E. Bay Sanctuary Covenant v. Biden

• Citation: 993 F.3d 640
• Decision Date: 28 February 2020
• Docket Number: Nos. 18-17274,18-17436,s. 18-17274
• Parties: EAST BAY SANCTUARY COVENANT ; Al Otro Lado; Innovation Law Lab; Central American Resource Center, Plaintiffs-Appellees, v. Joseph R. BIDEN, President of the United States; Merrick B. Garland, Attorney General; Jean King, Acting Director, Executive Office for Immigration Review (EOIR); Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; Tracy Renaud, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services; Troy Miller, Senior Official Performing the Duties of the Commissioner, U.S. Customs and Border Protection; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

993 F.3d 640

EAST BAY SANCTUARY COVENANT ; Al Otro Lado; Innovation Law Lab; Central American Resource Center, Plaintiffs-Appellees,

v.Joseph R. BIDEN, President of the United States; Merrick B. Garland, Attorney General; Jean King, Acting Director, Executive Office for Immigration Review (EOIR); Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security; Tracy Renaud, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services; Troy Miller, Senior Official Performing the Duties of the Commissioner, U.S. Customs and Border Protection; Tae D. Johnson, Acting Director, U.S. Immigration and Customs Enforcement, Defendants-Appellants.

Nos. 18-17274

18-17436

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 1, 2019 San Francisco, California

Filed February 28, 2020

Amended March 24, 2021

ORDER AND AMENDED OPINION

1. The full court was advised of the petition for rehearing en banc. A judge of the court called for rehearing en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. Rehearing en banc is DENIED .

2. Attached are Judge Paez's concurrence to and Judge Bumatay's and Judge VanDyke's dissents from the denial of rehearing en banc.

3. The opinion filed on February 28, 2020 is amended as follows:

On page 7, strike the sentence starting, "How strictly the order binds this court," up and through the sentence on page 13 starting, "We discuss the merits of a stay request[.]"

Replace it with:

The Organizations contend we must affirm the preliminary injunction because the published motions panel order denying a stay of the injunction pending appeal controls our decision on the merits of the preliminary injunction appeal. They argue that reversal of the injunction would amount to overruling the motions panel order, which we cannot do. See Miller v. Gammie , 335 F.3d 889, 900 (9th Cir. 2003) (holding that a published opinion may only be overruled when it is clearly irreconcilable with an intervening higher authority). The published motions panel order may be binding as precedent for other panels deciding the same issue, but it is not binding here. This is because the issues are different. In deciding whether the court should stay the grant or denial of a preliminary injunction pending appeal, the motions panel is predicting the likelihood of success of the appeal. That is, the motions panel is predicting rather than deciding what our merits panel will decide. In resolving the merits of a preliminary injunction appeal, our merits panel is deciding the likelihood of success of the actual litigation.

The Supreme Court has recognized this distinction and made clear that it leads to different analyses of the equities. See Trump v. Int'l Refugee Assistance Project , ––– U.S. ––––, 137 S. Ct. 2080, 2087, 198 L.Ed.2d 643 (2017). There is more judicial discretion with respect to a stay. See id. ; see also Doe #1 v. Trump , 957 F.3d 1050, 1058 (9th Cir. 2020) ("A request for a stay pending appeal is committed to the exercise of judicial discretion."); 11 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 2904, at 702–03 (3d ed. 2012).

In Nken v. Holder the Supreme Court emphasized that "[a]n injunction and a stay have typically been understood to serve different purposes" and a stay halting "the conduct or progress of litigation before the court, ordinarily is not considered an injunction." 556 U.S. 418, 428, 430, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (internal quotations omitted). Indeed, our court has relied on Nken for the proposition that "there are important differences between a preliminary injunction and a stay pending review..." Leiva-Perez v. Holder , 640 F.3d 962, 966 (9th Cir. 2011) (citing Nken , 129 S. Ct. at 1756–59 ). A stay "operates upon the judicial proceeding itself," while a preliminary injunction "direct[s] an actor's conduct." Nken , 556 U.S. at 428, 429, 129 S.Ct. 1749.

In the government's appeal, we are charged with determining whether the district court abused its discretion in granting the preliminary injunction, see All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131 (9th Cir. 2011) ; the motions panel, instead, considered whether the government raised serious questions relating to the propriety of the district court's preliminary injunction and whether the government would likely prevail on appeal, see Leiva-Perez , 640 F.3d at 965–66. The question presented to the motions panel is an additional step removed from the underlying merits of the district court's preliminary injunction. We discuss the merits in "likelihood terms" and exercise restraint in assessing the merits of either question, see Sierra Club , 929 F.3d at 688, but particularly so when considering the "extraordinary request" to stay a preliminary injunction granted by a district court. Barr v. E. Bay Sanctuary Covenant , No. 19A230, [––– U.S. ––––, ––––, 140 S.Ct. 3, 204 L.Ed.2d 1189], 2019 WL 4292781, at *1 (Sept. 11, 2019) (Sotomayor, J., dissenting from grant of a stay)."

On page 14, insert the following footnote after the citation to Leiva-Perez v. Holder , 640 F.3d 962, 967 (9th Cir. 2011) :

There may be circumstances where a motions panel does answer the same legal question that is presented to the merits panel. See Lair v. Bullock , 798 F.3d 736, 747 (9th Cir. 2015) (" Lair II "). In Lair I , the motions panel, while conducting a probabilistic and discretionary analysis of the Nken factors, addressed a pure question of law—whether the Supreme Court had abrogated a relevant circuit precedent. Lair v. Bullock , 697 F.3d 1200, 1206 (9th Cir. 2012) (" Lair I "). The motions panel held that the very question at issue had already been dispositively answered in prior circuit precedent. Id. The motions panel's specific holding on this pure question of law was neither based on an assessment of probability nor an exercise of discretion—it was necessarily compelled by preexisting binding precedent.

Therefore, the merits panel in Lair II held that it was bound by the motions panel's published decision in Lair I on this particular issue where the motions panel answered precisely the same question that was before the merits panel. 798 F.3d at 747 ("The motions panel in Lair I explicitly held that Randall did not contain a majority opinion capable of abrogating Eddleman .") (internal citations omitted). Lair II ’s statement in this context that "a motions panel's published opinion binds future panels the same as does a merits panel's published opinion," id. , simply confirms our circuit's stare decisis principle that a question already answered in binding precedent will be controlled by that answer when the same question is presented in the future. See also Miller v. Gammie , 335 F.3d 889, 893 (9th Cir. 2003) (en banc).

But here, unlike in Lair II , none of the questions answered by the motions panel were pure questions of law for which preexisting binding authority necessarily compelled the answer.

On page 14, strike the sentence starting, "The question before us now," up and through the sentence on page 15 starting with, "Given the preliminary stage of the appellate process[.]"

Replace it with:

The inquiry with respect to the stay differs from the inquiry as to the preliminary injunction. To the extent the issues share predictive similarity, the motions panel may be persuasive but not binding.

On page 15, strike "re-evaluate," and replace it with "consider."

On page 16, strike ", as it did previously before the district court and before the motions panel."

On page 16, strike "renews," and replace it with "makes."

On page 16, strike "before this court."

On page 18, strike "We agree with the motions panel and the district court," and replace it with "We conclude."

On page 27, strike "again" in the sentence before the beginning of subsection B.

On page 28, strike "continue to" from the last full sentence of the page.

On page 34, strike "again" from the sentence starting with, "The government again suggests that the existence of these eligibility bars[.]"

On page 37, strike "the motions panel" from the sentence starting with, "The Attorney General's interpretation," and the citation to EBSC II , 932 F.3d at 772–773, that appears after the sentence.

On page 50, strike "we agree with the motions panel that."

4. An amended opinion is filed concurrently with this order. An amended opinion concurring in the result, which adds a new footnote 1 on page 1 and renumbers the ensuing footnotes, is also filed concurrently with this order. No further petitions for rehearing or rehearing en banc may be filed.

5. In light of Appellants’ February 16, 2021 letter informing the court that the President signed Executive Order 14010 revoking " Proclamation 9880 of May 9, 2019," Dkt. No. 87, the panel directed the parties to simultaneously file letter briefs addressing whether all or any aspect of this appeal has been rendered moot. We have considered the parties’ responses and agree with them that this appeal is not moot. We decline to accept the parties’ suggestion to hold the case in abeyance while Appellants review the interim final rule at issue. The parties may address future developments related to Appellants’ review of the interim final rule and whether any such developments render the case moot in the district court on remand.

PAEZ, Circuit Judge:

Forty years ago, Congress recognized that refugees fleeing imminent persecution do not have the luxury of choosing their escape route into the United States. It mandated equity in its treatment of all refugees, however they arrived.¹

This principle is embedded in the Refugee Act of 1980, which established an asylum procedure available to any migrant, "irrespective of such alien's status," and irrespective of whether the migrant arrived "at a land border or port of entry." Pub. L. No. 96-212, § 208(a), 94 Stat. 102, 105 (1980). Today's Immigration and Nationality Act ("INA...