E. Bay Sanctuary Covenant v. Barr

Citation391 F.Supp.3d 974
Decision Date09 September 2019
Docket NumberCase No. 19-cv-04073-JST
Parties EAST BAY SANCTUARY COVENANT, et al., Plaintiffs, v. William BARR, et al., Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California

Katrina Leigh Eiland, Christine Patricia Sun, Julie Michelle Veroff, Cody H. Wofsy, ACLU Foundation Immigrants' Rights Project, Angelica Salceda, Vasudha Talla, ACLU Foundation of Northern California, Inc., San Francisco, CA, Lee Gelernt, Pro Hac Vice, Anand Balakrishnan, Pro Hac Vice, Omar C. Jadwat, Pro Hac Vice, Spencer Elijah Wittmann Amdur, ACLU Foundation Immigrants' Rights Project, New York, NY, Mary Catherine Bauer, Pro Hac Vice, Southern Poverty Law Center, Charlottesville, VA, Melissa E. Crow, Pro Hac Vice, American Immigration Council, Washington, DC, for Plaintiffs.

Erez R. Reuveni, Scott G. Stewart, Colin A. Kisor, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC, for Defendants.

ORDER GRANTING MOTION TO RESTORE NATIONWIDE SCOPE OF INJUNCTION
Re: ECF No. 57

JON S. TIGAR, United States District Judge Now before the Court is Plaintiffs' motion "to consider supplemental evidence and restore the nationwide scope of injunction." ECF No. 57. For the reasons set forth below, the Court will grant the motion.

I. BACKGROUND

The factual background to this case is discussed at length in the Court's preliminary injunction order, and the Court will not repeat those details here except as necessary to explain its ruling on the present motion.

On July 16, 2019, the Department of Justice ("DOJ") and the Department of Homeland Security ("DHS") published a joint interim final rule, entitled "Asylum Eligibility and Procedural Modifications" (the "Rule" or the "third country transit bar"). The effect of the Rule is to categorically deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country.

Plaintiffs in this case – East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center (the "Organizations") – are legal and social service organizations that provide assistance, advocacy, and legal services to undocumented persons. On July 17, 2019, the Organizations filed a motion for temporary restraining order to prevent the Rule from taking effect. ECF No. 3. By consent of the parties, the motion was converted to one for preliminary injunction, which the Court granted on July 24, 2019. ECF No. 42. The injunction prevented the Defendants1 "from taking any action continuing to implement the Rule" and ordered them "to return to the pre-Rule practices for processing asylum applications." E. Bay Sanctuary Covenant v. Barr ("East Bay IV") , 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019).2 Among other things, the Court found that "the Organizations [had] ... established a sufficient likelihood of irreparable harm through ‘diversion of resources and the non-speculative loss of substantial funding from other sources.’ " Id. at 957-58 (quoting E. Bay Sanctuary Covenant v. Trump ("East Bay III "), 354 F. Supp. 3d 1094, 1116 (N.D. Cal. 2018)).

Defendants appealed that order to the Ninth Circuit and moved for a stay pending appeal. The Ninth Circuit denied the motion for stay pending appeal, but only "insofar as the injunction applies within the Ninth Circuit." E. Bay Sanctuary Covenant v. Barr ("East Bay V "), 934 F.3d 1027, 1028, 2019 WL 3850928, at *1 (9th Cir. 2019). The court "grant[ed] the motion for stay pending appeal insofar as the injunction applies outside the Ninth Circuit, because the nationwide scope of the injunction is not supported by the record as it stands." Id. The Ninth Court also ordered that this Court "retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit." Id. at 1031, at *3. That court did not disturb this Court's prior findings regarding the nature of the harms the Organizations were likely to suffer if the Rule were given effect.

The Organizations then filed this motion "to consider supplemental evidence and restore the nationwide scope of injunction," ECF No. 57, as well as a supplemental brief ordered by the Court, ECF No. 63. The Government filed an opposition, ECF Nos. 65, 66, and the Organizations filed a reply, ECF No. 67.3

After the Organizations filed their motion, but before the Government filed its opposition, three of the defendants – EOIR, USCIS, and ICE – issued guidance regarding the implementation of the Court's injunction as modified by the Ninth Circuit's stay order. The guidance requires employees of those agencies to treat individuals as covered by the injunction if: "(1) the alien was apprehended in the Ninth Circuit, (2) the alien is detained in the Ninth Circuit, or (3) the interview or adjudication itself occurs in the Ninth Circuit." ECF No. 65-1 (EOIR Guidance) at 1; see also ECF No. 65-2 (USCIS Guidance) at 1 ("the IFR should not apply to any [credible fear] determination or asylum adjudication in which: (1) the alien was apprehended in the jurisdiction of the Ninth Circuit ... (2) the alien is detained in the jurisdiction of the Ninth Circuit; or (3) the interview itself occurs in the jurisdiction of the Ninth Circuit"); ECF No. 65-3 (ICE Guidance) at 1 (ICE "will consider the PI to apply in situations where the alien: (i) was initially apprehended by DHS within the jurisdiction of the Ninth Circuit; (ii) is detained within the Ninth Circuit at the time of adjudication of the asylum application; or (iii) was initially located outside the Ninth Circuit but whose asylum application is subsequently adjudicated within the Ninth Circuit").

The Court conducted a hearing on the motion on September 5, 2019.

II. JURISDICTION

The Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1331. However, the parties dispute the nature and extent of the Court's jurisdiction to decide the present motion. The Organizations contend that this Court retains jurisdiction to further develop the record and affirm or disaffirm the nationwide scope of its injunction order.4 ECF No. 67 at 17-21. Defendants contend that the Court lacks jurisdiction to restore the nationwide scope of the injunction, and that the Court at most has jurisdiction to issue an indicative ruling pursuant to Rule 62.1 of the Federal Rules of Civil Procedure. ECF No. 65 at 12-16. The parties' positions turn on their competing interpretations of the Ninth Circuit's language that "the district court retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit." East Bay V , 934 F.3d at 1028, 2019 WL 3850928, at *1.

The normal rule is that "[o]nce a notice of appeal is filed, the district court is divested of jurisdiction over the matters being appealed." Nat'l Res. Def. Council v. Sw. Marine Inc. , 242 F.3d 1163, 1166 (9th Cir. 2001). This rule is "judge-made" rather than jurisdictional, designed to "promote judicial economy and avoid the confusion that would ensue from having the same issues before two courts simultaneously." Id. One exception to this rule is when the court of appeals orders a limited remand to the district court. See Wright & Miller, Retained Jurisdiction , 16 Fed. Prac. & Proc. Juris. § 3937.1 (3d ed.) ("Whatever the reason, the courts of appeals often have retained jurisdiction while making a limited remand for additional findings or explanations."). Such remands often come with specific instructions. See, e.g. , Friery v. Los Angeles Unified Sch. Dist. , 448 F.3d 1146, 1147 (9th Cir. 2006) (remanding to district court "for the limited purpose of finding facts and making a determination of the plaintiff's standing" and empowering the court to "entertain any appropriate motions" and "enter an appropriate order" if it found abstention or dismissal appropriate). Here, although the Ninth Circuit did not provide instructions as to what action the Court should take if it finds that the supplemented record supports a nationwide injunction, the most plausible reading of East Bay V 's language is that it grants the Court jurisdiction to consider the augmented record in its totality and, based on that record, affirm or disaffirm the nationwide scope of its prior order. Several considerations support this conclusion.

First, there is a longstanding exception to the divestiture rule, providing that a "district court retains jurisdiction during the pendency of an appeal to act to preserve the status quo." Sw. Marine Inc. , 242 F.3d at 1166. This exception is codified in Federal Rule of Civil Procedure 62(d), which allows a district court to "suspend, modify, restore, or grant an injunction" while an appeal of a prior injunction is pending. Id. ; Fed. R. Civ. Proc. 62(d). Any action taken pursuant to Rule 62(d) "may not materially alter the status of the case on appeal." Sw. Marine Inc. , 242 F.3d at 1166 (citation omitted).

For the purposes of Rule 62(d), "status quo" means the state of affairs at the time the appeal was filed, i.e., the nationwide injunction originally issued by the Court. Mayweathers v. Newland , 258 F.3d 930 (9th Cir. 2001) is instructive. In that case, a prison appealed a preliminary injunction forbidding it from disciplining inmates for missing work to attend religious services. Id. at 933. Because the injunction expired under the terms of the Prison Litigation Reform Act, the district court entered a second, identical injunction while the appeal was pending. Id. at 934. The Ninth Circuit held that the district court had jurisdiction to issue the second injunction under Rule 62(d)5 because it "neither changed the status quo at the time of the first appeal nor materially altered the status of the appeal." Id. at 935 (emphasis added); see also Sw. Marine , 242 F.3d at 1167 (affirming district court's modification of injunction while appeal was pending because it "left unchanged the core...

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