DocketNumber: Case No. 19-cv-04073-JST
Citation Numbers: 391 F. Supp. 3d 974
Filed Date: 9/9/2019
Status: Precedential
Modified Date: 7/25/2022
ORDER GRANTING MOTION TO RESTORE NATIONWIDE SCOPE OF INJUNCTION
Re: ECF No. 57
JON S. TIGAR, United States District Judge *976Now before the Court is Plaintiffs' motion "to consider supplemental evidence and restore the nationwide scope of injunction." ECF No. 57. For the reasons set forth below, the Court will grant the motion.
I. BACKGROUND
The factual background to this case is discussed at length in the Court's preliminary injunction order, and the Court will not repeat those details here except as necessary to explain its ruling on the present motion.
On July 16, 2019, the Department of Justice ("DOJ") and the Department of Homeland Security ("DHS") published a joint interim final rule, entitled "Asylum Eligibility and Procedural Modifications" (the "Rule" or the "third country transit bar"). The effect of the Rule is to categorically deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country.
Plaintiffs in this case - East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center (the "Organizations") - are legal and social service organizations that provide assistance, advocacy, and legal services to undocumented persons. On July 17, 2019, the Organizations filed a motion for temporary restraining order to prevent the Rule from taking effect. ECF No. 3. By consent of the parties, the motion was converted to one for preliminary injunction, which the Court granted on July 24, 2019. ECF No. 42. The injunction prevented the Defendants
Defendants appealed that order to the Ninth Circuit and moved for a stay pending appeal. The Ninth Circuit denied the motion for stay pending appeal, but only "insofar as the injunction applies within the Ninth Circuit." E. Bay Sanctuary Covenant v. Barr ("East Bay V "),
The Organizations then filed this motion "to consider supplemental evidence and restore the nationwide scope of injunction," ECF No. 57, as well as a supplemental brief ordered by the Court, ECF No. 63. The Government filed an opposition, ECF Nos. 65, 66, and the Organizations filed a reply, ECF No. 67.
After the Organizations filed their motion, but before the Government filed its opposition, three of the defendants - EOIR, USCIS, and ICE - issued guidance regarding the implementation of the Court's injunction as modified by the Ninth Circuit's stay order. The guidance requires employees of those agencies to treat individuals as covered by the injunction if: "(1) the alien was apprehended in the Ninth Circuit, (2) the alien is detained in the Ninth Circuit, or (3) the interview or adjudication itself occurs in the Ninth Circuit." ECF No. 65-1 (EOIR Guidance) at 1; see also ECF No. 65-2 (USCIS Guidance) at 1 ("the IFR should not apply to any [credible fear] determination or asylum adjudication in which: (1) the alien was apprehended in the jurisdiction of the Ninth Circuit ... (2) the alien is detained in the jurisdiction of the Ninth Circuit; or (3) the interview itself occurs in the jurisdiction of the Ninth Circuit"); ECF No. 65-3 (ICE Guidance) at 1 (ICE "will consider the PI to apply in situations where the alien: (i) was initially apprehended by DHS within the jurisdiction of the Ninth Circuit; (ii) is detained within the Ninth Circuit at the time of adjudication of the asylum application; or (iii) was initially located outside the Ninth Circuit but whose asylum application is subsequently adjudicated within the Ninth Circuit").
The Court conducted a hearing on the motion on September 5, 2019.
II. JURISDICTION
The Court has subject-matter jurisdiction over this action pursuant to
The normal rule is that "[o]nce a notice of appeal is filed, the district court is divested of jurisdiction over the matters being appealed." Nat'l Res. Def. Council v. Sw. Marine Inc. ,
First, there is a longstanding exception to the divestiture rule, providing that a "district court retains jurisdiction during the pendency of an appeal to act to preserve the status quo." Sw. Marine Inc. ,
For the purposes of Rule 62(d), "status quo" means the state of affairs at the time the appeal was filed, i.e., the nationwide injunction originally issued by the Court. Mayweathers v. Newland ,
Defendants cite McClatchy Newspapers v. Cent. Valley Typographical Union No. 46 ,
As in Mayweathers , the injunction now before the Court is the same as the one the Court originally issued. Should the Court agree with the Organizations that the supplemented record demands restoration of the injunction's nationwide scope, it would not, as Defendants allege, be entering a "new injunction." ECF No. 65 at 14 (emphasis omitted). Rather, it would be using its Rule 62(d) power to preserve the status quo at the time the government appealed the injunction. If anything, the Court would be entering the "old injunction." The "core questions before the appellate panel" - the propriety and scope of the preexisting nationwide injunction - would be unchanged. Sw. Marine ,
This conclusion is also consistent with the case law holding that a court has the authority to issue additional factual findings while an appeal is pending. See East Bay III ,
*980Because the record is insufficiently developed as to the question of the national scope of the injunction, we vacate the injunction to the extent that it applies outside California and remand to the district court for a more searching inquiry into whether this case justifies the breadth of the injunction imposed.
The Court thus concludes that it has jurisdiction to consider the Organizations' motion to restore the nationwide scope of the injunction. Should the Ninth Circuit conclude otherwise, however, the Court adds that, to the extent that the Organizations' motion may also be construed as one for an indicative ruling under Rule 62.1, the Court would grant it.
III. LEGAL STANDARD
A district court has "considerable discretion in ordering an appropriate equitable remedy." City & Cty. of San Francisco ,
Recently, there has arisen in some quarters "a growing uncertainty about the propriety of universal injunctions."
IV. DISCUSSION
The Court previously found that the Organizations had "established a sufficient likelihood of irreparable harm through 'diversion of resources and the non-speculative loss of substantial funding from other sources.' " East Bay IV ,
A. A Nationwide Injunction Is Necessary to Provide Complete Relief
The primary reason a nationwide injunction is appropriate is that it is the only means of affording complete relief to the Organizations. As one commentator has observed, the principle that "injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs," Califano ,
Bresgal v. Brock provides an example. Plaintiffs in that case were the Northwest Forest Workers Association and individual migrant agricultural workers who worked in forestry on a seasonal basis. Bresgal ,
By contrast, a district court abuses its discretion when it grants a geographically broader injunction than is necessary to prevent a plaintiff's injury. In Azar , for example, five plaintiff states challenged the federal government's implementation of two interim final rules exempting employers with religious and moral objections from the Affordable Care Act's contraceptive coverage requirement.
The circumstances here are much more like those in Bresgal than those in Azar. Some of the plaintiff Organizations serve clients within and outside of the Ninth Circuit. In addition to representing individuals seeking asylum, three of the organizations serve individuals who are not retained clients by, for example, offering asylum law training for pro bono lawyers and pro se asylum workshops for immigrants. ECF No. 67 at 8-9, 11; ECF No. 3-2 ¶ 7. Under the current bifurcated asylum regime, at least two of the Organizations must expend significant resources determining which of their clients are subject to which regime and adjusting their legal services accordingly, as well as revising centralized resources to reflect the complicated landscape of the limited injunction. A nationwide injunction is thus necessary to provide complete relief from the diversion of resources harms the Court identified in its order granting the first preliminary injunction. East Bay IV ,
A discussion of two of the plaintiffs' circumstances makes this point. Plaintiff Innovation Law Lab ("Law Lab") is a nonprofit focused on "improv[ing] the legal rights of immigrants and refugees in the United States." ECF No. 3-4 ¶ 2. Law Lab has offices in California, Oregon, Missouri, Texas, and Georgia. ECF No. 57-2 ¶ 4. Law Lab offers workshops and support to noncitizens and pro bono attorneys in Georgia, Kansas, Missouri, North Carolina, and Oregon, as well as to legal service providers at immigrant detention centers throughout the country. Id. ¶ 5. Law Lab can offer such a geographically diverse set of services partly thanks to template materials it has developed to assist asylum seekers. Id. ¶ 7. Law Lab also directly represents persons applying for asylum inside and outside the Ninth Circuit. Id. ¶ 5. While many of these clients cross the border in the Ninth Circuit, they "move between jurisdictions throughout the lifetime of their asylum case." Id. ¶ 16.
*983Law Lab will suffer a variety of harms if the third country transit bar goes into effect outside the Ninth Circuit. For example, it will have to redesign its workshops and templates and "devote significant time to re-training ... volunteers on the new standards and how to screen for attendees who might be subject to the ban." Id. ¶¶ 7, 9. Its direct representation work will "become significantly more complicated and burdensome." Id. ¶ 15. Implementation of the Rule outside the Ninth Circuit would also adversely impact Law Lab's work within the Ninth Circuit by diverting resources to clients who are subject to the Rule. Id. ¶ 17. Because these clients will no longer be eligible for asylum, they will instead have to apply for withholding of removal or relief under the Convention Against Torture ("CAT"), which "have a higher standard of proof than asylum, do not allow for derivative applications, and are more time-consuming cases to handle." ECF No. 3-4 ¶ 17. As a result, Law Lab would be "forced to serve fewer people overall because of the increased time burden required for a subset of cases." ECF No. 57-2 ¶ 17.
Plaintiff Al Otro Lado is a nonprofit whose mission is, in part, "to provide screening, advocacy, and legal representation for individuals in asylum and other immigration proceedings." ECF No. 3-3 ¶ 4. Al Otro Lado is based in California as well as Tijuana, Mexico. Id. ¶¶ 4, 8. It offers "legal orientation workshops" at its Tijuana office, "providing information about the U.S. asylum system to migrants who wish to seek asylum in the United States." Id. ¶ 5. Al Otro Lado "recruits and trains volunteers and pro bono attorneys" to assist with these workshops. Id. ¶ 6. A number of Al Otro Lado's clients end up crossing the border in Texas or New Mexico or later relocate (or are detained) outside the Ninth Circuit. ECF No. 57-4 ¶ 5. As a result, "[i]t is impossible for Al Otro Lado to know with certainty ex ante where a given asylum seeker whom [Al Otro Lado] serve[s] prior to their entry will ultimately enter the United States, or where they will end up once they are in the United States, or where a given asylum seeker whom [Al Otro Lado] serve[s] while in detention will end up if released from custody." Id. ¶ 8.
If the injunction is limited to the Ninth Circuit, it will force Al Otro Lado to provide a much broader range of advice to pre-entry asylum seekers to account for different outcomes based on where they choose to enter the country and travel within it. Id. at ¶ 9. This will require the expenditure of "significant organizational resources regarding training materials, staff time, resources, and capacity ...." Id. ; see also ECF No. 67 at 11.
Defendants do not dispute this evidence or engage with the applicable law. Instead, they devote much of their argument to focusing on the lack of harm to identified asylum seekers. See, e.g. , ECF No. 65 at 7 ("Yet, despite multiple opportunities, Plaintiffs' counsel does not identify a single, bona fide client who suffers injury as a result of the rule, or explain how an injunction limited to such aliens would not cure their alleged injuries while this litigation proceeds."). But this is a strawman - the harm to the Organizations, not their potential clients, was the focus of the Court's injunction. See East Bay IV ,
The Organizations have presented sufficient evidence that they will suffer organizational and diversion of resources harms unless the Rule is enjoined outside of, as well as within, the Ninth Circuit.
B. Additional Factors Supporting a Nationwide Injunction
The need to provide complete relief to the Plaintiffs, standing alone, is sufficient reason for the re-issuance of the nationwide injunction. In addition to that factor, however, three other factors support such relief.
First, a nationwide injunction is supported by the need to maintain uniform immigration policy. See East Bay II ,
Second, nationwide relief is supported by the text of the Administrative Procedure Act (APA), which requires the "reviewing court," "[t]o the extent necessary and when presented," to "hold unlawful and set aside agency action, findings, and conclusions" found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ...."
Lastly, anything but a nationwide injunction will create major administrability issues. Although the Government's recently-issued guidance with regard to the Rule is intended to allow the Court's injunction to be applied within the Ninth Circuit, problems in administration would remain. For one thing, ambiguities within the guidance documents will lead to uneven enforcement. See ECF No. 67 at 12 (comparing the Government's description of the injunction as covering those "whose adjudications and proceedings occur in the Ninth [C]ircuit" to the EOIR Guidance's instruction that the Rule does not apply to those whose "interview or adjudication" occurs in the Ninth Circuit). For another, it is not clear what effect the guidance will have on an asylum applicant who transits between circuits. For example, an applicant who crosses the border and has a credible fear interview outside the Ninth Circuit would, in the absence of a nationwide injunction, be subject to the Rule and thus (barring an exception) eligible only for withholding of removal or CAT.
CONCLUSION
While nationwide injunctions are not the "general rule," they are appropriate "where such breadth [is] necessary to remedy a plaintiff's harm." East Bay V ,
IT IS SO ORDERED.
Defendants in this action are Attorney General William Barr; the Department of Justice ("DOJ"); the Executive Office for Immigration Review ("EOIR"); James McHenry, the Director of EOIR; the Department of Homeland Security ("DHS"); Kevin K. McAleenan, the Acting Secretary of DHS; U.S. Citizenship and Immigration Services ("USCIS"); Kenneth T. Cuccinelli, the Acting Director of USCIS; Customs and Border Protection ("CBP"); John P. Sanders, the Acting Commissioner of CBP; Immigration and Customs Enforcement ("ICE"); and Matthew T. Albence, the Acting Director of ICE.
In its prior order, the Court referred to the district court's temporary restraining order in Case No. 18-cv-06810-JST as "East Bay I ," to the Ninth Circuit's order denying a stay of that order as "East Bay II ," and the district court's order issuing a preliminary injunction as "East Bay III. " See generally
With leave of court, a consortium of non-profit organizations and law school clinics filed an amicus curiae brief in support of the Organizations' motion. ECF Nos. 60, 61.
Defendants have previously agreed with this characterization. See Defendants' Application to the United States Supreme Court for Stay Pending Appeal, Barr v. E. Bay Sanctuary Covenant , Case No. 19A230 (Aug. 26, 2019) (describing the Ninth Circuit's order in East Bay V as "stat[ing] that the district court retained jurisdiction to further develop the record and to re-extend the injunction beyond the Ninth Circuit.").
The Mayweathers court, like other courts cited in this section, refers to Rule 62(c). Rule 62 was reorganized in 2018, and the pertinent subsection is now 62(d).
Some writers also use the term "universal injunctions." See Amanda Frost, In Defense of Nationwide Injunctions ,
Because the Court finds that a nationwide injunction is necessary to provide complete relief to Law Lab and Al Otro Lado, it need not examine the supplemental evidence provided by plaintiffs CARECEN and EBSC.
Indeed, at the hearing on this motion, in response to a direct question from the Court, the Government did not dispute that (1) the Organizations would suffer harm if the Rule were applied outside the Ninth Circuit, and (2) that a nationwide injunction was necessary to remedy that harm. ECF No. 72 at 19-23.
Defendants also argue that the Organizations' supplemental evidence does not go beyond the declarations that were already in the record at the time of the Ninth Circuit's stay. ECF No. 65 at 19. This is incorrect. While some of the material in the Organizations' five supplemental declarations is redundant with their original declarations, compare ECF Nos. 57-2, 57-3, 57-4, 57-5, 57-6 with ECF Nos. 3-2, 3-3, 3-4, 3-5, 3-6, 3-7, they have provided additional detail about where the organizations operate, how they train their staff and volunteers, and how the limited injunction will impact their operations.
Although Defendants attempt to address the propriety of vacatur, ECF No. 65 at 27, that issue is not before the Court. Defendants also misstate the law. They cite California Communities Against Toxics v. U.S. E.P.A. ,