Covenant v. Trump

Citation909 F.3d 1219
Decision Date07 December 2018
Docket NumberNo. 18-17274,18-17274
Parties EAST BAY SANCTUARY COVENANT ; Al Otro Lado; Innovation Law Lab; Central American Resource Center, Plaintiffs-Appellees, v. Donald J. TRUMP, President of the United States; Matthew G. Whitaker, Acting Attorney General; James McHenry, Director, Executive Office for Immigration Review (EOIR); Kirstjen Nielsen, Secretary, U.S. Department of Homeland Security; Lee Francis Cissna, Director, U.S. Citizenship and Immigration Services; Kevin K. McAleenan, Commissioner, U.S. Customs and Border Protection; Ronald Vitiello, Acting Director, U.S. Immigration and Customs Enforcement, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

BYBEE, Circuit Judge:

For more than 60 years, our country has agreed, by treaty, to accept refugees. In 1980, Congress codified our obligation to receive persons who are "unable or unwilling to return to" their home countries "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), 1158(b)(1). Congress prescribed a mechanism for these refugees to apply for asylum and said that we would accept applications from any alien "physically present in the United States or who arrives in the United States whether or not at a designated port of arrival ... irrespective of such alien’s status." Id. § 1158(a)(1) (emphasis added) (internal punctuation marks omitted).

We have experienced a staggering increase in asylum applications. Ten years ago we received about 5,000 applications for asylum. In fiscal year 2018 we received about 97,000—nearly a twenty-fold increase. Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934, 55,935 (Nov. 9, 2018). Our obligation to process these applications in a timely manner, consistent with our statutes and regulations, is overburdened. The current backlog of asylum cases exceeds 200,000—about 26% of the immigration courts’ total backlog of nearly 800,000 removal cases. Id. at 55,945. In the meantime, while applications are processed, thousands of applicants who had been detained by immigration authorities have been released into the United States.

In an effort to contain this crisis, on November 9, 2018, the Attorney General and Secretary of Homeland Security proposed a new regulation that took immediate effect ("Rule"). Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934 (Nov. 9, 2018) (to be codified at 8 C.F.R. §§ 208, 1003, 1208). Under the Immigration and Nationality Act ("INA"), the Attorney General may "by regulation establish additional limitations and conditions ... under which an alien shall be ineligible for asylum." 8 U.S.C. § 1158(b)(2)(C). The regulation, however, must be "consistent with" existing law. Id. The new Rule proposes "additional limitations" on eligibility for asylum, but it does not spell out those limitations. Instead, it prescribes only that an alien entering "along the southern border with Mexico" may not be granted asylum if the alien is "subject to a presidential proclamation ... suspending or limiting the entry of aliens" on this border. 83 Fed. Reg. at 55,952.

The same day, the President issued a proclamation suspending the "entry of any alien into the United States across the international boundary between the United States and Mexico," but exempting from that suspension "any alien who enters the United States at a port of entry and properly presents for inspection." Addressing Mass Migration Through the Southern Border of the United States, 83 Fed. Reg. 57,661, 57,663 (Nov. 9, 2018) ("Proclamation"). The effect of the Rule together with the Proclamation is to make asylum unavailable to any alien who seeks refuge in the United States if she entered the country from Mexico outside a lawful port of entry.

The plaintiffs are various organizations representing applicants and potential applicants for asylum who challenge the procedural and substantive validity of the Rule. The district court issued a temporary restraining order, finding it likely that, first, the rule of decision itself was inconsistent with existing United States law providing that aliens may apply for asylum "whether or not [the aliens arrived] at a designated port of arrival," 8 U.S.C. § 1158(a)(1), and second, the Attorney General failed to follow the procedures for enacting the Rule, see 5 U.S.C. § 553. The Government now seeks a stay of the district court’s temporary restraining order pending appeal. For the reasons we explain, we agree with the district court that the Rule is likely inconsistent with existing United States law. Accordingly, we DENY the Government’s motion for a stay.


We first examine the constitutional authority of the legislative, executive, and judicial branches to address questions of immigration; the governing statutory framework; the Rule and Proclamation at issue; and the proceedings in this case.

A. Constitutional Authority
1. The Legislative Power

Congress is vested with the principal power to control the nation’s borders. This power follows naturally from its powers "[t]o establish an uniform rule of Naturalization," U.S. CONST. art. I, § 8, cl. 4, to "regulate Commerce with foreign Nations," id. art. I, § 8, cl. 3, and to "declare War," id. art. I, § 8, cl. 11. See Am. Ins. Ass’n v. Garamendi , 539 U.S. 396, 414, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) ; Harisiades v. Shaughnessy , 342 U.S. 580, 588–89, 72 S.Ct. 512, 96 L.Ed. 586 (1952) ("[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power...."). The Supreme Court has "repeatedly emphasized that ‘over no conceivable subject is the legislative power of Congress more complete than it is over’ the admission of aliens." Fiallo v. Bell , 430 U.S. 787, 792, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (quoting Oceanic Steam Navigation Co. v. Stranahan , 214 U.S. 320, 339, 29 S.Ct. 671, 53 L.Ed. 1013 (1909) ).

2. The Executive Power

The Constitution also vests power in the President to regulate the entry of aliens into the United States. U.S. CONST. art. II. "The exclusion of aliens ... is inherent in the executive power to control the foreign affairs of the nation." United States ex rel. Knauff v. Shaughnessy , 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950). "[T]he historical gloss on the ‘executive Power’ vested in Article II of the Constitution has recognized the President’s ‘vast share of responsibility for the conduct of our foreign relations.’ " Garamendi , 539 U.S. at 414, 123 S.Ct. 2374 (quoting Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 610–11, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Frankfurter, J., concurring) ). These foreign policy powers derive from the President’s role as "Commander in Chief," U.S. CONST. art. II, § 2, cl. 1, his right to "receive Ambassadors and other public Ministers," id. art. II, § 3, and his general duty to "take Care that the Laws be faithfully executed," id. See Garamendi , 539 U.S. at 414, 123 S.Ct. 2374. And while Congress has the power to regulate naturalization, it shares its related power to admit or exclude aliens with the Executive. See Knauff , 338 U.S. at 542, 70 S.Ct. 309.

3. The Judicial Power

"The exclusion of aliens is ‘a fundamental act of sovereignty’ by the political branches," Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 2407, 201 L.Ed.2d 775 (2018) (quoting Knauff , 338 U.S. at 542, 70 S.Ct. 309 ), "subject only to narrow judicial review," Hampton v. Mow Sun Wong , 426 U.S. 88, 101 n.21, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976). The courts have "long recognized" questions of immigration policy as "more appropriate to either the Legislature or the Executive than to the Judiciary." Mathews v. Diaz , 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). We review the immigration decisions of the political branches "only with the greatest caution" where our action may "inhibit [their] flexibility ... to respond to changing world conditions." Id. ; see also Fiallo , 430 U.S. at 792, 97 S.Ct. 1473 ("Our cases ‘have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’ " (citation omitted) ); Kleindienst v. Mandel , 408 U.S. 753, 765, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) ("In accord with ancient principles of the international law of nation-states, ... the power to exclude aliens is ‘inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government.’ " (citations and internal alterations omitted) ).

Thus, " ‘it is not the judicial role ... to probe and test the justifications’ of immigration policies." Hawaii , 138 S. Ct. at 2419 (quoting Fiallo , 430 U.S. at 799, 97 S.Ct. 1473 ). We may nevertheless review the political branches’ actions to determine whether they exceed the constitutional or statutory scope of their authority. See id.

B. Statutory Authority
1. Admissibility of Aliens

The United States did not regulate immigration until 1875. See Mandel , 408 U.S. at 761, 92 S.Ct. 2576. Beginning in the late 19th century, Congress created a regulatory framework and categorically excluded certain classes of aliens. See id . In 1952, Congress replaced this disparate statutory scheme with the Immigration and Nationality Act ("INA"), which remains the governing statutory framework. Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 U.S.C. § 1 et seq . ). In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat....

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