E. Bay Sanctuary Covenant v. Trump

Citation349 F.Supp.3d 838
Decision Date19 November 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, Omar C. Jadwat, Pro Hac Vice, American Civil Liberties Union National, Baher Azmy, Ghita Schwarz, Angelo Guisado, Pro Hac Vice, Center for Constitutional Rights, Celso Javier Perez, Judy Rabinovitz, Pro Hac Vice, 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, for Plaintiffs.

Scott G. Stewart, Francesca M. Genova, U.S. Department of Justice, Erez R. Reuveni, United States Department of Justice Office of Immigration Litigation, District Court Section, Washington, DC, for Defendants.


Re: ECF No. 8

JON S. TIGAR, United States District Judge

The Immigration and Naturalization Act ("INA") "deals with one of the oldest and most important themes in our Nation's history: welcoming homeless refugees to our shores," and it "give[s] statutory meaning to our national commitment to human rights and humanitarian concerns." 125 Cong. Rec. 23231-32 (Sept. 6, 1979). As part of that commitment, Congress has clearly commanded in the INA that any alien who arrives in the United States, irrespective of that alien's status, may apply for asylum – "whether or not at a designated port of arrival." 8 U.S.C. § 1158(a)(1).

Notwithstanding this clear command, the President has issued a proclamation, and the Attorney General and the Department of Homeland Security have promulgated a rule, that allow asylum to be granted only to those who cross at a designated port of entry and deny asylum to those who enter at any other location along the southern border of the United States. Plaintiff legal and social service organizations, Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center of Los Angeles (collectively, the "Immigration Organizations"), now ask the Court to stop the rule from going into effect. ECF No. 8. The Court will grant the motion.

The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of the President's authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden. Defendants' claims that the rule can somehow be harmonized with the INA are not persuasive.

Also, Plaintiffs and the immigrants they represent will suffer irreparable injury if the rule goes into effect pending resolution of this case. Asylum seekers will be put at increased risk of violence and other harms at the border, and many will be deprived of meritorious asylum claims. The government offers nothing in support of the new rule that outweighs the need to avoid these harms.

The Court addresses the parties' various arguments, and explores the Court's reasons for granting Plaintiffs' motion, more fully below.

A. Asylum Framework

Asylum is a protection granted to foreign nationals already in the United States or at the border who meet the international law definition of a "refugee." Congress has currently extended the ability to apply for asylum to the following non-citizens:

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 arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

8 U.S.C. § 1158(a)(1). Congress has also created exceptions for aliens who (1) may be removed to a safe third country, (2) did not apply within one year of arriving in the United States, or (3) have previously been denied asylum, absent a material change in circumstances or extraordinary circumstances preventing the alien from filing a timely application. Id. § 1158(a)(2).

To obtain asylum status, applicants must clear three hurdles. First, applicants must establish that they qualify as refugees who have left their country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion," id. § 1101(a)(42)(A), and that their status in one of those groups "was or will be at least one central reason" for the persecution, id. § 1158(b)(1)(A) ; see also id. § 1158(b)(1)(B).

Second, Congress has established a series of statutory bars to eligibility for asylum, such as an applicant's role in persecuting members of protected groups or "reasonable grounds for regarding the alien as a danger to the security of the United States." Id. § 1158(b)(2)(A). In addition, Congress authorized the Attorney General to "by regulation establish additional limitations and conditions, consistent with [ 8 U.S.C. § 1158 ], under which an alien shall be ineligible for asylum under [ id. § 1158(b)(1) ]." Id. § 1158(b)(2)(C). If "the evidence indicates" that one of these statutory or regulatory bars applies, the applicant bears the burden of proving that it does not. 8 C.F.R. § 1240.8(d).

Finally, even if an applicant satisfies those two requirements, 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 General's decision was "manifestly contrary to the law and an abuse of discretion," 8 U.S.C. § 1252(b)(4)(D).

If an alien is granted asylum status, the Attorney General must refrain from removing the alien and must grant the alien authorization to work in the United States. Id. § 1158(c)(1)(A)-(B). The alien's spouse and children may also "be granted the same status as the alien if accompanying, or following to join, such alien." Id. § 1158(b)(3)(A). Asylum status also provides a path to citizenship.1 Still, asylum is not irrevocable. The Attorney General may terminate an alien's asylum status based on changed circumstances, a subsequent determination that a statutory bar applies, or under various other conditions. Id. § 1158(c)(2).

In addition to asylum, two other forms of relief from removal are generally available under U.S. immigration law. With some exceptions,2 an alien is entitled to withholding of removal if "the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." Id. § 1231(b)(3)(A). However, "[t]he bar for withholding of removal is higher; an applicant must demonstrate that it is more likely than not that he would be subject to persecution on one of the [protected] grounds." Ling Huang v. Holder , 744 F.3d 1149, 1152 (9th Cir. 2014).

An alien may also seek protection under the Convention Against Torture ("CAT"), which requires the alien to prove that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal," 8 C.F.R. § 1208.16(c)(2), and that the torture would be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity," id. § 1208.18(a)(1). Though these latter two forms of relief require the applicant to meet a higher bar, they are mandatory rather than discretionary.

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

B. Challenged Actions

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

First, 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 adds an "[a]dditional limitation on eligibility for asylum" that applies to "applications filed after November 9, 2018." Id. at 55,952. Under the Rule, an alien is categorically ineligible for asylum "if the alien is subject to a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico that is issued pursuant to subsection 212(f) or 215(a)(1) of the Act on or after November 9, 2018 and the alien enters the United States after the effective date of the proclamation or order contrary to the terms of the proclamation or order." Id. (to be codified at 8 C.F.R. §§ 208.13(c)(3), 1208.13(c)(3) ).3

The Rule also amends the regulations governing credible fear determinations in expedited removal proceedings. "Although DHS has generally not applied existing mandatory bars to asylum in credible-fear determinations,"4 the Rule's bar applies in such proceedings. 83 Fed. Reg. at 55,947. Accordingly, for an alien subject to the new bar, "the asylum officer shall enter a negative credible fear determination with respect to the alien's application for asylum." Id. (to be codified at 8 C.F.R. § 208.30(e)(5) ). The asylum officer will then proceed to evaluate the alien's claim for withholding of removal or protection under CAT by assessing whether the alien has demonstrated a "reasonable fear of persecution or torture." Id. If the asylum officer finds that this standard is not met, the alien will be removed unless an immigration judge determines upon review that (1) the alien is not actually subject to the...

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