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

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtJON S. TIGAR, United States District Judge
Citation500 F.Supp.3d 1030
Parties EAST BAY SANCTUARY COVENANT, et al., Plaintiffs, v. William BARR, et al., Defendants.
Docket NumberCase No. 19-cv-04073-JST
Decision Date10 November 2020

Katrina Leigh Eiland, Angelica Salceda, Cody H. Wofsy, Julie Michelle Veroff, Vasudha Talla, ACLU Foundation Immigrants' Rights Project, 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, Melissa E Crow, American Immigration Council, Washington, DC, for Plaintiffs.

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

Re: ECF No. 95


JON S. TIGAR, United States District Judge

One hundred twenty-eight mothers, fathers, and children who fled persecution in their home countries to seek asylum in the United States ("Proposed Intervenors") now come before the Court. They were denied the right to apply for asylum because immigration authorities applied a rule that categorically denies asylum to aliens arriving at the border with Mexico unless they have first applied for, and have been denied, asylum in Mexico or another country through which they have traveled (the "Rule"). The Rule has since been vacated as unlawful, and it is no longer in effect. Capital Area Immigrants' Rights Coalition v. Trump ("CAIR "), No. 19-cv-2117 (TJK), 471 F.Supp.3d 25, 31-32 (D.D.C. Jun. 30, 2020). Nonetheless, immigration authorities have refused to rescind the Proposed Intervenors' orders of removal, even though those orders were based on application of the unlawful Rule.

Proposed Intervenors, who seek to intervene in this case and stay their removal from the United States, present a powerful case on the equities. "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)." E. Bay Sanctuary Covenant v. Trump , 349 F. Supp. 3d 838, 843 (N.D. Cal. 2018), aff'd , 950 F.3d 1242 (9th Cir. 2020), and aff'd , 950 F.3d 1242 (9th Cir. 2020). The Court concludes, however, that it lacks jurisdiction over Proposed Intervenors' claims. Judicial review of removal orders is "strictly limited" by statute, Ahmed v. Sessions , 695 F. App'x 290, 291 (9th Cir. 2017), and Proposed Intervenors' claims do not fall within those limits. Therefore, although "the facts amassed by the [Proposed Intervenors] are deeply troubling," M.M.V. v. Barr , 456 F. Supp. 3d 193, 217 (D.D.C. 2020), this Court cannot review Proposed Intervenors' claims. The Court accordingly denies their motions to intervene and for preliminary injunction.


The background of this case is set forth in an earlier order granting Plaintiffs' motion for a preliminary injunction enjoining the continued implementation and enforcement of the challenged "Asylum Eligibility and Procedural Modifications" Rule. E. Bay Sanctuary Covenant v. Barr , 385 F. Supp. 3d 922 (N.D. Cal. 2019). The Court summarizes only the relevant details here.

A. The Challenged Rule and Procedural History of This Case

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"). 84 Fed. Reg. 33,829 (July 16, 2019) (codified at 8 C.F.R. pts. 208, 1003, 1208). The effect of the Rule is to categorically deny asylum to most persons entering the United States at the southern border if they have not first applied for asylum in Mexico or another third country through which they have passed. Id. In promulgating the Rule, the agencies invoked their authority to establish conditions consistent with 8 U.S.C. § 1158. 84 Fed. Reg. at 33,834.

The Rule makes changes to the standards and procedures that are used in "expedited removal" proceedings. See 8 U.S.C. § 1225(b)(1). "An applicant [for admission to the United States] is subject to expedited removal if ... the applicant (1) is inadmissible because he or she lacks a valid entry document; (2) has not ‘been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility’; and (3) is among those whom the Secretary of Homeland Security has designated for expedited removal." Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 1964-65, 207 L.Ed.2d 427 (2020) (quoting 8 U.S.C. §§ 1225(b)(1)(A)(i), (iii)(I)-(II) ). Applicants determined to fall within these categories shall be "removed from the United States without further hearing or review unless the alien indicates either an intention to apply for asylum under [ 8 U.S.C. § 1158 ] or a fear of persecution." 8 U.S.C. § 1225(b)(1)(A)(i).

If an applicant expresses an intent to seek asylum, that person is referred to an asylum officer for a credible fear interview to determine whether the applicant "has a credible fear of persecution." Id. § 1225(b)(1)(B)(v). To have a credible fear, "there [must be] a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum." Id.

Applicants who demonstrate a credible fear as a basis for asylum, withholding of removal, or protection under the Convention Against Torture ("CAT"), are generally placed in full removal proceedings for further adjudication of their claims. Id. § 1225(b)(1)(B)(ii) ; 8 C.F.R. § 208.30(e)(2)-(3), (f). By contrast, if the officer concludes that no credible fear exists, applicants are "removed from the United States without further hearing or review," except for an expedited review by an Immigration Judge ("IJ"), which is ordinarily concluded within 24 hours and must be concluded within 7 days. 8 U.S.C. § 1225(b)(1)(B)(iii)(I), (III) ; see also 8 C.F.R. § 1208.30(g).

The Rule significantly changes this process in certain respects. Under the Rule, "any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside the alien's country of citizenship, nationality, or last lawful habitual residence en route to the United States, shall be found ineligible for asylum." 8 C.F.R. § 208.13(c)(4). The Rule provides three exceptions. First, the Rule does not apply if the alien "applied for protection from persecution or torture in at least one country ... through which the alien transited en route to the United States, and the alien received a final judgment denying the alien protection in such country." Id. § 208.13(c)(4)(i). Second, the Rule exempts "victim[s] of a severe form of trafficking in persons," as defined in 8 C.F.R. § 214.11. Id. § 208.13(c)(4)(ii). Finally, the Rule does not apply if "[t]he only countries through which the alien transited en route to the United States were, at the time of the transit, not parties to [the 1951 Convention, the 1967 Protocol, or CAT]." Id. § 208.13(c)(4)(iii). In sum, except for qualifying trafficking victims, the Rule requires any alien transiting through a third country that is a party to one of the above agreements to apply for protection and receive a final denial prior to entering through the southern border and seeking asylum relief in the United States.

The Rule also sets forth special procedures for how the mandatory bar applies in expedited removal proceedings. In general, "if an alien is able to establish a credible fear of persecution but appears to be subject to one or more of the mandatory [statutory] bars to applying for, or being granted, asylum ... [DHS] shall nonetheless place the alien in proceedings under [ 8 U.S.C. § 1229a ] for full consideration of the alien's claim." 8 C.F.R. § 208.30(e)(5)(i). An alien subject to the Rule's third country bar, however, is automatically determined to lack a credible fear of persecution. Id. § 208.30(e)(5)(iii). The asylum officer must then consider whether the alien demonstrates a reasonable fear of persecution or torture (as necessary to support a claim for withholding of removal or CAT protection). Id. The alien may seek review from an IJ, on the expedited timeline described above, of the determination that the Rule's mandatory bar applies and that the alien lacks a reasonable fear of persecution or torture. Id. § 1208.30(g)(1)(ii).

Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center filed this lawsuit against relevant federal agencies and agency officials on July 16, 2019, the day the Rule went into effect. ECF No. 1. On July 24, 2019, the Court granted Plaintiffs' motion for a preliminary injunction, finding that Plaintiffs were likely to succeed on the merits of their claims that the rule was substantively invalid, that the Rule was arbitrary and capricious, and that there were serious questions as to Defendants' attempts to rely on the foreign affairs and good cause exceptions to notice and comment rulemaking requirements. ECF No. 42. Defendants appealed the Court's order to the Ninth Circuit on July 29, 2019, ECF No. 46, and again on September 10, 2019, ECF No. 75, after the Court restored the nationwide scope of the injunction, ECF No. 73. On August 26, 2019, Defendants applied to the United States Supreme Court for an emergency stay of the preliminary injunction pending resolution of their appeal. Barr v. E. Bay Sanctuary Covenant , No. 19A230 (Aug. 26, 2019). The Supreme Court granted Defendants' request and stayed the order granting the...

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