East Bay Sanctuary Covenant v. Donald Trump

FILED
FOR PUBLICATION
JUL 25 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EAST BAY SANCTUARY COVENANT; No. 18-17274
AL OTRO LADO; INNOVATION LAW
LAB; CENTRAL AMERICAN D.C. No. 3:18-cv-06810-JST
RESOURCE CENTER, Northern District of California,
San Francisco
Plaintiffs-Appellees,
v. ORDER
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.
Before: LEAVY, BYBEE, and HURWITZ, Circuit Judges.
The motions panel’s order dated December 7, 2018, and published at 909
F.3d 1219, is withdrawn from the Federal Reporter, as it erroneously omitted
Judge Leavy’s dissent. The superseding order, which includes the dissent and
contains no other changes, shall be filed concurrently herewith.
2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EAST BAY SANCTUARY No. 18-17274
COVENANT; AL OTRO LADO;
INNOVATION LAW LAB; D.C. No.
CENTRAL AMERICAN RESOURCE 3:18-cv-06810-JST
CENTER,
Plaintiffs-Appellees,
ORDER
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.
2 EAST BAY SANCTUARY COVENANT V. TRUMP
Filed December 7, 2018
Before: Edward Leavy, Jay S. Bybee,
and Andrew D. Hurwitz, Circuit Judges.
Order by Judge Bybee;
Partial Dissent by Judge Leavy
SUMMARY*
Immigration / Temporary Restraining Order /
Preliminary Injunction
The panel denied the Government’s emergency motion
for a stay pending appeal in an action challenging a regulation
and presidential proclamation that, together, provide that an
alien who enters the United States across the border with
Mexico may not be granted asylum unless he or she enters at
a port of entry and properly presents for inspection.
On November 9, 2018, the Department of Justice (“DOJ”)
and Department of Homeland Security (“DHS”) published a
joint interim final rule, titled “Aliens Subject to a Bar on
Entry Under Certain Presidential Proclamations; Procedures
for Protection Claims” (“Rule”). 83 Fed. Reg. 55,934. The
Rule provides that “[f]or applications filed after November 9,
2018, an alien shall be 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
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
EAST BAY SANCTUARY COVENANT V. TRUMP 3
southern border with Mexico that is issued pursuant to
[8 U.S.C. § 1182(f)].”
On the same day, President Trump issued a presidential
proclamation, titled “Addressing Mass Migration Through the
Southern Border of the United States” (“Proclamation”).
83 Fed. Reg. 57,661. Expressly invoking 8 U.S.C. § 1182(f),
the Proclamation suspends “entry of any alien into the United
States across the international boundary between the United
States and Mexico,” but excludes from the suspension “any
alien who enters the United States at a port of entry and
properly presents for inspection.”
The plaintiffs are various organizations representing
applicants and potential applicants for asylum who challenge
the procedural and substantive validity of the Rule
(“Organizations”). The district court issued a temporary
restraining order enjoining the Rule, and the Government
filed a notice of appeal, seeking a stay from this court of the
district court’s temporary restraining order pending appeal.
The panel concluded that the temporary restraining order
here could be treated as an appealable preliminary injunction
because the Government had an opportunity to be heard and
strongly challenged the order, the order was scheduled to
remain in effect for 30 days, and the Government argued in
this court that emergency relief was necessary to support the
national interests.
With respect to standing, the panel concluded that the
Organizations lacked third-party standing because they had
not identified any cognizable right they were asserting on
behalf of their clients. However, the panel concluded that the
Organizations had organizational standing because they have
4 EAST BAY SANCTUARY COVENANT V. TRUMP
suffered and will continue to suffer direct injuries traceable
to the Rule, including diversion of their resources and loss of
substantial amounts of funding.
Next, the panel concluded that the Organizations’ claims
fall within the zone of interests protected or regulated by the
Immigration & Nationality Act (“INA”). Outlining the
relevant precedent, the panel concluded that it was sufficient
that the Organizations’ asserted interests are consistent with
and more than marginally related to the purposes of the INA.
The panel then turned to the Government’s request that it
stay the temporary restraining order pending its appeal. In
doing so, the panel concluded that it lacked authority under
§ 706 of the APA to review the Proclamation because the
President’s actions are not subject to APA requirements.
However, the panel concluded that it could review the
substantive validity of the Rule together with the
Proclamation, explaining that the Rule and the Proclamation
together create an operative rule of decision for asylum
eligibility. The panel further explained that it is the
substantive rule of decision, not the Rule itself, that the
Organizations have challenged under the APA, and insofar as
DOJ and DHS have incorporated the Proclamation by
reference into the Rule, the panel may consider the validity of
the agency’s proposed action.
Examining the validity of the rule, the panel concluded
that the Rule is not likely to be found in accordance with
8 U.S.C. § 1158(a)(1). That section provides that “[a]ny 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 . . .), irrespective of such alien’s status, may apply for
asylum in accordance with this section.” The panel noted
EAST BAY SANCTUARY COVENANT V. TRUMP 5
that, rather than restricting who may apply for asylum, the
rule of decision facially conditions only who is eligible to
receive asylum. The panel observed that 8 U.S.C.
§ 1158(b)(2)(C) grants the Attorney General the power to set
“additional limitations and conditions” beyond those listed in
§ 1158(b)(2)(A) on when an alien will be “ineligible for
asylum,” but only when “consistent” with the section.
Despite his facial invocation of § 1158(b)(2)(C), the panel
concluded that the Attorney General’s rule of decision is
inconsistent with § 1158(a)(1), explaining that it is the
hollowest of rights that an alien must be allowed to apply for
asylum regardless of whether she arrived through a port of
entry if another rule makes her categorically ineligible for
asylum based on precisely that fact.
The panel further concluded that the Rule is likely
arbitrary and capricious for a second reason: it conditions an
alien’s eligibility for asylum on a criterion that has nothing to
do with asylum itself, namely, whether or not the alien
arrived lawfully through a port of entry.
With respect to the Organizations’ claim that the
Government failed to follow the required procedures in
promulgating the Rule, the panel rejected the Government’s
assertion that the Rule was exempt, under the under APA’s
foreign affairs exception and the good cause exception, from
the APA’s notice-and-comment procedures and the
requirement that the final rule shall not go into effect for at
least 30 days.
Thus, the panel concluded, based on the evidence at this
stage of the proceedings, the Government has not established
that it is likely to prevail on the merits of its appeal of the
district court’s temporary restraining order.
6 EAST BAY SANCTUARY COVENANT V. TRUMP
Next, the panel concluded that the Government had not
shown it will be irreparably injured absent a stay. First, the
panel rejected the Government’s assertion that the district
court order undermines the separation of powers by blocking
an action of the executive branch. Second, the panel rejected
the Government’s assertion that the rule is needed to prevent
aliens from making a dangerous and illegal border crossing
rather than presenting at a port of entry.
The panel concluded that, because the Government had
not satisfied the first two factors, the panel need not dwell on
the final two factors —“harm to the opposing party” and “the
public interest.” However, the panel pointed out that a stay
of the district court’s order would not preserve the status quo:
it would upend it, as the temporary restraining order has
temporarily restored the law to what it had been for many
years prior to November 9, 2018.
Finally, the panel concluded that the district court did not
err in temporarily restraining enforcement of the Rule
universally, noting that, in immigration matters, this court has
consistently recognized the authority of district courts to
enjoin unlawful policies on a universal basis.
Dissenting in part, Judge Leavy concurred in the
majority’s conclusion that this court may treat the district
court’s order as an appealable preliminary injunction and
concurred in the majority’s standing analysis.
Judge Leavy dissented from the majority’s conclusion
that the Rule was not exempt from the standard notice-and-
comment procedures, writing that the Attorney General
articulated a need to act immediately in the interests of safety
of both law enforcement and aliens, and the Rule involves
EAST BAY SANCTUARY COVENANT V. TRUMP 7
actions of aliens at the southern border undermining
particularized determinations of the President judged as
required by the national interest, relations with Mexico, and
the President’s foreign policy. Judge Leavy also dissented
from the denial of the motion to stay, writing that the
President, Attorney General, and Secretary of Homeland
Security have adopted legal methods to cope with the current
problems rampant at the southern border, and that the
majority erred by treating the grant or denial of eligibility for
asylum as equivalent to a bar to application for asylum, and
conflating these two separate statutory directives.
COUNSEL
Erez Ruveni, Assistant Director; Benton York, Christina
Greer, Kathryne Gray, Francesco Genova, and Joseph A.
Darrow, Trial Attorneys; Patrick Glen, Senior Litigation
Counsel; William C. Peachey, Director; August E. Flentje,
Special Counsel; Scott G. Stewart, Deputy Assistant Attorney
General; Joseph H. Hunt, Assistant Attorney General; Office
of Immigration Litigation, Civil Division, United States
Department of Justice; for Defendants-Appellants.
Lee Gelernt, Judy Rabinovitz, Omar C. Jadwat, and Celso
Perez, American Civil Liberties Union Foundation
Immigrants’ Rights Project, New York, New York; Julie
Veroff, Spencer Amdur, Cody Wofsy, and Jennifer Chang
Newell, American Civil Liberties Union Foundation
Immigrants’ Rights Project, San Francisco, California;
Melissa Crow, Southern Poverty Law Center, Washington,
D.C.; Ghita Schwartz, Angelo Guisado, and Baher Azmy,
Center for Constitutional Rights, New York, New York;
Mary Bauer, Southern Poverty Law Center, Charlottesville,
8 EAST BAY SANCTUARY COVENANT V. TRUMP
Virginia; Vasudha Talla and Christine P. Sun, American Civil
Liberties Union Foundation of Northern California Inc., San
Francisco, California; for Plaintiffs-Appellees.
ORDER
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
EAST BAY SANCTUARY COVENANT V. TRUMP 9
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
10 EAST BAY SANCTUARY COVENANT V. TRUMP
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.
I. BACKGROUND
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
EAST BAY SANCTUARY COVENANT V. TRUMP 11
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 (2003); Harisiades v. Shaughnessy, 342 U.S. 580,
588–89 (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 (1977) (quoting
Oceanic Steam Navigation Co. v. Stranahan, 214 U.S. 320,
339 (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 (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 (quoting
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579,
610–11 (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.
And while Congress has the power to regulate naturalization,
12 EAST BAY SANCTUARY COVENANT V. TRUMP
it shares its related power to admit or exclude aliens with the
Executive. See Knauff, 338 U.S. at 542.
3. The Judicial Power
“The exclusion of aliens is ‘a fundamental act of
sovereignty’ by the political branches,” Trump v. Hawaii,
138 S. Ct. 2392, 2407 (2018) (quoting Knauff, 338 U.S. at
542), “subject only to narrow judicial review,” Hampton v.
Mow Sun Wong, 426 U.S. 88, 101 n.21 (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
(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 (“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 (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). We may
nevertheless review the political branches’ actions to
EAST BAY SANCTUARY COVENANT V. TRUMP 13
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. 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. 3009. IIRIRA established
“admission” as the key concept in immigration law and
defines the term as “the lawful entry of the alien into the
United States after inspection and authorization by an
immigration officer.” 8 U.S.C. § 1101(a)(13)(A); see
Vartelas v. Holder, 566 U.S. 257, 262 (2012). It also
provided that “[a]n alien present in the United States without
being admitted or paroled, or who arrives in the United States
at any time or place other than as designated by the Attorney
General, is inadmissible.” 8 U.S.C. § 1182(a)(6)(A)(i). The
INA provides both criminal and civil penalties for entering
the United States “at any time or place other than as
designated by immigration officers.” Id. § 1325(a).
14 EAST BAY SANCTUARY COVENANT V. TRUMP
2. Asylum
a. Refugee Status
Asylum is a concept distinct from admission, which
permits the executive branch—in its discretion—to provide
protection to aliens who meet the international definition of
refugees. See id. § 1158. Our asylum law has its roots in the
1951 Convention Relating to the Status of Refugees, July 28,
1951, 189 U.N.T.S. 150 (“Convention”), and the 1967
Protocol Relating to the Status of Refugees, Jan. 31, 1967,
19 U.S.T. 6223, 606 U.N.T.S. 267 (“Protocol”). The United
States was an original signatory to both treaties and promptly
ratified both. The Convention defines a refugee as any
person who:
owing to well-founded fear of being
persecuted for reasons of race, religion,
nationality, membership of a particular social
group or political opinion, is outside the
country of his nationality and is unable or,
owing to such fear, is unwilling to avail
himself of the protection of that country; or
who, not having a nationality and being
outside the country of his former habitual
residence as a result of such events, is unable
or, owing to such fear, is unwilling to return
to it.
EAST BAY SANCTUARY COVENANT V. TRUMP 15
Convention, art. I, § A(2), 189 U.N.T.S. at 152.1 The treaties
charge their signatories with a number of responsibilities to
refugees. See id. arts. II–XXXIV, 189 U.N.T.S. at 156–76.
Notably, the signatories agreed not to
impose penalties, on account of their illegal
entry or presence, on refugees who, coming
directly from a territory where their life or
freedom was threatened in the sense of article
1, enter or are present in their territory without
authorization, provided they present
themselves without delay to the authorities
and show good cause for their illegal entry or
presence.
Id. art. XXXI, § 1, 189 U.N.T.S. at 174. The Convention and
Protocol are not self-executing, so their provisions do not
carry the force of law in the United States. Khan v. Holder,
584 F.3d 773, 783 (9th Cir. 2009); see also INS v. Stevic,
467 U.S. 407, 428 n.22 (1984) (describing provisions of the
Convention and Protocol as “precatory and not self-
executing”).
Congress enacted the Refugee Act of 1980, Pub. L. No.
96-212, 94 Stat. 102, to bring the INA into conformity with
the United States’s obligations under the Convention and
Protocol. INS v. Cardoza–Fonseca, 480 U.S. 421, 436–37
(1987). The Act defines a “refugee” as
1
The Protocol did not alter this definition except to extend its
geographic and temporal reach. The Convention had limited refugee
status to Europeans affected by the Second World war. See 19 U.S.T.
6223 art. 1; Joan Fitzpatrick, The International Dimension of U.S. Refugee
Law, 15 BERKELEY J. INT’L L. 1, 1 (1997).
16 EAST BAY SANCTUARY COVENANT V. TRUMP
any person who is outside any country of such
person’s nationality or, in the case of a person
having no nationality, is outside any country
in which such person last habitually resided,
and who is unable or unwilling to return to,
and is unable or unwilling to avail himself or
herself of the protection of, 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).2
b. Eligibility to Apply for Asylum
An alien asserting refugee status in the United States must
apply for asylum under the requirements of 8 U.S.C. § 1158.
The Refugee Act of 1980 directed the Attorney General to
accept asylum applications from any alien “physically present
in the United States or at a land border or port of entry,
irrespective of such alien’s status.” Id. § 1158(a) (1980).
Congress amended this section in IIRIRA, 110 Stat. 3009-
579, and it currently provides that “[a]ny 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
2
The INA also permits the President to designate persons within the
country of their nationality as refugees; excludes from refugee status
persons who have participated in the persecution of others; and grants
refugee status to persons who have been, or have a well-founded fear of
being, subjected to an involuntary abortion or sterilization. 8 U.S.C.
§ 1101(a)(42).
EAST BAY SANCTUARY COVENANT V. TRUMP 17
after having been interdicted in international or United States
waters), irrespective of such alien’s status, may apply for
asylum.” Id. § 1158(a)(1) (2018).
Section 1158(a) makes three classes of aliens
categorically ineligible to apply for asylum: those who may
be removed to a “safe third country” in which their “life or
freedom would not be threatened” and where they would
have access to equivalent asylum proceedings; those who fail
to file an application within one year of arriving in the United
States; and those who have previously applied for asylum and
been denied. Id. § 1158(a)(2)(A)–(C). There are two
“exceptions to the exceptions”: the one-year and previous-
denial exclusions may be waived if an alien demonstrates
“changed circumstances” or “extraordinary circumstances,”
id. § 1158(a)(2)(D); and the “safe third country” and one-year
exclusions do not apply to unaccompanied children, id.
§ 1158(a)(2)(E).
The INA further directs the Attorney General to “establish
a procedure for the consideration of asylum applications filed
under subsection (a).” Id. § 1158(d)(1). The Attorney
General’s discretion in establishing such procedures is limited
by the specifications of § 1158(b) and (d). In the absence of
exceptional circumstances, an applicant is entitled to an initial
interview or hearing within 45 days of filing the application
and to a final administrative adjudication of the application
within 180 days. Id. § 1158(d)(5)(A)(ii)–(iii). The Attorney
General “may provide by regulation for any other conditions
or limitations on the consideration of an application for
asylum not inconsistent with this chapter.” Id.
§ 1158(d)(5)(B).
18 EAST BAY SANCTUARY COVENANT V. TRUMP
c. Eligibility to be Granted Asylum
Where § 1158(a) governs who may apply for asylum, the
remainder of § 1158 delineates the process by which
applicants may be granted asylum. An asylum applicant
must establish refugee status within the meaning of
§ 1101(a)(42) by demonstrating that “race, religion,
nationality, membership in a particular social group, or
political opinion was or will be at least one central reason”
for persecution. Id. § 1158(b)(1)(B)(i). An applicant may
sustain this burden through testimony alone, “but only if the
applicant satisfies the trier of fact that the applicant’s
testimony is credible, is persuasive, and refers to specific
facts sufficient to demonstrate that the applicant is a refugee.”
Id. § 1158(b)(1)(B)(ii). The trier of fact may also require the
applicant to provide other evidence of record and weigh the
testimony along with this evidence. Id. An applicant is not
entitled to a presumption of credibility; the trier of fact makes
a credibility determination “[c]onsidering the totality of the
circumstances, and all relevant factors.” Id.
§ 1158(b)(1)(B)(iii).
Six categories of aliens allowed to apply for asylum by
§ 1158(a) are excluded from being granted asylum by
§ 1158(b)(2):
Paragraph (1) shall not apply to an alien if the
Attorney General determines that—
(i) the alien ordered, incited, assisted, or
otherwise participated in the persecution of
any person on account of race, religion,
nationality, membership in a particular social
group, or political opinion;
EAST BAY SANCTUARY COVENANT V. TRUMP 19
(ii) the alien, having been convicted by a final
judgment of a particularly serious crime,
constitutes a danger to the community of the
United States;
(iii) there are serious reasons for believing
that the alien has committed a serious
nonpolitical crime outside the United States
prior to the arrival of the alien in the United
States;
(iv) there are reasonable grounds for regarding
the alien as a danger to the security of the
United States;
(v) the alien is described in subclause (I), (II),
(III), (IV), or (VI) of section 1182(a)(3)(B)(i)
of this title or section 1227(a)(4)(B) of this
title (relating to terrorist activity), unless, in
the case only of an alien described in
subclause (IV) of section 1182(a)(3)(B)(i) of
this title, the Attorney General determines, in
the Attorney General’s discretion, that there
are not reasonable grounds for regarding the
alien as a danger to the security of the United
States; or
(vi) the alien was firmly resettled in another
country prior to arriving in the United States.
Id. § 1158(b)(2)(A). Additionally, “[t]he Attorney General
may by regulation establish additional limitations and
conditions, consistent with this section, under which an alien
shall be ineligible for asylum under paragraph (1).” Id.
20 EAST BAY SANCTUARY COVENANT V. TRUMP
§ 1158(b)(2)(C); see Nijjar v. Holder, 689 F.3d 1077, 1082
(9th Cir. 2012) (suggesting that fraud in the application could
be a valid additional ground on which the Attorney General
may deem aliens categorically ineligible). However, as far as
we can tell, prior to the promulgation of the Rule at issue in
this case, the Attorney General had not exercised the
authority to establish additional “limitations or conditions”
beyond those Congress enumerated in § 1158(a)(2) and
(b)(2). See 8 C.F.R. § 208.13(c) (effective July 18, 2013 to
Nov. 8, 2018); id. § 1208.13(c) (effective July 18, 2013 to
Nov. 8, 2018).
If an applicant successfully establishes refugee status and
is not excluded from relief by § 1158(b)(2), the Attorney
General “may grant asylum,” but is not required to do so. See
8 U.S.C. § 1158(b)(1)(A) (emphasis added). Asylum is a
form of “discretionary relief.” Moncrieffe v. Holder,
569 U.S. 184, 187 (2013); see INS. v. Aguirre–Aguirre,
526 U.S. 415, 420 (1999). We review the Attorney General’s
decision to deny asylum for whether it is “manifestly contrary
to the law and an abuse of discretion,” 8 U.S.C.
§ 1252(b)(4)(D), but we do not have the authority to award
asylum, see id. § 1252(e)(4)(B) (a court reviewing an asylum
decision “may order no remedy or relief other than to require
that the petitioner be provided a hearing” before an
immigration judge).
An alien granted asylum gains a number of benefits,
including pathways to lawful permanent resident status and
citizenship. See id. § 1159(b) (governing adjustment of status
from asylee to lawful permanent resident); id. § 1427(a)
(governing naturalization of lawful permanent residents).
Additionally, an asylee may obtain derivative asylum for a
spouse and any unmarried children, id. § 1158(b)(3); is
EAST BAY SANCTUARY COVENANT V. TRUMP 21
exempt from removal, id. § 1158(c)(1)(A); may work in the
United States, id. § 1158(c)(1)(B); may travel abroad without
prior consent of the government, id. § 1158(c)(1)(C); and
may obtain federal financial assistance, id. § 1613(b)(1).
3. The President’s Proclamation Power
Section 212(f) of the INA (codified at 8 U.S.C. § 1182(f))
grants the President the power to suspend entry and impose
restrictions on aliens via proclamation:
Whenever the President finds that the entry of
any aliens or of any class of aliens into the
United States would be detrimental to the
interests of the United States, he may by
proclamation, and for such period as he shall
deem necessary, suspend the entry of all
aliens or any class of aliens as immigrants or
nonimmigrants, or impose on the entry of
aliens any restrictions he may deem to be
appropriate.
Id. § 1182(f). This provision “vests the President with ‘ample
power’ to impose entry restrictions in addition to those
elsewhere enumerated in the INA.” Hawaii, 138 S. Ct. at
2408 (quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S.
155, 187 (1993)). The sole prerequisite to the President’s
exercise of this power is a finding that the entry of aliens
“would be detrimental to the interests of the United States.”
Id. (quoting 8 U.S.C. § 1182(f)). However, the President may
not “override particular provisions of the INA” through the
power granted him in § 1182(f). Id. at 2411.
22 EAST BAY SANCTUARY COVENANT V. TRUMP
C. Challenged Provisions
1. The Rule
On November 9, 2018, the Department of Justice (“DOJ”)
and Department of Homeland Security (“DHS”) published a
joint interim final Rule, titled “Aliens Subject to a Bar on
Entry Under Certain Presidential Proclamations; Procedures
for Protection Claims.” 83 Fed. Reg. 55,934.
In relevant part, the Rule provides that “[f]or applications
filed after November 9, 2018, an alien shall be 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 [§ 1182(f)].” Id. at 55,952 (to be codified at
8 C.F.R. § 208.13(c)(3) (DHS) and 8 C.F.R. § 1208.13(c)(3)
(DOJ)). The Rule applies only to aliens who enter the United
States “after the effective date of the proclamation or order
contrary to the terms of the proclamation or order.” Id. It
explicitly invokes the Attorney General’s power pursuant to
§ 1158(b)(2)(C) “to add a new mandatory bar on eligibility
for asylum for certain aliens who are subject to a presidential
proclamation suspending or imposing limitations on their
entry . . . and who enter the United States in contravention of
such a proclamation after the effective date of this rule.” Id.
at 55,939.3
3
The Rule also amends the regulations governing credible fear
determinations in expedited removal proceedings. 83 Fed. Reg. at 55,952.
If an asylum officer finds that an alien entered the United States through
Mexico and not at a port of entry, the Rule directs the officer to “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).
EAST BAY SANCTUARY COVENANT V. TRUMP 23
DOJ and DHS enacted the Rule without complying with
two Administrative Procedure Act (“APA”) requirements: the
“notice and comment” process, 5 U.S.C. § 553(b), and the 30-
day grace period before a rule may take effect, id. § 553(d).
The departments invoked two exemptions to the notice-and-
comment requirements: the “military or foreign affairs
function” exemption, id. § 553(a)(1), and the “good cause”
exemption, id. § 553(b)(B). They also invoked the “good
cause” waiver to the grace period, id. § 553(d)(3). See
83 Fed. Reg. at 55,949–51.
2. The Proclamation
On the same day that the joint interim final rule issued,
President Trump issued the Proclamation, titled “Addressing
Mass Migration Through the Southern Border of the United
States.” 83 Fed. Reg. 57,661. Expressly invoking 8 U.S.C.
§ 1182(f), the Proclamation suspends “entry of any alien into
the United States across the international boundary between
the United States and Mexico,” 83 Fed. Reg. at 57,663, § 1,
but excludes from the suspension “any alien who enters the
United States at a port of entry and properly presents for
inspection.” Id. at 57,663, § 2(b). The suspension is limited
to 90 days, effective November 9, 2018. Id. at 57,663, § 1.
In the preamble, the President cited a “substantial number
of aliens primarily from Central America” who reportedly
intend to enter the United States unlawfully and seek asylum
as a principle motivating factor for the Proclamation. Id. at
57,661. He described the Proclamation as tailored “to
channel these aliens to ports of entry, so that, if they enter the
United States, they do so in an orderly and controlled manner
instead of unlawfully.” Id. at 57,662. Aliens who present at
a port of entry with or without documentation may avail
24 EAST BAY SANCTUARY COVENANT V. TRUMP
themselves of the asylum system, but those who do not enter
through a port of entry “will be ineligible to be granted
asylum under [the Rule].” Id. at 57,663.
In support of the Proclamation, the President cited
concerns about violence, the integrity of the country’s
borders, and the strain illegal immigration places on
government resources. Id. at 57,661–62. He noted that there
has been a “massive increase” in asylum applications over the
past two decades, and because the “vast majority” of
applicants are found to have a “credible fear,” many aliens
are released into the United States pending final adjudication
of their status and do not appear for subsequent hearings or
comply with orders of removal.4 Id. at 57,661. These
problems are complicated when family units arrive together
because the government lacks sufficient detention facilities to
house families. Id. at 57,662. Accordingly, the President
found that “[t]he entry of large numbers of aliens into the
United States unlawfully between ports of entry on the
southern border is contrary to the national interest, and . . .
[f]ailing to take immediate action . . . would only encourage
additional mass unlawful migration and further overwhelming
of the system.” Id.
4
In 2010, the executive branch began allowing many asylum
applicants who were found to have a credible fear to be released into the
United States pending their asylum hearing instead of remaining in
detention. Will Weissert & Emily Schmall, “Credible Fear” for U.S.
Asylum Harder to Prove Under Trump, CHI. TRIB. (July 16, 2018),
https://www.chicagotribune.com/news/nationworld/ct-credible-fear-
asylum-20180716-story.html. The number of credible fear referrals
increased from 5,275 in 2009 to 91,786 in 2016. U.S. DEP’T OF
HOMELAND SEC., TOTAL CREDIBLE FEAR CASES COMPLETED, FISCAL
YEARS 2007–2016 (2017), https://www.dhs.gov/sites/default/files/publi
cations/Credible_Fear_2016.xlsx.
EAST BAY SANCTUARY COVENANT V. TRUMP 25
D. Procedural History
The day the Rule and Proclamation issued, plaintiffs East
Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab,
and Central American Resource Center (collectively, the
“Organizations”) sued several Government officials,
including the President, the Acting Attorney General, and the
Secretary of Homeland Security, in the United States District
Court for the Northern District of California. The
Organizations claimed that the Rule: (1) was improperly
promulgated under 5 U.S.C. § 553; and (2) is an invalid
exercise of the Attorney General’s power under 8 U.S.C.
§ 1158(b)(2)(C) because it is inconsistent with 8 U.S.C.
§ 1158(a)(1). The Organizations moved immediately for a
temporary restraining order (“TRO”).
The Government filed an opposition brief arguing that the
Organizations’ claims were not justiciable because they
lacked both Article III standing and statutory standing. The
Government also argued that the Rule was validly
promulgated under the APA and does not conflict with
§ 1158. On November 19, 2018—ten days after the Rule and
Proclamation were issued—the district court held a hearing
on the motion for a TRO. The district court granted the TRO
later that day. It held that the Organizations could validly
assert Article III standing on two theories: organizational
standing and third-party standing. The court also held that
the Organizations’ claims fell within the INA’s zone of
interests. On the merits, the district court found that the
Organizations satisfied the four-factor test for a TRO: a
likelihood of success on the merits, a likelihood of irreparable
harm in the absence of relief, a favorable balance of the
equities, and that a TRO was in the public interest. See Am.
Trucking Ass’ns, Inc. v. City of L.A., 559 F.3d 1046, 1052
26 EAST BAY SANCTUARY COVENANT V. TRUMP
(9th Cir. 2009). The TRO took effect immediately and
remains in effect until December 19, 2018. The district court
scheduled a hearing on a preliminary injunction for that date
and issued an order to show cause.
On November 27, 2018, the Government filed a notice of
appeal and an emergency motion in the district court to stay
the TRO. The district court denied the motion to stay on
November 30. On December 1, the Government filed a
motion in this court under Ninth Circuit Rule 27-3 for an
emergency administrative stay of the TRO and a stay of the
TRO pending appeal. We denied the motion for the
emergency administrative stay the same day.
II. JURISDICTION
We begin with two threshold issues raised by the parties.
The Organizations argue that we lack jurisdiction over the
Government’s stay request because the Government’s appeal
of the TRO is premature. The Government argues that this
case is not justiciable because the Organizations lack standing
and because their claims fall outside of the INA’s zone of
interests. We address each issue in turn.5
A. Appealability of the TRO
Ordinarily, a TRO is not an appealable order. See Abbott
v. Perez, 138 S. Ct. 2305, 2319–20 (2018). However, where
a TRO has the same effect as a preliminary injunction, it is
appealable under 28 U.S.C. § 1292(a)(1). Id. (citing Sampson
5
Although we realize that the zone of interests inquiry is not
jurisdictional, see Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 126, 128 n.4 (2014), we address it here as a threshold issue.
EAST BAY SANCTUARY COVENANT V. TRUMP 27
v. Murray, 415 U.S. 61, 86–88 (1974)). We treat a TRO as a
preliminary injunction “where an adversary hearing has been
held, and the court’s basis for issuing the order [is] strongly
challenged.” Bennett v. Medtronic, Inc., 285 F.3d 801, 804
(9th Cir. 2002) (quoting Sampson, 415 U.S. at 87). Further,
a key distinction between a “true” TRO and an appealable
preliminary injunction is that a TRO may issue without notice
and remains in effect for only 14 days (or longer if the district
court finds “good cause” to extend it). Fed. R. Civ. P. 65(b).
This TRO meets the criteria for treatment as a preliminary
injunction. Most importantly, the Government had an
opportunity to be heard: the district court held an adversary
hearing, and the Government strongly challenged the court’s
basis for issuing the order. The district court scheduled the
order to remain in effect for 30 days instead of adhering to
Rule 65(b)’s 14-day limit. Moreover, the Government argues
in this court that emergency relief is necessary to support the
national interests. In these circumstances, we may treat the
district court’s order as an appealable preliminary injunction.
See Washington v. Trump, 847 F.3d 1151, 1158 (9th Cir.
2017).
B. Standing and Zone of Interests
The Government contends that the Organizations do not
have Article III standing to sue and that their claims do not
fall within the zone of interests protected by the INA. We
have an obligation to ensure that jurisdiction exists before
proceeding to the merits. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 93–95 (1998). We likewise must
determine whether a plaintiff’s claim falls within the statute’s
zone of interests before we can consider the merits of the
claim. See Lexmark Int’l, Inc. v. Static Control Components,
28 EAST BAY SANCTUARY COVENANT V. TRUMP
Inc., 572 U.S. 118, 129 (2014). We conclude that, at this
preliminary stage of the proceedings, the Organizations have
sufficiently alleged grounds for Article III standing and that
their claims fall within the INA’s zone of interests.6
1. Article III Standing
Article III of the Constitution limits the federal judicial
power to the adjudication of “Cases” and “Controversies.”
U.S. CONST. art. III, § 2, cl. 1. This fundamental limitation
“is founded in concern about the proper—and properly
limited—role of the courts in a democratic society.”
Summers v. Earth Island Inst., 555 U.S. 488, 492–93 (2009)
(quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)). “One of
the essential elements of a legal case or controversy is that the
plaintiff have standing to sue.” Hawaii, 138 S. Ct. at 2416.
“[B]uilt on separation-of-powers principles,” standing ensures
that litigants have “a personal stake in the outcome of the
controversy as to justify the exercise of the court’s remedial
powers on their behalf.” Town of Chester v. Laroe Estates,
Inc., 137 S. Ct. 1645, 1650 (2017) (citations and internal
alterations omitted).
To demonstrate Article III standing, a plaintiff must show
a “concrete and particularized” injury that is “fairly
traceable” to the defendant’s conduct and “that is likely to be
redressed by a favorable judicial decision.” Spokeo, Inc. v.
6
We have a continuing obligation to assure our jurisdiction. Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574, 583–84 (1999); Fed. R. Civ. P.
12(h)(3) (“Whenever it appears . . . that the court lacks jurisdiction of the
subject matter, the court shall dismiss the action.”). Should facts develop
in the district court that cast doubt on the Organizations’ standing, the
district court is, of course, free to revisit this question.
EAST BAY SANCTUARY COVENANT V. TRUMP 29
Robins, 136 S. Ct. 1540, 1547–48 (2016) (quoting Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “At least one
plaintiff must have standing to seek each form of relief
requested,” Town of Chester, 137 S. Ct. at 1651, and that
party “bears the burden of establishing” the elements of
standing “with the manner and degree of evidence required at
the successive stages of the litigation,” Lujan, 504 U.S. at
561. “At this very preliminary stage,” the Organizations
“may rely on the allegations in their Complaint and whatever
other evidence they submitted in support of their TRO motion
to meet their burden.” Washington, 847 F.3d at 1159. And
they “need only establish a risk or threat of injury to satisfy
the actual injury requirement.” Harris v. Bd. of Supervisors,
L.A. Cty., 366 F.3d 754, 762 (9th Cir. 2004); see Spokeo,
136 S. Ct. at 1548 (noting that the injury must be “actual or
imminent, not conjectural or hypothetical” (quoting Lujan,
504 U.S. at 560)).
The district court concluded that the Organizations have
both third-party standing to sue on their clients’ behalf as
well as organizational standing to sue based on their direct
injuries.
a. Third-Party Standing
According to the district court, the Organizations “have
third-party standing to assert the legal rights of their clients
‘who are seeking to enter the country to apply for asylum but
are being blocked by the new asylum ban.’” We disagree.
“Ordinarily, a party ‘must assert his own legal rights’ and
‘cannot rest his claim to relief on the legal rights of third
parties.’” Sessions v. Morales–Santana, 137 S. Ct. 1678,
1689 (2017) (quoting Warth, 422 U.S. at 499). There is an
30 EAST BAY SANCTUARY COVENANT V. TRUMP
exception to this rule if (1) “the party asserting the right has
a close relationship with the person who possesses the right”
and (2) “there is a hindrance to the possessor’s ability to
protect his own interests.” Id. (quoting Kowalski v. Tesmer,
543 U.S. 125, 130 (2004)). But as a predicate to either of
those two inquiries, we must identify the “right” that the
Organizations are purportedly asserting on their clients’
behalf.
The district court relied on evidence in the record
indicating that “the government [is] preventing asylum-
seekers from presenting themselves at ports of entry to begin
the asylum process.” This harm, however, is not traceable to
the challenged Rule, which has no effect on the ability of
aliens to apply for asylum at ports of entry. Indeed, the Rule
purports to encourage aliens to apply for asylum at ports of
entry and addresses only the asylum eligibility of aliens who
illegally enter the United States outside of designated ports of
entry. See 83 Fed. Reg. at 55,941. The Organizations’
clients, of course, would not have standing to assert a right to
cross the border illegally, to seek asylum or otherwise. See
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1093
(10th Cir. 2006) (“[A] person complaining that government
action will make his criminal activity more difficult lacks
standing because his interest is not ‘legally protected.’”).
And although the Organizations describe significant
hindrances their clients have experienced in applying for
asylum at ports of entry, as well as significant risks their
clients may face in towns lining the country’s southern
border, neither of those concerns is at issue in this lawsuit.
Because the Organizations have not identified any cognizable
EAST BAY SANCTUARY COVENANT V. TRUMP 31
right that they are asserting on behalf of their clients, they do
not have third-party standing to sue.7
b. Organizational Standing
We agree, however, with the district court’s conclusion
that the Organizations have organizational standing. First, the
Organizations can demonstrate organizational standing by
showing that the challenged “practices have perceptibly
impaired [their] ability to provide the services [they were]
formed to provide.” El Rescate Legal Servs., Inc. v. Exec.
Office of Immigration Review, 959 F.2d 742, 748 (9th Cir.
1991) (quoting Havens Realty Corp. v. Coleman, 455 U.S.
363, 379 (1982)). This theory of standing has its roots in
Havens Realty. There, a fair housing organization alleged
that its mission was to “assist equal access to housing through
counseling and other referral services.” Havens Realty,
455 U.S. at 379. The organization claimed that the
defendant’s discriminatory housing practices “frustrated” the
organization’s ability to “provide counseling and referral
services for low- and moderate-income homeseekers,” and
that it forced the plaintiff “to devote significant resources to
identify and counteract” the alleged discriminatory practices.
Id. (citation omitted). The Supreme Court held that, based on
this allegation, “there can be no question that the organization
has suffered injury in fact” because it established a “concrete
and demonstrable injury to the organization’s activities—with
the consequent drain on the organization’s resources—[that]
7
Presumably because the Organizations filed this suit on the day the
Rule became effective, the Organizations do not assert third-party standing
on behalf of any client who entered the country after November 9. If they
now have these clients, they may seek leave to amend on remand.
32 EAST BAY SANCTUARY COVENANT V. TRUMP
constitute[d] far more than simply a setback to the
organization’s abstract social interests.” Id.
We have thus held that, under Havens Realty, “a
diversion-of-resources injury is sufficient to establish
organizational standing” for purposes of Article III, Nat’l
Council of La Raza v. Cegavske, 800 F.3d 1032, 1040 (9th
Cir. 2015), if the organization shows that, independent of the
litigation, the challenged “policy frustrates the organization’s
goals and requires the organization ‘to expend resources in
representing clients they otherwise would spend in other
ways,’” Comite de Jornaleros de Redondo Beach v. City of
Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011) (en banc)
(quoting El Rescate Legal Servs., 959 F.2d at 748). In
Comite de Jornaleros, for example, we concluded that
advocacy groups had organizational standing to challenge an
anti-solicitation ordinance that targeted day laborers based on
the resources spent by the groups “in assisting day laborers
during their arrests and meetings with workers about the
status of the ordinance.” Id. In National Council of La Raza,
we found that civil rights groups had organizational standing
to challenge alleged voter registration violations where the
groups had to “expend additional resources” to counteract
those violations that “they would have spent on some other
aspect of their organizational purpose.” 800 F.3d at 1039–40.
And in El Rescate Legal Services, we found that legal
services groups had organizational standing to challenge a
policy of providing only partial interpretation of immigration
court proceedings, noting that the policy “frustrate[d]” the
group’s “efforts to obtain asylum and withholding of
deportation in immigration court proceedings” and required
them “to expend resources in representing clients they
otherwise would spend in other ways.” 959 F.2d at 748; see
also Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th
EAST BAY SANCTUARY COVENANT V. TRUMP 33
Cir. 2013) (finding organizational standing where the
plaintiffs “had to divert resources to educational programs to
address its members’ and volunteers’ concerns about the
[challenged] law’s effect”); Fair Hous. Council of San
Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216,
1219 (9th Cir. 2012) (finding organizational standing where
the plaintiff responded to allegations of discrimination by
“start[ing] new education and outreach campaigns targeted at
discriminatory roommate advertising”); 13A Charles Alan
Wright et al., Federal Practice & Procedure § 3531.9.5 (3d
ed. Sept. 2018) (collecting cases).
Under Havens Realty and our cases applying it, the
Organizations have met their burden to establish
organizational standing. The Organizations’ declarations
state that enforcement of the Rule has frustrated their mission
of providing legal aid “to affirmative asylum applicants who
have entered” the United States between ports of entry,
because the Rule significantly discourages a large number of
those individuals from seeking asylum given their
ineligibility. The Organizations have also offered
uncontradicted evidence that enforcement of the Rule has
required, and will continue to require, a diversion of
resources, independent of expenses for this litigation, from
their other initiatives. For example, an official from East Bay
affirmed that the Rule will require East Bay to partially
convert their affirmative asylum practice into a removal
defense program, an overhaul that would require “developing
new training materials” and “significant training of existing
staff.” He also stated that East Bay would be forced at the
client intake stage to “conduct detailed screenings for
alternative forms of relief to facilitate referrals or other forms
of assistance.” Moreover, several of the Organizations
explained that because other forms of relief from
34 EAST BAY SANCTUARY COVENANT V. TRUMP
removal—such as withholding of removal and relief under
the Convention Against Torture—do not allow a principal
applicant to file a derivative application for family members,
the Organizations will have to submit a greater number of
applications for family-unit clients who would have otherwise
been eligible for asylum. Increasing the resources required to
pursue relief for family-unit clients will divert resources away
from providing aid to other clients. Finally, the
Organizations have each undertaken, and will continue to
undertake, education and outreach initiatives regarding the
new rule, efforts that require the diversion of resources away
from other efforts to provide legal services to their local
immigrant communities.
To be sure, as the district court noted, several of our
colleagues have criticized certain applications of the Havens
Realty organizational standing test as impermissibly diluting
Article III’s standing requirement. See Fair Hous. Council,
666 F.3d at 1225–26 (Ikuta, J., dissenting); People for the
Ethical Treatment of Animals v. U.S. Dep’t of Agric.
(“PETA”), 797 F.3d 1087, 1100–01 (D.C. Cir. 2015) (Millett,
J., dubitante). Whatever the force of these criticisms, they are
not directly applicable here, because they involve efforts by
advocacy groups to show standing by pointing to the
expenses of advocacy—the very mission of the group itself,
see Fair Hous. Council, 666 F.3d at 1226 (Ikuta, J.,
dissenting); or by identifying a defendant’s failure to take
action against a third party, see PETA, 797 F.3d at 1101
(Millett, J., dubitante). And in any event, we are not free to
ignore “the holdings of our prior cases” or “their explications
of the governing rules of law.” Miller v. Gammie, 335 F.3d
889, 900 (9th Cir. 2003) (en banc) (citation omitted).
EAST BAY SANCTUARY COVENANT V. TRUMP 35
Second, the Organizations can demonstrate organizational
standing by showing that the Rule will cause them to lose a
substantial amount of funding. “For standing purposes, a loss
of even a small amount of money is ordinarily an ‘injury.’”
Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017).
We have held that an organization that suffers a decreased
“amount of business” and “lost revenues” due to a
government policy “easily satisf[ies] the ‘injury in fact’
standing requirement.” Constr. Indus. Ass’n of Sonoma Cty.
v. City of Petaluma, 522 F.2d 897, 903 (9th Cir. 1975); cf.
City & Cty. of S.F. v. Trump, 897 F.3d 1225, 1236 (9th Cir.
2018) (holding that “a likely ‘loss of funds promised under
federal law’” satisfies Article III’s standing requirement
(quoting Organized Vill. of Kake v. U.S. Dep’t of Agric.,
795 F.3d 956, 965 (9th Cir. 2015))).
According to the Organizations’ declarations, a large
portion of their funding from the California state government
is tied to the number of asylum applications they pursue.
Many of the applications filed by the Organizations are
brought on behalf of applicants who, under the Rule, would
be categorically ineligible for asylum. For example, East Bay
has a robust affirmative asylum program in which they file
their clients’ asylum applications with United States
Citizenship and Immigration Services rather than in
immigration court. See generally Dhakal v. Sessions,
895 F.3d 532, 536–37 (7th Cir. 2018) (describing affirmative
and defensive asylum processes). East Bay receives funding
from the California Department of Social Services for each
asylum case handled, and, historically, approximately 80% of
East Bay’s affirmative asylum clients have entered the United
States outside of designated ports of entry. If these
individuals became categorically ineligible for asylum, East
36 EAST BAY SANCTUARY COVENANT V. TRUMP
Bay would lose a significant amount of business and suffer a
concomitant loss of funding.
Thus, based on the available evidence at this early stage
of the proceedings, we conclude that the Organizations have
shown that they have suffered and will suffer direct injuries
traceable to the Rule and thus have standing to challenge its
validity.8
2. Zone of Interests
We next consider whether the Organizations’ claims fall
within the INA’s “zone of interests.” Bank of Am. Corp. v.
City of Miami, 137 S. Ct. 1296, 1302 (2017). This is a
“prudential” inquiry that asks “whether the statute grants the
plaintiff the cause of action that he asserts.” Id. “[W]e
presume that a statute ordinarily provides a cause of action
‘only to plaintiffs whose interests fall within the zone of
interests protected by the law invoked.’” Id. (quoting
Lexmark, 572 U.S. at 126). We determine “[w]hether a
plaintiff comes within ‘the zone of interests’” using
“traditional tools of statutory interpretation.” Id. at 1307
(quoting Lexmark, 572 U.S. at 127).
8
Consequently, the Organizations also have Article III standing to
challenge the procedure by which the Rule was adopted. Although a
“deprivation of a procedural right without some concrete interest that is
affected by the deprivation—a procedural right in vacuo—is insufficient
to create Article III standing,” Summers, 555 U.S. at 496, a plaintiff does
have standing to assert a violation of “a procedural requirement the
disregard of which could impair a separate concrete interest,” Lujan,
504 U.S. at 572. As explained above, the Organizations have adequately
identified concrete interests impaired by the Rule and thus have standing
to challenge the absence of notice-and-comment procedures in
promulgating it.
EAST BAY SANCTUARY COVENANT V. TRUMP 37
The Organizations bring their claims under the APA.
Because the APA provides a cause of action only to those
“suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of
a relevant statute,” 5 U.S.C. § 702, the relevant zone of
interests is not that of the APA itself, but rather “‘the zone of
interests to be protected or regulated by the statute’ that [the
plaintiff] says was violated.” Match-E-Be-Nash-She-Wish
Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224
(2012) (quoting Assoc. of Data Processing Serv. Orgs., Inc.
v. Camp, 397 U.S. 150, 153 (1970)). Here, the Organizations
claim that the Rule “is flatly contrary to the INA.” Thus, we
must determine whether the Organizations’ interests fall
within the zone of interests protected by the INA.
The Government argues that the INA’s asylum provisions
do not “even arguably . . . protect[] the interests of nonprofit
organizations that provide assistance to asylum seekers”
because the provisions “neither regulate [the Organizations’]
conduct nor create any benefits for which these organizations
themselves might be eligible.” Although the Organizations
are neither directly regulated nor benefitted by the INA, we
nevertheless conclude that their interest in “provid[ing] the
[asylum] services [they were] formed to provide” falls within
the zone of interests protected by the INA. El Rescate Legal
Servs., 959 F.2d at 748 (internal alterations omitted) (quoting
Havens Realty, 455 U.S. at 379).
The Supreme Court has emphasized that the zone of
interests test, under the APA’s “generous review provisions,”
“is not meant to be especially demanding; in particular, there
need be no indication of congressional purpose to benefit the
would-be plaintiff.” Clarke v. Sec. Indus. Ass’n, 479 U.S.
388, 399–400 & n.16 (1987) (footnote omitted) (quoting Data
38 EAST BAY SANCTUARY COVENANT V. TRUMP
Processing, 397 U.S. at 156). In addition, the contested
provision need not directly regulate the Organizations. Even
in cases “where the plaintiff is not itself the subject of the
contested regulatory action,” id. at 399, the zone of interests
test “forecloses suit only when a plaintiff’s interests are so
marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed
that Congress authorized the plaintiff to sue.” Lexmark,
572 U.S. at 130 (quoting Match-E-Be-Nash-She-Wish,
567 U.S. at 225) (internal quotation marks omitted). Thus, it
is sufficient that the Organizations’ asserted interests are
consistent with and more than marginally related to the
purposes of the INA.9
Here, the Organizations’ interest in aiding immigrants
seeking asylum is consistent with the INA’s purpose to
“establish[] . . . [the] statutory procedure for granting asylum
to refugees.” Cardoza–Fonseca, 480 U.S. at 427. Moreover,
we find the Organizations’ interests to be more than
marginally related to the statute’s purpose. Within the
asylum statute, Congress took steps to ensure that pro bono
legal services of the type that the Organizations provide are
available to asylum seekers. See 8 U.S.C.
§ 1158(d)(4)(A)–(B) (requiring the Attorney General to
provide aliens applying for asylum with a list of pro bono
attorneys and to advise them of the “privilege of being
represented by counsel”). In addition, other provisions in the
INA give institutions like the Organizations a role in helping
immigrants navigate the immigration process. See, e.g., id.
9
“[W]e are not limited to considering the [specific] statute under
which [plaintiffs] sued, but may consider any provision that helps us to
understand Congress’ overall purposes in the [INA].” Clarke, 479 U.S.
at 401 (discussing Data Processing, 397 U.S. at 840 n.6).
EAST BAY SANCTUARY COVENANT V. TRUMP 39
§ 1101(i)(1) (requiring that potential T visa applicants be
referred to nongovernmental organizations for legal advice);
id. § 1184(p)(3)(A) (same for U visas); id. § 1228(a)(2),
(b)(4)(B) (recognizing a right to counsel for aliens subject to
expedited removal proceedings); id. § 1229(a)(1), (b)(2)
(requiring that aliens subject to deportation proceedings be
provided a list of pro bono attorneys and advised of their right
to counsel); id. § 1443(h) (requiring the Attorney General to
work with “relevant organizations” to “broadly distribute
information concerning” the immigration process). These
statutes, which directly rely on institutions like the
Organizations to aid immigrants, are a sufficient “indicator
that the plaintiff[s] [are] peculiarly suitable challenger[s] of
administrative neglect . . . support[ing] an inference that
Congress would have intended eligibility” to bring suit.
Hazardous Waste Treatment Council v. EPA, 861 F.2d 277,
283 (D.C. Cir. 1988).10 And in light of the “generous review
provisions” of the APA, Clarke, 479 U.S. at 400 n.16, the
Organizations’ claims “are, at the least, ‘arguably within the
zone of interests’” protected by the INA, Bank of Am., 137 S.
Ct. at 1303 (quoting Data Processing, 397 U.S. at 153).
In addition, “a party within the zone of interests of any
substantive authority generally will be within the zone of
10
We reject the Government’s invitation to rely on INS v.
Legalization Assistance Project of Los Angeles County, 510 U.S. 1301,
1305 (1993) (O’Connor, J., in chambers). Not only is Justice O’Connor’s
opinion non-binding and concededly “speculative,” id. at 1304, but the
interest asserted by the organization in that case—conserving
organizational resources to better serve nonimmigrants—is markedly
different from the interest in aiding immigrants asserted here. Our opinion
in Immigrant Assistance Project of Los Angeles Cty. v. INS, 306 F.3d 842,
867 (9th Cir. 2002), also relied on by the Government, is not to the
contrary because that case does not discuss the zone of interests test.
40 EAST BAY SANCTUARY COVENANT V. TRUMP
interests of any procedural requirement governing exercise of
that authority.” Int’l Bhd. of Teamsters v. Pena, 17 F.3d
1478, 1484 (D.C. Cir. 1994). This is particularly true for
claims brought under the APA’s notice-and-comment
provisions. See id.; see also Mendoza v. Perez, 754 F.3d
1002, 1016 (D.C. Cir. 2014) (looking to the “zone of
interests” of the underlying statute to determine ability to
bring a notice-and-comment claim). As explained above, the
Organizations are within the zone of interests protected by the
INA and thus may challenge the absence of notice-and-
comment procedures in addition to the Rule’s substantive
validity.
III. STAY REQUEST
We turn now to the Government’s request that we stay the
TRO pending its appeal. “A stay is an ‘intrusion into the
ordinary processes of administration and judicial review,’ and
accordingly ‘is not a matter of right, even if irreparable injury
might otherwise result to the appellant.’” Nken v. Holder,
556 U.S. 418, 427 (2009) (citations omitted). “It is instead
‘an exercise of judicial discretion,’ and ‘the propriety of its
issue is dependent upon the circumstances of the particular
case.’” Id. at 433 (internal alteration omitted) (quoting
Virginian Ry. Co. v. United States, 272 U.S. 658, 672–73
(1926)). “The party requesting a stay bears the burden of
showing that the circumstances justify an exercise of that
discretion,” and our analysis is guided by four factors:
(1) whether the stay applicant has made a
strong showing that he is likely to succeed on
the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure
EAST BAY SANCTUARY COVENANT V. TRUMP 41
the other parties interested in the proceeding;
and (4) where the public interest lies.
Id. at 433–34 (quoting Hilton v. Braunskill, 481 U.S. 770, 776
(1987)). “The first two factors . . . are the most critical,” and
the “mere possibility” of success or irreparable injury is
insufficient to satisfy them. Id. at 434 (internal quotation
marks omitted). We consider the final two factors “[o]nce an
applicant satisfies the first two.” Id. at 435.
A. Likelihood of Success on the Merits
The Government argues that it is likely to succeed on the
merits of its appeal because the Rule (1) is consistent with the
INA’s asylum provisions and (2) was properly promulgated.
We respectfully disagree. Although the merits of the
procedural issue may be uncertain at this stage of
proceedings, the Government is not likely to succeed in its
argument that the Rule is consistent with the INA. Because
the Government must be likely to succeed in both its
procedural and substantive arguments in order for us to
conclude it has met this element of the four-part inquiry, we
hold that it has not carried its burden.
1. Substantive Validity of the Rule
Under the APA, we must “hold unlawful and set aside
agency action . . . found to be—arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). The scope of our review, however, is
limited to “agency action,” and the President is not an
“agency.” See id. §§ 551(a), 701(b)(1). Accordingly, the
President’s “actions are not subject to [APA] requirements.”
42 EAST BAY SANCTUARY COVENANT V. TRUMP
Franklin v. Massachusetts, 505 U.S. 788, 801 (1992).11 We
thus do not have any authority under § 706 of the APA to
review the Proclamation.
However, we may review the substantive validity of the
Rule together with the Proclamation. Our power to review
“agency action” under § 706 “includes the whole or part of an
agency rule, order, license, sanction, relief, or the equivalent
. . . thereof.” 5 U.S.C. § 551(13). The Organizations have
challenged the Rule as it incorporates the President’s
Proclamation. The Rule does not itself provide the criteria
for determining when aliens who have entered the United
States from Mexico will be deemed ineligible for asylum
because it is contingent on something else—the issuance of
a presidential proclamation. By itself, the Rule does not
affect the eligibility of any alien who wishes to apply for
asylum. But the Rule and the Proclamation together create an
operative rule of decision for asylum eligibility. It is the
substantive rule of decision, not the Rule itself, that the
Organizations have challenged under the APA, and insofar as
DOJ and DHS have incorporated the Proclamation by
reference into the Rule, we may consider the validity of the
agency’s proposed action, including its “rule . . . or the
equivalent.” Id.; see also Chamber of Commerce of the U.S.
v. Reich, 74 F.3d 1322, 1326 (D.C. Cir. 1996) (explaining that
agency regulations that implement an executive order are
reviewable under the APA). This is consistent with the
principle that a “‘final’ agency action” reviewable under the
APA is one that “determines ‘rights or obligations from
which legal consequences will flow’ and marks the
11
The President’s actions are subject to constitutional challenge.
Franklin, 505 U.S. at 801. The Organizations have not brought a
constitutional challenge to the Proclamation.
EAST BAY SANCTUARY COVENANT V. TRUMP 43
‘consummation’ of the agency’s decisionmaking process.”
Hyatt v. Office of Mgmt. & Budget, 908 F.3d 1165, 1172 (9th
Cir. 2018) (internal alterations omitted) (quoting Bennett v.
Spear, 520 U.S. 154, 177–78 (1997)).
The district court concluded that the Organizations were
likely to succeed on their claim that the Rule together with
the Proclamation is inconsistent with 8 U.S.C. § 1158(a)(1).
That section provides that “[a]ny 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 . . .),
irrespective of such alien’s status, may apply for asylum in
accordance with this section.” Id. (emphasis added).
Congress followed this section with three enumerated
restrictions—three categories of aliens who are ineligible to
apply for asylum: those who can safely be removed to a third
country, those who fail to apply within one year of their
arrival in the United States, and those who have previously
been denied asylum. Id. § 1158(a)(2)(A)–(C). Congress then
granted to the Attorney General the authority to add “other
conditions or limitations on the consideration of an
application for asylum,” as long as those conditions or
limitations are “not inconsistent with this chapter.” Id.
§ 1158(d)(5)(B). If the Attorney General had adopted a rule
that made aliens outside a “designated port of arrival”
ineligible to apply for asylum, the rule would contradict
§ 1158(a)(1)’s provision that an alien may apply for asylum
“whether or not [the alien arrives through] a designated port
of arrival.” Such a rule would be, quite obviously, “not in
accordance with law.” 5 U.S.C. § 706(2)(A); see Rodriguez
v. Smith, 541 F.3d 1180, 1188 (9th Cir. 2008) (“[A]n
agency’s authority to promulgate categorical rules is limited
by clear congressional intent to the contrary.” (quoting
Wedelstedt v. Wiley, 477 F.3d 1160, 1168 (10th Cir. 2007))).
44 EAST BAY SANCTUARY COVENANT V. TRUMP
Rather than restricting who may apply for asylum, the
rule of decision facially conditions only who is eligible to
receive asylum. The INA grants the Attorney General the
power to set “additional limitations and conditions” beyond
those listed in § 1158(b)(2)(A) on when an alien will be
“ineligible for asylum,” but only when “consistent” with the
section. 8 U.S.C. § 1158(b)(2)(C). Despite his facial
invocation of § 1158(b)(2)(C), the Attorney General’s rule of
decision is inconsistent with § 1158(a)(1). It is the hollowest
of rights that an alien must be allowed to apply for asylum
regardless of whether she arrived through a port of entry if
another rule makes her categorically ineligible for asylum
based on precisely that fact. Why would any alien who
arrived outside of a port of entry apply for asylum? Although
the Rule technically applies to the decision of whether or not
to grant asylum, it is the equivalent of a bar to applying for
asylum in contravention of a statute that forbids the Attorney
General from laying such a bar on these grounds. The
technical differences between applying for and eligibility for
asylum are of no consequence to a refugee when the bottom
line—no possibility of asylum—is the same.12
12
Although the INA distinguishes between criteria that disqualify an
alien from applying for asylum and criteria that disqualify an alien from
eligibility for (i.e., receiving) asylum, it is not clear that the difference
between the two lists of criteria is significant. Compare 8 U.S.C.
§ 1158(a)(2)(A)–(C), with id. § 1158(b)(2)(A). For example, an alien
cannot apply if she has previously applied for asylum and been denied.
Id. § 1158(a)(2)(C). But the restriction can be enforced at any time in the
process, even if that information came to light after the alien actually filed
a second application. Similarly, an alien who was “firmly resettled” in
another country prior to arriving in the United States is not eligible for
asylum. Id. § 1158(a)(2)(A)(vi). Although that criterion does not
disqualify a firmly resettled alien from applying, that alien might save
herself the trouble of applying given her ineligibility and, indeed, she
might well be advised by counsel not to apply.
EAST BAY SANCTUARY COVENANT V. TRUMP 45
As the district court observed, “[t]o say that one may
apply for something that one has no right to receive is to
render the right to apply a dead letter.” We agree. See
United States v. Larionoff, 431 U.S. 864, 873 (1977) (“[I]n
order to be valid [regulations] must be consistent with the
statute under which they are promulgated.”); cf. Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,
842–43 (1984) (“[If] Congress has directly spoken to the
precise question at issue . . . that is the end of the matter; for
the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.”). We
conclude that the Rule is not likely to be found “in
accordance with law,” namely, the INA itself. 5 U.S.C.
§ 706(2)(A).13
The Rule is likely arbitrary and capricious for a second
reason: it conditions an alien’s eligibility for asylum on a
criterion that has nothing to do with asylum itself. The Rule
thus cannot be considered a reasonable effort to interpret or
enforce the current provisions of the INA. See Chevron,
467 U.S. at 843. In accordance with the Convention and
Protocol, Congress required the Government to accept asylum
applications from aliens, irrespective of whether or not they
13
The Government’s reliance on Lopez v. Davis, 531 U.S. 230 (2001),
is misplaced. There, the Supreme Court found the Bureau of Prisons was
permitted to add a regulation that categorically denied early release to a
class of inmates. Id. at 238. But as we have explained, Lopez “pointedly
discussed the absence from the statutory language of any criteria the
[agency] could use in applying the statute,” and noted that Congress had
not spoken to the precise issue. Rodriguez v. Smith, 541 F.3d 1180, 1188
(9th Cir. 2008) (citing Lopez, 531 U.S. at 242). Here, § 1158 contains
several criteria for asylum determinations, and Congress spoke to the
precise issue when it stated that aliens may apply “whether or not” they
arrived at a designated port of entry.
46 EAST BAY SANCTUARY COVENANT V. TRUMP
arrived lawfully through a port of entry. This provision
reflects our understanding of our treaty obligation to not
“impose penalties [on refugees] on account of their illegal
entry or presence.” Convention, art. XXXI, § 1, 189 U.N.T.S.
at 174. One reason for this provision is that, in most cases, an
alien’s illegal entry or presence has nothing to do with
whether the alien is a refugee from his homeland “unable or
unwilling to avail himself or herself of the protection of, 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). For example, whether an alien enters
the United States over its land border with Mexico rather than
through a designated port of entry is uncorrelated with the
question of whether she has been persecuted in, say, El
Salvador.
The BIA recognized some thirty years ago that although
“an alien’s manner of entry or attempted entry is a proper and
relevant discretionary factor to consider in adjudicating
asylum applications, . . . it should not be considered in such
a way that the practical effect is to deny relief in virtually all
cases.” Matter of Pula, 19 I. & N. Dec. 467, 473 (BIA 1987)
(emphasis added). Following the BIA’s lead, we have
observed that “the way in which [the alien] entered this
country is worth little if any weight in the balancing of
positive and negative factors.” Mamouzian v. Ashcroft,
390 F.3d 1129, 1138 (9th Cir. 2004). Indeed, we have
considered that, in some cases, an alien entering the United
States illegally is “wholly consistent with [a] claim to be
fleeing persecution.” Akinmade v. INS, 196 F.3d 951, 955
(9th Cir. 1999).
EAST BAY SANCTUARY COVENANT V. TRUMP 47
We are not alone in our view of the relevance of illegal
entry to an alien’s eligibility for asylum. For example, the
Second Circuit, again following the BIA’s lead, has held that
“manner of entry cannot, as a matter of law, suffice as a basis
for a discretionary denial of asylum in the absence of other
adverse factors.” Huang v. INS, 436 F.3d 89, 99 (2d Cir.
2006). In a similar vein, the Eleventh Circuit has observed
that “there may be reasons, fully consistent with the claim of
asylum, that will cause a person to possess false documents
. . . to escape persecution by facilitating travel.” Nreka v.
U.S. Attorney Gen., 408 F.3d 1361, 1368 (11th Cir. 2005)
(quoting In Re O-D-, 21 I. & N. Dec. 1079, 1083 (BIA
1998)); see Yongo v. INS, 355 F.3d 27, 33 (1st Cir. 2004)
(same). This is not to say that the manner of entry is never
relevant to an alien’s eligibility for asylum. At least under
current law, it may be considered but only as one piece of the
broader application. As the Sixth Circuit recently explained,
“although the BIA may consider an alien’s failure to comply
with established immigration procedures, it may not do so to
the practical exclusion of all other factors.” Hussam F. v.
Sessions, 897 F.3d 707, 718 (6th Cir. 2018); see also Zuh v.
Mukasey, 547 F.3d 504, 511 n.4 (4th Cir. 2008) (immigration
law violations should be considered in “a totality of the
circumstances inquiry” and should not be given “too much
weight”).
We wish not to be misunderstood: we are not suggesting
that an alien’s illegal entry or presence will always be
independent of his claim to refugee status, nor are we saying
that Congress could not adopt such a criterion into law. But
the rule of decision enforced by the Government—that illegal
entry, through Mexico specifically, will always be
disqualifying—is inconsistent with the treaty obligations that
the United States has assumed and that Congress has
48 EAST BAY SANCTUARY COVENANT V. TRUMP
enforced. As the Second Circuit observed, “if illegal manner
of flight and entry were enough independently to support a
denial of asylum, . . . virtually no persecuted refugee would
obtain asylum.” Huang, 436 F.3d at 100. The Rule together
with the Proclamation is arbitrary and capricious and
therefore, likely to be set aside under 5 U.S.C. § 706(2)(A).
The Government attempts to avoid the implications of its
new rule of decision by pointing to the President’s authority
to suspend aliens from entering the country, and to do so by
proclamation. 8 U.S.C. § 1182(f); see Hawaii, 138 S. Ct. at
2408. The rule of decision, however, is not an exercise of the
President’s authority under § 1182(f) because it does not
concern the suspension of entry or otherwise “impose on the
entry of aliens . . . restrictions [the President] deem[s] to be
appropriate.” 8 U.S.C. § 1182(f). To be sure, the rule of
decision attempts to discourage illegal entry by penalizing
aliens who cross the Mexican border outside a port of entry
by denying them eligibility for asylum. But the rule of
decision imposes the penalty on aliens already present within
our borders. By definition, asylum concerns those
“physically present in the United States,” id. § 1158(a)(1),
and “our immigration laws have long made a distinction
between those aliens who have come to our shores seeking
admission . . . and those who are within the United States
after an entry, irrespective of its legality.” Leng May Ma v.
Barber, 357 U.S. 185, 187 (1958); see Zadvydas v. Davis,
533 U.S. 678, 693 (2001) (“The distinction between an alien
who has effected an entry into the United States and one who
has never entered runs throughout immigration law. . . .
[O]nce an alien enters the country, the legal circumstance
changes . . . whether [the alien’s] presence here is lawful,
unlawful, temporary, or permanent.”).
EAST BAY SANCTUARY COVENANT V. TRUMP 49
The Government asserts that the TRO “constitutes a
major and ‘unwarranted judicial interference in the conduct
of foreign policy’” and “undermines the separation of powers
by blocking the Executive Branch’s lawful use of its
authority.” But if there is a separation-of-powers concern
here, it is between the President and Congress, a boundary
that we are sometimes called upon to enforce. See, e.g.,
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (2012);
INS v. Chadha, 462 U.S. 919 (1983). Here, the Executive has
attempted an end-run around Congress. The President’s
Proclamation by itself is a precatory act.14 The entry it
“suspends” has long been suspended: Congress criminalized
crossing the Mexican border at any place other than a port of
entry over 60 years ago. See Pub. L. No. 82-414, 66 Stat.
163-229 (codified as amended at 8 U.S.C. § 1325). The
Proclamation attempts to accomplish one thing. In
combination with the Rule, it does indirectly what the
Executive cannot do directly: amend the INA. Just as we
may not, as we are often reminded, “legislate from the
bench,” neither may the Executive legislate from the Oval
Office.
14
The Government’s illusion appears on the very first page of its
motion: “The President . . . determined that entry must be suspended
temporarily for the many aliens who . . . violate our criminal law and . . .
cross[ ] illegally into the United States.” Such entry, of course, is
“suspended” permanently by statute. See 8 U.S.C. §§ 1182(a)(6)(A)(i),
1325(a). When asked by the district court to explain what the
Proclamation independently accomplishes, the Government simply posited
that the Proclamation “points out that . . . this violation of law implicates
the national interest in a particular way.” This description does not have
any practical effect that we can discern.
50 EAST BAY SANCTUARY COVENANT V. TRUMP
This separation-of-powers principle hardly needs
repeating. “The power of executing the laws . . . does not
include a power to revise clear statutory terms that turn out
not to work in practice,” and it is thus a “core administrative-
law principle that an agency may not rewrite clear statutory
terms to suit its own sense of how the statute should operate.”
Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446
(2014). Where “Congress itself has significantly limited
executive discretion by establishing a detailed scheme that
the Executive must follow in [dealing with] aliens,” the
Attorney General may not abandon that scheme because he
thinks it is not working well—at least not in the way in which
the Executive attempts to do here. Jama v. Immigration &
Customs Enf’t, 543 U.S. 335, 368 (2005). There surely are
enforcement measures that the President and the Attorney
General can take to ameliorate the crisis, but continued
inaction by Congress is not a sufficient basis under our
Constitution for the Executive to rewrite our immigration
laws.
We are acutely aware of the crisis in the enforcement of
our immigration laws. The burden of dealing with these
issues has fallen disproportionately on the courts of our
circuit. And as much as we might be tempted to revise the
law as we think wise, revision of the laws is left with the
branch that enacted the laws in the first place—Congress.
2. Exemption from Notice-and-Comment Procedures
The Organizations also argued, and the district court
agreed, that the Rule was likely promulgated without
following proper notice-and-comment procedures. In
general, the APA requires federal agencies to publish notice
of proposed rules in the Federal Register and then allow
EAST BAY SANCTUARY COVENANT V. TRUMP 51
“interested persons an opportunity to participate in the rule
making through submission of written data, views, or
arguments with or without opportunity for oral presentation.”
5 U.S.C. § 553(c). The “agency must consider and respond
to significant comments received during the period for public
comment.” Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199,
1203 (2015). Section 553(d) also provides that a promulgated
final rule shall not go into effect for at least thirty days.
5 U.S.C. § 553(d). These procedures are “designed to assure
due deliberation” of agency regulations and “foster the
fairness and deliberation that should underlie a
pronouncement of such force.” United States v. Mead Corp.,
533 U.S. 218, 230 (2001) (quoting Smiley v. Citibank (S.D.),
N.A., 517 U.S. 735, 741 (1996)); see also Envtl. Integrity
Project v. EPA, 425 F.3d 992, 996 (D.C. Cir. 2005) (noting
that notice-and-comment procedures “give affected parties an
opportunity to develop evidence in the record to support their
objections to the rule and thereby enhance the quality of
judicial review” (citation omitted)).
The parties do not dispute that the Rule was promulgated
without a thirty-day grace period or notice-and-comment
procedures. The Government asserts, however, that the Rule
was exempt under the APA’s foreign affairs and good cause
exceptions. Under the foreign affairs exception, the APA’s
notice-and-comment procedures do not apply “to the extent
that there is involved—a . . . foreign affairs function of the
United States.” 5 U.S.C. § 553(a)(1). And § 553(b)(B)
provides an exception to the notice-and-comment
requirements “when the agency for good cause finds . . . that
notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.” Id.
§ 553(b)(B). Section 553(d)(3) also provides an exception to
52 EAST BAY SANCTUARY COVENANT V. TRUMP
the APA’s 30-day grace period “for good cause found and
published with the rule.” Id. § 553(d)(3).
Foreign Affairs Exception. The Government raises two
arguments in support of its claimed foreign affairs exception.
First, it asserts that the Rule “necessarily implicate[s] our
relations with Mexico and the President’s foreign policy,”
and thus falls under the foreign affairs exception because it
addresses immigration across the nation’s southern border.
83 Fed. Reg. at 55,950. Although the Organizations do not
dispute that the Government’s Rule implicates foreign affairs,
they argue that the “general nexus between immigration and
foreign affairs” is insufficient to trigger the APA’s foreign
affairs exception.
We agree that the foreign affairs exception requires the
Government to do more than merely recite that the Rule
“implicates” foreign affairs. The reference in the Rule that
refers to our “southern border with Mexico” is not sufficient.
As we have explained, “[t]he foreign affairs exception would
become distended if applied to [an immigration enforcement
agency’s] actions generally, even though immigration matters
typically implicate foreign affairs.” Yassini v. Crosland,
618 F.2d 1356, 1360 n.4 (9th Cir. 1980). Accordingly, we
have held that the foreign affairs exception applies in the
immigration context only when ordinary application of “the
public rulemaking provisions [will] provoke definitely
undesirable international consequences.” Id. Other circuits
have required a similar showing, noting that “it would be
problematic if incidental foreign affairs effects eliminated
public participation in this entire area of administrative law.”
City of N.Y. v. Permanent Mission of India to United Nations,
618 F.3d 172, 202 (2d Cir. 2010); see Rajah v. Mukasey,
544 F.3d 427, 437 (2d Cir. 2008).
EAST BAY SANCTUARY COVENANT V. TRUMP 53
Under this standard, courts have approved the
Government’s use of the foreign affairs exception where the
international consequence is obvious or the Government has
explained the need for immediate implementation of a final
rule. See, e.g., Rajah, 544 F.3d at 437 (rule responding to
September 11, 2001 attacks); Yassini, 618 F.2d at 1361 (rule
responding to Iranian hostage crisis); Malek–Marzban v. INS,
653 F.2d 113, 116 (4th Cir. 1981) (rule responding to Iranian
hostage crisis); see also Am. Ass’n of Exps. & Imps.–Textile
& Apparel Grp. v. United States, 751 F.2d 1239, 1249 (Fed.
Cir. 1985) (rule regarding stricter import restrictions that
would provoke immediate response from foreign
manufacturers). On the other hand, courts have disapproved
the use of the foreign affairs exception where the Government
has failed to offer evidence of consequences that would result
from compliance with the APA’s procedural requirements.
See, e.g., Zhang v. Slattery, 55 F.3d 732, 744–45 (2d Cir.
1995) (rule regarding refugee status based on China’s “one
child” policy); Jean v. Nelson, 711 F.2d 1455, 1477–78 (11th
Cir. 1983) (rule regarding the detention of Haitian refugees),
vacated in relevant part, 727 F.2d 957 (11th Cir. 1984) (en
banc), aff’d, 472 U.S. 846 (1985).
The Government contends that following the notice-and-
comment procedures would result in undesirable international
consequences. In particular, the Government claims that the
Rule is “directly relate[d] to . . . ongoing negotiations with
Mexico” and other Northern Triangle countries. The
Government believes that the Rule will “facilitate the
likelihood of success in future negotiations” and asserts that
requiring normal notice-and-comment procedures in this
situation would hinder the President’s ability to address the
“large numbers of aliens . . . transiting through Mexico right
now.”
54 EAST BAY SANCTUARY COVENANT V. TRUMP
The Government’s argument, in theory, has some merit.
Hindering the President’s ability to implement a new policy
in response to a current foreign affairs crisis is the type of
“definitely undesirable international consequence” that
warrants invocation of the foreign affairs exception. But the
Government has not explained how immediate publication of
the Rule, instead of announcement of a proposed rule
followed by a thirty-day period of notice and comment, is
necessary for negotiations with Mexico. We are sensitive to
the fact that the President has access to information not
available to the public, and that we must be cautious about
demanding confidential information, even in camera. See
Kerry v. Din, 135 S. Ct. 2128, 2141 (2015) (Kennedy, J.,
concurring in the judgment); Chi. & S. Air Lines v. Waterman
S.S. Corp., 333 U.S. 103, 111 (1948). Nevertheless, the
connection between negotiations with Mexico and the
immediate implementation of the Rule is not apparent on this
record.
The Government, of course, is free to expand the record
on this issue in the district court. See Yassini, 618 F.2d at
1361 (noting affidavits in support of the foreign affairs
exception from the Attorney General and Deputy Secretary of
State). But as it stands now, we conclude that the
Government is not likely to succeed on its appeal of this issue
at this preliminary juncture of the case.
Good Cause Exceptions. The Government also argues
that the Rule is exempt from both notice-and-comment
procedures and the thirty-day grace period under the APA’s
EAST BAY SANCTUARY COVENANT V. TRUMP 55
“good cause” exceptions. 5 U.S.C. § 553(b)(B), (d)(3).15
Because “[t]he good cause exception is essentially an
emergency procedure,” United States v. Valverde, 628 F.3d
1159, 1165 (9th Cir. 2010) (quoting Buschmann v. Schweiker,
676 F.2d 352, 357 (9th Cir. 1982)), it is “narrowly construed
and only reluctantly countenanced,” Jifry v. FAA, 370 F.3d
1174, 1179 (D.C. Cir. 2004). As a result, successfully
invoking the good cause exception requires the agency to
“overcome a high bar” and show that “delay would do real
harm” to life, property, or public safety. Valverde, 628 F.3d
at 1164–65 (quoting Buschmann, 676 F.2d at 357); see also
Sorenson Commc’ns Inc. v. FCC, 755 F.3d 702, 706 (D.C.
Cir. 2014); Haw. Helicopter Operators Ass’n v. FAA, 51 F.3d
212, 214 (9th Cir. 1995).
The Government asserts that providing notice and
comment would be “impracticable” and “contrary to the
public interest” because it would “create[] an incentive for
aliens to seek to cross the border” during the notice-and-
comment period. 83 Fed. Reg. at 55,950. The Government
explains that this “surge” in illegal border crossing would
pose an imminent threat to human life because “[h]undreds
die each year making the dangerous border crossing,” and
because these border crossings “endanger[] . . . the U.S.
Customs and Border Protection (“CBP”) agents who seek to
apprehend them.” Id. at 55,935. The Government thus
15
As we explained previously, there are two good cause exceptions
under the APA, one excuses compliance with notice-and-comment
procedures, 5 U.S.C. § 553(b)(B), and the other allows an agency to forgo
the thirty-day waiting period, id. § 553(d)(3). “[D]ifferent policies
underlie the exceptions, and . . . they can be invoked for different
reasons.” Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th
Cir. 1992). In this case, however, the Government has supplied the same
rationale for both exceptions, and our reasoning applies to both.
56 EAST BAY SANCTUARY COVENANT V. TRUMP
concludes that “the very announcement of [the] proposed rule
itself can be expected to precipitate activity by affected
parties that would harm the public welfare.”
We recognize that, theoretically, an announcement of a
proposed rule “creates an incentive” for those affected to act
“prior to a final administrative determination.” Am. Ass’n of
Exps. & Imps., 751 F.2d at 1249. But in this case, the Rule,
standing alone, does not change eligibility for asylum for any
alien seeking to enter the United States; that change is not
effected until the Rule is combined with a presidential
proclamation. Thus, we would need to accept the
Government’s contention that the “very announcement” of
the Rule itself would give aliens a reason to “surge” across
the southern border in numbers greater than is currently the
case. Absent additional evidence, this inference is too
difficult to credit.16 Indeed, even the Government admits that
it cannot “determine how . . . entry proclamations involving
the southern border could affect the decision calculus for
various categories of aliens planning to enter.” 83 Fed. Reg.
at 55,948. Because the Government’s reasoning is only
speculative at this juncture, we conclude that the district
court’s holding is correct. Again, the Government is free to
supplement the record and renew its arguments in the district
court.
* * *
16
The Government claims that courts cannot “second-guess” the
reason for invoking the good cause exception as long as the reason is
“rational.” But an agency invoking the good cause exception must “make
a sufficient showing that good cause exist[s].” Nat. Res. Def. Council,
Inc. v. Evans, 316 F.3d 904, 912 (9th Cir. 2003); cf. Yassini, 618 F.2d at
1361.
EAST BAY SANCTUARY COVENANT V. TRUMP 57
In sum, based on the evidence at this stage of the
proceedings, we conclude that the Government has not
established that it is likely to prevail on the merits of its
appeal of the district court’s temporary restraining order.
B. Irreparable Harm
We next consider whether the Government has shown that
it “will be irreparably injured absent a stay.” Nken, 556 U.S.
at 434 (quoting Hilton, 481 U.S. at 776). The claimed
irreparable injury must be likely to occur; “simply showing
some ‘possibility of irreparable injury’” is insufficient. Id.
(citation omitted). The Government has not shown that a stay
of the district court’s TRO is necessary to avoid a likely
irreparable injury in this case.
First, the Government asserts that the district court’s order
“undermines the separation of powers by blocking” an action
of the executive branch. But “claims that [the Government]
has suffered an institutional injury by erosion of the
separation of powers” do not alone amount to an injury that
is “irreparable,” because the Government may “pursue and
vindicate its interests in the full course of this litigation.”
Washington, 847 F.3d at 1168; see also Texas v. United
States, 787 F.3d 733, 767–68 (5th Cir. 2015) (rejecting the
Government’s reliance on “claims that the injunction offends
separation of powers and federalism” to show irreparable
injury because “it is the resolution of the case on the merits,
not whether the injunction is stayed pending appeal, that will
affect those principles”).
Second, the Government asserts that the rule is needed to
prevent aliens from “making a dangerous and illegal border
crossing rather than presenting at a port of entry.” Although
58 EAST BAY SANCTUARY COVENANT V. TRUMP
the Government’s stated goal may be sound, the Government
fails to explain how that goal will be irreparably thwarted
without a stay of the TRO. The Rule has no direct bearing on
the ability of an alien to cross the border outside of
designated ports of entry: That conduct is already illegal.
The Rule simply imposes severe downstream consequences
for asylum applicants based on that criminal conduct as one
of many means by which the Government may discourage it.
The TRO does not prohibit the Government from combating
illegal entry into the United States, and vague assertions that
the Rule may “deter” this conduct are insufficient. Moreover,
there is evidence in the record suggesting that the
Government itself is undermining its own goal of channeling
asylum-seekers to lawful entry by turning them away upon
their arrival at our ports of entry.
C. Balance of Hardships and Public Interest
Because the Government has not “satisfie[d] the first two
factors,” we need not dwell on the final two factors—“harm
to the opposing party” and “the public interest.” Nken,
556 U.S. at 435. We point out, however, a stay of the district
court’s order would not preserve the status quo: it would
upend it, as the TRO has temporarily restored the law to what
it had been for many years prior to November 9, 2018. As
explained above, the Organizations have adduced evidence
indicating that, if a stay were issued, they would be forced to
divert substantial resources to its implementation. Moreover,
aspects of the public interest favor both sides. On the one
hand, the public has a “weighty” interest “in efficient
administration of the immigration laws at the border.”
Landon v. Plascencia, 459 U.S. 21, 34 (1982). But the public
also has an interest in ensuring that “statutes enacted by
[their] representatives” are not imperiled by executive fiat.
EAST BAY SANCTUARY COVENANT V. TRUMP 59
Md. v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J.,
in chambers). We need go no further than this; when
considered alongside the Government’s failure to show
irreparable harm, the final two factors do not weigh in favor
of a stay.
IV. REMEDY
The Government also challenges the universal scope of
the temporary restraining order as impermissibly broad. But
“the scope of [a] remedy is determined by the nature and
extent of the . . . violation.” Milliken v. Bradley, 433 U.S.
267, 270 (1977). “[T]he scope of injunctive relief is dictated
by the extent of the violation established, not by the
geographical extent of the plaintiff.” Califano v. Yamasaki,
442 U.S. 682, 702 (1979). An injunction may extend “benefit
or protection” to nonparties “if such breadth is necessary to
give prevailing parties the relief to which they are entitled.”
Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 1987).
However, a TRO “should be restricted to . . . preserving the
status quo and preventing irreparable harm just so long as is
necessary to hold a hearing and no longer.” Granny Goose
Foods, Inc. v. Bd. of Teamsters & Auto Truck Drivers Local
No. 70, 415 U.S. 423, 439 (1974). Equitable relief may “be
no more burdensome to the defendant than necessary to
provide complete relief to the plaintiffs.” Madsen v.
Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994); see
L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th
Cir. 2011).
In immigration matters, we have consistently recognized
the authority of district courts to enjoin unlawful policies on
a universal basis. Regents of the Univ. of Cal. v. U.S. Dep’t
of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018) (“A
60 EAST BAY SANCTUARY COVENANT V. TRUMP
final principle is also relevant: the need for uniformity in
immigration policy.”); Hawaii v. Trump, 878 F.3d 662, 701
(9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392
(2018) (“Because this case implicates immigration policy, a
nationwide injunction was necessary to give Plaintiffs a full
expression of their rights.”); Washington, 847 F.3d at
1166–67 (“[A] fragmented immigration policy would run
afoul of the constitutional and statutory requirement for
uniform immigration law and policy.” (citing Texas, 809 F.3d
at 187–88)). “Such relief is commonplace in APA cases,
promotes uniformity in immigration enforcement, and is
necessary to provide the plaintiffs here with complete
redress.” Univ. of Cal., 908 F.3d at 512.
Although we recognize a growing uncertainty about the
propriety of universal injunctions,17 the Government raises no
grounds on which to distinguish this case from our
uncontroverted line of precedent. Further, the Government
“fail[ed] to explain how the district court could have crafted
a narrower [remedy]” that would have provided complete
relief to the Organizations. Id. We thus conclude that the
district court did not err in temporarily restraining
enforcement of the Rule universally.
V. CONCLUSION
We stress, once again, that this case arrives at our
doorstep at a very preliminary stage of the proceedings.
Further development of the record as the case progresses may
alter our conclusions. But at this time, the Government has
17
See Hawaii, 138 S. Ct. at 2424–29 (Thomas, J., concurring);
Samuel Bray, Multiple Chancellors: Reforming the National Injunction,
131 HARV. L. REV. 417, 424 (2017).
EAST BAY SANCTUARY COVENANT V. TRUMP 61
not satisfied the standard for a stay. The Government’s
emergency motion for a stay pending appeal is therefore
DENIED.
LEAVY, Circuit Judge, dissenting in part:
I respectfully dissent in part. I concur in the majority’s
conclusion that we may treat the district court’s order as an
appealable preliminary injunction. I also concur in the
majority’s standing analysis.
I dissent from the majority’s conclusion that the Rule was
not exempt from the standard notice-and-comment
procedures. The Attorney General articulated a need to act
immediately in the interests of safety of both law enforcement
and aliens, and the Rule involves actions of aliens at the
southern border undermining particularized determinations of
the President judged as required by the national interest,
relations with Mexico, and the President’s foreign policy.
I dissent from the denial of the motion to stay because the
President, Attorney General, and Secretary of Homeland
Security have adopted legal methods to cope with the current
problems rampant at the southern border.
The question whether the Rule is consistent with 8 U.S.C.
§ 1158 goes to the consideration of likelihood of success on
the merits. The majority errs by treating the grant or denial
of eligibility for asylum as equivalent to a bar to application
for asylum, and conflating these two separate statutory
directives.
62 EAST BAY SANCTUARY COVENANT V. TRUMP
An alien does not obtain the right to apply for asylum
because he entered illegally. The reason “any alien” has the
right to apply, according to the statute, is because he is
physically present in the United States or has arrived in the
United States. The parenthetical in 8 U.S.C. § 1158(a)(1)
(“whether or not at a designated port of arrival”),which the
majority chooses to italicize, does not expand upon who is
eligible to apply beyond the words of the statute, “any alien.”
The majority concludes that the Rule conditioning
eligibility for asylum is the equivalent to a rule barring
application for asylum. But the statute does not say that, nor
does the Rule. I would stick to the words of the statute rather
than discerning meaning beyond the words of the statute and
Rule in order to find the action of the Attorney General and
Secretary “not in accordance with the law.” 5 U.S.C.
§ 706(2)(A).
Congress placed authorization to apply for asylum in one
section of the statute, 8 U.S.C. § 1158(a)(1). Congress then
placed the exceptions to the authorization to apply in another
section, 8 U.S.C. § 1158(a)(2). Congress placed the
eligibility for asylum in a different subsection, 8 U.S.C.
§ 1158(b)(1), and disqualifications for eligibility in 8 U.S.C,
§ 1158(b)(2)(A)(i)–(vi). The Attorney General or the
Secretary of Homeland Security has no authority to grant
asylum to the categories of aliens enumerated in
§ 1158(b)(2)(A). Congress has decided that the right to apply
for asylum does not assure any alien that something other
than a categorical denial of asylum is inevitable. Congress
has instructed, by the structure and language of the statute,
that there is nothing inconsistent in allowing an application
for asylum and categorically denying any possibility of being
granted asylum on that application. Thus, Congress has
EAST BAY SANCTUARY COVENANT V. TRUMP 63
instructed that felons and terrorists have a right to apply for
asylum, notwithstanding a categorical denial of eligibility.
Congress has provided in U.S.C. § 1158(b)(2)(C) that the
Attorney General may by regulation “establish additional
limitations and conditions, consistent with this section, under
which an alien shall be ineligible for asylum.” Id. The
majority is correct that an alien’s manner of entry can be a
relevant discretionary factor in adjudicating asylum
applications. Nothing in the structure or plain words of the
statute, however, precludes a regulation categorically denying
eligibility for asylum on the basis of manner of entry.
On November 9, 2018, the Attorney General and the
Department of Homeland Security published a joint interim
final rule (“Rule”), 83 Fed. Reg. 55, 934, imposing
prospective limitations on eligibility for asylum. The Rule
does not restrict who may apply for asylum; rather, the Rule
provides additional limitations on eligibility for asylum. The
Rule states that an alien shall be ineligible for asylum if the
alien enters the United States “contrary to the terms of a
proclamation or order.” Id. at 55,952.
The President, citing the executive authority vested in him
by the Constitution and 8 U.S.C. §§ 1182(f), 1185(a), issued
a Proclamation suspending and limiting the entry for 90 days
of “any alien into the United States across the international
boundary between the United States and Mexico.”
Proclamation No. 9822, Addressing Mass Migration Through
the Southern Border of the United States, 83 Fed. Reg. 57,661
§§ 1, 2 (Nov. 9, 2018). The limitations do not apply to “any
alien who enters the United States at a port of entry and
properly presents for inspection, or to any lawful permanent
resident of the United States.” Id. at 57,663 § 2(b). The
64 EAST BAY SANCTUARY COVENANT V. TRUMP
Proclamation is not challenged in this litigation. The
Proclamation describes an ongoing mass migration of aliens
crossing unlawfully through the southern border into the
United States, contrary to the national interest, which has
caused a crisis undermining the integrity of the border.
The district court concluded that the Rule contravenes the
“unambiguous” language of § 1158(a). If the language of
§ 1158(a) is unambiguous, then I fail to see why the district
court found it necessary to discern Congressional intent by
looking to Article 31 of the 1967 United Nations Protocol
Relating to the Status of Refugees. Section 1158(a) provides
unambiguously that any alien physically present in the United
States may apply for asylum. The Rule does not restrict or
remove any alien’s right to apply for asylum; rather, it
imposes an additional, time-specific, area-specific limitation
on an alien’s eligibility for a grant of asylum because of a
proclamation. Nothing in the text of § 1158(a) prohibits the
Attorney General from designating unauthorized entry as an
eligibility bar to asylum when an alien’s manner of entry
violates a Proclamation regarding the southern border, for a
limited time, pursuant to the President’s judgment concerning
an articulated national interest. The Proclamation and the
Attorney General’s regulation seek to bring safety and
fairness to the conditions at the southern border.
The government has made a sufficient showing of
irreparable harm, and the public has a significant interest in
efficient border law administration. I conclude that the
balance of harm to the plaintiffs does not weigh in their favor.
Accordingly, I would grant the Government’s motion for a
stay pending appeal.