the provisions imposing those limits. In Kucana, the Supreme Court acknowledged

9 that “many provisions of IIRIRA [we]re aimed at protecting [from court review exercises of] the

10 Executive’s discretion,” 558 U.S. at 252 (alterations in original) (quoting Reno v. Am.-Arab Anti-

11 Discrimination Comm., 525 U.S. 471, 486 (1999)), but emphasized that “no law pursues its

12 purpose at all costs, and . . . the textual limitations upon a law’s scope are no less a part of its

13 purpose than its substantive authorizations,” id. (alterations in original) (internal quotation marks

14 omitted) (quoting Rapanos v. United States, 547 U.S. 715, 752 (2006) (plurality opinion)).

15

Accordingly, the Court concludes that it has jurisdiction to enjoin the portions of the Rule

16 amending 8 C.F.R. § 208.13 and 8 C.F.R. § 1208.13. See 83 Fed. Reg. at 55,952.20

17

2. Nationwide Injunction

18

Finally, Defendants reiterate their contention that a nationwide injunction is overbroad.

19

20

20 Defendants are incorrect that 5 U.S.C. § 705 limits the Court’s injunctive authority. Section 705 “was primarily intended to reflect existing law under the Scripps-Howard doctrine,” Sampson, 415

21

U.S. at 73 n.15, which recognized a reviewing court’s “historic power” to “stay the enforcement of an order pending the determination of an appeal[] challenging its validity.” Scripps-Howard Radio

22

v. F.C.C., 316 U.S. 4, 16-17 (1942). This power is guided by a familiar four-factor stay test that has “substantial overlap” with the Winter factors governing a preliminary injunction. Nken, 556

23 U.S. at 434. Defendants provide no reason that the outcome would be different under this test.

24

More importantly, it is well established that courts may issue preliminary injunctions, as an alternative to stays, in APA challenges. Indeed, the Ninth Circuit treated the Court’s TRO as a

25

preliminary injunction. Winter itself concerned a preliminary injunction issued based on a National Environmental Policy Act claim, 555 U.S. at 26, which is brought under 5 U.S.C. § 706,

26

see All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1216-17 (9th Cir. 2017); see also Azar, 2018 WL 6566752, at *2, 17 (affirming in part preliminary injunction in APA notice-and-comment

27

challenge). Defendants’ attempt to distinguish Regents of the University of California v. U.S. Department of Homeland Security, 908 F.3d 476, 511-12 (2018), collapses under scrutiny. ECF

28

No. 87 at 33. The Organizations’ claim that the Rule is “not in accordance with law” because it is inconsistent with the INA likewise arises under 5 U.S.C. § 706(2)(A). See ECF No. 1 ¶¶ 103-04.

27

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United States District Court Northern District of California

1 ECF No. 87 at 33-34.

2

The Ninth Circuit applied the same standard Defendants advance now, stating that

3 “[e]quitable relief may ‘be no more burdensome to the defendant than necessary to provide

4 complete relief to the plaintiffs.’” E. Bay Sanctuary Covenant, 2018 WL 6428204, at *22

5 (quoting Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994)). Nonetheless, the Ninth

6 Circuit stressed that, “[i]n immigration matters, we have consistently recognized the authority of

7 district courts to enjoin unlawful policies on a universal basis.” E. Bay Sanctuary Covenant, 2018

8 WL 6428204, at *22; see also id. (“Such relief is commonplace in APA cases, promotes

9 uniformity in immigration enforcement, and is necessary to provide the plaintiffs here with

10 complete redress.” (quoting Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d

11 476, 512 (9th Cir. 2018)). Though it acknowledged the “growing uncertainty about the propriety

12 of universal injunctions,” the Ninth Circuit found “no grounds on which to distinguish this case

13 from [its] uncontroverted line of precedent.” Id.21

14

The Court notes that, in the interim, another three-judge panel of the Ninth Circuit has

15 reiterated the principle that “[t]he scope of the remedy must be no broader and no narrower than

16 necessary to redress the injury shown by the plaintiff.” Azar, 2018 WL 6566752, at *16. In

17 narrowing an injunction directed at health care regulations, the Azar court further noted that

18 “[d]istrict judges must require a showing of nationwide impact or sufficient similarity to the

19 plaintiff.” Id. at 17. The Court concludes that the Azar decision does not undermine the Ninth

20 Circuit’s analysis of this case. Because Azar did not involve immigration laws, it did not cast

21 doubt on the Ninth Circuit’s “uncontroverted line of precedent” regarding nationwide injunctions

22 in this context, E. Bay Sanctuary Covenant, 2018 WL 6428204, at *22, which assuredly involve

23 issues of “nationwide impact,” Azar, 2018 WL 6566752, at *17. And unlike the plaintiff states in

24

25

21 As the Court previously noted, this line of precedent is also consistent with the Supreme Court’s stay order in Trump v. International Refugee Assistance Project, which left in place a nationwide

26

injunction to the extent that it involved all “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” 137 S. Ct. 2080, 2088 (2017).

27

Although the Supreme Court stayed the injunction with respects to all other foreign nationals, it likewise did so on a nationwide basis. Id. Defendants have not suggested, nor does the Court

28 find, any similar criteria that make group-by-group tailoring appropriate in this context.

28

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United States District Court Northern District of California

1 Azar, the Organizations do not operate in a fashion that permits neat geographic boundaries. See,

2 e.g., ECF No. 71-11 ¶¶ 5, 10, 14 (operating centers in Georgia, North Carolina, Missouri, and

3 Oregon, and on-the-ground support at the southern border).

4

Given these circumstances, Defendants still have not explained how the Court could tailor

5 a narrower remedy to “provide[] complete relief to the Organizations.” Id. Defendants’

6 suggestion that “any injunction must be limited to Plaintiffs[’] actual, bona fide clients” conflates

7 the question of relief with the question of third-party standing. ECF No. 87 at 34. As explained

8 above, the Organizations’ harms are not limited to their ability to provide services to their current

9 clients, but extend to their ability to pursue their programs writ large, including the loss of funding

10 for future clients. Accordingly, Defendants’ suggestion would not redress the Organizations’

11 harms.

12

Defendants’ contention that the Organizations lack standing for an injunction because their

13 “business-model depends on . . . aliens breaking the law” likewise lacks merit. ECF No. 34 at 36.

14 This simply seeks to relitigate the organizational standing issues already decided by the Ninth

15 Circuit, which found that the Organizations had standing based on harms to their asylum programs

16 and related funding. Moreover, Congress specifically provided that aliens have a right to apply for

17 asylum notwithstanding this particular illegal behavior, see 8 U.S.C. § 1158(a)(1), and “took steps

18 to ensure that pro bono legal services of the type that the Organizations provide are available to

19 asylum seekers.” E. Bay Sanctuary Covenant, 2018 WL 6428204, at *13. That the Organizations

20 fulfill that role does not make their harms any less susceptible to injunctive relief.

21

CONCLUSION

22

For the foregoing reasons, the Organizations’ motion for preliminary injunction is granted.

23 Defendants are hereby ORDERED AND ENJOINED, pending final judgment herein or other

24 order, from taking any action continuing to implement the Rule and ORDERED to return to the

25 pre-Rule practices for processing asylum applications. Pursuant to the Court’s discussion above,

26 this injunction applies insofar as the Rule amends the regulations governing asylum eligibility in 8

27

28 29

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United States District Court Northern District of California

1 C.F.R. §§ 208.13 and 1208.13.22

2

The Court sets this matter for a case management conference on March 18, 2019 at 2:00

3 p.m. A joint case management statement is due by March 11, 2019.

4

IT IS SO ORDERED.

5 Dated: December 19, 2018 6 7

______________________________________
JON S. TIGAR United States District Judge

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 22 As the Government acknowledged at the motion hearing, the remainder of the Rule rests on the

amendments to §§ 208.13 and 1208.13. See, e.g., 83 Fed. Reg. 55952 (proposing an amended 8 27 C.F.R. 208.30 that begins, “If the alien is found to be an alien described in 8 CFR 208.13(c)(3)”).

28

Thus, although the Court is not enjoining the removal provisions of the Rule, they have no independent effect.

30

 
 Case 4:18-cv-06810-JST Document 126 Filed 02/28/20 Page 1 of 66

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.
DONALD J. TRUMP, President of the United States; WILLIAM P. BARR, Attorney General; JAMES MCHENRY, Director, Executive Office for Immigration Review (EOIR); CHAD WOLF, Acting Secretary, U.S. Department of Homeland Security; KENNETH T. CUCCINELLI, Acting Director, U.S. Citizenship and Immigration Services; MARK A. MORGAN, Acting Commissioner, U.S. Customs and Border Protection; MATTHEW T. ALBENCE, Acting Director, U.S. Immigration and Customs Enforcement,
Defendants-Appellants.

No. 18-17274 18-17436
D.C. No. 4:18-cv-06810-
JST
OPINION

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Case 4:18-cv-06810-JST Document 126 Filed 02/28/20 Page 2 of 66

2

EAST BAY SANCTUARY COVENANT V. TRUMP

Argued and Submitted October 1, 2019 San Francisco, California

Filed February 28, 2020

Before: Ferdinand F. Fernandez, William A. Fletcher, and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez; Concurrence by Judge Fernandez

Case 4:18-cv-06810-JST Document 126 Filed 02/28/20 Page 3 of 66

EAST BAY SANCTUARY COVENANT V. TRUMP

3

SUMMARY*

Immigration / Preliminary Injunctions
The panel affirmed the district court’s grant of a temporary restraining order and a subsequent grant of a preliminary injunction enjoining enforcement of a rule and presidential proclamation that, together, strip asylum eligibility from every migrant who crosses into the United States along the southern border of Mexico between designated ports of entry.
In November 2018, the Department of Justice and Department of Homeland Security adopted an interim final rule (“the Rule”) that makes migrants who enter the United States in violation of a “a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico” categorically ineligible for asylum. The same day, President Trump issued a presidential proclamation (“the Proclamation”) that suspends the entry of all migrants along the southern border of the United States for ninety days, except for any migrant who enters at a port of entry and properly presents for inspection.
Legal services organizations that represent asylumseekers (“the Organizations”) sued to prevent enforcement of the Rule. The district court entered a temporary restraining order enjoining the Rule, concluding that it irreconcilably conflicted with the Immigration and Nationality Act (“INA”). The government appealed 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 4:18-cv-06810-JST Document 126 Filed 02/28/20 Page 4 of 66

4

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sought an immediate stay in this court of the district court’s order pending appeal. In a published order, a motions panel of this court denied the government’s request for a stay, and the government’s application for a stay from the Supreme Court was also denied. The district court issued an injunction barring enforcement of the Rule, the government appealed, and this court consolidated the two appeals.
First, the panel held that—given the preliminary stage of the appellate process at which the motions panel issued its order—the motions panel’s decision did not bind the present panel. The panel explained that, under the law-of-the-case doctrine, courts—at their own discretion—will generally refuse to reconsider an issue that has already been decided by the same court or a higher court in the same case. The panel noted, however, that the court sometimes exercises its discretion to reconsider issues within the same case and that merits panels tend not to extend the doctrine to a prior motions panel’s decision in the same case. Further, the panel explained that a decision by a motions panel is a probabilistic endeavor, doctrinally distinct from the question considered by the later merits panel and issued without oral argument on limited briefing. Addressing the court’s recent statement, in Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015), that “a motions panel’s published opinion binds future panels the same as does a merits panel’s published opinion,” the panel concluded that the language was dicta.
The panel also noted that its holding was consistent with the court’s general rules governing law of the circuit, which provide that the first panel to consider an issue sets the law for all inferior courts and future panels of the court. Specifically, the panel explained that tentative conclusions that are not law of the case do not bind later panels in the same case as law of the circuit, and that any other rule would

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paradoxically provide that a merits panel would be bound by a motions panel’s opinion—because it is law of the circuit— and not bound by the same opinion—because it is not law of the case.
Next, the panel re-evaluated the government’s challenge to the court’s jurisdiction. First, the panel held that the Organizations had established organizational standing by showing that their ability to perform services had been impaired by the Rule. Second, the panel rejected the government’s argument that the court should avoid interfering with the Rule on the ground that the power to expel or exclude aliens is a fundamental sovereign attribute exercised by the government’s political departments largely immune from judicial control. The panel explained it was responsible for reviewing whether the government has overstepped its delegated authority under the INA and encroached upon Congress’s legislative prerogative. Third, the panel rejected the government’s argument that three statutory provisions, 8 U.S.C. §§ 1252(e)(3), 1252(a)(5), and 1252(b)(9), divested this court of jurisdiction. The panel explained that none of these provisions have any bearing on the Rule because they govern judicial review of removal orders or challenges inextricably linked with actions taken to remove migrants from the country. The panel also concluded that the Organizations continued to fall within the zones of interests of the INA.
The panel next addressed the Organizations’ likelihood of success on the merits of their claims, under the Administrative Procedure Act (“APA”). Applying the framework established in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), the panel held that the Rule conflicts with the INA’s section on asylum, which begins by stating that an undocumented migrant may apply

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for asylum when she is “physically present in the United States” or “arrives in the United States (whether or not at a designated port of arrival . . . )[.]” 8 U.S.C. § 1158(a)(1). The panel explained that, because the Rule requires migrants to enter the United States at ports of entry to preserve their eligibility for asylum, it is effectively a categorical ban on migrants who use a method of entry explicitly authorized by Congress in § 1158(a).
The panel further concluded that, even if the text of section 1158(a) were ambiguous, the Rule fails at the second step of Chevron because it is an arbitrary and capricious interpretation of that statutory provision. The panel explained that the BIA and this court have long recognized that a refugee’s method of entering the country is a discretionary factor in determining whether the migrant should be granted humanitarian relief, but that the method of entry should be carefully evaluated in light of the harsh consequences that may befall an alien. Thus, the panel concluded that, given the Rule’s effect of conditioning asylum eligibility on a factor that has long been understood as worth little if any weight in adjudicating whether a migrant should be granted asylum, it is an arbitrary and capricious interpretation of § 1158(a).
The panel also concluded that the Rule is unreasonable in light of the United States’s treaty obligations under the 1951 United Nations Convention Relating to the Status of Refugees (“1951 Convention”) and the 1967 United Nations Protocol Relating to the Status of Refugees. Specifically, the panel concluded that the Rule runs afoul of three codified rules: 1) the right to seek asylum; 2) the prohibition against penalties for irregular entry; and 3) principles of nonrefoulement, which prohibit signatories to the 1951

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Convention from returning a refugee to the frontiers of territories where his life or freedom would be threatened.
The panel briefly addressed the procedural arguments raised by the parties regarding whether the Rule was invalid because it was issued without public notice and comment or complying with the thirty-day grace period required by the APA. The panel concluded that the Rule likely does not properly fall under the good-cause exception or the foreignaffairs exception to these procedural requirements.
Next, the panel concluded that the Organizations had demonstrated a sufficient likelihood of irreparable injury to warrant injunctive relief, explaining that the Organizations had shown that they will suffer a significant change in their programs and a concomitant loss of funding absent a preliminary injunction.
The panel next concluded that the public interest weights sharply in the Organizations’ favor, noting that: 1) the public interest is served by compliance with the APA; 2) the public has an interest in ensuring that this country does not deliver aliens into the hands of their persecutors; 3) the public has an interest in ensuring that the statutes enacted by their representatives are not imperiled by executive fiat; and 4) while the government and the public have an interest in the efficient administration of the immigration laws at the border, this factor was not entitled to much weight because the Organizations had established that the Rule is invalid.
Finally, addressing the scope of the remedy, the panel concluded that the district court did not abuse its discretion in issuing an injunction preventing any action to implement the Rule. The panel noted that the Organizations do not limit their potential clients to refugees who enter only at the Mexican border with California and Arizona, and that the

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government had not proposed an alternative form of the injunction that accounts for the scope of the Organizations’ harms, but applies only within the Ninth Circuit. The panel also noted that two other factors supported the scope of the district court’s injunction: 1) when a regulation is found unlawful, the typical result is to vacate and remand, not to attempt to fashion a valid regulation from the remnants of the old rule; and 2) there is an important need for uniformity in immigration policy—which supports the authority of district courts to enjoin unlawful policies on a universal basis.
Concurring, Judge Fernandez wrote that he concurred in the majority opinion because, and for the most part only because, he believes that this panel is bound by the motions panel’s published decision in this case. Judge Fernandez wrote that the panel is bound by the law of the circuit, which binds all courts within a particular circuit, including the court of appeals itself, and remains binding unless overruled by the court sitting en banc, or by the Supreme Court. Further, Judge Fernandez wrote that, insofar as factual differences might allow precedent to be distinguished on a principled basis, in this case, the situation before this panel was in every material way the same as that before the motions panel. Judge Fernandez also stated that, in Lair v. Bullock, this court held that a motions panel’s published opinion binds future panels the same as does a merits panel’s published opinion, disagreeing with the majority’s characterization of this language as dicta. Judge Fernandez also concluded that the law of the case doctrine binds this panel, noting that he did not perceive any of the exceptions to the doctrine to be involved here.
Applying those doctrines, Judge Fernandez concluded that: 1) the Organizations have standing; 2) the

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Organizations are likely to succeed on the substantive merits; 3) the motions panel’s decisions on harm and balance of hardship are also binding; and 4) the scope of the injunction is not overly broad.

COUNSEL
Scott Grant Stewart (argued), Deputy Assistant Attorney General; Francesca Genova and T. Benton York, Trial Attorneys; Erez Reuveni, Assistant Director; William C. Peachey, Director; August E. Flentje, Special Counsel; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.
Lee P. Gelernt (argued), Judy Rabinovitz, Omar C. Jadwat, Anand Balakrishnan, Daniel Galindo, and Celso Perez, American Civil Liberties Union Foundation, Immigrants’ Rights Project, New York, New York; Jennifer Chang Newell, Cody Wofsy, Spencer Amdur, and Julie Veroff, American Civil Liberties Union Foundation, Immigrants’ Rights Project, San Francisco, California; Melissa Crow, Southern Poverty Law Center, Washington, D.C.; Mary Bauer, Southern Poverty Law Center, Charlottesville, Virginia; Gracie Willis, Southern Poverty Law Center, Decatur, Georgia; Baher Azmy, Angelo Guisado, and Ghita Schwarz, Center for Constitutional Rights, New York, New York; Christine P. Sun and Vasudha Talla, American Civil Liberties Union Foundation of Northern California Inc., San Francisco, California; for Plaintiffs-Appellees.
Lawrence J. Joseph, Washington, D.C.; Christopher J. Hajec, Director of Litigation, Immigration Reform Law

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Institute, Washington, D.C.; for Amicus Curiae Immigration Reform Law Institute.
Patrick W. Pearsall, Karthik P. Reddy, and Vaishalee V. Yeldandi, Jenner & Block LLP, Washington, D.C.; Alice Farmer, Office of the United Nations High Commissioner for Refugees, Washington, D.C.; for Amicus Curiae Office of the United Nations High Commissioner for Refugees.
Richard D. Bernstein, Washington, D.C.; Richard Mancino, Willkie Farr & Gallagher LLP, New York, New York; for Amici Curiae Peter Keisler, Stuart Gerson, Carter Phillips, John Bellinger III, Samuel Witten, Ray Lahood, Brackett Denniston, Stanley Twardy, and Richard Bernstein.
Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Alex Gazikas, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Peter S. Margulies, Bristol, Rhode Island; Shoba Sivaprasad Wadhia, University Park, Pennsylvania; for Amici Curiae Professors of Immigration Law.
Margaret L. Carter, Dmitiri D. Portnoi, and Daniel R. Suvor, O’Melveny & Myers LLP, Los Angeles, California; Barbara J. Parker, City Attorney; Maria Bee, Erin Bernstein, Malia McPherson, Zarah Rahman, and Suzanne Dershowitz; Office of the City Attorney Oakland, California; Edward N. Siskel, Corporation Counsel, City of Chicago Department of Law, Chicago, Illinois; Zachary W. Carter, Corporation Counsel, New York City Law Department, New York, New York; for Amici Curiae 21 Counties, Cities, and Local Officials.
Xavier Becerra, Attorney General; Michael L. Newman, Senior Assistant Attorney General; Christine Chuang,

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Supervising Deputy Attorney General; Shubhra Shivpuri and James F. Zahradka II, Deputy Attorneys General; Office of the Attorney General, Oakland, California; Philip J. Weiser, Attorney General, Denver, Colorado; William Tong, Attorney General, Hartford, Connecticut; Kathleen Jennings, Attorney General, Wilmington, Delaware; Karl A. Racine, Attorney General, Washington, D.C.; Clare E. Connors, Attorney General, Honolulu, Hawaii; Kwame Raoul, Attorney General, Chicago, Illinois; Tom Miller, Attorney General, Des Moines, Iowa; Brian E. Frosh, Attorney General, Baltimore, Maryland; Maura Healey, Attorney General, Boston, Massachusetts; Dana Nessel, Attorney General, Lansing, Michigan; Keith Ellison, Attorney General, St. Paul, Minnesota; Aaron D. Ford, Attorney General, Carson City, Nevada; Gurbir S. Grewal, Attorney General, Trenton, New Jersey; Hector Balderas, Attorney General, Santa Fe, New Mexico; Letitia James, Attorney General, New York, New York; Ellen F. Rosenblum, Attorney General, Salem, Oregon; Josh Shapiro, Attorney General, Harrisburg, Pennsylvania; Peter F. Neronha, Attorney General, Providence, Rhode Island; Thomas J. Donovan, Jr., Attorney General, Montpelier, Vermont; Mark R. Herring, Attorney General, Richmond, Virginia; Robert W. Ferguson, Attorney General, Olympia, Washington; for Amici Curiae California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington.

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OPINION
PAEZ, Circuit Judge:
Forty years ago, Congress recognized that refugees fleeing imminent persecution do not have the luxury of choosing their escape route into the United States. It mandated equity in its treatment of all refugees, however they arrived.1
This principle is embedded in the Refugee Act of 1980, which established an asylum procedure available to any migrant, “irrespective of such alien’s status,” and irrespective of whether the migrant arrived “at a land border or port of entry.” Pub. L. No. 96-212, § 208(a), 94 Stat. 102, 105 (1980). Today’s Immigration and Nationality Act (“INA”) preserves that principle. It states that a migrant who arrives in the United States—“whether or not at a designated port of arrival”—may apply for asylum. See 8 U.S.C. § 1158(a).
In November 2018, the Departments of Justice and Homeland Security jointly adopted an interim final rule (“the Rule”) which, coupled with a presidential proclamation issued the same day (“the Proclamation”), strips asylum eligibility from every migrant who crosses into the United States between designated ports of entry. In this appeal, we consider whether, among other matters, the Rule unlawfully conflicts with the text and congressional purpose of the INA. We conclude that it does.
1 See 125 Cong. Rec. 35,813–14 (1979) (statement of Rep. Holtzman).

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I.
The Rule announces a new bar to asylum eligibility. It makes migrants who enter the United States in violation of “a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico” categorically ineligible for asylum. See Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934, 55,952 (Nov. 9, 2018) (codified at 8 C.F.R. §§ 208.13, 208.30). Migrants who are ineligible for asylum under the Rule will also automatically receive negative credible-fear determinations in expeditedremoval proceedings. See id. at 55,935, 55,952. Typically, a migrant in expedited-removal proceedings who demonstrates a “credible fear” of persecution must be allowed to present her asylum claim before an immigration judge. See 8 U.S.C. § 1225(b)(1)(A)(ii), (B)(v). A migrant who enters the United States in contravention of a proclamation will instead need to demonstrate a “reasonable fear” of persecution or torture—which is more difficult than establishing a credible fear of persecution—to obtain other forms of relief. See 83 Fed. Reg. at 55,936, 55,952; see also 8 C.F.R. § 208.31(c); 8 U.S.C. § 1225(b)(1)(B)(v).
The same day the Departments of Justice (“DHS”) and Homeland Security (“DHS”) adopted the Rule, President Trump issued the Proclamation. The Proclamation suspends the entry of all migrants along the southern border of the United States for ninety days, except for any migrant who “enters the United States at a port of entry and properly presents for inspection.” See Presidential Proclamation No. 9,822, Addressing Mass Migration Through the Southern Border of the United States, 83 Fed. Reg. 57,661, 57,663 (Nov. 9, 2018).

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Individually, the Rule and Proclamation have little effect. The Proclamation does not have the force of law, and the Rule only effectuates proclamations. But together, the Rule and Proclamation make asylum entirely unavailable to migrants who enter the country between ports of entry. The magnitude of the Rule’s effect is staggering: its most direct consequence falls on “the more than approximately 70,000 aliens a year (as of FY 2018) estimated to enter between the ports of entry [who] then assert a credible fear in expeditedremoval proceedings.” 83 Fed. Reg. at 55,948. These migrants would typically proceed to an asylum hearing before an immigration judge but will now be unable to do so because they have entered the country at a place other than a port of entry.
The day the Proclamation and Rule issued, four legal services organizations that represent current and future asylum-seekers sued to prevent enforcement of the Rule. East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center of Los Angeles (collectively, “the Organizations”) argued that the Rule was likely unlawful because it was issued without public notice and comment or complying with the thirty-day grace period required by the Administrative Procedure Act (“APA”), see 5 U.S.C. § 553(b)–(d). The Organizations also argued that the Rule conflicts with the plain text of the INA and is arbitrary and capricious because it constitutes a severe departure from the Board of Immigration Appeals’s and the Ninth Circuit’s interpretation of asylum practices in the United States.
The district court agreed that the Rule “irreconcilably conflicts with the INA and the expressed intent of Congress” and entered a temporary restraining order enjoining the Rule’s enforcement and ordering the government “to return

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to the pre-Rule practices for processing asylum applications.” See E. Bay Sanctuary Covenant v. Trump (EBSC I), 349 F. Supp. 3d 838, 844, 868–69 (N.D. Cal. 2018). Eight days after the court’s order, the government filed an appeal and an emergency motion in the district court to stay the temporary restraining order pending appeal. The court denied the stay motion three days later.
The following day, the government sought an immediate stay in our court of the district court’s order pending appeal. In a lengthy published order, a motions panel of this court denied the government’s request to stay enforcement of the court’s order. See E. Bay Sanctuary Covenant v. Trump (EBSC II), 932 F.3d 742, 755, 762 (9th Cir. 2018). Although temporary restraining orders are typically not appealable, the panel concluded that appellate jurisdiction existed under 28 U.S.C. § 1292(a)(1) because the temporary restraining order was effective for thirty days, well beyond the fourteenday limit imposed by Federal Rule of Civil Procedure 65(b). Id. at 762–63. The government’s application for a stay from the Supreme Court was also denied. See Trump v. E. Bay Sanctuary Covenant, 139 S. Ct. 782 (2018).
While the government’s stay application was pending before the Supreme Court, the Organizations filed a motion for a preliminary injunction in the district court. The arguments presented during the second round of litigation were “nearly identical” to those made during the first. See E. Bay Sanctuary Covenant v. Trump (EBSC III), 354 F. Supp. 3d 1094, 1102 (N.D. Cal. 2018). Relying heavily on the motions panel’s published order, the district court again issued an injunction barring enforcement of the Rule. See id. at 1121.
The government again appeals, arguing that the district court erred when it entered the injunction or that the

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injunction should at least be narrowed. We consolidated the government’s appeal from the temporary restraining order with the appeal from the preliminary injunction.2 For the reasons explained below, we agree with the district court that the Rule is inconsistent with the INA, and we affirm the district court’s orders granting preliminary injunctive relief.
II.
We first consider the effect of the motions panel’s order on the present panel’s decision. How strictly the order binds this court depends on whether it is law of the case, law of the circuit, or both.
Law of the circuit is stare decisis, by another name. The doctrine requires that we “stand by yesterday’s decisions”— even when doing so “means sticking to some wrong decisions.” Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015). Published decisions of this court become law of the circuit, which is binding authority that we and district courts must follow until overruled. Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc). Controlling, overruling authority includes only intervening statutes or Supreme Court opinions that create “clearly
2 Although the Proclamation expired by its terms in February 2019, the President issued a new Proclamation, which did not substantially change the terms of the original Proclamation and extended its effect for an additional ninety days. When that Proclamation expired in May, the President again re-issued it and extended the effect of the initial Proclamation “for an additional 90 days beyond the date when the United States obtains relief from the preliminary injunction of the interim final rule[.]” See Presidential Proclamation No. 9,880, Addressing Mass Migration Through the Southern Border of the United States, 84 Fed. Reg. 21,229, 21,229 (May 8, 2019).

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irreconcilable” conflicts with our caselaw. Miller v. Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) (en banc).
Under the law-of-the-case doctrine, instead, courts—at their own discretion—“will generally refuse to reconsider an issue that has already been decided by the same court or a higher court in the same case.” Gonzalez, 677 F.3d at 389 n.4; see also United States v. Houser, 804 F.2d 565, 567 (9th Cir. 1986). The doctrine encourages the conservation of limited judicial resources and promotes consistency by allowing court decisions to govern the same issues in subsequent stages of the same case. See Am. Civil Liberties Union v. F.C.C., 523 F.2d 1344, 1346 (9th Cir. 1975).
We do sometimes exercise our discretion to reconsider issues within the same case. Most often, we recognize exceptions to the law-of-the-case doctrine where the prior decision is “clearly erroneous” and enforcing it would create “manifest injustice”; intervening, controlling authority encourages reconsideration; or substantially different evidence is produced at a later merits trial. See In Re Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir. 1996). This list is narrow but nonexhaustive. The legal context of the prior decision also affects whether and to what extent it may be treated as law of the case. We generally do not, for example, apply the doctrine to administrative proceedings because agencies are sometimes vested with explicit authority to reconsider their own decisions. See, e.g., SilvaPereira v. Lynch, 827 F.3d 1176, 1190 (9th Cir. 2016). Our review of district court orders denying or granting preliminary-injunction requests also does not typically become law of the case; the record before a later panel may materially differ from the record before the first panel, such that the first panel’s decision eventually provides “little guidance as to the appropriate disposition on the merits.”

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Sports Form, Inc. v. United Press Intern., Inc., 686 F.2d 750, 753 (9th Cir. 1982).
Merits panels also tend not to extend the doctrine to a prior motions panel’s decision in the same case. See, e.g., United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005) (explaining that a prior motions panel’s denial of a motion to dismiss did not “preclude [the panel] from reaching a contrary decision”); In re Castro, 919 F.2d 107, 108 (9th Cir. 1990) (per curiam) (holding that a motions panel’s denial of a dispositive motion without an opinion was not binding on a later merits panel); Stifel, Nicolaus & Co., Inc. v. Woolsey & Co., Inc., 81 F.3d 1540, 1543–44 (10th Cir. 1996) (concluding that the law-of-the-case doctrine did not prevent the panel from reconsidering a motions panel’s application of res judicata to a relevant state-court decision). A later merits panel should not “lightly overturn a decision made by a motions panel,” but “we do not apply the law of the case doctrine as strictly in that instance as we do when a second merits panel is asked to reconsider a decision reached by the first merits panel on an earlier appeal.” Houser, 804 F.2d at 568.
Our caselaw interpreting the relationship between motions and merits panels’ opinions has not always been clear. Citing to Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003), we recently stated that “a motions panel’s published opinion binds future panels the same as does a merits panel’s published opinion.” Lair v. Bullock, 798 F.3d 736, 747 (9th Cir. 2015). But this observation was not germane to the eventual resolution of Lair; the panel noted that the effect of the motions panel’s decision was not necessary to its holding, see id., and it was not reached after “reasoned consideration,” so its law-of-the-case discussion is dicta and

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not binding on subsequent cases. See United States v. McAdory, 935 F.3d 838, 843 (9th Cir. 2019).
Gammie encouraged a “pragmatic” approach to “an evolving body of common law.” 335 F.3d at 899–900. Our own practice has frequently indicated that we have not, and do not, follow the summary language in Lair: merits panels of this court frequently depart from published decisions issued by motions panels in the same case. See, e.g., Nat. Res. Def. Council, Inc. v. Winter, 508 F.3d 885, 886–87 (9th Cir. 2007) (vacating a stay of a preliminary injunction issued in an opinion by a motions panel); Golden Gate Rest. Ass’n v. City and Cty. of San Francisco, 546 F.3d 639, 643–61 (9th Cir. 2008) (reaching the merits of an appeal without reliance on a previous motions panel’s order entering a stay of a district court judgment pending appeal); see also Nelson v. Nat’l Aeronautics & Space Admin., 530 F.3d 865, 873 (9th Cir. 2008), rev’d on other grounds by 562 U.S. 134 (rereviewing the merits of the case and generally treating a motions panel’s opinion as nonbinding); Innovation Law Lab v. McAleenan, 924 F.3d 503, 518 (9th Cir. 2019) (Fletcher, J., concurring in the judgment) (stating that a later merits panel may, “with the benefit of full briefing and regularly scheduled oral argument,” depart from the legal conclusions reached by the motions panel). At least four other circuits have agreed that later panels may review the merits of a case “uninhibited” by a motions panel’s earlier decision in the same case. Stifel, Nicolaus & Co., Inc., 81 F.3d at 1544 (10th Cir. 1996); see also Rezzonico v. H&R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999); Cimino v. Raymark Indus., Inc., 151 F.3d 297, 311 n.26 (5th Cir. 1998); Vann v. Citicorp Sav. of Illinois, 891 F.2d 1507, 1509 n.2 (11th Cir. 1990). Two others have held that jurisdictional determinations by motions panels do not bind later merits panels. See Council Tree Commc’ns, Inc. v.

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F.C.C., 503 F.3d 284, 291–92 (3d Cir. 2007); United States v. Henderson, 536 F.3d 776, 778 (7th Cir. 2008).
There are good policy and practical reasons for departing from Lair’s dicta. Motions panels’ orders are generally issued without oral argument, on limited timelines, and in reliance on limited briefing. See Fed. R. App. P. 27(e) (motions are decided without oral argument unless the court orders otherwise); compare also Rule 27(a)(3)–(4) (responses to motions and replies to responses must be filed within ten days of service of the motion) and 27(d)(2) (motions or responses to motions are limited to 5,200 words; replies are limited to 2,600 words) with Ninth Circuit Rule 33 (in preliminary injunction appeal, opening brief must be filed within 28 days of notice of appeal; response must be filed 28 days thereafter; reply may be filed 21 days thereafter) and Ninth Circuit Rule 32-1 (opening and response briefs limited to 14,000 words). The record before a motions panel, much like the record before a district court deciding a preliminary injunction, is often incomplete. Cf. Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“In light of these considerations, it is generally inappropriate for a federal court at the preliminary-injunction stage to give a final judgment on the merits.”). Constrained by timing demands, motions panels’ decisions are often issued without opinions and explanations. See, e.g., Haggard v. Curry, 631 F.3d 931, 933 n.1 (9th Cir. 2010) (per curiam). A panel operating with the benefit of a complete record and additional time to consider the merits of the case may “conclude that the motions decision was improvident and should be reconsidered.” Houser, 804 F.2d at 568 (citing E.E.O.C. v. Neches Butane Prod. Co., 704 F.2d 144, 147 (5th Cir. 1983)).

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Reconsideration of a motions panel’s decision by a merits panel also “differs in a significant way” from reconsideration of a merits panel’s decision. Id. A party that receives an unfavorable decision by a merits panel will have the opportunity to file a petition for panel rehearing, rehearing en banc, or petition for certiorari. Motions for reconsideration or modification of a motions panel’s order are “discouraged,” “disfavored by the court[,] and rarely granted.” Ninth Circuit Rule 27-1 advisory committee note. For this reason, motions panel decisions are “rarely subjected” to a thorough reconsideration process; “[f]ull review of a motions panel decision will more likely occur only after the merits panel has acted.” Houser, 804 F.2d at 568. Unilaterally binding later merits panels to the preliminary decisions made by motions panels prevents litigants from fully vindicating their appellate rights.3
These concerns are particularly heightened here, where the motions panel considered whether to grant the government’s request for a stay of the district court’s preliminary injunction. The decision whether to grant a
3 Our holding is consistent with our general rules governing law of the circuit. “[T]he first panel to consider an issue sets the law . . . for all the inferior courts in the circuit” and “future panels of the court of appeals,” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001), but motions panels’ conclusions do not “set the law” for later merits panels in the same case, see, e.g., Askins v. U.S. Dep’t of Homeland Sec., 899 F.3d 1035, 1042 (9th Cir. 2018) (“The law of the case doctrine does not preclude a court from reassessing its own legal rulings in the same case.”). Tentative conclusions that are not law of the case do not bind later panels in the same case as law of the circuit. Any other rule would paradoxically require that a merits panel treat a motions panel’s published decision that does not constitute law of the case as binding. A merits panel cannot be simultaneously bound by the motions panel’s opinion—because it is law of the circuit—and not bound by the opinion—because it is not law of the case.

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stay—much like the decision whether to grant a preliminary injunction—is a “probabilistic” endeavor. Sierra Club v. Trump, 929 F.3d 670, 688 (9th Cir. 2019). We discuss the merits of a stay request in “likelihood terms,” and exercise a “restrained approach to assessing the merits.” Id. (quotations omitted). Such a predictive analysis should not, and does not, forever bind the merits of the parties’ claims. This sort of “pre-adjudication adjudication would defeat the purpose of a stay, which is to give the reviewing court the time to ‘act responsibly,’ rather than doling out ‘justice on the fly.’” Leiva-Perez v. Holder, 640 F.3d 962, 967 (9th Cir. 2011) (quoting Nken v. Holder, 556 U.S. 418, 427 (2009)).
Notably, when acting on the government’s stay motion in this case, the motions panel acknowledged the preliminary nature of the stay proceedings. The panel issued a lengthy opinion with detailed analysis, but repeatedly “stress[ed]” that the case was still “at a very preliminary stage of the proceedings,” and expected that “[f]urther development of the record as the case progresses may alter [their] conclusions.” EBSC II, 932 F.3d at 780. The panel also left open various mixed questions of law and fact for a later court—pointing out, for example, that if “facts develop in the district court that cast doubt on the Organizations’ standing, the district court is, of course, free to revisit this question,” id. at 763 n.6, and reiterating that its conclusions were reached “at [the current] stage of the proceedings,” see id. at 763, 767, 778, 779.
The question before us now is also doctrinally distinct from the question considered by the motions panel. A stay does have “some functional overlap with an injunction, particularly a preliminary one”; both “can have the practical effect of preventing some action before the legality of that action has been conclusively determined.” Nken, 556 U.S.

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at 428. But, as we have noted, “there are important differences between a preliminary injunction and a stay pending review.” Leiva-Perez, 640 F.3d at 966 (citing Nken, 556 U.S. at 425–30). A stay “operates upon the judicial proceeding itself,” while a preliminary injunction “direct[s] an actor’s conduct.” Nken, 556 U.S. at 428, 429. In the government’s appeal, we are charged with determining whether the district court abused its discretion in granting the preliminary injunction, see All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011); the motions panel, instead, considered whether the government raised serious questions relating to the propriety of the district court’s preliminary injunction and whether the government would likely prevail on appeal, see Leiva-Perez, 640 F.3d at 965–66. The question presented to the motions panel is an additional step removed from the underlying merits of the district court’s preliminary injunction. We exercise restraint in assessing the merits of either question, see Sierra Club, 929 F.3d at 688, but particularly so when considering the “extraordinary request” to stay a preliminary injunction granted by a district court. Barr v. E. Bay Sanctuary Covenant, No. 19A230, 2019 WL 4292781, at *1 (Sept. 11, 2019) (Sotomayor, J., dissenting from grant of a stay).
Given the preliminary stage of the appellate process at which the motions panel issued the order denying the government’s stay motion and the panel’s stated reservations, we treat the motions panel’s decision as persuasive, but not binding.
III.
We next re-evaluate the government’s challenge to our jurisdiction. The government argues, as it did previously before the district court and before the motions panel, that the Organizations lack Article III standing because they have

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not suffered a cognizable injury and are outside the zone of interests protected by the INA. The government also renews three arguments before this court: (1) the Organizations lack a “legally protected interest in maintaining their current organizational structure or in the [R]ule’s application to third parties,” Op. Br. of Gov’t at 29,4 (2) the “immigration context” of the Rule counsels against judicial intrusion, and (3) various portions of the INA divest this court of jurisdiction to entertain this appeal. We address each argument in turn.
A.
The Article III standing inquiry serves a single purpose: to maintain the limited role of courts by ensuring they protect against only concrete, non-speculative injuries. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 583 (1992). Parties must have a “personal stake in the outcome” sufficient to ensure the court that, absent judicial review, they will suffer or have suffered some direct injury. See id.
Organizations can assert standing on behalf of their own members, see Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000), or in their own right, Havens Realty Corp. v. Coleman, 455 U.S. 363, 378– 79 (1982). To determine whether organizational standing requirements have been satisfied, we “conduct the same inquiry as in the case of an individual: Has the plaintiff ‘alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction?’” Havens, 455 U.S. at 378–79. The Organizations therefore have the burden of demonstrating
4 We refer to the government’s opening brief as “Op. Br. of Gov’t,” and to the government’s reply brief as “Reply Br. of Gov’t.”

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that (1) they have suffered an injury-in-fact, meaning an injury that is “concrete and particularized” and “actual and imminent,” (2) the alleged injury is “fairly traceable” to the defendants’ conduct, and (3) it is “more than speculative” that the injury is judicially redressable. Lujan, 504 U.S. at 560–61.
In Havens, the Supreme Court held that a fair housing organization had standing under the Fair Housing Act where the defendants’ allegedly racial steering practices had frustrated the organization’s ability to assist equal access to housing, and it had to devote “significant resources” to identify and counteract those practices. 455 U.S. at 379. Because the defendants’ practices had “perceptibly impaired” the organization’s ability to provide its services, the Court explained, “there can be no question that the organization has suffered injury in fact.” Id.
We have read Havens to hold that an organization has direct standing to sue where it establishes that the defendant’s behavior has frustrated its mission and caused it to divert resources in response to that frustration of purpose. See Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002). Of course, organizations cannot “manufacture the injury by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise would not affect the organization at all,” but they can show they “would have suffered some other injury” had they “not diverted resources to counteracting the problem.” La Asociacion de Trabajadores de Lake Forest v. Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010); see also, e.g., El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 745, 748 (9th Cir. 1991).
We agree with the motions panel and the district court that the Organizations have established that the Rule has

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“perceptibly impaired” their ability to perform the services they were formed to provide. EBSC II, 932 F.3d at 765. This is sufficient for organizational standing. See Combs, 285 F.3d at 904–05.
The Organizations share the same mission of assisting migrants seeking asylum. “[B]ecause the Rule significantly discourages a large number of [asylum-seekers] from seeking asylum given their ineligibility,” the Rule frustrates their mission. EBSC II, 932 F.3d at 766. The Rule has also caused the Organizations to divert their already limited resources in response to the collateral obstacles it introduces for asylum-seekers. East Bay Sanctuary Covenant (“EBSC”) and Innovation Law Lab (“ILL”), for example, are located near Berkeley, California, and in Oregon, respectively, and because most asylum-seekers who enter at a designated port of entry will “remain detained in detention facilities near the border hundreds of miles away,” EBSC III, 354 F. Supp. 3d at 1109 (internal quotation marks omitted), those organizations “cannot represent asylum seekers.” Decl. of Michael Smith at ¶ 6. Unaccompanied minors are now often unable to seek asylum alone, and “[s]ince the new rule was announced, Al Otro Lado [(“AOL”)] has been overwhelmed with children who traveled to the southern border of the United States to apply for asylum but now cannot do so.” Supp. Decl. of Erika Pinheiro at ¶¶ 4, 15. Caring for the often nonlegal needs of these unaccompanied children is not part of AOL’s core mission and is “causing a near complete diversion of [AOL’s] resources.” Id. ¶ 16. It has “expended significant resources to send staff to the border as it attempts to shift its programs.” EBSC III, 354 F. Supp. 3d at 1109.
The funding on which the Organizations critically depend is also jeopardized by the Rule. EBSC only “rarely”

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represents people in removal proceedings. Decl. of Michael Smith at ¶ 8. Because 80 percent of its clients have entered without stopping at a port of entry in the past, EBSC stands to “lose a significant amount of business and suffer a concomitant loss of funding” if these individuals are deemed categorically ineligible for asylum. EBSC III, 354 F. Supp. 3d at 1109 (citing EBSC II, 932 F.3d at 767). AOL and CARECEN explain that the Rule decreases the funding they stand to receive from the California Department of Social Services. AOL often represents detained immigrants in their bond proceedings, and “[s]ince the [R]ule went into effect,” AOL has “not received a single referral for a bond case, as persons who enter without inspection are ostensibly being put into ‘Withholding-only’ proceedings and no longer initially eligible for bond.” Supp. Decl. of Erika Pinheiro at ¶ 22. CARECEN receives from the Department a flat amount of funding per client it assists, and because more of its clients are being put into more time- and resourceintensive withholding proceedings, it will assist less clients and receive less funding. Decl. of Daniel Sharp at ¶ 7.
Each organization would have lost clients seeking refuge in the United States had it not diverted resources toward counteracting the effect of the Rule. La Asociacion de Trabajadores de Lake Forest, 624 F.3d at 1088. The Organizations are not required to demonstrate some threshold magnitude of their injuries;5 one less client that
5 The government notes that “East Bay Sanctuary Covenant has only ‘around 35 clients who have entered without inspection and [who] expect to file for affirmative asylum in the upcoming months,’” while, “[b]y comparison, the ‘current backlog of asylum cases exceeds 200,000’ and more than 200,000 inadmissible aliens present themselves for inspection at ports of entry annually (even without the additional incentive to do so that the Rule will create).” Op. Br. of Gov’t at 27 n.4.

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they may have had but-for the Rule’s issuance is enough. In other words, plaintiffs who suffer concrete, redressable harms that amount to pennies are still entitled to relief.
The government advances three additional justiciability arguments. First, the government argues that the Organizations have “no legally protected interest in maintaining their current organizational structure or in the Rule’s application to third parties, which the motions panel did not consider in its analysis.” Op. Br. of Gov’t at 28. This position misunderstands the injury-in-fact inquiry and conflates organizational standing with third-party standing, which the Organizations have conceded is not at issue.6 An injury-in-fact is “an invasion of a legally protected interest,” see Lujan, 504 U.S. at 560, but this means an interest that is only concrete and particularized and actual or imminent—
The comparative magnitude of the harms alleged by the parties, however, is not relevant for standing purposes; “a loss of even a small amount of money is ordinarily an ‘injury.’” Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017); see also Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1029 (8th Cir. 2014) (“The consumers’ alleged economic harm—even if only a few pennies each—is a concrete, nonspeculative injury.”); Carpenters Indus. Council v. Zinke, 854 F.3d 1, 5 (D.C. Cir. 2017) (“A dollar of economic harm is still an injury-in-fact for standing purposes.”).
6 Many of the cases cited by the government in support of this proposition do not concern organizational standing under Article III. In O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), the Court addressed whether nursing home residents have a right to an administrative hearing before a state or federal agency hearing before the agency revokes the home’s authority to provide them with nursing care at government expense. Linda R.S. v. Richard D., 410 U.S. 614 (1973), DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015), and Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883 (1984) all describe limitations on third-party, not organizational, standing.

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not an interest protected by statute. This distinction prevents Article III standing requirements from collapsing into the merits of a plaintiff’s claim; “a petitioner’s ‘legally protected interest’ need not be a statutorily created interest,” Ass’n of Pub. Agency Customers v. Bonneville Power Admin., 733 F.3d 939, 950 (9th Cir. 2013), and a plaintiff can have standing despite losing on the merits. See also In re Special Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir. 2006) (citing Warth v. Seldin, 422 U.S. 490, 500 (1975) (“[S]tanding in no way depends on the merits of the plaintiff’s contention that particular conduct is illegal . . . .”)).
More recent Supreme Court opinions have described injury-in-fact as “a judicially cognizable interest”— implying that “an interest can support standing even if it is not protected by law . . . so long as it is the sort of interest that courts think to be of sufficient moment to justify judicial intervention.” In re Special Grand Jury 89-2, 450 F.3d at 1172 (citing Bennett v. Spear, 520 U.S. 154, 167 (1997)); see also, e.g., Hollingsworth v. Perry, 570 U.S. 693, 707 (2013). Whether the Organizations have a sufficient statutory or otherwise legal basis for their claims is irrelevant at this threshold stage.
The government next argues that we should avoid interfering with DOJ’s and DHS’s decision to adopt the Rule because “[t]he Supreme Court has ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” See Op. Br. of Gov’t at 30 (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)).
We do not conduct independent policy analyses of executive decisions. But we do “police the separation of

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powers in litigation involving the executive[.]” In re Cheney, 334 F.3d 1096, 1106 (D.C. Cir. 2003), vacated and remanded on other grounds, 542 U.S. 367 (2004). For this reason, there is a strong presumption favoring judicial review of administrative action, see Bowen v. Mich. Acad. of Family Phys., 476 U.S. 667, 670 (1986); non-reviewability is an exception that must be clearly evidenced in the statute, see Barlow v. Collins, 397 U.S. 159, 166–67 (1970). Without such review, “statutes would in effect be blank checks drawn to the credit of some administrative officer or board.” Bowen, 476 U.S. at 671 (citing S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945)). Efficient agency administration always requires some authority and responsibility to resolve questions left unanswered by Congress. It does not include the “power to revise clear statutory terms.”7 Utility Air Reg. Grp. v. E.P.A., 573 U.S. 302, 327 (2014).
We are therefore responsible for reviewing whether the government has overstepped its delegated authority under the INA and encroached upon Congress’s legislative prerogative. See 5 U.S.C. § 706(2)(A).
Finally, the government argues that three provisions of the Illegal Immigration Reform and Immigration Responsibility Act (“IIRIRA”), 8 U.S.C. §§ 1252(e)(3),
7 The irony of the government’s position is that section 1158(b)(2)(C)—the INA rule-making delegation upon which it relies—is based on a congressional mandate that was intended, at least in part, to curtail “unfettered executive discretion” and assure Congress’s “proper and substantial role in refugee admissions, given [its] plenary power over immigration.” 125 Cong. Rec. 35,814–15 (1979) (statement of Rep. Holtzman) (emphasis added). “[I]f there is a separation-ofpowers concern here, it is between the President and Congress.” EBSC II, 932 F.3d at 774.

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1252(a)(5), and 1252(b)(9), divest this court of jurisdiction to entertain this appeal. These statutes, in the government’s view, require the Organizations to bring their claims in individual-removal proceedings or in the District Court for the District of Columbia.
Section 1252(e)(3) authorizes a limited court review of expedited-removal proceedings. The statute requires that judicial review of such administrative decisions be initiated in the District Court for the District of Columbia, and limits review to “determinations of (i) whether such section, or any regulation issued to implement such section, is constitutional; or (ii) whether such a regulation . . . is not consistent with applicable provisions of this subchapter or is otherwise in violation of law.”8 Section 1252(e)(3), in short, limits jurisdiction over challenges to regulations implementing expedited-removal orders. See BarajasAlvarado, 655 F.3d at 1086 n.10.
Section 1252(a)(5) operates in conjunction with section 1252(e). It limits review of expedited-removal orders to habeas review under 1252(e) and further restricts any appellate habeas review to considering only whether the migrant is lawfully in the country. See id. at 1082; 8 U.S.C. § 1252(e)(2). Section 1252(b)(9) also applies only to removal orders, but instead channels “[j]udicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United
8 Migrants can be placed in expedited removal proceedings when they arrive at ports of entry without documents, misrepresent their identities, or present fraudulent documents. See United States v. Barajas-Alvarado, 655 F.3d 1077, 1081 (9th Cir. 2011). Undocumented migrants who receive removal orders but indicate an intention to apply for asylum or a fear of persecution may still be considered for asylum. See id. (citing 8 U.S.C. § 1225(b)(1)(A)(i)).

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States[,]” to the courts of appeals. 8 U.S.C. § 1252(b)(9); see also I.N.S. v. St. Cyr, 533 U.S. 289, 313 (2001).
In the APA context, these provisions prohibit “a claim by an alien, however it is framed, [that] challenges the procedure and substance of an agency determination that is ‘inextricably linked’ to the order of removal[.]” Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012). “[C]laims that are independent of or collateral to the removal process” are not actions taken to “remove an alien from the United States.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016); 8 U.S.C. § 1252(b)(9). The purpose of these claimchanneling provisions is to “limit all aliens to one bite of the apple with regard to challenging an order of removal.” Martinez, 704 F.3d at 622.
None of these provisions have any bearing on the Rule. Sections 1252(a)(5), (b)(9), and (e)(3) govern judicial review of removal orders or challenges inextricably linked with actions taken to remove migrants from the country. The Rule “governs eligibility for asylum and screening procedures for aliens subject to a presidential proclamation or order restricting entry[.]” 83 Fed. Reg. at 55,934 (emphasis added). Bars to asylum eligibility may eventually be relevant to removal proceedings, but they are not “regulation[s] . . . to implement [removal orders]” or otherwise entirely linked with removal orders.9 8 U.S.C.
9 In another, strikingly similar context, the government appears to agree with this interpretation of section 1252(e)(3). Before the District Court for the District of Columbia, the government argued that section 1252(e)(3) divested the court of jurisdiction to hear an APA challenge to an immigration decision issued by the Attorney General. See Grace v. Whitaker, 344 F. Supp. 3d 96, 105 (D.D.C. 2018). The Attorney General’s decision, and a policy memorandum that adopted the standards in the decision, invoked the expedited-removal statute and required that

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§ 1252(e)(3); see also Martinez, 704 F.3d at 623; O.A. v. Trump, 404 F. Supp. 3d 109, 141 (D.D.C. 2019) (“§ 1252(e)(3) is about challenges to expedited removal orders and the implementation of the expedited removal provisions that Congress enacted in IIRIRA.”). This is consistent with the purposes of these jurisdictional limitations: allowing collateral APA challenges to an asylum-eligibility rule does not undermine Congress’s desire to “limit all aliens to one bite of the apple with regard to challenging” their removal orders. See Martinez, 704 F.3d at 622.

At best, the law governing asylum is collateral to the

process of removal. Migrants in the country who file

affirmatively for asylum, or who are otherwise lawfully in

the country—such as those who have a valid visa, maintain

Temporary Protected Status, or are given parole, for

example—can apply and be eligible for asylum and never

encounter any of the statutory provisions governing

removal. See 8 C.F.R. § 208.4(a)(5)(iv). Other subsections

of the INA explicitly grant this court jurisdiction to review

denials of individual asylum applications, further reinforcing

that the jurisdiction-stripping provisions cited by the

government were not intended to apply at all to challenges

to asylum eligibility rules.

See 8 U.S.C.

§§ 1252(a)(2)(B)(ii), (a)(2)(D); see also Morales v.

Gonzales, 478 F.3d 972, 978–79 (9th Cir. 2007).

“claims based on membership in a putative particular social group defined by the members’ vulnerability to harm . . . will not establish the basis for asylum, refugee status, or a credible or reasonable fear of persecution.” Id. at 110. The government there argued that the policy memorandum and the Attorney General’s decision did not “implement” section 1225(b) because it “was a decision about petitions for asylum under section 1158.” Id. at 115–16 (emphasis added).

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We again hold that the Organizations’ claims are justiciable and they have otherwise satisfied the Article III standing requirements.
B.
We generally also require that plaintiffs fall within the “zone of interests” protected by the statute in question to bring their claims in federal court. Lexmark Int’l, Inc., v. Static Control Components, Inc., 572 U.S. 118, 129 (2014). The breadth of the zone-of-interests test varies, depending on the provisions of law at issue. Id. Under the APA, the test is not “especially demanding.” Id. at 130 (quotations and citations omitted). The zone-of-interests analysis forecloses suit “only when a plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue.” Id. (quotations and citations omitted).
The Organizations bring their claims under the APA, but because the APA provides a cause of action only to those “suffering legal wrong because of agency action . . . within the meaning of a relevant statute,” 5 U.S.C. § 702, the relevant zone of interest is that of the INA. EBSC II, 932 F.3d at 767–68. And the relevant purpose is not that of the entire INA; it is “by reference to the particular provision of law upon on which the plaintiff relies.” Bennett, 520 U.S. at 175–76.
In our review, we are “not limited to considering the [specific] statute under which [plaintiffs] sued, but may consider any provision that helps us to understand Congress’ overall purposes” in enacting the statute. Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 401 (1987); see also EBSC II, 932 F.3d at 768. This inquiry is intended only to help clarify

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the act’s scope—not determine whether Congress intended a cause of action to arise for the plaintiff in question. See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (“We do not require any indication of congressional purpose to benefit the would-be plaintiff.”) (internal quotation marks omitted).
The Organizations’ claims continue to fall within the zone of interests of the INA and of the regulatory amendments implemented by the Rule. The Rule, much like the scope of section 1158(b) of the INA, shapes asylum eligibility requirements for migrants. The Organizations’ purpose is to help individuals apply for and obtain asylum, provide low-cost immigration services, and carry out community education programs with respect to those services. EBSC III, 354 F. Supp. 3d at 1108–10. This is sufficient for the Court’s lenient APA test: at the very least, the Organizations’ interests are “marginally related to” and “arguably within” the scope of the statute. See Patchak, 567 U.S. at 224, 225.
IV.
We turn to the merits of the preliminary injunction10 entered by the district court. A plaintiff seeking a preliminary injunction must establish that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. All. for the Wild Rockies, 632 F.3d at 1131 (citing
10 The terms of the temporary restraining order entered by the district court in EBSC I technically differ from the terms of the preliminary injunction entered by the court in EBSC III, but the difference has no practical effect: both injunctions prevent enforcement of the Rule and are identical in scope. Therefore, we review them together.

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Winter v. National Res. Def. Council, 555 U.S. 7, 20 (2008)). When the government is a party, the last two factors (equities and public interest) merge. Nken, 556 U.S. at 435. These factors are evaluated on a sliding scale. All. for the Wild Rockies, 632 F.3d. at 1131–34.
We review for abuse of discretion the district court’s grant of a preliminary injunction. Arc of Cal. v. Douglas, 757 F.3d 975, 983 (9th Cir. 2014). District courts abuse their discretion when they rely on an erroneous legal standard or clearly erroneous finding of fact. Id. (internal quotations omitted).
A.
The likelihood of the Organizations’ success on the merits depends on the substantive and procedural validity of the Rule. See EBSC III, 354 F. Supp. 3d at 1111–12. They must establish a likelihood that the Rule is either substantively or procedurally invalid. See EBSC II, 932 F.3d at 770. Because the record on appeal is now “fully developed,” and the substantive validity of the Rule “rest[s] primarily on interpretations of law, not the resolution of factual issues, we may consider the merits of the case and enter a final judgment to the extent appropriate.” Beno v. Shalala, 30 F.3d 1057, 1063 (9th Cir. 1994) (internal quotation marks omitted).
1.
The APA requires that we “hold unlawful and set aside agency action, findings, and conclusions found to be . . . an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). Presidential action is not ordinarily “agency action,” and is typically unreviewable under the APA. Franklin v. Massachusetts, 505 U.S. 788,

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796 (1992). But the Proclamation and Rule together create an “operative rule of decision” for asylum eligibility that is reviewable by this court. EBSC II, 932 F.3d at 770; see also City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1166 (9th Cir. 1997) (holding that executive orders with “specific statutory foundation[s]” that do not expressly preclude judicial review are treated as agency action and reviewed under the APA); Public Citizen v. U.S. Trade Rep., 5 F.3d 549, 552 (D.C. Cir. 1993) (“Franklin is limited to those cases in which the President has final constitutional or statutory responsibility for the final step necessary for the agency action directly to affect the parties.”).
To determine whether the Rule is “not in accordance with law,” we apply the framework established in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 (1984). Under Chevron, we first consider “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter.” Campos-Hernandez v. Sessions, 889 F.3d 564, 568 (9th Cir. 2018) (quoting Chevron, 467 U.S. at 842). Federal courts are “the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent.” Chevron, 467 U.S. at 843 n.9.
a.
We consider, then, whether the Rule conflicts with Congress’s intent. The only section of the INA implicated by the Rule is section 1158 (“Asylum”). That section begins by stating that an undocumented migrant may apply for asylum when she is “physically present in the United States” or “arrives in the United States (whether or not at a designated port of arrival . . . )[.]” 8 U.S.C. § 1158(a)(1). DOJ and DHS adopted the Rule under section

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1158(b)(2)(C)’s grant of authority to the Attorney General to “establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum[.]”11
We agree with the district court that the Rule is “not in accordance with law.” 5 U.S.C. § 706(2)(A). Section 1158(a) provides that migrants arriving anywhere along the United States’s borders may apply for asylum. The Rule requires migrants to enter the United States at ports of entry to preserve their eligibility for asylum. It is effectively a categorical ban on migrants who use a method of entry explicitly authorized by Congress in section 1158(a). As the district court stated, “[i]t would be hard to imagine a more direct conflict” than the one presented here. EBSC III, 354 F. Supp. 3d at 1112.
The government argues that the structure of section 1158 mandates a different result. Critical to the government’s argument is that section 1158 splits asylum applications (§ 1158(a)) and eligibility (§ 1158(b)) into two different subsections; therefore, the government explains, Congress intended to allow DOJ to promulgate limitations on asylum eligibility without regard to the procedures and authorizations governing asylum applications. The text in section 1158(a) requires only that migrants arriving between
11 A separate subsection of section 1158, 1158(d)(5)(B), grants the Attorney General authority to impose “conditions or limitations on the consideration of an application for asylum not inconsistent with this chapter.” As the motions panel observed, had the Rule explicitly conditioned applications for asylum (instead of eligibility for asylum) on arriving at a designated point of entry, the Rule would be “quite obviously, ‘not in accordance with law,’” EBSC II, 932 F.3d at 770 (quoting 5 U.S.C. § 706(2)(A)), because 1158(a) directs migrants to “apply for asylum” in accordance with section 1158.

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ports of entry be permitted to “apply for asylum,” and the Rule does not prevent migrants from submitting futile asylum applications. (emphasis added).
This argument is unconvincing. We avoid absurd results when interpreting statutes. Rowland v. Cal. Men’s Colony, Unit II Men’s Adv. Council, 506 U.S. 194, 200–01 (1993). Explicitly authorizing a refugee to file an asylum application because he arrived between ports of entry and then summarily denying the application for the same reason borders on absurdity. The consequences of denial at the application or eligibility stage are, to a refugee, the same. See EBSC II, 932 F.3d at 771. Had Congress intended to allow DOJ and DHS to override this provision, it could have said so in its delegation of authority to the Attorney General or in the statutory provisions governing asylum applications. And Congress signaled its desire that any eligibility limitations be consistent with application requirements; limitations promulgated under the eligibility subsection of the statute must be “consistent with this section”—meaning the entirety of section 1158—not just consistent with this subsection.
The other categorical bars to asylum in section 1158(b) of the INA do not meaningfully inform our reading of the statute and the Rule. See EBSC II, 932 F.3d at 771 n.12. The INA contains various provisions making ineligible asylum applicants who committed a serious, nonpolitical crime outside the United States prior to arrival (8 U.S.C. § 1158(b)(2)(A)(iii)), assisted or otherwise participated in the persecution of another person (8 U.S.C. § 1158(b)(2)(A(i)), or were firmly resettled in another country prior to arriving in the United States (8 U.S.C. § 1158(b)(2)(A)(vi)), among other things. The government again suggests that the existence of these eligibility bars in

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the INA demonstrates that Congress intended certain categories of migrants to be permitted to apply for asylum even though they are categorically ineligible. A migrant who was firmly resettled in another country, for example, is still free to complete an asylum application, even though she will be barred from seeking asylum under section 1158(b)(2)(A)(vi).
But—unlike the eligibility bar effected by the Rule—the statutory asylum bars in the INA do not separately conflict with explicit text in section 1158(a). There is no provision in section 1158(a), for example, that affirmatively requires that migrants who were firmly resettled in another country be permitted to apply for asylum. The Rule creates the only bar to eligibility under section 1158(b) that directly conflicts with language in section 1158(a). The statutory eligibility bars noted above do not suggest Congress intended that migrants who are subject to them be permitted to apply for asylum. See also EBSC II, 932 F.3d at 772 (“‘[t]o say that one may apply for something that one has no right to receive is to render the right to apply a dead letter.’”) (quoting EBSC I, 349 F. Supp. 3d at 857). The district court correctly concluded that the Rule is substantively invalid because it conflicts with the plain congressional intent instilled in 8 U.S.C. § 1158(a), and is therefore “not in accordance with law,” 5 U.S.C. § 706(2)(A).
b.
But even if the text of section 1158(a) were ambiguous, the Rule fails at the second step of Chevron because it is an arbitrary and capricious interpretation of that statutory provision. If the statute is “silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.” Campos-Hernandez, 889 F.3d at 568 (quoting

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Chevron, 467 U.S. at 843). Under this standard, we must give effect to an agency’s reasonable interpretation of a statute, unless the interpretation is inconsistent with clearly expressed congressional intent. See United States v. Fulton, 475 U.S. 657, 666–67 (1986).
The Board of Immigration Appeals (“BIA”) and this court have long recognized that a refugee’s method of entering the country is a discretionary factor in determining whether the migrant should be granted humanitarian relief. EBSC II, 932 F.3d at 772. More than thirty years ago, the BIA stated that “an alien’s manner of entry or attempted entry is a proper and relevant discretionary factor” to adjudicating asylum applications under section 1158(a), but “it should not be considered in such a way that the practical effect is to deny relief in virtually all cases.”12 Matter of Pula, 19 I. & N. Dec. 467, 473 (B.I.A. 1987), superseded in part by statute on other grounds as stated in Andriasian v. I.N.S., 180 F.3d 1033, 1043–44 (9th Cir. 1999); see also EBSC II, 932 F.3d at 772. The court explained that it would instead evaluate “the totality of the circumstances and actions of an alien in his flight from the country where he fears persecution,” rather than deny asylum outright because of a single procedural flaw in the migrant’s application. Matter of Pula, 19 I. & N. Dec. at 473–74.
Especially where a migrant may be eligible only for asylum and cannot establish the more stringent criteria for
12 The BIA in Pula interpreted section 1158(a) before it was amended to include the particular phrase at issue (“whether or not at a designated port of arrival”). At the time, the relevant sentence stated “The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien’s status, to apply for asylum[.]” 8 U.S.C. § 1158(a) (1980).

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withholding-of-removal, the discretionary factors— including method of entry—should be “carefully evaluated in light of the unusually harsh consequences which may befall an alien[.]” Id. at 474. Indeed, “the danger of persecution should generally outweigh all but the most egregious of adverse factors.” Id.
We have supported the BIA’s understanding of section 1158(a). The most vulnerable refugees are perhaps those fleeing across the border through the point physically closest to them. That a refugee crosses a land border instead of a port-of-entry says little about the ultimate merits of her asylum application; “if illegal manner of flight and entry were enough independently to support a denial of asylum, . . . virtually no persecuted refugee would obtain asylum.” EBSC II, 932 F.3d at 773 (quoting Huang v. I.N.S., 436 F.3d 89, 100 (2d Cir. 2006)). Given the Rule’s effect of conditioning asylum eligibility on a factor that has long been understood as “worth little if any weight,” see Mamouzian v. Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004), in adjudicating whether a migrant should be granted asylum, it is an arbitrary and capricious interpretation of section 1158(a).
The Attorney General’s interpretation of section 1158(a) is also unreasonable, as the motions panel and district court discussed, in light of the United States’s treaty obligations. See EBSC II, 932 F.3d at 772–73; EBSC III, 354 F. Supp. 3d at 1112–13. The United States agreed to comply with Articles 2 through 34 of the 1951 United Nations Convention Relating to the Status of Refugees (“1951 Convention”) and the 1967 United Nations Protocol Relating to the Status of Refugees (“1967 Protocol”) in 1968. H.R. Rep. 96-781 (Conf. Rep.), at 19–20 (1980), as reprinted in 1980 U.S.C.C.A.N. 160, 160–62; see also I.N.S.

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v. Cardoza-Fonseca, 480 U.S. 421, 429, 436–37 (1987). To streamline the United States’s refugee procedures and implement the country’s new treaty commitments, Congress passed the Refugee Act of 1980, which amended the INA and created the country’s first codified rules governing asylum. S. Rep. No. 96-256, at 1 (1979), as reprinted in 1980 U.S.C.C.A.N. 141, 141–42, 144; H.R. Doc. No. 96608, at 17–18 (1979); see also Negusie v. Holder, 555 U.S. 511, 535–36 (2009).
As the United Nations High Commissioner of Refugees (“UNHCR”) explains,13 the Rule runs afoul of three of these codified rules: the right to seek asylum, the prohibition against penalties for irregular entry, and the principle of nonrefoulement embodied in Article 31(1) of the 1951 Convention. Neither the 1967 Protocol nor the 1951 Convention require countries to accept refugees, but they do ensure that refugees at each signatory’s borders have legal and political rights and protections. See Cong. Research Serv. S522-10, Review of U.S. Refugee Resettlement Programs and Policies 15–16 (1980).
The definition of “refugee” used in the 1951 Convention is “virtually identical” to the one adopted by Congress in the INA. Cardoza-Fonseca, 480 U.S. at 437. Under both the
13 The arguments presented by the United Nations in its amicus brief on how the 1951 Convention and 1967 Protocol should be construed are not binding on this court. See Cardoza-Fonseca, 480 U.S. at 439 n.22. But they do “provide[] significant guidance in construing the [1967] Protocol, to which Congress sought to conform[,]” and are “useful in giving content to the obligations that the Protocol establishes.” Id; see also Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007) (“We view the UNHCR Handbook as persuasive authority in interpreting the scope of refugee status under domestic asylum law.”) (internal quotation marks and citation omitted).

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INA and the 1951 Convention, refugees are all individuals who—because of a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group or political opinion”—are “unable,” or, because of such fear, “unwilling to return” to their home countries. See 8 U.S.C. § 1101(a)(42); 1951 Convention, Art. 1(A)(2). Once individuals meet the statutory definition of a “refugee,” they may be granted asylum under the INA. See 8 U.S.C. § 1158(b)(1)(A).
Both the INA and the 1951 Convention acknowledge that individuals may be stripped of their refugee status even when they meet the other eligibility criteria for asylum. The refugee provisions of the 1951 Convention “shall not apply” to “any person with respect to whom there are serious reasons for considering” that such a person has committed a crime against peace, a war crime, a crime against humanity, a non-political crime outside of the country of refuge, prior to their admission as a refugee, or has been “guilty of acts contrary to the purposes and principles of the United Nations.” 1951 Convention, Art. 1(F)(a)–(c). The statutory bars for eligibility in the INA are similarly severe. Individuals who are otherwise refugees may not apply for asylum if the Attorney General determines that they “ordered, incited, assisted, or otherwise participated” in the persecution of another, based on a trait protected by the INA; “constitute[] a danger to the community of the United States”; committed a “serious nonpolitical crime” outside the country; are a “danger to the security” of the country; have engaged in terrorist activities; or were “firmly resettled in another country prior to arriving in the United States.” 8 U.S.C. § 1158(b)(2)(A)(i)–(vi).
The exceptions listed in the 1951 Convention “require individualized assessments and ‘must be [interpreted]

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restrictive[ly].” Br. for UNHCR as Amicus Curiae at 14 n.6 (quoting Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status ¶ 149 (Geneva, 1979)). So too the categorical bars on eligibility in the INA are interpreted with lenience toward migrants to avoid infringing on the commitments set forth in the 1951 Convention and 1967 Protocol. See, e.g., Ali v. Ashcroft, 394 F.3d 780, 790 (9th Cir. 2005) (A “narrow interpretation of the firm resettlement bar would limit asylum to refugees from nations contiguous to the United States or to those wealthy enough to afford to fly here in search of refuge. The international obligation our nation agreed to share when we enacted the Refugee Convention into law knows no such limits.”); CardozaFonseca, 480 U.S. at 449.
The asylum bars in the INA and in the 1951 Convention appear to serve either the safety of those already in the United States or, in the case of the firm-resettlement bar, the safety of refugees. The Rule ensures neither. Even a broad interpretation of these eligibility bars does not naturally encompass a refugee’s method of entry. Illegal entry is not ordinarily considered a “serious crime.” See PenaCabanillas v. United States, 394 F.2d 785, 788 (9th Cir. 1968) (stating that the statute criminalizing entry into the United States “is not based on any common law crime, but is a regulatory statute enacted to assist in the control of unlawful immigration by aliens” and “is a typical mala prohibita offense”). Nor does a migrant’s method of entry per se create a danger to the United States, serve as a useful proxy for terrorist activity, or suggest the persecution of another.
And the Rule surely does not suggest that the migrant has received protection in a third country. Many migrants enter

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between ports of entry out of necessity: they “cannot satisfy regular exit and entry requirements and have no choice but to cross into a safe country irregularly prior to making an asylum claim.” Br. for UNHCR as Amicus Curiae at 15 (citing Memorandum by the Secretary-General, Ad Hoc Comm. on Statelessness, Status of Refugees & Stateless Persons, at Annex Art. 24, cmt. ¶ 2, U.N. Doc. E/AC.32/2 (Jan. 3, 1950); UNHCR Executive Committee Conclusion No. 58 (XL) ¶ (i) (Oct. 13, 1989)). This was well recognized when the Refugee Act of 1980 was drafted. See Pub. L. No. 96-212, § 208(a), 94 Stat. 102, 105 (1980). Prior to the passage of the Act, migrants who arrived at a port of entry were “given an opportunity to have their [asylum] applications heard in a hearing before an immigration judge,” but refugees arriving “at a land border of the United States [we]re not given this right.” Refugee Act of 1979: Hearing on H.R. 2816 before the Subcomm. on Immigration, Refugees, and Int’l Law of the Comm. on the Judiciary, 96th Cong. 190 (1979) (testimony of David Carliner, American Civil Liberties Union). In its attempt to streamline the country’s refugee and asylum laws, Congress was urged to consider that “persons who seek any benefits under [the INA] should be entitled to a uniform procedure.” Id. Congress heeded this consideration during the drafting of the Refugee Act, eventually describing it as “establish[ing] a more uniform basis for the provision of assistance to refugees, and [] other purposes.” Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980). The Rule defies this desire for uniformity and denies refuge to those crossing a land border. The effects of the Rule contravene the United States’s commitments in the 1951 Convention.
Article 31(1) of the 1951 Convention also explains that signatories “shall not impose penalties” on account of refugees’ “illegal entry or presence,” 1951 Convention

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Art 31(1).

Notwithstanding the government’s

interpretations otherwise, “deportation is an integral part—

indeed, sometimes the most important part—of the penalty

that may be imposed” on migrants who are found guilty of

specified crimes, or for other reasons are barred from

seeking asylum.14 See Padilla v. Kentucky, 559 U.S. 356,

364 (2010) (footnote omitted). The Rule imposes an

additional penalty on refugees because of their “illegal

entry” by risking the deportation of migrants who enter the

country at a land border. 1951 Convention Art. 31(1).

And by categorically denying refugees an opportunity to seek asylum only because of their method of entry, the Rule is also in tension with the United States’s commitment to avoid refouling individuals to countries where their lives are threatened. Article 31(1) of the 1951 Convention prohibits signatories from “expel[ling] or return[ing] (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened[.]” The INA’s withholding-of-removal, 8 U.S.C. § 1231(b)(1), and Convention Against Torture (“CAT”) protections, 8 C.F.R. § 1208.16–18, are not as great as those conferred by the INA’s asylum provisions. The evidentiary standard that applicants must meet for either withholding-of-removal or CAT relief is higher than the evidentiary standard for asylum. See, e.g., Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014). Applicants for withholding-ofremoval and CAT relief must establish a “clear probability” that they would be persecuted or tortured, respectively, if they were removed to their home countries. See Korablina v. I.N.S., 158 F.3d 1038, 1045–46 (9th Cir. 1998); Wakkary

14 The UNHCR’s view is that “penalties” in Article 31(1) “encompasses civil or administrative penalties as well as criminal ones.” Br. for UNHCR as Amicus Curiae at 20.

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v. Holder, 558 F.3d 1049, 1053 (9th Cir. 2009). A “clear probability” of persecution or torture means that it is “more likely than not” that applicants will be persecuted upon their removal. I.N.S. v. Stevic, 467 U.S. 407, 424, 429–30 (1984).
Applicants for asylum instead must demonstrate only that they are “unable or unwilling” to return to their home countries “because of persecution or a well-founded fear of persecution[.]” 8 U.S.C. § 1101(a)(42)(A). “One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place”; it would only be “too apparent,” for example, for a refugee to have a “well-founded fear of being persecuted” where “every tenth adult male person is either put to death or sent to some remote labor camp” in the applicant’s home country. Cardoza-Fonseca, 480 U.S. at 431 (citing 1 A. Grahl-Madsen, The Status of Refugees in International Law 180 (1966)). The Rule, then, risks the removal of individuals with meritorious asylum claims who cannot petition for withholding of removal or CAT relief. By doing so, it is inconsistent with our treaty commitment to non-refoulement.
The Rule is “arbitrary, capricious, or manifestly contrary to the statute,” Chevron, 467 U.S. at 844, both because it is contrary to plain congressional intent, and because it is an arbitrary and capricious interpretation of section 1158(a). Even if we agreed that the text of section 1158(a) is ambiguous, the Rule flouts this court’s and the BIA’s discretionary, individualized treatment of refugees’ methods of entry, and infringes upon treaty commitments we have stood by for over fifty years.

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2.
Because we conclude that the Rule is substantively invalid, we only briefly address the procedural arguments raised by the parties. The APA requires public notice and comment and a thirty-day grace period before a proposed rule takes effect. 5 U.S.C. § 553(b)–(d). The notice-andcomment requirements are exempted when “there is involved a military or foreign affairs function of the United States[,]” id. § 553(a), or when “the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary or contrary to the public interest.” Id. § 553(b)(B). The thirty-day lag in publication can be waived where “good cause [is] found.”15 Id. § 553(d)(3).
The Rule was issued without notice and comment or the grace period. The government argues that the Rule was properly issued because it falls under either the good-cause or the foreign-affairs exceptions to these procedural requirements.
a.
Proper invocation of the good-cause exception is “sensitive to the totality of the factors at play.” United States v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010). The
15 “Different policies” underlie the good-cause exception for the thirty-day grace period and the good-cause exception for the notice-andcomment requirement, and “they can be invoked for different reasons.” Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992). Notice-and-comment requirements are intended to ensure public participation in rulemaking, and the thirty-day waiting period is “intended to give affected parties time to adjust their behavior before the final rule takes effect.” Id.

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exception is a “high bar” because it is “essentially an emergency procedure.” Id. at 1164, 1165. The government must make a sufficient showing that “‘delay would do real harm’ to life, property, or public safety,” EBSC II, 932 F.3d at 777 (quoting Valverde, 628 F.3d at 1164–65), or that “some exigency” interferes with its ability to carry out its mission. Nat. Res. Def. Council, Inc. v. Evans, 316 F.3d 904, 911 (9th Cir. 2003).
In support of its reliance on the exception, the government now cites a Washington Post article indicating that when the United States stopped its policy of separating migrant parents from their children, smugglers told asylumseekers that “the Americans do not jail parents who bring children—and to hurry up before they might start doing so again.” See Nick Miroff and Carolyn Van Houten, The Border is Tougher to Cross Than Ever. But There’s Still One Way into America, Wash. Post (Oct. 24, 2018). The district court concluded that the article “at least supports the inference” that the Rule might result in similar changes in immigration policy, and held that the government had “identified a ‘rational connection between the facts found and the choice made’ to promulgate the interim Rule on an emergency basis.” EBSC III, 354 F. Supp. 3d at 1115 (quoting Valverde, 628 F.3d at 1168).
A citation to this single article is not sufficient to demonstrate that the delay caused by notice-and-comment or the grace period might do harm to life, property, or public safety. See EBSC II, 932 F.3d at 777. The government’s reasoning continues to be largely speculative, see id. at 778; no evidence has been offered to suggest that any of its predictions are rationally likely to be true. The article does not directly relate to the Rule, the consequences of the Rule, or anything related to asylum eligibility.

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Even if it did, that “the very announcement of [the] proposed rule itself can be expected to precipitate activity by affected parties that would harm the public welfare,” Reply Br. of Gov’t at 21, is likely often, or even always true. The lag period before any regulation, statute, or proposed piece of legislation allows parties to change their behavior in response. If we were to agree with the government’s assertion that notice-and-comment procedures increase the potential harm the Rule is intended to regulate, these procedures would often cede to the good-cause exception. Because the government has failed to demonstrate the existence of an exigency justifying good cause, we hold that the Rule likely does not properly fall under the good cause exception.
b.
For the foreign affairs exception to apply, “the public rulemaking provisions should provoke definitely undesirable international consequences.” Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980). Otherwise, the exception “would become distended if applied to INS actions generally, even though immigration matters typically implicate foreign affairs.” Id. Use of the exception is generally permissible where the international consequences of the rule-making requirements are obvious or thoroughly explained. We have rejected its use where the government has failed to substantiate its reliance on the exception or explain the detrimental effects of compliance with the APA’s requirements. See EBSC II, 932 F.3d at 776– 77.
The government cites to four documents in support of its renewed argument that the foreign-affairs exception is justified: a Memorandum of Understanding (“MOU”) between DHS and the Mexican government, the Washington

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Post article, credible-fear origin data published by the Executive Office of Immigration Review (“EOIR”), and a speech by President Trump. The four documents appear to demonstrate that the Rule and Proclamation are related to ongoing changes in the national immigration landscape, but still fail to establish that adhering to notice and comment and a thirty-day grace period will “provoke definitely undesirable international consequences.” Yassini, 618 F.3d at 1360 n.4.
We agree with the government that the cited MOU does broadly “show[] that [immigration] negotiations have happened in the past,” Op. Br. of Gov’t at 49, but this is insufficient to demonstrate that notice and comment will provoke undesirable international consequences. Indeed, the MOU’s substance seems to undermine the “broader diplomatic program involving sensitive and ongoing negotiations with Mexico.” Op. Br. of Gov’t at 47 (internal quotations omitted). Article 3 of the MOU states that “[l]ocal repatriation agreements should conform to mutually established criteria and principles for the repatriation of Mexican nationals being repatriated from the United States to Mexico.” The unilateral repatriation of Mexican nationals set forth by the Rule—without requesting public participation—undermines these terms.
The cited Washington Post page discusses an increase in the proportion of families that seek asylum and the EOIR data lists the country of origin of credible-fear cases and summarizes the number of people that attempt to enter the United States with an asylum application, the number of cases completed in 2018, and the outcome of credible fear cases. It is unclear how these data “reflect[] motivations for crossing the border illegally,” Op. Br. of Gov’t at 49, and even less clear how they demonstrate the consequences of

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requesting public notice-and-comment on foreign policy. And the speech by President Trump, as the district court noted, discusses the domestic consequences of foreign immigration, not the foreign policy consequences of immigration into the United States. See EBSC III, 354 F. Supp. 3d at 1114. The speech—like the MOU, the article, and the EOIR data—does not suggest that the APA’s rulemaking provisions might trigger or even shape immediate consequences in foreign affairs.
The evidence relied on by the government here is largely the same as the evidence previously before the motions panel and the district court. While we remain “sensitive to the fact that the President has access to information not available to the public, and . . . [are] cautious about demanding confidential information,” the connection between negotiations with Mexico and the immediate implementation of the Rule is still “not apparent.” EBSC II, 932 F.3d at 776. Broadly citing to the Rule’s immigration context is insufficient to invoke the foreign-affairs exception. See Yassini, 618 F.2d at 1360 n.4. The government has not made a “sufficient showing” that “the public rulemaking provisions should provoke definitely undesirable international consequences.” Id.; see also Evans, 316 F.3d at 912.
In sum, we agree with the motions panel that the government has not established that DOJ and DHS properly invoked the foreign-affairs exception to the notice-andcomment requirement and thirty-day grace period.
B.
We next consider whether the Organizations have established that, in the absence of a preliminary injunction, they are likely to suffer irreparable harm. See Arizona

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Dream Act Coalition v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). Irreparable harm is “harm for which there is no adequate legal remedy, such as an award for damages.” Id. For this reason, economic harm is not generally considered irreparable. But where parties cannot typically recover monetary damages flowing from their injury—as is often the case in APA cases—economic harm can be considered irreparable. See California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018). Intangible injuries may also qualify as irreparable harm, because such injuries “generally lack an adequate legal remedy.” Brewer, 757 F.3d at 1068.
We agree with the district court that the Organizations have established that they will suffer a significant change in their programs and a concomitant loss of funding absent a preliminary injunction enjoining enforcement of the Rule. EBSC II, 932 F.3d at 767. Both constitute irreparable injuries: the first is an intangible injury, and the second is economic harm for which the Organizations have no vehicle for recovery.
The Rule has already prompted the Organizations to change their core missions. Since the Rule issued, ILL has placed programmatic expansions on hold and has “had to lessen its caseload[.]” Supp. Decl. of Stephen W. Manning at ¶ 14. CARECEN notes that it will “divert significant resources,” including “staff time and organizational resources” to respond to the Rule. Decl. of Daniel Sharp at ¶¶ 11–13. EBSC has had to “divert resources away from its core programs to address the new policy.” Decl. of Michael Smith at ¶ 15. And, as discussed in Part III, supra, the Organizations each stand to lose funding because of their core changes in mission.
Importantly, the Organizations also filed suit the same day that the Rule and the first proclamation issued; while not

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dispositive, this suggests urgency and impending irreparable harm. See Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 762 F.2d 1374, 1377 (9th Cir. 1985). We agree with the district court that the Organizations have demonstrated a sufficient likelihood of irreparable injury to warrant injunctive relief. EBSC III, 354 F. Supp. 3d at 1116.
C.
The government next argues that the harms it will suffer because of the preliminary injunction—namely, the harm caused by the injunction “undermin[ing] the Executive Branch’s constitutional and statutory authority to secure the Nation’s borders,” and the “entry of illegal aliens”— outweigh the benefit to the public and the Organizations conferred by the injunction. Op. Br. of Gov’t at 51–52. Relevant equitable factors include the value of complying with the APA, the public interest in preventing the deaths and wrongful removal of asylum-seekers, preserving congressional intent, and promoting the efficient administration of our immigration laws at the border.
First, “[t]he public interest is served by compliance with the APA.” Azar, 911 F.3d at 581. Indeed, it “does not matter that notice and comment could have changed the substantive result; the public interest is served from the proper process itself.” Id. at 581–82. The Organizations and various Amici informed the district court that they would have submitted comments explaining why the Rule disrupts their organizational missions and fails to meet its intended purpose, had they had the opportunity. The APA’s requirements reflect “a judgment by Congress that the public interest is served by a careful and open review of proposed administrative rules and regulations.” Alcaraz v. Block, 746 F.2d 593, 610 (9th Cir. 1984) (citing Phil. Citizens in Action v. Schweiker, 669 F.2d 877, 881 (9th Cir. 1982)). The

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government’s failure to comply with the APA—particularly given the strength of the Organizations’ procedural attack on the Rule—weighs in favor of granting injunctive relief.
Second, the public has an interest in “ensuring that we do not deliver aliens into the hands of their persecutors,” Leiva-Perez, 640 F.3d at 971, and “preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm,” Nken, 556 U.S. at 436. The Rule will likely result in some migrants being wrongfully denied refugee status in this country. For migrants affected by the Rule, withholding of removal and CAT protection are the only forms of relief available. As discussed, these forms of relief demand a higher burden of proof than an asylum claim. At the initial screening interview with an asylum officer, an applicant seeking asylum need only present a “credible fear” of persecution, while an applicant seeking withholding of removal of CAT protection must demonstrate the higher “reasonable fear” of persecution or torture.
The government’s opening brief notes that 17 percent of the 34,158 migrants whose cases were completed in 2018 received asylum. See Op. Br. of Gov’t at 52. Assuming the number of migrants remains constant, if even just 25 percent of asylum-seekers with meritorious claims are denied asylum because of their method of entry, over 1,000 people will either be returned to home countries where they face “persecution based on ‘race, religion, nationality, membership in a political social group, or political opinion,’” EBSC III, 354 F. Supp. 3d at 1117 n.15 (quoting 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)), or forced to proceed on limited-relief claims that demand more stringent showings. If the rate of migration and the rate of migrants claiming fear during the expedited removal process

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continues to increase, see 84 Fed. Reg. at 21,229, the scale of this wrongful removal will only worsen.
Third, the public has an interest in ensuring that the “statutes enacted by [their] representatives are not imperiled by executive fiat.” EBSC II, 932 F.3d at 779 (internal quotation marks omitted). The INA, and the United States’s signatory status to the 1951 Convention, “reflect the balance Congress struck between the public interests in rendering aliens who enter illegally inadmissible and subject to criminal and civil penalties, and . . . preserving their ability to seek asylum.” EBSC III, 354 F. Supp. 3d at 1117–18 (citations omitted). The Rule and Proclamation disrupt that balance by overriding plain congressional intent.
Finally, the government and the public have an interest in the “efficient administration of the immigration laws at the border.” EBSC II, 932 F.3d at 779 (internal quotation marks omitted). This interest is “weighty.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). “[C]ontrol over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature.” Id. The government has a compelling interest in ensuring that injunctions—such as the one granted here—do not undermine separation of powers by blocking the Executive’s lawful ability to regulate immigration and rely on its rulemaking to aid diplomacy.
The role of the judiciary in reviewing such policies is narrow. It is merely to ensure that executive procedures do not violate principles of due process or “displace congressional choices of policy.” Id. at 35. This executive deference, then, is closely linked with our determination on the substantive validity of the Rule. Essentially, the weight we ascribe to this factor depends on the extent to which we agree that the Rule overrides plain congressional intent.

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Because the Organizations have established that the Rule is invalid, we do not place much weight on this factor. As the motions panel noted: “[t]here surely are enforcement measures that the President and the Attorney General can take to ameliorate the [immigration] crisis, but continued inaction by Congress is not a sufficient basis under our Constitution for the Executive to rewrite our immigration laws.” EBSC II, 932 F.3d at 774.
In sum, we agree with the district court that there is a significant basis for concluding that the public interest weighs “sharply” in the Organizations’ favor. See EBSC III, 354 F. Supp. 3d at 1111.
V.
Finally, we turn to the remedy entered by the district court: an injunction preventing enforcement of the Rule. The injunction enjoins the part of the Rule that removes asylum eligibility from migrants who fail to follow a presidential proclamation. EBSC III, 354 F. Supp. 3d at 1121. It does not enjoin the credible-fear amendments, but “they have no independent effect,” so they are effectively enjoined as well. Id. at 1121 n.22. We conclude that the district court did not abuse its discretion in enjoining enforcement of the Rule.
Injunctive relief should be “no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the court.” Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018) (internal quotations omitted). “Where relief can be structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown,” but there is “no general requirement that an injunction affect only the parties in the suit.” Bresgal v. Brock, 843 F.2d 1163, 1169–1170 (9th Cir. 1987). The

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equitable relief granted by the district court is acceptable where it is “necessary to give prevailing parties the relief to which they are entitled.” Id. at 1170–71. District courts have “considerable discretion” in crafting suitable equitable relief; correspondingly, appellate review is “narrow.” Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991).
As discussed, the harms caused to the Organizations as a result of the Rule include a (1) loss of funding and (2) disruption of organizational purpose. Adequate equitable relief must remedy both harms. Bresgal, 843 F.2d at 1170–71. Both harms are due, in part, to the Rule’s likely consequence of preventing asylum-seekers with meritorious claims from entering the country along our southern border and successfully obtaining asylum. The stymied flow of refugees will result in less funding for the Organizations, and a shift (sometimes wholesale) in their organizational missions.
The Organizations do not limit their potential clients to refugees that enter the United States only at the CaliforniaMexico or Arizona-Mexico border; they represent “asylum seekers” broadly. Unlike the plaintiffs in California v. Azar—individual states seeking affirmance of an injunction that applied past their borders—the Organizations here “do not operate in a fashion that permits neat geographic boundaries.” EBSC III, 354 F. Supp. 3d at 1120–21; see also Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (The “scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff class.”). An injunction that, for example, limits the application of the Rule to California, would not address the harm that one of the Organizations suffers from losing clients entering through the Texas-Mexico border. One

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fewer asylum client, regardless of where the client entered the United States, results 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).
The government suggests that plaintiffs “identify actual aliens in the United States who would otherwise be subject to the Rule,” Op. Br. of Gov’t at 57, but this suggestion fails to redress the scope of the Organizations’ harms. Part of the harm the Organizations have alleged is the difficulty posed by the Rule in helping them reach migrants who will cross the border; their missions are not limited to helping individuals currently present in the United States. Even if their missions were so limited, asking the Organizations to seek and list every person in the country they might help in the coming months is infeasible and impracticable. The “Government has not proposed a workable alternative form of the [injunction] that accounts” for the harm at issue but “nevertheless appl[ies] only within the [] borders” of the Ninth Circuit. Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017); see also EBSC II, 932 F.3d at 779; EBSC III, 354 F. Supp. 3d at 1121.
Two other factors support the district court’s decision to enjoin Defendants from taking any action to implement the Rule. First, “[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” Univ. of Cal., 908 F.3d at 511 (internal quotation marks omitted). Singular equitable relief is “commonplace” in APA cases, and is often “necessary to provide the plaintiffs” with “complete redress.” Id. at 512. Our “typical response is to vacate the rule and remand to the agency”; we “ordinarily do not

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attempt, even with the assistance of agency counsel, to fashion a valid regulation from the remnants of the old rule.” Harmon v. Thornburgh, 878 F.2d 484, 494 (D.C. Cir. 1989). Because of the broad equitable relief available in APA challenges, a successful APA claim by a single individual can affect an “entire” regulatory program. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 890 n.2 (1990).
Second, as the district court noted, there is an important “need for uniformity in immigration policy.” Id. at 511; see also EBSC III, 354 F. Supp. 3d at 1120–21. We previously have recognized that the “Constitution requires a 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.” Univ. of Cal., 908 F.3d at 511 (quoting United States v. Texas, 809 F.3d 134, 187–88 (5th Cir. 2014) (emphases in original)). The INA itself “was designed to implement a uniform federal policy, and the meaning of concepts important to its application are not to be determined according to the law of the forum, but rather require[] a uniform federal definition.” Kahn v. I.N.S., 36 F.3d 1412, 1414 (9th Cir. 1994) (internal quotation marks omitted). Different interpretations of executive policy across circuit or state lines will needlessly complicate agency and individual action in response to the United States’s changing immigration requirements. For these reasons, in immigration cases, we “consistently recognize[] the authority of district courts to enjoin unlawful policies on a universal basis.” EBSC II, 932 F.3d at 779 (citing Univ. of Cal., 908 F.3d at 511).
The government again “raises no grounds on which to distinguish this case from our uncontroverted line of

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precedent.” Id. Given the context of this case and the harm the district court sought to address, we find no error or abuse of discretion in the terms or scope of the preliminary injunction.
VI.
For the reasons discussed, the district court’s orders granting preliminary injunctions are AFFIRMED.
FERNANDEZ, Circuit Judge, concurring in the result:
I concur in the majority opinion because, and for the most part only because, I believe that we are bound by the published decision in East Bay Sanctuary Covenant v. Trump (East Bay I), 932 F.3d 742 (9th Cir. 2018).
More specifically, we are bound by both the law of the circuit and the law of the case. Of course, the rules that animate the former doctrine are not the same as those that animate the latter. See Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc).
As we have said: “Circuit law . . . binds all courts within a particular circuit, including the court of appeals itself. Thus, the first panel to consider an issue sets the law not only for all the inferior courts in the circuit, but also future panels of the court of appeals.” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001). Moreover: “Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court.” Id. (footnote omitted). Published opinions are precedential. See id. at 1177; see also Gonzalez, 667 F.3d at 389 n.4. That remains true, even if

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some later panel is satisfied that “arguments have been characterized differently or more persuasively by a new litigant,”1 or even if a later panel is convinced that the earlier decision was “incorrectly decided” and “needs reexamination.”2 And those rules are not mere formalities to be nodded to and avoided. Rather, “[i]nsofar as there may be factual differences between the current case and the earlier one, the court must determine whether those differences are material to the application of the rule or allow the precedent to be distinguished on a principled basis.” Hart, 266 F.3d at 1172. In this case, there are no material differences—in fact, the situation before this panel is in every material way the same as that before the motions panel. Furthermore, there is no doubt that motions panels can publish their opinions,3 even though they do not generally do so.4 Once published, there is no difference between motions panel opinions and other opinions; all are entitled to be considered with the same principles of deference by ensuing panels. Thus, any hesitation about whether they should be precedential must necessarily come before the panel decides to publish, not after. As we held in Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015):
Lair contended at oral argument that a motions panel’s decision cannot bind a merits panel, and as a result we are not bound by the motions panel’s analysis in this case. Not so.
1 United States v. Ramos-Medina, 706 F.3d 932, 939 (9th Cir. 2013).
2 Naruto v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018).
3 See 9th Cir. Gen. Order 6.3(g)(3)(ii); see also id. at 6.4(b).
4 See Haggard v. Curry, 631 F.3d 931, 933 n.1 (9th Cir. 2010) (per curiam).

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We have held that motions panels can issue published decisions. . . . [W]e are bound by a prior three-judge panel’s published opinions, and a motions panel’s published opinion binds future panels the same as does a merits panel’s published opinion.
Id. at 747 (citations omitted).5 Therefore, the legal determinations in East Bay I are the law of the circuit.
We have explained the law of the case doctrine as “a jurisprudential doctrine under which an appellate court does not reconsider matters resolved on a prior appeal.” Jeffries v. Wood, 114 F.3d 1484, 1488–89 (9th Cir. 1997) (en banc), overruled on other grounds by Gonzalez, 677 F.3d at 389 n.4. While we do have discretion to decline application of the doctrine, “[t]he prior decision should be followed unless: (1) the decision is clearly erroneous and its enforcement would work a manifest injustice, (2) intervening controlling authority makes reconsideration appropriate, or (3) substantially different evidence was adduced at a subsequent trial.” Id. at 1489 (internal quotation marks and
5 The majority opines that in this respect Lair’s holding is dicta. Not so. The court’s first basis for rejecting Lair’s contention was the basis just quoted. Its second basis was then set forth. Id. It gave both of those alternatives weight and attention. See Woods v. Interstate Realty Co., 337 U.S. 535, 537, 69 S. Ct. 1235, 1237, 93 L. Ed. 1524 (1949) (holding “where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum.”); see also United States v. VidalMendoza, 705 F.3d 1012, 1016 n.5 (9th Cir. 2013); Guadalupe-Cruz v. INS, 240 F.3d 1209, 1211 & n.5 (9th Cir.), corrected, 250 F.3d 1271 (9th Cir. 2001).

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footnote omitted).6 We have also indicated that, in general, “our decisions at the preliminary injunction phase do not constitute the law of the case,”7 but that is principally because the matter is at the preliminary injunction stage and a further development of the factual record as the case progresses to its conclusion may well require a change in the result.8 Even so, decisions “on pure issues of law . . . are binding.” Ranchers Cattlemen, 499 F.3d at 1114. Of course, the case at hand has not progressed beyond the preliminary injunction stage. It is still at that stage, and the factual record has not significantly changed between the record at the time of the decision regarding the stay motion and the current record. Therefore, as I see it, absent one of the listed exceptions, which I do not perceive to be involved here, the law of the case doctrine would also direct that we are bound by much of the motions panel’s decision in East Bay I.
Applying those doctrines:
6 The majority seems to add a fourth exception, that is, motions panel decisions never constitute the law of the case. That would be strange if those decisions can constitute the law of the circuit, which they can. Moreover, the case primarily cited for that proposition did not indicate it was dealing with a published motions panel decision or one that set forth its reasoning. See United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005). It also dealt with the unique area of jurisdiction. See id.
7 Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007); see also Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1074, 1076 n.5 (9th Cir. 2015); Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1090 (9th Cir. 2013).
8 See Ctr. for Biological Diversity, 706 F.3d at 1090.

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(1) The Organizations have standing. East Bay I, 932 F.3d at 765–69.
(2) The Organizations are likely to succeed on the substantive merits. See id. at 770–74. As to procedural validity regarding adoption of the regulation, the motions panel decision that the foreign affairs exception to the notice and comment procedures does not apply is binding. Id. at 775–77. In addition, while the motions panel decision regarding the good cause exceptions is not fully binding, what it did determine was that the information then brought to the attention of the panel and the district court did not suffice. Id. at 777–78. In light of that, I agree with the majority that merely adding the twenty-five-word sentence from a Washington Post article was insufficient to justify changing the motions panel result.
(3) The decisions made by the motions panel regarding harm to the Organizations and balance of hardships are also binding decisions regarding the propriety of the preliminary injunction. Id. at 767, 778–79.
(4) The scope of the injunction is not overly broad. Id. at 779–80.
Thus, I respectfully concur in the result of the majority opinion.