E. Bay Sanctuary Covenant v. Barr, Case No. 19-cv-04073-JST

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: JON S. TIGAR, United States District Judge
• Citation: 385 F.Supp.3d 922
• Parties: EAST BAY SANCTUARY COVENANT, et al., Plaintiffs, v. William BARR, et al., Defendants.
• Docket Number: Case No. 19-cv-04073-JST
• Decision Date: 24 July 2019

385 F.Supp.3d 922

EAST BAY SANCTUARY COVENANT, et al., Plaintiffs,
v.
William BARR, et al., Defendants.

Case No. 19-cv-04073-JST

United States District Court, N.D. California.

Signed July 24, 2019

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Katrina Leigh Eiland, Cody H. Wofsy, Julie Michelle Veroff, ACLU Foundation Immigrants' Rights Project, Angelica Salceda, Christine Patricia Sun, Vasudha Talla, ACLU Foundation of Northern California, Inc., Marienna Harnden Murch, Covington and Burling LLP, 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, Southern Poverty Law Center, Charlottesville, VA, Melissa E. Crow, American Immigration Council, Washington, DC, for Plaintiffs.

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

ORDER GRANTING PRELIMINARY INJUNCTION

Re: ECF No. 3

JON S. TIGAR, United States District Judge

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

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

Under our laws, the right to determine whether a particular group of applicants is categorically barred from eligibility for asylum is conferred on Congress. Congress has empowered the Attorney General to establish additional limitations and conditions by regulation, but only if such regulations are consistent with the existing immigration laws passed by Congress. This new Rule is likely invalid because it is inconsistent with the existing asylum laws.

First, Congress has already created a bar to asylum for an applicant who may be removed to a "safe third country." The safe third country bar requires a third country's formal agreement to accept refugees and process their claims pursuant to safeguards negotiated with the United States. As part of that process, the United States must determine that (1) the alien's life or freedom would not be threatened on account of a protected characteristic if removed to that third country and (2) the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection there. Thus, Congress has ensured that the United States will remove an asylum applicant to a third country only if that country would be safe for the applicant and the country provides equivalent asylum protections to those offered here. The Rule provides none of these protections.

Congress has also enacted a firm resettlement bar, pursuant to which asylum is unavailable to an alien who was firmly resettled in another country prior to arriving in the United States. Before this bar can be applied, however, the government must make individualized determinations that an asylum applicant received an offer of some type of permanent resettlement in a country where the applicant's stay and ties are not too tenuous, or the conditions of his or her residence too restricted, for him or her to be firmly resettled. Again, the Rule ignores these requirements.

Additionally, there are serious questions about the Rule's validity given the government's failure to comply with the Administrative Procedure Act's notice-and-comment rules. The government made the Rule effective without giving persons affected by the Rule and the general public the chance to submit their views before the Rule took effect. The government contends that it did not need to comply with those procedures because the Rule involves the "foreign affairs" of the United States. But this exception requires the government to show that allowing public comment will provoke "definitely undesirable international consequences," which the government has not done. Indeed, the Rule explicitly invites such comment even while it goes into effect. Thus, the government will still suffer the ill consequences of public comment – which, to be clear, are entirely speculative – but without gaining the benefit to good rule-making that public comment would provide.

Next, the Rule is likely invalid because the government's decision to promulgate it was arbitrary and capricious. The Rule purports to offer asylum seekers a safe and effective alternative via other countries' refugee processes. As the Rule expressly contemplates, this alternative forum will most often be Mexico. But the government's own administrative record contains no evidence that the Mexican asylum regime provides a full and fair procedure for determining asylum claims. Rather, it affirmatively demonstrates that asylum claimants removed to Mexico are likely to be (1) exposed to violence and abuse from third parties and government officials; (2) denied their rights under Mexican and international law, and (3) wrongly returned to countries from which

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they fled persecution. The Rule also ignores the special difficulties faced by unaccompanied minors. Congress recognized these difficulties by exempting "unaccompanied alien child[ren]" from the safe third country bar. The Rule, which applies to unaccompanied minors just as it does to adults, casts these protections to one side.

Lastly, the balance of equities and the public interest tip strongly in favor of injunctive relief. While the public has a weighty interest in the efficient administration of the immigration laws at the border, it also has a substantial interest in ensuring that the statutes enacted by its representatives are not imperiled by executive fiat. Also, an injunction in this case would not radically change the law – or change it at all. It would merely restore the law to what it has been for many years, up until a few days ago. Finally, an injunction would vindicate the public's interest – which our existing immigration laws clearly articulate – in ensuring that we do not deliver aliens into the hands of their persecutors.

For these reasons, and the additional reasons set forth below, the Court will enjoin the Rule from taking effect.

I. BACKGROUND

A. Asylum Framework

1. Overview

In a related case, the Ninth Circuit has extensively summarized the general framework governing U.S. both immigration law generally and asylum in particular. See E. Bay Sanctuary Covenant v. Trump (E. Bay II) , 909 F.3d 1219, 1231-36 (9th Cir. 2018).¹ The Court therefore reviews the relevant law more briefly, focusing on the provisions most relevant here.

The current iteration of U.S. asylum law stems from the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980), which Congress enacted in large part "to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577 [ (‘1967 Protocol’) ], to which the United States acceded in 1968." I.N.S. v. Cardoza-Fonseca , 480 U.S. 421, 436-37, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). The 1967 Protocol, in turn, incorporates articles 2 to 34 of the 1951 Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 ("1951 Convention"). See 1967 Protocol, art. I. Although these international agreements do not independently carry the force of law domestically, see I.N.S. v. Stevic , 467 U.S. 407, 428 n.22, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), they provide relevant guidance for interpreting the asylum statutes, see Cardoza-Fonseca , 480 U.S. at 439-40, 107 S.Ct. 1207.

In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) ("IIRIRA"). Under IIRIRA, an immigrant's ability to lawfully reside in the United States ordinarily turns on whether the immigrant has been lawfully "admitted," meaning that there has been a "lawful entry of the alien into the United States after inspection and authorization by an immigration officer." 8 U.S.C. § 1101(a)(13)(A) ; see also E. Bay II , 909 F.3d at 1232 (explaining that Congress has "established ‘admission’ as the

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key concept in immigration law"). U.S. immigration law sets forth numerous reasons why aliens may be "ineligible to receive visas and ineligible to be admitted to the United States." 8 U.S.C. § 1182(a).

But "[a]sylum is a concept distinct from admission." E. Bay II , 909 F.3d at 1233. Asylum "permits the executive branch – in its discretion – to provide protection to aliens who meet the international definition of refugees." Id. Accordingly, "the decision to grant asylum relief is ultimately left to the Attorney General's discretion," see I.N.S. v. Aguirre-Aguirre , 526 U.S. 415, 420, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999) ; Delgado v. Holder , 648 F.3d 1095, 1101 (9th Cir. 2011), subject to the court of appeals' review for whether the Attorney...