E. Bay Sanctuary Covenant v. Trump

Citation354 F.Supp.3d 1094
Decision Date19 December 2018
Docket NumberCase No. 18-cv-06810-JST
Parties EAST BAY SANCTUARY COVENANT, et al., Plaintiffs, v. Donald J. TRUMP, et al., Defendants.
CourtU.S. District Court — Northern District of California

Lee Gelernt, Pro Hac Vice, American Civil Liberties Union, Angelo Guisado, Pro Hac Vice, Baher Azmy, Pro Hac Vice, Ghita Schwarz, Pro Hac Vice, Center For Constitutional Rights, Celso Javier Perez, Judy Rabinovitz, Pro Hac Vice, Omar C. Jadwat, Pro Hac Vice, Spencer Elijah Wittmann Amdur, ACLU Foundation Immigrants' Rights Project, New York, NY, Christine Patricia Sun, Julie Michelle Veroff, Vasudha Talla, ACLU Foundation of Northern California, Cody H. Wofsy, Jennifer C. Newell, ACLU Immigrants' Rights Project, San Francisco, CA, Mary Catherine Bauer, Pro Hac Vice, Southern Poverty Law Center, Charlottesville, VA, Melissa Crow, Pro Hac Vice, Southern Poverty Law Center, Washington, DC, for Plaintiffs.

Scott G. Stewart, Christina P. Greer, Erez R. Reuveni, Francesca M. Genova, Thomas Benton York, U.S. Department of Justice, Washington, DC, for Defendants.


Re: ECF No. 71, 88

JON S. TIGAR, United States District Judge

Once again, the parties are before the Court regarding a rule issued recently by the Attorney General and the Department of Homeland Security. The rule, in combination with a Presidential proclamation, makes anyone who crosses the southern border of the United States somewhere other than a designated port of entry ineligible for asylum.

Plaintiffs previously asked the Court to issue a temporary restraining order against the new rule. After considering the arguments on both sides and holding a hearing, the Court found the rule was inconsistent with the will of Congress as expressed in the United States' immigration statutes. Specifically, the rule conflicts with Congress's command that an alien "physically present in the United States or who arrives in the United States ... whether or not at a designated port of arrival " may apply for asylum. 8 U.S.C. § 1158(a)(1) (emphasis added). Furthermore, the Court found the rule is probably invalid for the additional reason that the Government failed to allow Plaintiffs and other interested members of the public to provide comments about the rule before it went into effect. The Court also found that the plaintiff immigration organizations had the right to bring this lawsuit, and that allowing the rule to remain in effect while this case was pending was not in the public interest because of the harms that would befall both the plaintiff organizations and immigrants who were legitimately seeking asylum. Accordingly, this Court issued a temporary restraining order preventing the regulation from going into effect. A few weeks later, the Ninth Circuit denied a stay and left that order in place.

The Plaintiffs now seek a preliminary injunction that would keep the new rule from going into effect for an extended period of time. As set forth below, the arguments on both sides are nearly identical to those made earlier to this Court and to the Ninth Circuit. Moreover, what new evidence and argument there is largely supports Plaintiffs' position. If anything, the inconsistency between the new regulation and the immigration laws has been stated more clearly. The harms to those seeking asylum are also even clearer, and correspondingly the public interest more plainly supports injunctive relief. Not surprisingly then, the result of the present motion is the same: the Court again concludes that Plaintiffs have established an overwhelming likelihood that the new rule barring asylum is invalid. Accordingly, the Court will grant Plaintiffs' request for a preliminary injunction.

A. Nature of the Dispute

The Court has previously set forth the relevant legal framework and the challenged executive actions, ECF No. 43, and it need not repeat them in great detail here. In brief, on November 9, 2018, the Department of Justice ("DOJ") and Department of Homeland Security ("DHS") published a joint interim final rule, entitled " Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims" (the "Rule"). 83 Fed. Reg. 55,934 (Nov. 9, 2018) (to be codified at 8 C.F.R. pts. 208, 1003, 1208). The Rule makes an alien categorically ineligible for asylum if the alien enters 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." Id. at 55,952 (to be codified at 8 C.F.R. §§ 208.13(c)(3), 1208.13(c)(3) ). On the same day, the President of the United States issued such a proclamation (the "Proclamation"),1 suspending the entry of any alien into United States along the southern border for ninety days, except for "any alien who enters the United States at a port of entry and properly presents for inspection." Proclamation § 2(b). Taken together, the Rule and the Proclamation "create an operative rule of decision for asylum eligibility" that denies asylum to all aliens who fail to enter at a designated port of entry. E. Bay Sanctuary Covenant v. Trump , 909 F.3d 1219, 1246 (9th Cir. 2018).

B. Procedural History

Four legal and social service immigration organizations, Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center of Los Angeles ("CARECEN") (collectively, the "Organizations"), challenged the Rule, arguing that it was inconsistent with provisions of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1158, and that the agencies had failed to comply with the notice-and-comment provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553. ECF No. 1.

1. The Court's TRO

On November 19, 2018, the Court granted the Organizations' motion for a temporary restraining order ("TRO"). ECF No. 43. The Court concluded that the case was justiciable because the Organizations had Article III standing to bring this challenge and third-party standing to assert the rights of their clients, and that their asserted interests arguably fell within the zone of interests protected by the INA. Id. at 13-17. Turning to the preliminary relief factors, the Court held that the Organizations were likely to succeed on the merits of their claim that the Rule was inconsistent with the INA, because the Rule purported to deny asylum eligibility on a ground that Congress had clearly stated could not be disqualifying. Id. at 19-23. Further, the Court concluded that the Organizations had at least raised serious questions going to the merits of their claims that the agencies lacked a basis to assert the foreign affairs or good cause exceptions to the APA's notice-and-comment requirements. Id. at 27-29.

On the remaining equitable factors, the Court found that the Organizations' clients would suffer irreparable harm while the Rule was in place, id. at 30-31, and that the Organizations themselves would be irreparably injured in light of the loss of opportunity to exercise their procedural rights and the Rule's substantive harm to their operations, id. at 31. Finally, the Court concluded that the equities and the public interest weighed in favor of preliminary relief. Id. at 32-33.

"Given the need for uniformity in immigration law," the Court determined that a nationwide injunction was appropriate, particularly given Defendants' failure to provide a more narrow but workable alternative. Id. at 34 & n.21. The Court therefore issued a TRO, to remain in place until December 19, 2018, and ordered Defendants to show cause why a preliminary injunction should not issue. Id. at 36.

On November 27, 2018, Defendants appealed the TRO to the Ninth Circuit and filed a motion requesting that the Court stay the TRO pending appeal. ECF Nos. 51, 52. After receiving briefing from the parties, the Court denied the motion on November 30, 2018. ECF No. 61.

2. The Ninth Circuit's Denial of a Stay

The next day, Defendants filed a motion for a stay pending appeal with the Ninth Circuit. E. Bay Sanctuary Covenant v. Trump , No. 18-17274 (9th Cir.), ECF No. 4. On December 7, 2018, a divided motions panel of the Ninth Circuit denied the stay in a published order. E. Bay Sanctuary Covenant , 909 F.3d 1219 (9th Cir. 2018).

The Ninth Circuit first held that the TRO possessed the necessary characteristics to be treated "as an appealable preliminary injunction." Id. at 1239.

Second, the Ninth Circuit held that the Organizations had Article III and statutory standing to pursue their claims. The court concluded that the Organizations lacked third-party standing because their clients did "not have standing to assert a right to cross the border illegally, to seek asylum or otherwise." Id. at 1240. The Ninth Circuit agreed, however, that the Organizations satisfied the Article III requirements for organizational standing because the Rule "frustrated their mission of providing legal aid to affirmative asylum applicants" and required the Organizations to divert resources from their other initiatives. Id. at 1242. The court also held that the Organizations suffered an independently sufficient cognizable harm because they had shown "that the Rule will cause them to lose a substantial amount of funding." Id. at 1243. Finally, the Ninth Circuit held that the Organizations had statutory standing to pursue their APA claims because their interests arguably fell within the zone of interests protected by the INA. Id. at 1244-45.

Turning to the merits of Defendants' stay request, the panel majority held that Defendants had not made the requisite showing, because the Rule was likely inconsistent with the plain language of 8 U.S.C. § 1158(a)(1) and the structure of the INA. Id. at 1246-49. The majority further observed that, even if the statute were ambiguous, the Rule's interpretation was likely unreasonable in light of a practical understanding of the circumstances under which refugees seek asylum, as reflected in...

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