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. 

WILLIAM P. BARR, Attorney General; 

UNITED STATES DEPARTMENT OF 

JUSTICE; JAMES MCHENRY, Director of 

the Executive Office for Immigration 

Review, in his official capacity; 

EXECUTIVE OFFICE FOR 

IMMIGRATION REVIEW; KEVIN K. 

MCALEENAN, Acting Secretary of 

Homeland Security, in his official capacity; 

U.S. DEPARTMENT OF HOMELAND 

SECURITY; KENNETH T. CUCCINELLI, 

Acting Director of the U.S. Citizenship and 

Immigration Services, in his official 

capacity; JOHN P. SANDERS, Acting 

Commissioner of U.S. Customs and Border 

Protection, in his official capacity; UNITED 

STATES CITIZENSHIP AND 

IMMIGRATION SERVICES; U.S. 

CUSTOMS AND BORDER 

PROTECTION; MATTHEW ALBENCE, 

Acting Director of Immigration and 

Customs Enforcement, in his official 

capacity; IMMIGRATION AND 

CUSTOMS ENFORCEMENT, 

No. 19-16487 

D.C. No. 3:19-cv-04073-JST 

Northern District of California, 

San Francisco 

ORDER

FILED

AUG 16 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-16487 

Defendants-Appellants.

Before: TASHIMA, M. SMITH, and BENNETT, Circuit Judges.

Appellants seek a stay pending appeal of the district court’s July 24, 2019 

order preliminarily enjoining the Department of Justice and Department of 

Homeland Security’s joint interim final rule, “Asylum Eligibility and Procedural 

Modifications” (the “Rule”), 84 Fed. Reg. 33,829 (July 16, 2019).1 

The district court found that the Rule likely did not comply with the 

Administrative Procedure Act’s (APA) notice-and-comment and 30-day grace 

period requirements because Appellants did not adequately support invocation of 

the “good cause” and “foreign affairs” exemptions under the APA. See 5 U.S.C. 

§ 553(a)(1), (b)(1)(B), (d)(3); Buschmann v. Schweiker, 676 F.2d 352, 357 (9th 

Cir. 1982) (good cause exemption “should be interpreted narrowly so that the 

exception will not swallow the rule” (internal citations omitted)); Yassini v. 

Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980) (foreign affairs exemption 

“would become distended” if applied to immigration rules generally and requires 

showing that ordinary public noticing would “provoke definitely undesirable 

1 The State of Arizona’s amicus brief in support of Appellants’ motion has 

been filed. The Professors of Immigration Law’s motion for leave to file an 

amicus brief in opposition to Appellants’ motion (Docket Entry No. 28) is granted, 

and the brief is filed.
3 19-16487 

international consequences”). We conclude that Appellants have not made the 

required “strong showing” that they are likely to succeed on the merits on this 

issue. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).

2

Consequently, we deny the motion for stay pending appeal (Docket Entry 

No. 3) insofar as the injunction applies within the Ninth Circuit.

3

 

We grant the motion for stay pending appeal insofar as the injunction applies 

outside the Ninth Circuit, because the nationwide scope of the injunction is not 

2 Our finding that Appellants have not made a “strong showing” does not bind 

the merits panel in reviewing this aspect of the merits, as that is not the standard

the merits panel will apply. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 

20 (2008).

3 We do not assess Appellants’ remaining arguments as to likelihood of 

success on the merits and do not reach the remaining Hilton factors. See Nken v. 

Holder, 556 U.S. 418, 435 (2009) (stating that the likelihood of success on the 

merits factor is one of the “most critical” and must be established before 

considering the last two stay factors); cf. California v. Azar, 911 F.3d 558, 575 (9th 

Cir. 2018) (“Likelihood of success on the merits is the most important factor; if a 

movant fails to meet this threshold inquiry, we need not consider the other factors.”

(internal quotation marks omitted) (quoting Disney Enters., Inc. v. VidAngel, Inc., 

869 F.3d 848, 856 (9th Cir. 2017))).
4 19-16487 

supported by the record as it stands.

4

 Cf. City and County of San Francisco v. 

Trump, 897 F.3d 1225, 1243–45 (9th Cir. 2018).

5

 

An injunction must be “narrowly tailored to remedy the specific harm 

shown.” Id. at 1244 (quoting Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 

1987)). We have upheld nationwide injunctions where such breadth was necessary 

to remedy a plaintiff’s harm. See, e.g., id.; California v. Azar, 911 F.3d 558, 582

(9th Cir. 2018) (“Although there is no bar against nationwide relief in federal 

district court . . . such broad relief must be necessary to give prevailing parties the 

4 The dissent, without citing any authority, argues that “it is [not] within a 

motions panel’s province to parse the record for error at this stage” and accuses us 

of “[going] beyond the recognized authority of a motions panel” by granting the 

motion for a stay pending appeal insofar as the injunction applies outside the Ninth 

Circuit. We have two responses. 

First, we did not have to “parse” the record for error. Appellants’ stay 

motion specifically argues that the district court erred in imposing a nationwide 

injunction. Moreover, the three sentences that the district court provided to 

support the imposition of a nationwide injunction—none of which explains why it 

believed a nationwide injunction was necessary in this case—make clear that it 

failed to undertake the analysis necessary before granting such broad relief.

Second, other motions panels of our court have reviewed the scope of 

injunctive relief granted by district courts. See, e.g., E. Bay Sanctuary Covenant v. 

Trump, No. 18-17274, 2018 WL 8807133, at *24 (9th Cir. Dec. 7, 2018); Hawaii

v. Trump, No. 17-17168, 2017 WL 5343014, at *1 (9th Cir. Nov. 13, 2017). We 

think these decisions illustrate that it is indeed within our province—our duty, 

even—to review whether the district court abused its discretion in granting a 

nationwide injunction. 

5 The dissent criticizes our reliance on Trump, 897 F.3d 1225, because the 

procedural posture in this case is different. We recognize this difference as we cite 

Trump as an analogous case supporting our decision because, notwithstanding the 

different procedural posture, the issue in that case—whether the scope of the 

injunction was appropriate—is the same issue before us. See id. at 1244–45.
5 19-16487 

relief to which they are entitled.” (internal quotation marks and alterations omitted)

(quoting Bresgal, 843 F.2d at 1170–71)). These are, however, “exceptional cases.” 

Trump, 897 F.3d at 1244. To permit such broad injunctions as a general rule, 

without an articulated connection to a plaintiff’s particular harm, would

unnecessarily “stymie novel legal challenges and robust debate” arising in different 

judicial districts. Id.; see also Azar, 911 F.3d at 583 (“The Supreme Court has 

repeatedly emphasized that nationwide injunctions have detrimental consequences 

to the development of law and deprive appellate courts of a wider range of 

perspectives.”). 

Here, the district court failed to discuss whether a nationwide injunction is 

necessary to remedy Plaintiffs’ alleged harm. Instead, in conclusory fashion, the 

district court stated that nationwide relief is warranted simply because district 

courts have the authority to impose such relief in some cases and because such 

relief has been applied in the immigration context. The district court clearly erred 

by failing to consider whether nationwide relief is necessary to remedy Plaintiffs’ 

alleged harms. And, based on the limited record before us, we do not believe a

nationwide injunction is justified. 

Our dissenting colleague believes that a nationwide injunction is appropriate 

simply because this case presents a rule that applies nationwide. That view, 

however, ignores our well-established rule that injunctive relief “must be tailored 
6 19-16487 

to remedy the specific harm alleged.” Lamb-Weston, Inc. v. McCain Foods, Ltd.,

941 F.2d 970, 974 (9th Cir. 1991) (citations omitted). Indeed, were we to adopt 

the dissent’s view, a nationwide injunction would result any time an enjoined 

action has potential nationwide effects. Such an approach would turn broad 

injunctions into the rule rather than the exception. Under our case law, however, 

all injunctions—even ones involving national policies—must be “narrowly tailored 

to remedy the specific harm shown.” Trump, 897 F.3d at 1244 (quoting Bresgal, 

843 F.2d at 1170). 

We agree with our dissenting colleague that “time does not permit a full 

exploration of the merits of the ‘nationwide’ issue.” But whereas he believes that 

such a factor supports the granting of a nationwide injunction until a merits panel 

can address the case, we reach precisely the opposite conclusion. “National 

injunctions interfere with good decisionmaking by the federal judiciary.” Samuel 

L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. 

Rev. 417, 461 (2017). They “deprive” other parties of “the right to litigate in other 

forums.” Azar, 911 F.3d at 583. Based on the briefing and limited record before 

us, and absent an explanation by the district court as to why a nationwide 

injunction is necessary to remedy Plaintiffs’ alleged harm in this case, we must 

grant the motion for stay pending appeal insofar as the injunction applies outside

the Ninth Circuit. 
7 19-16487 

Our dissenting colleague also argues that it is “perplexing” that the 

government’s failure to demonstrate a strong showing of likelihood of success on 

the merits “does not . . . require that a stay of the nationwide aspect of the 

injunction [] be denied.” That contention misses the mark, however, by conflating 

the merits of the government’s position with district court’s authority to issue a 

nationwide injunction. Whether Appellants have made a strong showing of 

likelihood of success on the merits entitling them to a stay of the preliminary 

injunction is a separate question from whether the scope of the injunction is 

appropriate. In Azar, for example, we affirmed the preliminary injunction because, 

among other things, we found that the plaintiffs were likely to succeed on their 

claim that the rules were invalid. 911 F.3d at 575–81. Despite our conclusion that 

the rules were likely invalid, however, we also determined that the injunction’s 

nationwide scope was not supported by the record. Id. at 584–85. Azar illustrates 

that, beyond examining the merits of a party’s arguments, a district court must 

separately analyze whether nationwide relief is “necessary to give prevailing 

parties the relief to which they are entitled” before issuing such an injunction. Id.

at 582 (quoting Bresgal, 843 F.2d at 1170–71). 
8 19-16487 

Our approach—granting a more limited injunction—allows other litigants 

wishing to challenge the Rule to do so. Indeed, several already have.6 Litigation 

over the Rule’s lawfulness will promote “the development of the law and the 

percolation of legal issues in the lower courts” and allow the Supreme Court, if it 

chooses to address the Rule, to do so “[with] the benefit of additional viewpoints 

from other lower federal courts and [with] a fully developed factual record.” 

Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. REV. 1065, 

1107–08 (2018).

7

In sum, our decision to partially grant the stay simply upholds the law of our 

circuit by ensuring that injunctive relief is properly tailored to the alleged harm.8

While this appeal proceeds, the district court retains jurisdiction to further 

develop the record in support of a preliminary injunction extending beyond the 

6 As Appellants point out, hours before the district court ruled here, a District 

of Columbia district court, presented with the same Rule, denied materially 

identical relief to organizations similar to the Plaintiffs here. See CAIR v. Trump, 

No. 1:19-CV-02117-TJK, 2019 WL 3436501 (D.D.C. July 24, 2019).

7 Accord United States v. Mendoza, 464 U.S. 154, 160 (1984) (“[O]nly one 

final adjudication would deprive this Court of the benefit it receives from 

permitting several courts of appeals to explore a difficult question.”). 

8 Contrary to the dissent’s position, the fact that injunctive relief may 

temporarily cause the Rule to be administered inconsistently in different locations 

is not a sound reason for imposing relief that is broader than necessary. As we 

explain above, our law requires that injunctive relief be narrowly tailored to 

remedy the plaintiffs’ alleged harm, and it may only be broadened “if such breadth 

is necessary to give prevailing parties the relief to which they are entitled.” 

Bresgal, 843 F.2d at 1170–71 (emphasis added).
9 19-16487 

Ninth Circuit. Cf. Trump, 897 F.3d at 1245 (“Because the record is insufficiently 

developed as to the question of the national scope of the injunction, we vacate the 

injunction to the extent that it applies outside California and remand to the district 

court for a more searching inquiry into whether this case justifies the breadth of the 

injunction imposed.”).

The opening brief is due September 3, 2019; the answering brief is due

October 1, 2019; and the optional reply is due within 21 days after service of the 

answering brief. This case will be placed on a December 2019 argument calendar.
East Bay Sanctuary Covenant v. Barr, No. 19-16487

TASHIMA, Circuit Judge, concurring in part and dissenting in part:

I concur in the portion of the order denying the motion for stay pending

appeal [Dkt. 3] insofar as the injunction applies within the Ninth Circuit, but

dissent from the balance of the order. 

Acting as a motions panel, all we have before us is the government’s motion

for a stay. I do not believe that it is within a motions panel’s province to parse the

record for error at this stage, which is what the majority does in concluding that

“the nationwide scope of the injunction is not supported by the record as it stands.”

(Citation omitted.) But the majority then goes beyond the recognized authority of

a motions panel by concluding that “[t]he district court clearly erred by failing to

consider whether nationwide relief is necessary to remedy Plaintiffs’ alleged

harms,” and, on that basis “grant[s] the motion for stay pending appeal insofar as

the injunction applies outside the Ninth Circuit.” It then, in the penultimate

paragraph of the Order, in effect, remands the case to the district court for a partial

do-over:

While this appeal proceeds, the district court retains jurisdiction to

further develop the record in support of a preliminary injunction extending

beyond the Ninth Circuit.1

FILED

AUG 16 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

1 The majority relies on City & County of San Francisco v. Trump, 897

F.3d 1225, 1245 (9th Cir. 2018), but the citation is completely inapposite. That

(continued...)
But vacating and remanding it to the district court for a more searching inquiry into

whether this case justifies the breadth of the injunction is indubitably an action 

within the province of a merits panel—not a motions panel.2

At the same time, the order places the merits briefing (of this appeal) on an

expedited schedule for placement “on a December 2019 argument calendar.” What

issues are the parties expected to brief, assuming that parallel proceedings in the

district court are still ongoing? And if the district court completes its second-look

remand proceedings within the next few weeks or months and issues a modified

injunction, or issues the same nationwide injunction, but one which is supported by

supplemental findings of fact, should the parties seek to file supplemental briefs on

the newly-raised and newly-decided issues in this appeal to the merits panel

assigned to this appeal, or should a new notice of appeal be filed, giving rise to a

1

(...continued)

was an opinion by a merits panel charged with deciding the appeal, not a motions

panel charged with deciding a stay motion, and the merits panel did exactly what it

was charged with, i.e., it decided the appeal; it “AFFIRMED in part;VACATED in

pari; and REMANDED.” Id. We, as a motions panel, have no equivalent charge.

2 Because the issue has been decided, applying the clear error standard

of review, the injunction vacated and remanded to the district court, the merits

panel, presumably has been deprived of deciding this issue. The majority’s

assertion, in footnote 2, that its action “does not bind the merits panel,” is an empty

promise. Deciding the case on the merits, vacating and remanding the injunction is

not in accord with the dictates of Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,

20 (2008).

Page -2-
new appeal? These are some of the new and difficult questions raised by the

majority’s split-decision.

While time does not permit a full exploration of the merits of the

“nationwide” issue, some problems posed by the majority’s Ninth Circuit-only

injunction are apparent. Perhaps, the district court did not make detailed findings

in support of a nationwide injunction because the need for one in the circumstances

of this case is obvious. For starters, the joint interim final rule, “Asylum Eligibility

and Procedural Modifications,” will affect asylum applications across the breadth

of the southern border. Should asylum law be administered differently in Texas

than in California? These issues and problems illustrate why tinkering with the

merits on a limited stay motion record can be risky. And it is why such issues are

reserved for the more deliberate examination that a merits panel can give them.

There is also a glaring inconsistency—a contradiction—in the majority’s

split-the-baby approach. If, as the majority and I agree, the government’s failure to

meet the first Hilton v. Braunskill, 481 U.S. 770, 776 (1987), factor —likelihood of

success on the merits, because of its failure to comply with the APA—means that

its stay motion with respect to the preliminary injunction’s application within the

Ninth Circuit fails, it is perplexing to me why that failure does not infect the

balance of its stay motion and require that a stay of the nationwide aspect of the

Page -3-
injunction also be denied.3

 The majority, in its rush to address the merits of the

nationwide aspect of the injunction, simply elides this contradiction.

Because I would not peel off part of the preliminary injunction and remand

that portion to the district court, “[b]ecause the record is insufficiently developed

as to the question of the national scope of the injunction” (quoting San Francisco

v. Trump, 897 F.3d at 1245), while retaining jurisdiction over the remainder, I

dissent from the remand4 of the nationwide scope of the preliminary injunction to

the district court.

I would simply deny the stay motion.

3 The majority’s answer to this point is to state that “Whether

Appellants have made a strong showing of likelihood of success on the merits

entitling them to a stay of the preliminary injunction is a separate question from

whether the scope of the injunction is appropriate.” But that doesn’t answer (or

even try to answer) my question of why the government’s failure to meet the

likelihood-of-success factor doesn’t doom its motion to stay the nationwide portion

of the injunction, as well as the California portion.

4 The Order does not use the word “remand,” but the majority does not

quarrel with the obvious inference from its statement that “the district court retains

jurisdiction to further develop the record in support of a preliminary injunction

extending beyond the Ninth Circuit,” is, in substance, a remand.

Page -4-