Memorandum in Support of TRO — East Bay Sanctuary v. Barr

Record facts

U.S. District Court, N.D. Cal. · No. 4:19-cv-04073-JST · Doc. 3-1 · 2019-07-17 · Docket on CourtListener

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Lee Gelernt*
Omar C. Jadwat* 
Anand Balakrishnan* 
ACLU FOUNDATION 
IMMIGRANTS’ RIGHTS PROJECT 
125 Broad Street, 18th Floor 
New York, NY 10004 
T: (212) 549-2660 
F: (212) 549-2654 
lgelernt@aclu.org 
ojadwat@aclu.org 
abalakrishnan@aclu.org 
Katrina Eiland (SBN 275701)
Cody Wofsy (SBN 294179) 
Spencer Amdur (SBN 320069) 
Julie Veroff (SBN 310161) 
ACLU FOUNDATION  
IMMIGRANTS’ RIGHTS PROJECT 
39 Drumm Street 
San Francisco, CA 94111 
T: (415) 343-0770 
F: (415) 395-0950 
keiland@aclu.org 
cwofsy@aclu.org  
samdur@aclu.org 
jveroff@aclu.org  
Attorneys for Plaintiffs (Additional counsel listed on following page) 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
East Bay Sanctuary Covenant; Al Otro Lado; 
Innovation Law Lab; and Central American 
Resource Center in Los Angeles, 
Plaintiffs, 
v. 
William Barr, Attorney General, in his official 
capacity; U.S. Department of Justice; James 
McHenry, Director of the Executive Office for 
Immigration Review, in his official capacity; the 
Executive Office for Immigration Review; Kevin 
McAleenan, Acting Secretary of Homeland 
Security, in his official capacity; U.S. Department 
of Homeland Security; Ken Cuccinelli, Acting 
Director of the U.S. Citizenship and Immigration 
Services, in his official capacity; U.S. Citizenship 
and Immigration Services; John Sanders, 
Commissioner of U.S. Customs and Border 
Protection, in his official capacity; U.S. Customs 
and Border Protection; Matthew Albence, Acting 
Director of Immigration and Customs 
Enforcement, in his official capacity; Immigration 
and Customs Enforcement, 
Defendants. 
Case No.: 19-cv-04073 
PLAINTIFFS’ MEMORANDUM IN 
SUPPORT OF  
MOTION FOR TEMPORARY 
RESTRAINING ORDER  
Case 4:19-cv-04073-JST   Document 3-1   Filed 07/17/19   Page 1 of 32

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Melissa Crow*
SOUTHERN POVERTY LAW CENTER 
1101 17th Street, NW Suite 705 
Washington, D.C. 20036 
T: (202) 355-4471 
F: (404) 221-5857 
melissa.crow@splcenter.org 
Mary Bauer* 
SOUTHERN POVERTY LAW CENTER 
1000 Preston Avenue 
Charlottesville, VA  22903 
T:  (470) 606-9307 
F:  (404) 221-5857 
mary.bauer@splcenter.org 
Attorneys for Plaintiffs 
*Pro hac vice application forthcoming
**Application for admission pending 
Baher Azmy*
Angelo Guisado* 
Ghita Schwarz* 
CENTER FOR CONSTITUTIONAL RIGHTS 
666 Broadway, 7th Floor 
New York, NY 10012 
Telephone: (212) 614-6464 
Facsimile: (212) 614-6499 
bazmy@ccrjustice.org 
aguisado@ccrjustice.org 
gschwarz@ccrjustice.org 
Christine P. Sun (SBN 218701) 
Vasudha Talla (SBN 316219) 
Angélica Salceda** 
AMERICAN CIVIL LIBERTIES UNION 
FOUNDATION OF NORTHERN 
CALIFORNIA, INC. 
39 Drumm Street 
San Francisco, CA 94111 
T: (415) 621-2493 
F: (415) 255-8437 
csun@aclunc.org 
vtalla@aclunc.org 
asalceda@aclunc.org 
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MEMORANDUM IN SUPPORT OF TEMPORARY RESTRAINING ORDER, 3:19-cv-04073 
TABLE OF CONTENTS 
INTRODUCTION .......................................................................................................................... 1 
BACKGROUND ............................................................................................................................ 2 
A. Statutory Background .......................................................................................................... 2 
 B. The Interim Final Rule ......................................................................................................... 4 
LEGAL STANDARD ..................................................................................................................... 5 
ARGUMENT .................................................................................................................................. 6 
PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ..................................... 6 
I. The Bar to Asylum for Noncitizens Who Transit Through a Third Country 
 Violates the INA. ................................................................................................ 6 
A. The Rule Conflicts with the Firm Resettlement Bar, 8 U.S.C. 
§ 1158(b)(2)(A)(vi).. ............................................................................. 7
B. The Rule Confilcts with the Safe Third Country Provision, 8 U.S.C. 
§ 1158(a)(2)(A) ....................................................................................... 9
C. The Rule Conflicts with the Asylum Statute's Opening Guarantee, 
 8 U.S.C. § 1158(a)(1) ........................................................................... 12 
II. The Interim Final Rule Violates the Procedural Requirements of the APA .... 14
A. The Rule is Invalid Because the Government Failed to Follow the 
 APA's Notice and Comment Procedures. ............................................ 15 
1. The Foreign Affairs Exception Does Not Apply. ........................ 15
2. The Good Cause Exception Does Not Apply  ............................... 16
 B. The Attorney General Also Violated the APA's Required 30-day Grace 
 Period ...................................................................................................18 
III. The Rule is Arbitrary and Capricious In Violation of the APA .................... 19
THE REMAINING FACTORS DECIDEDLY FAVOR GRANTING A TRO AND 
PRESERVING THE STATUS QUO ................................................................... 21 
CONCLUSION ............................................................................................................................. 24 
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MEMORANDUM IN SUPPORT OF TEMPORARY RESTRAINING ORDER, 3:19-cv-04073 
TABLE OF AUTHORITIES 
Cases 
All. for the Wild Rockies v. Cottrell, 
632 F.3d 1127 (9th Cir. 2011) .................................................................................................... 6, 24 
Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 
559 F.3d 1046 (9th Cir. 2009) .......................................................................................................... 5 
Andriasian v. I.N.S., 
180 F.3d 1033 (9th Cir. 1999) .......................................................................................................... 9 
Bragdon v. Abbott, 
524 U.S. 624 (1998) .......................................................................................................................... 8 
California v. Azar, 
911 F. 3d 558 (9th Cir. 2018) ......................................................................................................... 21 
Cresote Council v. Johnson, 
555 F.Supp.2d 36 (D.D.C. 2008) .................................................................................................... 24 
Drakes Bay Oyster Co. v. Jewell, 
747 F.3d 1073 (9th Cir. 2014) ........................................................................................................ 23 
Damaize v. INS, 
787 F.2d 1332 (9th Cir. 1986) .................................................................................................... 8, 19 
East Bay Sanctuary Covenant v. Trump, 
909 F.3d 1219 (9th Cir. 2018) ................................................................................................. passim 
East Bay Sanctuary Covenant v. Trump, 
 349 F. Supp. 3d 838 (N.D. Cal. 2018) .................................................................................... passim 
East Bay Sanctuary Covenant v. Trump, 
354 F. Supp. 3d 1094 (N.D. Cal. 2018) ................................................................................... passim 
Greater Yellowstone Coal., Inc. v. Servheen, 
665 F.3d 1015 (9th Cir. 2011) ............................................................................................................ 20 
Karouni v. Gonzales, 
 399 F.3d 1163 (9th Cir. 2005) .......................................................................................................... 3 
Lorillard v. Pons, 
 434 U.S. 575 (1978) ......................................................................................................................... 8 
Maryland v. King, 
567 U.S. 1301 (2012) ...................................................................................................................... 24 
Matter of A-G-G-, 
25 I & N. Dec. 486 (BIA 2011) ........................................................................................................ 8 
Matter of B-R-, 
26 I&N Dec. 119 (BIA 2013) ......................................................................................................... 13 
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MEMORANDUM IN SUPPORT OF TEMPORARY RESTRAINING ORDER, 3:19-cv-04073 
Melkonian v. Ashcroft, 
320 F.3d 1061 (9th Cir. 2003) .................................................................................................... 8, 19 
Mohammed v. Gonzales, 
400 F.3d 785 (9th Cir. 2005) .......................................................................................................... 12 
Motor Vehicle Mrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 
463 U.S. 29 (1983) .......................................................................................................................... 19 
Murray v. The Schooner Charming Betsy, 
 6 U.S. 64 (1804) ............................................................................................................................... 9 
Munoz v. Ashcroft, 
339 F.3d 950 (9th Cir. 2003)) ........................................................................................................... 9 
New Jersey v. EPA, 
626 F.2d 1038 (D.C. Cir.1980) ....................................................................................................... 23 
Ngou v. Schweiker, 
535 F. Supp. 1214 (D.D.C. 1982) ................................................................................................... 19 
Nken v. Holder, 
556 U.S. 418 (2009). ....................................................................................................................... 23 
NRDC v. Evans, 
316 F.3d 904 (9th Cir. 2003) .......................................................................................................... 17 
Orantes-Hernandez v. Thornburgh, 
919 F.2d 549 (9th Cir. 1990) ............................................................................................................ 2 
Prows v. Dep’t of Justice, 
938 F.2d 274 (D.C. Cir. 1991) ........................................................................................................ 18 
United States v. Mead Corp., 
533 U.S. 218 (2001) ........................................................................................................................ 15 
United States v. Valverde, 
628 F.3d 1159 (9th Cir. 2010) ........................................................................................................ 16 
Valle del Sol Inc. v. Whiting, 
732 F.3d 1006 (9th Cir. 2013) ........................................................................................................ 21 
Yassini v. Crosland, 
618 F.2d 1356 (9th Cir. 1980) .................................................................................................. 15, 16 
Statutes 
5 U.S.C. § 553(b) ................................................................................................................................ 14 
5 U.S.C. § 553(c). ............................................................................................................................... 14 
5 U.S.C. § 553(d) .......................................................................................................................... 14, 18 
6 U.S.C. § 279(g)(2) ........................................................................................................................... 20 
8 U.S.C. § 1101(a)(42)(A) .................................................................................................................... 3 
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MEMORANDUM IN SUPPORT OF TEMPORARY RESTRAINING ORDER, 3:19-cv-04073 
8 U.S.C. § 1158(a)(1) ................................................................................................................... passim 
8 U.S.C. § 1158(a)(2)(A) ............................................................................................................. passim 
8 U.S.C. § 1158(b)(1)(A) ...................................................................................................................... 3 
8 U.S.C. § 1158(a)(2)(E)..................................................................................................................... 20 
8 U.S.C. § 1158(b)(2)(A)(vi) .................................................................................................... 1, 4, 7, 8 
8 U.S.C. § 1158(b)(2)(C) .............................................................................................................. 2, 5, 6 
8 U.S.C. § 1158(b)(3)(C) .................................................................................................................... 20 
8 U.S.C. § 1158(d)(5)(B) .................................................................................................................. 5, 6 
8 U.S.C. § 1225(b)(1)(B) ...................................................................................................................... 3 
8 U.S.C. § 1232 ................................................................................................................................... 20 
Regulations 
8 C.F.R. § 208.2(a)................................................................................................................................ 3 
8 C.F.R. § 208.2(b) ............................................................................................................................... 3 
8 C.F.R. § 208.9 .................................................................................................................................... 3 
8 C.F.R. § 208.14 .................................................................................................................................. 7 
8 C.F.R. § 208.15 .............................................................................................................................. 4, 8 
Other Authorities 
Federal Register, 84 Fed. Reg. 33829 .......................................................................................... passim 
Agreement between the Government of Canada and the Government of the United States of America 
For cooperation in the examination of refugee status claims from nationals of third countries,  
available at https://www.canada.ca/en/immigration-refugees-
citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-
country-agreement/final-text.html .................................................................................................. 10 
UN Convention relating to the Status of Refugees (July 28, 1951)  ..................................................... 9 
UNHCR Guidance Note on Asylum U.N. Doc EC/SCP/12 (Aug. 30, 1979) .................................... 11 
UNHCR Guidance Note on Bilateral and/or Multilateral Transfer Arrangements of Asylum 
 Seekers (May 2013), available at https://www.refworld.org/pdfid/51af82794.pdf ........................ 11 
UNHCR States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 
Protocol, available at https://www.unhcr.org/en-us/protection/basic/3b73b0d63/states-parties-
1951-convention-its-1967-protocol.html (last accessed July 16, 2019) ......................................... 11 
U.S. Dept. of State, Angola 2018 Human Rights Report, available at https://www.state.gov/wp-
content/uploads/2019/03/angola-2018.pdf...................................................................................... 11 
U.S. Dept. of State, Egypt 2018 Human Rights Report, available at https://www.state.gov/wp-
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MEMORANDUM IN SUPPORT OF TEMPORARY RESTRAINING ORDER, 3:19-cv-04073 
content/uploads/2019/03/EGYPT-2018.pdf. .................................................................................. 11 
U.S. Dept. of State, Guatemala 2018 Human Rights Report, available at https://www.state.gov/wp-
content/uploads/2019/03/GUATEMALA-2018.pdf. ...................................................................... 10 
U.S. Dept. of State, Mexico 2018 Human Rights Report, available at https://www.state.gov/wp-
content/uploads/2019/03/MEXICO-2018.pdf.. .............................................................................. 10 
U.S. Dept. of State, Overseas Security Advisory Council, Guatemala 2019 Crime & Safety Report, 
(February 28, 2019)  available at https://www.osac.gov/Content/Report/5f31517e-62bb-4f2c-
8956-15f4aeaab930 ......................................................................................................................... 10 
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MEMORANDUM IN SUPPORT OF TEMPORARY RESTRAINING ORDER, 3:19-cv-04073 
INTRODUCTION 
The government has issued an emergency interim final rule (“Rule”) that categorically bars 
asylum for individuals who cross the southern border without having applied for and been denied 
asylum in any country through which they transited en route to the United States.  That categorical 
bar applies no matter the conditions or purpose of their journey through that other country; whether 
they practically or legally could have sought asylum there; whether they would have been safe from 
persecution there; or the degree of danger they would face if removed to their home country.  The 
Rule will gravely undermine, if not virtually repeal, the U.S. asylum system at the southern border, 
and cruelly close our doors to refugees fleeing persecution.  It is a dramatic abandonment of our 
country’s longstanding commitment to the protection of vulnerable asylum seekers.  
The Rule’s categorical ban on asylum, based solely on the fact that an individual transited 
through a third country but did not seek asylum there, is patently unlawful under the Immigration 
and Nationality Act (“INA”).  Congress specifically provided in 8 U.S.C. § 1158 that the only 
circumstances in which a noncitizen could be denied asylum because of her relationship with a 
transit country were if she was firmly resettled there or was subject to a safe third country 
agreement.  See 8 U.S.C. §§ 1158(a)(2)(A), (b)(2)(A)(vi).  Congress further provided that asylum 
cannot be categorically denied based on an asylum seeker’s route to the United States.  Id. 
§ 1158(a)(1).  Together, these provisions illustrate the careful and considered balance Congress
struck between protecting vulnerable individuals from harm and sharing the burdens of asylum 
processing with other countries in which safety and fair processing could be assured.  Congress 
clearly decided that only in specific narrow circumstances can a noncitizen’s relationship to a transit 
country justify a denial of protection in the United States, precluding administrative attempts to 
circumvent that deliberate scheme.  The Rule upends that legislative balance and guts Congress’s 
specifically enumerated limits.  It was also issued without notice-and-comment procedures or the 30-
day waiting period required by the Administrative Procedure Act (“APA”).  The Rule further 
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MEMORANDUM IN SUPPORT OF TEMPORARY RESTRAINING ORDER, 3:19-cv-04073 
violates the APA because it is arbitrary and capricious. 
Although the Attorney General has the power to impose “additional limitations and 
conditions” on asylum eligibility, they must be “consistent with [§ 1158],” the asylum statute.  8 
U.S.C. § 1158(b)(2)(C).  The Executive cannot override Congress’s explicit and longstanding 
directives.  If the Attorney General is allowed to take this step here, he could unilaterally shut down 
the asylum system.  That is not what Congress meant to allow.  See East Bay Sanctuary Covenant v. 
Trump, 909 F.3d 1219, 1250-51 (9th Cir. 2018) (“East Bay II”) (explaining that the executive branch 
may not re-write the asylum laws).  
A Temporary Restraining Order enjoining the Rule nationwide is warranted given the 
enormous stakes, disruption to the longstanding status quo, and serious claims at issue in this case.  
For decades, the law has been clear that merely transiting through another country en route to the 
United States is not a basis to categorically deny asylum.  In the absence of immediate judicial 
intervention, Plaintiffs will suffer serious and irreparable harm.  Chaos at the border will ensue, and 
the lives of untold asylum seekers in grave danger will be put at risk, as they may be imminently 
removed and effectively delivered back to their persecutors without ever having had the chance even 
to apply for asylum in the United States.  See East Bay Sanctuary Covenant v. Trump, 354 F. Supp. 
3d 1094, 1117 (N.D. Cal. 2018) (“East Bay III”).  
BACKGROUND 
A. Statutory Background 
Federal law provides for asylum, which is a form of protection available to individuals who 
fear persecution in their home countries.  The asylum laws reflect Congress’s intent to bring the 
United States into compliance with its international obligations under the 1967 United Nations 
Protocol Relating to the Status of Refugees.  Orantes-Hernandez v. Thornburgh, 919 F.2d 549, 551-
52 (9th Cir. 1990).  Asylum law affords protection to individuals who have a “well-founded fear of 
persecution” on account of any one of five protected grounds: race, religion, nationality, political 
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MEMORANDUM IN SUPPORT OF TEMPORARY RESTRAINING ORDER, 3:19-cv-04073 
opinion, or membership in a particular social group.  8 U.S.C. § 1158(b)(1)(A); id. § 1101(a)(42)(A).  
A ten percent chance of harm is sufficient to establish a well-founded fear.  Karouni v. Gonzales, 
399 F.3d 1163, 1172 (9th Cir. 2005).   
There are three principal ways for an individual to seek asylum.  First, where a noncitizen is 
not in any kind of removal proceedings, his or her application is considered to be an “affirmative” 
filing.  See 8 C.F.R. §§ 208.2(a), 208.9.  Second, a noncitizen in ordinary removal proceedings, see 8 
U.S.C. § 1229a, may submit a “defensive” application for asylum as a form of relief from removal, 
see 8 C.F.R. § 208.2(b).  Third, as part of the expedited removal system—an alternative summary 
removal system currently applicable to certain individuals at or within 100 miles of the border—a 
noncitizen who expresses a fear of return to his or her home country is entitled to a “credible fear” 
screening interview.  8 U.S.C. § 1225(b)(1)(B).  If the screening officer finds a 
“significant possibility” that the individual “could establish eligibility for asylum,” he or she is 
placed in ordinary removal proceedings and given an opportunity to apply for asylum.  Id. 
 
Critically, as part of our nation’s commitment to the protection of people fleeing persecution 
and consistent with our international obligations, it is longstanding federal law that merely transiting 
through a third country is not a basis to categorically deny asylum to refugees who arrive in the 
United States. 
Section 1158(a)(1) 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 after having been interdicted in international or United 
States waters), irrespective of such alien’s status, may apply for asylum in accordance with this 
section or, where applicable, section 1225(b) of this title.”  8 U.S.C. § 1158(a)(1) (emphasis added). 
All asylum seekers coming from a country other than a country contiguous to the United States who 
enter between ports of arrival necessarily transited through another country before reaching the 
southern border.  Congress guaranteed that these individuals should be able to seek asylum free from 
any categorical restrictions based on their route to the United States.  
Congress also spoke directly to the circumstances when a noncitizen may be deemed 
ineligible for asylum based on his or her relationship with a third country, and intentionally chose 
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MEMORANDUM IN SUPPORT OF TEMPORARY RESTRAINING ORDER, 3:19-cv-04073 
narrow ones.  Section § 1158(b)(2)(A)(iv) provides that a noncitizen shall be ineligible for asylum if 
he or she “was firmly resettled in another country prior to arriving in the United States.”  Firm 
resettlement requires more than transiting through a third country.  Pursuant to federal regulation, a 
noncitizen can be  
 
considered to be firmly resettled if, prior to arrival in the United States, he or she 
entered into another country with, or while in that country received, an offer of 
permanent resident status, citizenship, or some other type of permanent 
resettlement unless he or she establishes:  
 
(a) That his or her entry into that country was a necessary consequence of his or her 
flight from persecution, that he or she remained in that country only as long as was 
necessary to arrange onward travel, and that he or she did not establish significant 
ties in that country; or  
 
(b) That the conditions of his or her residence in that country were so substantially 
and consciously restricted by the authority of the country of refuge that he or she 
was not in fact resettled. In making his or her determination, the asylum officer or 
immigration judge shall consider the conditions under which other residents of the 
country live; the type of housing, whether permanent or temporary, made available 
to the refugee; the types and extent of employment available to the refugee; and the 
extent to which the refugee received permission to hold property and to enjoy other 
rights and privileges, such as travel documentation that includes a right of entry or 
reentry, education, public relief, or naturalization, ordinarily available to others 
resident in the country.   
8 C.F.R. § 208.15. 
Finally, Congress spoke directly to the circumstances when noncitizens may be returned to a 
third country to have their asylum claims processed there.  Section § 1158(a)(2)(A) provides that the 
Attorney General may do so only when he or she  
 
determines that the alien may be removed, pursuant to a bilateral or multilateral 
agreement, to a country (other than the country of the alien’s nationality or, in the 
case of an alien having no nationality, the country of the alien’s last habitual 
residence) in which the alien’s life or freedom would not be threatened on account 
of race, religion, nationality, membership in a particular social group, or political 
opinion, and where the alien would have access to a full and fair procedure for 
determining a claim to asylum or equivalent temporary protection, unless the 
Attorney General finds that it is in the public interest for the alien to receive asylum 
in the United States.   
B. The Interim Final Rule 
On July 16, 2019, the Attorney General and Acting Secretary of Homeland Security 
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MEMORANDUM IN SUPPORT OF TEMPORARY RESTRAINING ORDER, 3:19-cv-04073 
promulgated an interim final rule providing that noncitizens who transit through another country 
prior to reaching the southern land border of the United States are ineligible for asylum here.  The 
Rule has only three narrow exceptions, for those who applied for protection elsewhere and were 
denied it in a final judgment; who meet the definition of a “victim of a severe form of trafficking in 
persons”; or who transited through countries that are not parties to the 1951 Refugee Convention, the 
1967 Refugee Protocol, or the Convention Against Torture.  Defendants issued the Rule pursuant to 
the Attorney General’s authority to impose conditions and limitations on eligibility for asylum that 
are “consistent with” the asylum statute, 8 U.S.C. § 1158, and pursuant to his authority to establish 
“conditions or limitations on the consideration of an application for asylum” consistent with the 
Immigration and Nationality Act, § 1158(B)(2)(C), (d)(5)(B).  IFR at 4-5, 22.1 
The Rule thus bars virtually every noncitizen fleeing persecution from obtaining asylum in 
the United States if they passed through another country on their way to the United States, no matter 
the conditions or purpose of their journey through that country or their prospects for protection, 
rights, or permanent legal status there.  The Rule contains no exception for unaccompanied children.  
They, too, must apply for protection in a country through which they transit or will be deemed 
ineligible for asylum in the United States, irrespective of their age, knowledge of or ability to 
understand the Rule’s requirements, or knowledge of or ability—practical or legal—to access the 
asylum system in a transit country.   
LEGAL STANDARD 
 
On a motion for a TRO, the plaintiff “must establish that he is likely to succeed on the merits, 
that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of 
equities tips in his favor, and that an injunction is in the public interest.”  East Bay Sanctuary 
Covenant v. Trump (“East Bay I”), 349 F. Supp. 3d 838, 855 (N.D. Cal. 2018) (quoting Am. 
Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)).  A TRO may 
issue where “serious questions going to the merits [are] raised and the balance of hardships tips 
                                           
1 All citations to the Rule in this memorandum are to the version released on July 15, 2019, and 
made available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2019-15246.pdf.  
The Rule has since been published in the Federal Register, 84 Fed. Reg. 33829.  That version is 
available at https://www.federalregister.gov/documents/2019/07/16/2019-15246/asylum-eligibility-
and-procedural-modifications.  
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sharply in [plaintiff’s] favor.”  All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 
2011).  
ARGUMENT 
PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS 
 
Plaintiffs move for a TRO on three grounds, any one of which is sufficient to warrant 
preserving the status quo.  First, the government’s near-categorical denial of asylum to those who 
enter the United States through the southern border after transiting through a third country violates 
the INA, and thus is contrary to law and ultra vires under the APA’s substantive standards.  Second, 
the government lacked any sufficient justification to disregard the procedural requirements of the 
APA.  Third, the Rule is arbitrary and capricious because it fails to consider numerous relevant 
factors—including the many reasons individuals may not seek asylum in a third country unrelated to 
the merits of their claims; because it is not rationally related to the stated goal of ensuring access to 
asylum for only those with meritorious claims; and because it lacks an exception for unaccompanied 
children.   
I. 
The Bar to Asylum for Noncitizens Who Transit Through a Third Country Violates 
the INA. 
The Rule at issue here categorically denies asylum to all noncitizens who enter or attempt to 
enter the United States at the southern land border after transiting through another country without 
having sought and been denied protection there.  The government claims authority to enact the Rule 
based on the power granted to the Attorney General under 8 U.S.C. § 1158(b)(2)(C) to “establish 
additional limitations and conditions” on asylum eligibility.  But, as the Ninth Circuit and district 
court in East Bay v. Trump both recognized, the statute expressly requires that any such limitation or 
conditions be “consistent with [§ 1158].”  Id; see id. § 1158(d)(5)(B) (requiring that “any other 
conditions or limitations on the consideration of an application for asylum” imposed by the Attorney 
General be “not inconsistent with this chapter”); East Bay II, 909 F.3d at 1247 (“Despite his facial 
invocation of § 1158(b)(2)(C), the Attorney General’s rule of decision is inconsistent with 
§ 1158(a)(1).”); East Bay Sanctuary III, 354 F. Supp. 3d at 1111-12 (enjoining rule barring asylum 
eligibility based on manner of entry because “[i]t would be hard to imagine a more direct conflict” 
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with § 1158).  
The new Rule is flatly inconsistent with the INA in multiple respects.  Congress spoke 
directly to the issue of seeking asylum in another country and created two narrow circumstances 
when asylum can be denied based on a third country.  First, Congress stated that a noncitizen may be 
denied asylum where the noncitizen is firmly resettled in a third country.  Second, Congress stated 
that asylum may be denied where the United States has entered into a formal safe third country 
agreement that satisfies certain enumerated conditions.  Neither exception remotely applies here.  
Moreover, the new Rule further violates Congress’s requirement that asylum cannot be categorically 
denied based on an asylum seeker’s route to the United States. 
A. The Rule Conflicts with the Firm Resettlement Bar, 8 U.S.C. § 1158(b)(2)(A)(vi).  
Congress spoke directly to the circumstances in which a noncitizen may be deemed ineligible 
for asylum based on his or her relationship with a third country.  8 U.S.C. § 1158(b)(2)(A)(vi) 
specifically provides that a noncitizen shall be ineligible for asylum if he or she “was firmly resettled 
in another country prior to arriving in the United States.”  The plain text of that provision, agency 
regulations, domestic case law, and international law have long made clear that firm resettlement 
requires far more than merely transiting through another country.  By requiring that asylum be 
denied for mere transit through another country, the Rule reads Congress’s firm resettlement 
limitation out of § 1158. 
As a matter of plain text, firm resettlement plainly requires far more than mere transit 
through a country, even one where there may be a possibility of seeking protection.  Agency 
regulations too have long made clear that mere transit is not enough, and that there must be an 
individualized inquiry into the ties a noncitizen fleeing persecution formed with another country and 
her particular ability to enjoy safety and legal protection there.   
In 1980, the Immigration and Naturalization Service (“INS”) issued interim regulations 
providing that a noncitizen would be considered firmly resettled “if he was offered resident status, 
citizenship, or some other type of permanent resettlement by another nation and traveled to and 
entered that nation as a consequence of his flight from persecution.”  8 C.F.R. § 208.14 (1981) 
(emphasis added); see also Matter of A-G-G-, 25 I & N. Dec. 486, 492 (BIA 2011) (discussing 
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history of firm resettlement bar).  Thus, asylum officers assessing firm resettlement were required to 
consider, among other things, the individual’s access to housing, employment, property ownership, 
and other rights and privileges.  Id. at 492-93. 
The Attorney General amended the firm resettlement regulation in 1991.  That regulation was 
substantially the same as the current firm resettlement regulation set out at 8 C.F.R. § 208.15.  The 
1991 regulation provided that a noncitizen would be “considered to be firmly resettled if, prior to 
arrival in the United States, he entered into another nation with, or while in that nation received, an 
offer of permanent resident status, citizenship, or some other type of permanent resettlement . . . .” 8 
C.F.R. § 208.15 (revised Jan. 1, 1991).  Indeed, the regulation directed the asylum officer or 
immigration judge to undertake an individualized inquiry and consider the following factors:  
 
the conditions under which other residents of the country live, the type of housing 
made available to the refugee, whether permanent or temporary, the types and 
extent of employment available to the refugee, and the extent to which the refugee 
received permission to hold property and to enjoy other rights and privileges, such 
as travel documentation including a right of entry and/or reentry, education, public 
relief, or naturalization, ordinarily available to others resident in the country.   
 
Id. § 208.15(b) (1991). 
Congress adopted the current firm resettlement bar, set out at 8 U.S.C. § 1158(b)(2)(A)(vi), 
in 1996, when it amended the INA in the Illegal Immigration Reform and Immigrant Responsibility 
Act.  In so doing, it codified the long extant regulatory definition of “firm resettlement.”  See 
Bragdon v. Abbott, 524 U.S. 624, 645 (1998); Lorillard v. Pons, 434 U.S. 575, 580-81 (1978).  The 
implementing regulation on firm resettlement was finalized in 2000, and is substantively identical to 
the 1991 version.  See 8 C.F.R. § 208.15.   
In keeping with this established meaning of “firm resettlement” as requiring more than mere 
transit, the Ninth Circuit has long held that “a refugee need not seek asylum in the first place where 
he arrives.”  Melkonian v. Ashcroft, 320 F.3d 1061, 1071 (9th Cir. 2003).  “Rather,” the Ninth 
Circuit has explained, “it is ‘quite reasonable’ for an individual fleeing persecution ‘to seek a new 
homeland that is insulated from the instability [of his home country] . . . .”  Id. (quoting Damaize v. 
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INS, 787 F.2d 1332, 1337 (9th Cir. 1986)); see also Andriasian v. I.N.S., 180 F.3d 1033, 1045 n.21 
(9th Cir. 1999) (explaining that government conceded at oral argument that “failure to take 
affirmative steps to apply for permanent status in a third country would not justify denial of 
asylum”).  
Congress’s express command that mere transit through a third country is not an appropriate 
basis to categorically deny asylum is also consistent with foundational international humanitarian 
law principles.  See Murray v. The Schooner Charming Betsy, 6 U.S. 64, 118 (1804); Munoz v. 
Ashcroft, 339 F.3d 950, 958 (9th Cir. 2003) (“[I]t is also well settled that an act of Congress should 
be construed so as not to conflict with international law where it is possible to do so without 
distorting the statute.”).  Neither the 1951 United Nations Convention Relating to the Status of 
Refugees nor the 1967 Protocol requires refugees to apply for protection in the first country where it 
could have been sought, or that refugees be returned to a country they crossed in transit.  Instead, the 
Refugee Convention applies except to a person who “acquired a new nationality, and enjoys the 
protection of the country of his new nationality” or “is recognized by the competent authorities of 
the country in which he has taken residence as having the rights and obligations which are attached 
to the possession of the nationality of that country.”  Art. 1, §§ C(3), E, adopted July 28, 1951, 189 
U.N.T.S. 150.  One who merely transits through a third country has none of those rights. 
B. The Rule Conflicts with the Safe Third Country Provision, 8 U.S.C. § 1158(a)(2)(A).  
Congress prescribed one other very narrow circumstance involving an individual’s 
relationship with a third country where asylum may be denied: the safe third country provision.  To 
satisfy it, the United States and that country must have entered into “a bilateral or multilateral 
agreement”; the removal must be “pursuant to” that agreement; the Attorney General must determine 
that the asylum seeker’s “life or freedom would not be threatened on account of race, religion, 
nationality, membership in a particular social group, or political opinion”; and the Attorney General 
must determine that the asylum seeker and “would have access to a full and fair procedure for 
determining a claim to asylum or equivalent temporary protection” in that country.  8 U.S.C. 
§ 1158(a)(2)(A).   
The Rule does not and cannot rely on this limited exception.  The only safe-third-country 
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agreement that the United States has entered into is with Canada.  See Agreement between the 
Government of Canada and the Government of the United States of America For cooperation in the 
examination of refugee status claim from nationals of third countries, https://tinyurl.com/yxqjnyg4.  
Although the United States has reportedly sought third-country agreements with Mexico and 
Guatemala, it has not succeeded.  The Rule is Defendants’ effort to accomplish indirectly what they 
could not do directly, but Defendants may not use this Rule or any other regulatory action in an 
effort to circumvent Congress’s carefully drawn requirements for a safe-third-country agreement.2 
The government may seek to argue that the 1951 Refugee Convention, 1967 Protocol, and 
Convention Against Torture constitute safe third country agreements within the meaning of 
§ 1158(a)(2)(A).  But that would render superfluous the provision requiring a bilateral or multilateral 
agreement.  Virtually every country in the world has signed one of these treaties.  Were that enough, 
there would have been no need for Congress to require another agreement.  
Moreover, Congress did not just require a separate agreement, but one with a country that 
provides a safe place to seek protection and affords a “full and fair procedure.”  § 1158(a)(2)(A).  
                                           
2 In any event, an agreement with those particular countries could not satisfy the INA’s strict 
requirements that the third country provide safety from persecution and full and fair protection 
procedures.  As the U.S. State Department has acknowledged, “Guatemala remains among the most 
dangerous countries in the world,” with an “alarmingly high murder rate.”  U.S. Dep’t of State, 
Overseas Security Advisory Council, Guatemala 2019 Crime & Safety Report, Feb. 28, 2019, 
https://www.osac.gov/Content/Report/5f31517e-62bb-4f2c-8956-15f4aeaab930.  Rape, violence 
against women and LGBTQ persons, gang recruitment of children, and corruption are serious issues 
in Guatemala, see U.S. Dep’t of State, Guatemala 2018 Human Rights Report at 1, 14-18, 21-22, 
https://www.state.gov/wp-content/uploads/2019/03/GUATEMALA-2018.pdf.  Guatemala’s nascent 
asylum system is barely functioning.  See Frydman Decl. ¶ 14.  According to the State Department, 
UNHCR “reported that identification and referral mechanisms for potential asylum seekers” in 
Guatemala “were inadequate,” and “[b]oth migration and police authorities lacked adequate training 
concerning the rules for establishing refugee status.”  Guatemala 2018 Human Rights Report at 13.  
Mexico likewise is not safe for many asylum seekers, nor is its asylum system adequately 
protective.  See Compl. ¶¶ 97-108.  Among other issues, the State Department has noted “incidents 
in which immigration agents had been known to threaten and abuse migrants to force them to accept 
voluntary deportation and discourage them from seeking asylum.” U.S. Dep’t of State, Mexico 2018 
Human Rights Report at 19, https://www.state.gov/wp-content/uploads/2019/03/MEXICO-2018.pdf.  
The Rule offers no analysis or evidence as to the adequacy of Mexico’s asylum system and ability to 
protect migrants from persecution or torture.  It notes only the number of asylum applications 
Mexico received in 2016, 2017, and 2018.  See IFR at 38.  But Mexico’s asylum agency lacks the 
necessary personnel and budget to provide adequate procedures.  See Frydman Decl. ¶ 23; Pinheiro 
Decl. ¶¶ 27-28.  
 
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The fact that a country has merely signed one of these treaties does not guarantee its compliance 
with the obligations to provide safe haven to those seeking protection, much less mean it affords 
safety from persecution and a “full and fair procedure” for those seeking protection.  See Anker & 
Hathaway Decl. ¶ 11.  Indeed, there are no meaningful international procedures to ensure that 
signatories are discharging their obligations.  Id. ¶ 7.  Accordingly, many countries that are plainly 
unable to provide full and fair asylum procedures nonetheless are signatories to the Refugee 
Convention and Protocol, including Afghanistan, Chad, the Democratic Republic of Congo, Iran, 
Somalia, and Sudan.  See UNHCR, States Parties to the 1951 Convention relating to the Status of 
Refugees and the 1967 Protocol, https://www.unhcr.org/en-us/protection/basic/3b73b0d63/states-
parties-1951-convention-its-1967-protocol.html (last accessed July 16, 2019).   
The U.S. State Department itself has recognized that many signatories to these international 
treaties do not adequately protect refugees or lack adequate asylum processing systems.  For 
example, Egypt is a signatory to the Convention, but according to the State Department, Egypt’s 
“laws do not provide for granting asylum or refugee status, and the government has not established a 
comprehensive legal regime for providing protection to refugees.”  U.S. Dep’t of State, Egypt 2018 
Human Rights Report at 34, https://www.state.gov/wp-content/uploads/2019/03/EGYPT-2018.pdf.  
Similarly, Angola is a signatory to the Convention, but its asylum law “did not function during” the 
last year.  U.S. Dep’t of State, Angola 2018 Human Rights Report at 15, https://www.state.gov/wp-
content/uploads/2019/03/angola-2018.pdf.  
As with firm resettlement, the limitations Congress imposed around third country agreements 
are similar to those under international law.  The Office of the United Nations High Commissioner 
for Refugees (“UNHCR”) has consistently issued guidance on the “safe third country” concept, 
noting that the “primary responsibility to provide protection rests with the State where asylum is 
sought.”  UNHCR, Guidance Note on Bilateral and/or Multilateral Transfer Arrangements of 
Asylum-Seekers ¶ 1 (May 2013), https://www.refworld.org/pdfid/51af82794.pdf.  Asylum should 
not be refused “solely on the ground that it could be sought from another State,” and an asylum-
seeker should not be required “to seek asylum in a country with which he has not established any 
relevant links.”  UNHCR, Note on Asylum ¶ 11, U.N. Doc. EC/SCP/12 (Aug. 30, 1979), 
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https://www.unhcr.org/en-us/excom/scip/3ae68cd44/note-asylum.html.  “[UNHCR’s] ‘analysis 
provides significant guidance for issues of refugee law.’”  East Bay III, 354 F. Supp. 3d at 1113 
(quoting Mohammed v. Gonzales, 400 F.3d 785, 798 (9th Cir. 2005)).  Consistent with this long-
standing guidance, UNHCR has publicly stated that the Rule at issue here jeopardizes the right to 
non-refoulement and ignores the lack of effective international protection in transit countries.  See 
UNHCR Deeply Concerned About New U.S. Asylum Restrictions (July 15, 2019), 
https://www.unhcr.org/en-us/news/press/2019/7/5d2cdf114/unhcr-deeply-concerned-new-asylum-
restrictions.html. 
C. The Rule Conflicts with the Asylum Statute’s Opening Guarantee, 8 U.S.C. 
§ 1158(a)(1). 
In the opening provision of the asylum statute, Congress made clear that noncitizens may 
apply for asylum regardless of where they enter the United States, “whether or not at a designated 
port of arrival.”  8 U.S.C. § 1158(a)(1).  Congress thus was clear that entering the United States at or 
between ports of arrival is not a basis to categorically deny asylum to refugees.  See East Bay II, 909 
F.3d at 1247-48.  In so providing, Congress recognized that many asylum seekers would transit 
through another country before reaching the United States.  That is because, except for Mexicans 
arriving at the southern border and Canadians arriving at the northern border, virtually all asylum 
seekers arriving at or between ports of entry at a land border necessarily transit through at least one 
other country before reaching the United States.  In guaranteeing that entering the United States at or 
between ports of arrival could not be a basis for categorically denying asylum, Congress also 
guaranteed that merely transiting through another country to reach the United States could not be a 
categorical barrier either.   
* * * 
In short, Congress carefully crafted the statutory provisions governing asylum to ensure that 
noncitizens within our country or at the border could seek asylum even if they transited through 
another country to reach the United States.  In so doing, Congress sought to satisfy its domestic and 
international obligations to protect those fleeing persecution and torture while also accounting for 
the need to share the burden of protecting asylum seekers with those countries capable of offering 
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safety and full and fair asylum proceedings.  The provisions make clear that only in specific narrow 
circumstances not present here could a noncitizen’s transit justify a denial of protection in the United 
States.  
The Rule upends and undermines that careful scheme, eviscerating the limits Congress set on 
denying asylum based on an asylum seeker’s relationship with a third country.  It makes a noncitizen 
ineligible for asylum in the United States if that individual had any opportunity to seek asylum in a 
third country but did not take it, however difficult, dangerous, or illusory doing so may have been.  It 
bars asylum regardless of whether the United States has a bilateral or multilateral agreement with 
that country, whether the individual would be safe from persecution or torture in that country, and 
whether the individual would have access to a full and fair asylum proceeding in that country.  And 
it does so even if the individual merely passed through that country in the course of fleeing 
persecution without ever coming close to being firmly resettled there. 
As Michael Knowles, president of the American Federation of Government Employees Local 
1924, a union whose members include asylum officers, said: “[The Rule] flies in the face of 
everything we’ve been trained and guided to in implementing existing law for decades.”  Nick 
Miroff et al., Trump administration moves to restrict asylum access, aiming to curb Central 
American migration, Washington Post (July 16, 2019), https://www.washingtonpost.com/ 
immigration/trump-administration-moves-to-restrict-asylum-access-aiming-to-curb-central-
american-migration/2019/07/15/f3360576-a704-11e9-9214-246e594de5d5_story.html.  “There is 
nothing in that body of law that says that this is okay.  They are twisting the law beyond 
recognition.”  Id.   
Defendants make no effort in the Rule’s preamble and discussion to reconcile the 
categorical sea change worked by the Rule with Congress’s carefully crafted statutory scheme.  
In fact, the cases they cite in support of the Rule make clear that the third country options may 
only be considered where the third country is “safe.”  See IFR at 17-18 (citing, e.g., Matter of 
B-R-, 26 I&N Dec. 119, 122 (BIA 2013) (explaining that the firm resettlement and safe third 
country provisions “limit an alien’s ability to claim asylum in the United States when other 
safe options are available”) (emphasis added)).  The Rule, however, in no way accounts for 
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whether a particular country is safe, either generally or for an individual asylum seeker.  It does 
not require, or provide for, an assessment of whether the transit country had a functioning 
asylum system capable of processing the asylum seeker’s claim in a full and fair manner; 
whether the country was able to offer the asylum seeker effective protection against 
persecution or torture; whether the asylum seeker could even access—practically or legally—
the asylum system; whether the asylum system would recognize the asylum seeker’s particular 
claim for protection; or why the asylum seeker otherwise did not apply for protection.  If, for 
example, an asylum seeker has a protection claim rooted in persecution based on sexual 
orientation but the transit country does not offer asylum on that basis, the asylum seeker would 
nonetheless be subject to the Rule.  So too if the asylum seeker faced threats to her safety in 
the transit country and staying to apply for asylum and receive a final judgment would have 
required her to risk further harm.  These glaring shortcomings make clear that the Rule is 
sharply inconsistent with the protections Congress provided for in the statute.   
The Rule’s categorical ban on asylum for all those who enter or attempt the enter the United 
States at its southern land border after having transited through another country where they did not 
apply for protection is fundamentally inconsistent with the third-country-related limitations already 
contained in the statute.  Indeed, it essentially strips them from the statute, upending the careful 
balance Congress struck.  The Rule therefore violates the INA and is contrary to law.    
II. 
The Interim Final Rule Violates the Procedural Requirements of the APA. 
The new regulation violates the APA’s procedural requirements in two respects.  First, the 
Departments of Justice and Homeland Security issued the Rule without providing notice and 
opportunity for comment, a bedrock requirement that ensures the public’s involvement in the 
formulation of governmental policy.  5 U.S.C. §§ 553(b), (c).  Second, and alternatively, the rule 
takes immediate effect, without the 30-day notice period required by law, in violation of 5 U.S.C. 
§ 553(d).  Contrary to the government’s assertion, there is no good cause for the regulation to go into 
immediate effect, nor does this case fall within the narrow foreign affairs exception. 
 
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A. The Rule Is Invalid Because the Government Failed to Follow the APA’s Notice-and-
Comment Procedures. 
The Rule violates the APA because the government failed to give the public notice and an 
opportunity to comment before enacting a fundamental change to asylum law.  The APA requires 
agencies to give at least 30 days for public comment on major new policies, 5 U.S.C. § 553(c)-(d), a 
requirement designed to “foster the fairness and deliberation that should underlie a pronouncement 
of such force.”  United States v. Mead Corp., 533 U.S. 218, 230 (2001) (quotation marks omitted); 
see East Bay III, 354 F. Supp. 3d at 1113 n.12 (noting value of public participation in setting refugee 
policy); East Bay I, 349 F. Supp. 3d at 860 (agencies “may not treat” notice and comment “as an 
empty formality”). 
The government bypassed these procedures entirely, enacting the Rule on an emergency 
basis, and claiming authority under two exceptions to the APA’s notice-and-comment requirement.  
See IFR at 41-48.  But the government has failed to show any concrete harm that would result from a 
30-day notice-and-comment period.  Neither exception applies here.  If accepted, the government’s 
reasoning would subvert the APA’s procedural requirements for virtually every policy involving 
immigration.  
1. The Foreign Affairs Exception Does Not Apply. 
The foreign affairs exception applies only where the APA’s “public rulemaking provisions 
will provoke definitely undesirable international consequences.”  East Bay II, 909 F.3d at 1252 
(alteration omitted, quoting Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980)).  It is not 
enough for the government to “merely recite that the Rule ‘implicates’ foreign affairs.”  Id. at 1251.  
Rather, it must show how the “announcement of a proposed rule” in the Federal Register would 
concretely harm foreign relations in a way that immediate enactment does not.  Id. at 1252. 
The government has utterly failed to carry this burden.  The Rule contains only conclusory 
statements that immigration “implicates [U.S.] foreign policy,” and that the rule is related to 
“ongoing diplomatic negotiations with foreign countries regarding migration issues.”  IFR at 45.  But 
it does not explain how a 30-day notice-and-comment period would harm those negotiations, other 
than vague statements that dispensing with APA requirements would “facilitate” or “strengthen” 
negotiations.  IFR at 45, 47.  The Ninth Circuit has made clear that such ipse dixit is insufficient to 
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invoke the foreign affairs exception.  See Yassini, 618 F.2d at 1360 n.4 (explaining that “[t]he 
foreign affairs exception would become distended” if it applied to most immigration policies simply 
because “immigration matters typically implicate foreign affairs”); East Bay II, 909 F.3d at 1252 
(same). 
The only further explanation the government has provided lacks any evidence and is illogical 
on its own terms.  The Rule states that notice and comment would “provok[e] a disturbance in 
domestic politics in Mexico and the Northern Triangle countries” and “harm the goodwill between 
the United States” and those countries.  IFR at 46.  But the government provides no reason why 
either of those should be true: no reports, no past incidents, nothing.  And even if it could establish 
these effects, it fails to explain why they are unique to notice and comment—in other words, why the 
immediate enactment of the ban would not produce the exact same effects.  See East Bay II, 909 
F.3d at 1252 (holding that government must credibly explain why the “announcement of a proposed 
rule followed by a 30-day period of notice and comment” would harm foreign relations in a way that 
“immediate publication of the Rule” would not). 
The government has thus failed to carry its burden to establish that “definitely undesirable 
international consequences” will result from following the APA’s requirements.  And it is not likely 
to do any better at a later stage of the case, since the Rule itself does not articulate any concrete 
effect on foreign relations, even after courts in the Ninth Circuit made clear that the government 
must specifically explain “how eliminating notice and comment would assist the United States in its 
negotiations.”  East Bay I, 349 F. Supp. 3d at 862; see East Bay II, 909 F.3d at 1253 (government 
must establish the “connection between negotiations” and “immediate implementation”).  The ban’s 
incompatibility with the APA therefore presents an independent reason to enjoin it. 
2. The Good Cause Exception Does Not Apply. 
The good cause exception is an “emergency procedure” that must be “narrowly construed 
and only reluctantly countenanced.”  East Bay II, 909 F.3d at 1253 (quotation marks omitted).  This 
is a “high bar” that requires an agency to show that “delay would do real harm.”  United States v. 
Valverde, 628 F.3d 1159, 1164-65 (9th Cir. 2010) (quotation marks omitted). 
The Rule’s only good-cause claim is that publishing the Rule in the Federal Register and 
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allowing 30 days for public comment might cause “a surge of aliens” to cross the southern border.  
IFR at 42.  The Ninth Circuit previously rejected that exact same concern as “speculative,” 
explaining that “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.’”  East Bay II, 909 F.3d at 1254 (citation omitted).   
The Rule provides virtually no evidence to support this speculation.  A number of things 
would have to be true for a surge to happen:  A large number of Central Americans who were not 
already planning to come to the United States during the comment period would have to learn about 
a regulatory publication in the Federal Register, decide to migrate, travel thousands of miles to the 
U.S.-Mexico border, and enter the United States—all in less than 30 days.  In support of that claim, 
the IFR cites a newspaper article that mentions reports that smugglers told migrants when DHS 
halted a different policy—forcibly separating families at the border—with no indication of any 
sudden surge caused by that policy change.  IFR at 42-44.   
In East Bay, the district court, on remand from the court of appeals, ruled that the same 
newspaper article likely established good cause for a different asylum policy.  East Bay III, 354 F. 
Supp. 3d at 1115.  Plaintiffs respectfully disagree with that decision, because the good-cause 
exception requires the government to actually “show” that a 30-day comment period “would do real 
harm.”  East Bay II, 909 F.3d at 1253 (quotation marks omitted, emphases added); see id. at 1254 
n.16 (government must actually “make a sufficient showing” of likely harm, not just a “rational” 
reason why harm could, conceivably, occur) (quoting NRDC v. Evans, 316 F.3d 904, 912 (9th Cir. 
2003) (quotation marks omitted)).  
But, in any event, subsequent events have undermined the government’s reliance on this 
newspaper article, which is the sum total of the Rule’s good-cause evidence.  When the district court 
temporarily enjoined the last asylum ban in November 2018, according to the government’s 
argument, there should have been an immediate surge of migrants racing to cross the border before 
the injunction could be stayed.  And yet the Rule in this case makes no such claim that happened.  In 
other words, the immediate influx the government claimed did not come to pass.  It is telling that 
almost a year after the newspaper article, the government still cannot marshal a single other piece of 
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evidence to support its surge theory. 
Subsequent changes at the border make an influx even less likely.  The government is 
currently enforcing a policy under which asylum seekers are deported to Mexico to pursue their 
asylum claims from there.  See Camilo Montoya-Galvez & Angel Canales, More than 10,000 
Asylum Seekers Returned Under “Remain in Mexico” as U.S. Set to Expand Policy, CBS News 
(June 8, 2019), https://www.cbsnews.com/news/remain-in-mexico-asylum-seekers-returned-as-us-
seeks-to-expand-policy-2019-06-08/.  And Mexico has recently launched an expansive campaign to 
prevent migrants from reaching the U.S. border.  See Nick Miroff, Border Arrests Drop as Mexico’s 
Migration Crackdown Appears to Cut Crossings, Washington Post (July 9, 2019), 
https://www.washingtonpost.com/immigration/border-arrests-drop-for-first-time-this-year-as-
mexico-migration-crackdown-appears-to-cut-crossings/2019/07/09/e5eecf60-a254-11e9-bd56-
eac6bb02d01d_story.html.  Moreover, it is well documented that migration is not possible for many 
migrants in the hot summer months.  See Miriam Jordan & Kirk Semple, A Sharp Drop in Migrant 
Arrivals on the Border, N.Y. Times (July 10, 2019) (“[M]igrant arrivals typically decline as the hot, 
hazardous summer months set in.”), https://www.nytimes.com/2019/07/10/us/border-migrants-
remain-mexico.html.  Together, these changes make it exceedingly unlikely that thousands of 
Central Americans would suddenly uproot and race to the border in a matter of weeks.  And yet the 
Rule does not even attempt to address these circumstances. 
The good cause exception therefore does not apply, and this Court should enjoin the ban for 
violating the APA. 
B. The Attorney General Also Violated the APA’s Required 30-day Grace Period. 
Even if notice and comment were not required, the rule would still violate 5 U.S.C. 
§ 553(d)’s separate requirement that a rule be published “no less than 30 days before its effective 
date, except . . . as otherwise provided by the agency for good cause found and published with the 
rule.”  This requirement “protects those who are affected by agency action taken during the 30–day 
waiting period without disturbing later action that is not the product of the violation.”  Prows v. 
Dep’t of Justice, 938 F.2d 274, 276 (D.C. Cir. 1991).  For the same reasons stated above, the agency 
cannot show good cause why the 30-day waiting period should not apply to the rule, or that the 
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foreign affairs exception applies.  If the Court reaches this alternate ground for relief, the proper 
remedy is to immediately stay the rule for the necessary 30 days.  Ngou v. Schweiker, 535 F. Supp. 
1214, 1216 (D.D.C. 1982). 
III.  
The Rule Is Arbitrary and Capricious In Violation Of The APA. 
The Rule’s near-blanket ban on asylum for any person who transited through a third country 
en route to the southern border but did not apply for asylum there is arbitrary and capricious in 
violation of the APA, for at least several reasons.   
First, the Rule is premised on two false and wholly unsupported assumptions. The Rule 
primarily asserts that individuals who do not seek asylum in at least one transit country are likely to 
lack meritorious claims.  Without explanation or support, the Rule asserts that transiting through a 
third country without seeking asylum is necessarily equivalent to “having no urgent or genuine need 
for asylum.”  IFR at 7.  But, as discussed above, the Ninth Circuit has long recognized that “it is 
quite reasonable” for individuals who have experienced persecution in their home countries “to seek 
a new homeland that is insulated from the instability” of the region.  Damaize, 787 F.2d at 1337 
(finding no basis for the immigration judge’s assumption “that an individual who truly fears 
persecution in his homeland will automatically seek asylum in the first country in which he 
arrives”); see also Melkonian, 320 F.3d at 1071.  The failure to seek asylum in countries transited 
through “reveals nothing about whether or not [a noncitizen] feared for his safety” in his country of 
origin.  Damaize, 787 F.2d at 1338.   
The Rule is also premised on the assertion that an individual who transits through a third 
country “could have obtained protection” there.  IFR 7.  But that is often untrue, and the Rule 
entirely fails to consider the factors relevant to this question.  See supra at 10-12 & n.2, 14-15.  
These include whether the individual is free from the risk of persecution or torture in the third 
country, whether a functioning asylum system exists that would recognize the person’s claims for 
protection, and whether the individual can safely await a decision on her claims.  The Rule’s failure 
to acknowledge, much less examine these critical considerations—which may vary significantly by 
transit country and the nature of the individual’s claim—is arbitrary and capricious.  See Motor 
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Vehicle Mrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983) (action is 
arbitrary and capricious when the agency “entirely failed to consider an important aspect of the 
problem”). 
Second, the Rule is not rationally related to the government’s stated purpose of preserving 
access to asylum for only those individuals who have meritorious claims.  See IFR at 7.  Indeed, the 
Rule exempts from the ban any asylum seeker who has already applied for and received a final 
judgment denying their claims for protection in a third country.  Id. at 22.  Thus, the Rule irrationally 
allows those who were already denied protection in another country to access asylum in the United 
States, while barring those who may not have had a true opportunity to seek protection in another 
country.  See Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1024 (9th Cir. 2011) 
(agency’s failure to rationally support its conclusion is arbitrary and capricious). 
Finally, the Rule is arbitrary and capricious because it fails to exempt unaccompanied 
children, as defined in 6 U.S.C. § 279(g)(2), from its coverage in violation of the special rights 
Congress has afforded such children under the INA and the Trafficking Victims Protection and 
Reauthorization Act (“TVPRA”), 8 U.S.C. § 1232.  As Congress recognized, unaccompanied 
children who travel to the United States seeking protection are particularly vulnerable.  Congress 
accordingly gave them special rights, two of which are especially relevant here.  First, 
unaccompanied children have the right to present their case for asylum in the first instance to a 
USCIS Asylum Officer in a non-adversarial setting, rather than in immigration court litigating 
against a trained prosecutor.  See 8 U.S.C. § 1158(b)(3)(C).  But now, under the Rule, 
unaccompanied children who transit through third countries will not only lose the right to seek 
asylum altogether, but also will simultaneously lose their right to have their claim for protection 
heard in the first instance by an Asylum Officer.  Their only available protection is to seek 
withholding and torture claims before an immigration judge in an adversarial proceeding.  Second, 
and notably, Congress expressly exempted unaccompanied children from the provision governing 
safe third-country agreements.  8 U.S.C. § 1158(a)(2)(E).  Thus, even if the administration had 
entered into a safe-third-country agreement with Guatemala, Mexico, or some other country, 
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unaccompanied children would not have been required to seek asylum in that country.  Yet now, 
without a third-country agreement, the Rule requires unaccompanied children who transit through a 
third country to seek asylum there.  It is difficult enough for such children to seek asylum here; in 
dangerous countries without developed asylum systems, it will be virtually impossible.  See 
Frydman Decl. ¶¶ 12-24.  The Rule fails to recognize, much less explain, the Rule’s disregard for the 
unique needs of unaccompanied children that Congress has recognized.     
 
THE REMAINING FACTORS DECIDELY FAVOR GRANTING A TRO AND 
PRESERVING THE STATUS QUO 
 
Plaintiffs will suffer irreparable harm if the Rule is not enjoined.  In their prior challenge to 
the government’s first asylum ban, these very Plaintiffs established a likelihood of irreparable harm 
“based on their showing of serious ‘ongoing harms to their organizational missions,’ including 
diversion of resources and the non-speculative loss of substantial funding from other sources.”  East 
Bay III, 354 F. Supp. 3d at 1116 (quoting Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 
2013)).  Plaintiffs’ prompt filing of this action following issuance of the Rule “also weighs in their 
favor” for the irreparable harm analysis.  Id. (citing California v. Azar, 911 F.3d 558, 581 (9th Cir. 
2018)).  
The Rule frustrates Plaintiffs’ ability to carry out their mission and forces them to 
dramatically divert resources to address the new regulatory landscape, pursuing more complex, and 
limited, forms of relief available to their clients.  See Complaint ¶¶ 116-18, 121-25, 126-29, 132-35; 
Pinheiro Decl. ¶¶ 12, 15-17; Smith Decl. ¶¶ 15, 17-20; Sharp Decl. ¶¶ 10-15; Manning Decl. ¶¶ 16-
21.  For example, Plaintiff Al Otro Lado operates programs that assist asylum-seekers in applying 
for asylum, represents them in credible fear interviews, and represents detained individuals in bond 
hearings and parole applications.  Pinheiro Decl. ¶¶ 4-11.  The rule affects the majority of the clients 
served by Al Otro Lado, forcing them to revamp their representation strategy, overhaul and develop 
training materials, shift resources from the United States to Mexico, expend additional resources to 
brief eligibility issues, prepare separate cases for each family member, and pursue complex forms of 
relief and appeals.  Id. ¶¶ 12-13, 15-17.  Al Otro Lado would be forced to shift resources to 
representation in removal proceedings and shut down or restructure its Otay Mesa Release Project. 
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Id. ¶ 17.  The Ninth Circuit found that these precise harms—preventing the provision of legal aid to 
affirmative asylum applicants, shifting legal resources to removal proceedings, developing new 
training materials, submitting a greater number of applications for family members, requiring new 
education and outreach initiatives—require the diversion of resources and “perceptibly impair[] 
[their] ability to provide the services [they were] formed to provide.”  East Bay II, 909 F.3d at 1241.  
In addition, Plaintiffs face an extraordinary loss of funding tied to asylum applications and 
bond applications, threatening their very existence.  See id. at 1243 (Plaintiffs’ likely loss of 
substantial amount of funding sufficient to confer organizational standing); Complaint ¶¶ 119, 122-
23, 126, 132-34; Pinheiro Decl. ¶ 18; Smith Decl. ¶ 16; Sharp Decl. ¶¶ 7, 13; Manning Decl. ¶¶ 16-
17.  Plaintiff East Bay Sanctuary Covenant’s (“EBSC”) affirmative asylum program accounts for 
nearly half of its organizational budget.  Smith Decl. ¶ 8.  The State of California funds EBSC to file 
affirmative applications.  Id. ¶ 12.  EBSC’s grant for 2018 was based on its filing of approximately 
280 affirmative asylum cases in 2017, half of which were for individuals who entered the United 
States through a southern land border after transiting through a third country.  Id.  EBSC’s budget 
would be drastically cut since it would no longer be able to handle affirmative asylum cases for 
people subject to the rule.  Id. ¶ 16; see also Sharp Decl. ¶¶ 10, 13 (Rule would financially strain 
CARECEN by forcing attorneys to devote more hours per case to pursue complex non-asylum relief 
and appeals, work that is not currently contemplated in the flat per-case reimbursement rate from the 
State of California); Pinheiro Decl. ¶ 18 (Al Otro Lado may no longer be funded by the State of 
California for bond representation).   
Plaintiffs also suffer irreparable harm arising from the lost opportunity to offer comments on 
the Rule.  As this District has recognized, Plaintiffs’ loss of such an opportunity to comment on the 
prior asylum ban, combined with the frustration of their missions, diversion of resources, and lack of 
remedy, can constitute irreparable harm.  East Bay I, 349 F. Supp. 3d at 865; see also East Bay II, 
909 F.3d at 1243 n.8 (recognizing that Plaintiffs possessed organizational standing to challenge lack 
of notice-and-comment procedures in promulgation of prior asylum ban).  Had Defendants provided 
an opportunity for notice and comment before putting the rule into effect, Plaintiffs would have 
informed Defendants that the rule will not address the reasons proffered for its promulgation, 
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commented on the quality of the data cited in the rule, and described the individual harm caused by 
the rule.  See Complaint ¶ 136; Pinheiro Decl. ¶ 20; Smith Decl. ¶ 21; Sharp Decl. ¶ 16; Manning 
Decl. ¶¶ 22-23. 
Apart from these serious impacts on Plaintiffs’ organizations, the Rule also causes grave and 
irreparable harm to individuals fleeing horrific violence in some of the most dangerous countries in 
the world, many of whom will be effectively denied a realistic path to asylum.  Complaint ¶¶ 81-
108; see Frydman Decl. ¶¶ 8-11, 13-15, ¶ 19-24 (explaining that Mexico and Guatemala do not 
provide meaningful access to asylum or protection to unaccompanied children).  The urgency of the 
harms these individuals and Plaintiffs will face because of the Rule, and the urgency with which 
Plaintiffs accordingly must act, factors strongly in favor of emergency injunctive relief.  
With respect to the balance of the equities and the public interest, “[w]hen the government is 
a party, these last two factors merge.”  Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th 
Cir. 2014).  The government cannot identify any real harm that would result from the requested 
TRO.  See East Bay II, 909 F.3d at 1254 (rejecting the government’s argument that the order 
enjoining prior asylum ban would inflict institutional injury).  There is no urgency or emergency 
necessitating the Rule.  Indeed, the Rule upsets the decades-long status quo. 
In contrast, if the Rule becomes effective, hundreds of thousands of asylum seekers will 
encounter sharply-narrowed forms of relief, significantly higher hurdles to obtaining that relief, and 
greater likelihood of refoulement.  The public interest lies “in preventing aliens from being 
wrongfully removed, particularly to countries where they are likely to face substantial harm.”  Nken 
v. Holder, 556 U.S. 418, 436 (2009).   
Further, as this district found when issuing a temporary restraining order enjoining the prior 
asylum ban, the government’s interest in “deterring asylum seekers—whether or not their claims are 
meritorious—on a basis that Congress did not authorize carries drastically less weight, if any.”  East 
Bay I, 349 F. Supp. 3d at 865–66; see also East Bay II, 909 F.3d at 1255 (public possesses interest in 
ensuring that “statutes enacted by [their] representatives” are not imperiled by executive fiat) 
(quoting Maryland v. King, 567 U.S. 1301, 1301 (2012) (quotation marks omitted)).  
Finally, the public interest is served when administrative agencies comply with their 
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obligations under the APA.  See New Jersey v. U.S. Envtl. Prot. Agency, 626 F.2d 1038, 1045 (D.C. 
Cir. 1980) (“It is now a commonplace that notice-and-comment rule-making is a primary method of 
assuring that an agency’s decisions will be informed and responsive.”); Cresote Council v. Johnson, 
555 F.Supp.2d 36, 40 (D.D.C. 2008) (explaining that there is a “general public interest in open and 
accountable agency decision-making”).  The government can begin a new rulemaking process, this 
time following the mandatory procedures.  Thus, “the balance of hardships tips sharply in 
[plaintiffs’] favor.”  All. for the Wild Rockies, 632 F.3d at 1131 (quotation marks omitted). 
* * * 
At bottom, this is a case about the separation of powers, just as it was in the original East Bay 
case involving the first (and now enjoined) asylum ban.  As the Ninth Circuit stated in that case in 
denying the government’s emergency stay request, the administration may not unilaterally re-write 
the asylum laws that Congress has enacted.  East Bay II, 909 F.3d at 1250-51 (“[T]he Executive . . . 
may not legislative from the Oval Office. . . .  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.”).  
CONCLUSION 
For the foregoing reasons, Plaintiffs’ motion for a TRO should be granted. 
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MEMORANDUM IN SUPPORT OF TEMPORARY RESTRAINING ORDER, 3:19-cv-04073 
  
Dated: July 17, 2019 
 
Lee Gelernt* 
Omar C. Jadwat* 
Anand Balakrishnan* 
ACLU FOUNDATION 
IMMIGRANTS’ RIGHTS PROJECT 
125 Broad Street, 18th Floor 
New York, NY 10004 
T: (212) 549-2660 
F: (212) 549-2654 
lgelernt@aclu.org 
ojadwat@aclu.org 
abalakrishnan@aclu.org 
 
Melissa Crow* 
SOUTHERN POVERTY LAW CENTER 
1101 17th Street NW, Suite 705 
Washington, DC 20036 
T: (202) 355-4471 
F: (404) 221-5857 
melissa.crow@splcenter.org 
 
Mary Bauer* 
SOUTHERN POVERTY LAW CENTER 
1000 Preston Avenue 
Charlottesville, VA  22903 
T:  (470) 606-9307 
F:  (404) 221-5857 
mary.bauer@splcenter.org 
 
Attorneys for Plaintiffs 
 
*Pro hac vice application forthcoming  
**Application for admission pending 
 
 
 
Respectfully submitted,  
 
/s/Katrina L. Eiland 
Katrina Eiland (SBN 275701) 
Cody Wofsy (SBN 294179) 
Spencer Amdur (SBN 320069) 
Julie Veroff (SBN 310161) 
ACLU FOUNDATION  
IMMIGRANTS’ RIGHTS PROJECT 
39 Drumm Street 
San Francisco, CA 94111 
T: (415) 343-0770 
F: (415) 395-0950 
keiland@aclu.org 
cwofsy@aclu.org  
samdur@aclu.org 
jveroff@aclu.org  
 
Baher Azmy* 
Angelo Guisado* 
Ghita Schwarz* 
CENTER FOR CONSTITUTIONAL RIGHTS 
666 Broadway, 7th Floor 
New York, NY 10012 
Telephone: (212) 614-6464 
Facsimile: (212) 614-6499 
bazmy@ccrjustice.org 
aguisado@ccrjustice.org 
gschwarz@ccrjustice.org 
 
Christine P. Sun (SBN 218701) 
Vasudha Talla (SBN 316219) 
Angélica Salceda** 
AMERICAN CIVIL LIBERTIES UNION 
FOUNDATION OF NORTHERN 
CALIFORNIA, INC. 
39 Drumm Street 
San Francisco, CA 94111 
T: (415) 621-2493 
F: (415) 255-8437 
csun@aclunc.org 
vtalla@aclunc.org 
asalceda@aclunc.org 
 
 
 
 
 
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