Covenant v. Barr

• Decision Date: 06 July 2020
• Docket Number: 19-16773,Nos. 19-16487,s. 19-16487
• Citation: 964 F.3d 832
• Parties: EAST BAY SANCTUARY COVENANT ; Al Otro Lado; Innovation Law Lab; Central American Resource Center, Plaintiffs-Appellees, v. William P. BARR, Attorney General; United States Department of Justice; James McHenry, Director of the Executive Office for Immigration Review, in his official capacity; Executive Office for Immigration Review; Chad Wolf, Acting Secretary of Homeland Security, in his official capacity; U.S. Department of Homeland Security; L. Francis Cissna, Acting Director of the U.S. Citizenship and Immigration Services, in his official capacity; Mark A. Morgan, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in his official capacity; United States Citizenship and Immigration Services; U.S. Customs and Border Protection; Matthew Albence, Acting Director of Immigration and Customs Enforcement, in his official capacity; Immigration and Customs Enforcement, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

964 F.3d 832

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

v.William P. BARR, Attorney General; United States Department of Justice; James McHenry, Director of the Executive Office for Immigration Review, in his official capacity; Executive Office for Immigration Review; Chad Wolf, Acting Secretary of Homeland Security, in his official capacity; U.S. Department of Homeland Security; L. Francis Cissna, Acting Director of the U.S. Citizenship and Immigration Services, in his official capacity; Mark A. Morgan, Senior Official Performing the Duties of the Commissioner of U.S. Customs and Border Protection, in his official capacity; United States Citizenship and Immigration Services; U.S. Customs and Border Protection; Matthew Albence, Acting Director of Immigration and Customs Enforcement, in his official capacity; Immigration and Customs Enforcement, Defendants-Appellants.

Nos. 19-16487

19-16773

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 2, 2019 San Francisco, California

Filed July 6, 2020

OPINION

W. FLETCHER, Circuit Judge:

On July 16, 2019, the Department of Justice and the Department of Homeland Security published a joint interim final Rule without notice and comment, entitled "Asylum Eligibility and Procedural Modifications" (the "Rule"). With limited exceptions, the Rule categorically denies asylum to aliens arriving at our border with Mexico unless they have first applied for, and have been denied, asylum in Mexico or another country through which they have traveled. We describe the Rule in detail below.

Plaintiffs are nonprofit organizations that represent asylum seekers. They brought suit in district court seeking an injunction against enforcement of the Rule, contending that the Rule is invalid on three grounds: first, the Rule is not "consistent with" Section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 ; second, the Rule is arbitrary and capricious; third, the Rule was adopted without notice and comment. The district court found that plaintiffs had a likelihood of success on all three grounds and entered a preliminary injunction against enforcement of the Rule, with effect in the four states on our border with Mexico.

We hold that plaintiffs have shown a likelihood of success on the first and second grounds. We do not reach the third ground. We affirm.

I. Procedural Background

The district court entered a published order on July 24, 2019, granting relief to plaintiffs. E. Bay Sanctuary Covenant v. Barr , 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019) (" E. Bay I "). The government appealed and sought an emergency stay pending appeal. A motions panel of our court denied in part and granted in part the requested stay. E. Bay Sanctuary Covenant v. Barr , 934 F.3d 1026, 1028 (9th Cir. 2019) (" E. Bay II "). The motions panel concluded that the government had not made a "strong showing" that it was likely to succeed on its contention that the Rule was properly issued without notice and comment. Id. The panel did not address the government's other contentions on the merits. It declined to stay the operation of the district court's injunction within the Ninth Circuit, but granted the stay "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. One member of the motions panel would have denied the stay request in its entirety. Id. at 1031 (Tashima, J., concurring in part and dissenting in part).

After the motions panel granted the stay with respect to the geographical scope of the injunction, the district court took additional evidence to expand the record. On September 9, 2019, the district court reinstated its previously entered injunction. E. Bay Sanctuary Covenant v. Barr , 391 F. Supp. 3d 974, 985 (N.D. Cal. 2019) (" E. Bay III "). The government again sought an emergency stay pending appeal. By the time the government sought the second stay, the appeal had been assigned to a merits panel. On September 10, the merits panel issued a clerk order administratively staying the district court's injunction in order to allow consideration of the government's second stay request. On September 11, the Supreme Court issued a one-paragraph order pretermitting any decision by the merits panel on the second stay request. Without addressing either the substantive merits or the scope of the injunction, the Court stayed the district court's order "in full pending disposition of the Government's appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government's petition for a writ of certiorari, if such writ is sought." Barr v. E. Bay Sanctuary Covenant , ––– U.S. ––––, 140 S. Ct. 3, 204 L.Ed.2d 1189 (2019). The merits panel heard argument on the government's appeal on December 2, 2019.

II. Background of the Immigration and Nationality Act

In 1967, the United Nations adopted the Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, 19 U.S.T. 6223, T.I.A.S. No. 6577 ("1967 Protocol"), which largely incorporated the United Nation's 1951 Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 ("1951 Convention"). The 1967 Protocol and the 1951 Convention defined a "refugee" as someone who is "unable" or "unwilling" to return to his or her country of origin due to a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion." See 1951 Convention, art. 1(A); 1967 Protocol, art. 1. In 1968, the United States acceded to the 1967 Protocol, and by extension, the incorporated 1951 Convention. See INS v. Cardoza-Fonseca , 480 U.S. 421, 436–37, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

A decade later, Congress passed the Refugee Act of 1980, Pub. L. No. 96–212, 94 Stat. 102 (1980), amending the Immigration and Nationality Act ("INA"). "As [the U.S. Supreme Court] has twice recognized, one of Congress’ primary purposes in passing the Refugee Act was to implement the principles agreed to in the [1967 Protocol] as well as the [1951 Convention]." Negusie v. Holder , 555 U.S. 511, 520, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009) (internal quotations and citations omitted); see generally Deborah E. Anker & Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee Act of 1980 , 19 San Diego L. Rev. 9, 46 (1981) ("Anker & Posner"); Stephen H. Legomsky & Cristina M. Rodríguez, Immigration and Refugee Law and Policy 883 (5th ed. 2009) ("Legomsky & Rodríguez").

Among other reforms, the Refugee Act codified the 1967 Protocol's definition of "refugee." See Pub. L. No. 96–212, § 201(a), 94 Stat. 102, 102. In relevant part, the INA defines refugees as persons outside of their own country who are "unable or unwilling to return to ... that 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." 8 U.S.C. § 1101(a)(42).

The Refugee Act also codified procedures for determining eligibility for asylum. It required the Attorney General to create an "asylum procedure" under which any alien "physically present in the United States or at a land border or port of entry, irrespective of such alien's status" could apply for asylum. Pub. L. No. 96–212, § 208, 94 Stat. 102, 105; cf. 8 U.S.C. § 1158(a)(1) (modern equivalent). In explaining this provision, the House Report emphasized that the Act's asylum procedure was designed to give full effect to our treaty obligations:

The Committee wishes to insure a fair and workable asylum policy which is consistent with this country's tradition of welcoming the oppressed of other nations and with our obligations under international law .... The Committee intends to monitor closely the Attorney General's implementation of the section so as to insure the rights of those it seeks to protect .

H.R. Rep. No. 96–608 ("H.R. Rep.") at 17–18 (1979) (emphasis added).

Finally, the Refugee Act codified exceptions to eligibility for asylum. As discussed in detail below, the codified exceptions paralleled exceptions to removal relief contained in the 1951 Convention. See H.R. Rep. at 18 ("The exceptions [to withholding of removal] are those provided in the [1951] Convention."); Legomsky & Rodríguez at 1016.

III. Asylum Under the Immigration and Nationality Act

Refugees, as defined in 8 U.S.C. § 1101(a)(42)(A), are eligible to apply for asylum. The burden of proof to show refugee status falls on the applicant. "To establish that the applicant is a refugee ..., the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." 8 U.S.C. § 1158(b)(1)(B)(i).

Subject to certain statutory exceptions, an 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 ...)" is eligible to apply for asylum. Id. § 1158(a)(1). Those exceptions include: aliens who may be "removed" to a "safe third country"; aliens who did not apply for asylum within one year after arrival in the United States; and aliens who previously applied for, and were denied, asylum. See id. § 1158(a)(2)(A)–(C). The safe-third-country provision and the one-year filing deadline do not apply to unaccompanied children. Id. § 1158(a)(2)(E).

Again subject to certain statutory exceptions, the Attorney General or the Secretary of Homeland Security may grant asylum to refugees who are eligible to apply for asylum. Id. § 1158(b)(1). Those exceptions include aliens who have persecuted others on account of a protected ground; aliens who have been convicted of particularly dangerous crimes; aliens for whom there are serious reasons to believe they have committed serious nonpolitical crimes outside the United States;...