Order Granting Preliminary Injunction — East Bay Sanctuary v. Barr

Record facts

U.S. District Court, N.D. Cal. · No. 3:19-cv-04073-JST · Doc. 42 · 2019-07-24 · Docket on CourtListener

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United States District Court 
Northern District of California 
 
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
 
EAST BAY SANCTUARY COVENANT, 
et al., 
Plaintiffs, 
v. 
 
WILLIAM BARR, et al., 
Defendants. 
Case No. 19-cv-04073-JST   
 
 
ORDER GRANTING PRELIMINARY 
INJUNCTION 
Re: ECF No. 3 
 
 
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. 
Under our laws, the right to determine whether a particular group of applicants is 
categorically barred from eligibility for asylum is conferred on Congress.  Congress has 
empowered the Attorney General to establish additional limitations and conditions by regulation, 
but only if such regulations are consistent with the existing immigration laws passed by Congress.  
This new Rule is likely invalid because it is inconsistent with the existing asylum laws.   
First, Congress has already created a bar to asylum for an applicant who may be removed 
to a “safe third country.”  The safe third country bar requires a third country’s formal agreement to 
accept refugees and process their claims pursuant to safeguards negotiated with the United States.  
As part of that process, the United States must determine that (1) the alien’s life or freedom would 
not be threatened on account of a protected characteristic if removed to that third country and 
(2) the alien would have access to a full and fair procedure for determining a claim to asylum or 
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equivalent temporary protection there.  Thus, Congress has ensured that the United States will 
remove an asylum applicant to a third country only if that country would be safe for the applicant 
and the country provides equivalent asylum protections to those offered here.  The Rule provides 
none of these protections.   
Congress has also enacted a firm resettlement bar, pursuant to which asylum is unavailable 
to an alien who was firmly resettled in another country prior to arriving in the United States.  
Before this bar can be applied, however, the government must make individualized determinations 
that an asylum applicant received an offer of some type of permanent resettlement in a country 
where the applicant’s stay and ties are not too tenuous, or the conditions of his or her residence too 
restricted, for him or her to be firmly resettled.  Again, the Rule ignores these requirements.   
Additionally, there are serious questions about the Rule’s validity given the government’s 
failure to comply with the Administrative Procedure Act’s notice-and-comment rules.  The 
government made the Rule effective without giving persons affected by the Rule and the general 
public the chance to submit their views before the Rule took effect.  The government contends that 
it did not need to comply with those procedures because the Rule involves the “foreign affairs” of 
the United States.  But this exception requires the government to show that allowing public 
comment will provoke “definitely undesirable international consequences,” which the government 
has not done.  Indeed, the Rule explicitly invites such comment even while it goes into effect.  
Thus, the government will still suffer the ill consequences of public comment – which, to be clear, 
are entirely speculative – but without gaining the benefit to good rule-making that public comment 
would provide.   
Next, the Rule is likely invalid because the government’s decision to promulgate it was 
arbitrary and capricious.  The Rule purports to offer asylum seekers a safe and effective alternative 
via other countries’ refugee processes.  As the Rule expressly contemplates, this alternative forum 
will most often be Mexico.  But the government’s own administrative record contains no evidence 
that the Mexican asylum regime provides a full and fair procedure for determining asylum claims.  
Rather, it affirmatively demonstrates that asylum claimants removed to Mexico are likely to be 
(1) exposed to violence and abuse from third parties and government officials; (2) denied their 
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rights under Mexican and international law, and (3) wrongly returned to countries from which they 
fled persecution.  The Rule also ignores the special difficulties faced by unaccompanied minors.  
Congress recognized these difficulties by exempting “unaccompanied alien child[ren]” from the 
safe third country bar.  The Rule, which applies to unaccompanied minors just as it does to adults, 
casts these protections to one side.   
Lastly, the balance of equities and the public interest tip strongly in favor of injunctive 
relief.  While the public has a weighty interest in the efficient administration of the immigration 
laws at the border, it also has a substantial interest in ensuring that the statutes enacted by its 
representatives are not imperiled by executive fiat.  Also, an injunction in this case would not 
radically change the law – or change it at all.  It would merely restore the law to what it has been 
for many years, up until a few days ago.  Finally, an injunction would vindicate the public’s 
interest – which our existing immigration laws clearly articulate – in ensuring that we do not 
deliver aliens into the hands of their persecutors.   
For these reasons, and the additional reasons set forth below, the Court will enjoin the Rule 
from taking effect.   
I. 
BACKGROUND 
A. 
Asylum Framework 
1. 
Overview 
In a related case, the Ninth Circuit has extensively summarized the general framework 
governing U.S. both immigration law generally and asylum in particular.  See E. Bay Sanctuary 
Covenant v. Trump (E. Bay II), 909 F.3d 1219, 1231-36 (9th Cir. 2018).1  The Court therefore 
reviews the relevant law more briefly, focusing on the provisions most relevant here. 
The current iteration of U.S. asylum law stems from the Refugee Act of 1980, Pub. L. No. 
96-212, 94 Stat. 102 (1980), which Congress enacted in large part “to bring United States refugee 
                                                 
1 Because of the overlap between the claims and arguments presented, the Court refers extensively 
to three decisions from that case: E. Bay Sanctuary Covenant v. Trump (E. Bay I), 349 F. Supp. 3d 
838 (N.D. Cal. 2018) (order granting temporary restraining order (“TRO”)); E. Bay Sanctuary 
Covenant v. Trump (E. Bay II), 909 F.3d 1219 (9th Cir. 2018) (order denying stay of TRO); E. 
Bay Sanctuary Covenant v. Trump (E. Bay III), 354 F. Supp. 3d 1094 (N.D. Cal. 2018) (order 
granting preliminary injunction). 
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law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 
19 U.S.T. 6223, T.I.A.S. No. 6577 [(‘1967 Protocol’)], to which the United States acceded in 
1968.”  I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987).  The 1967 Protocol, in turn, 
incorporates articles 2 to 34 of the 1951 Convention Relating to the Status of Refugees, July 28, 
1951, 189 U.N.T.S. 150 (“1951 Convention”).  See 1967 Protocol, art. I.  Although these 
international agreements do not independently carry the force of law domestically, see I.N.S. v. 
Stevic, 467 U.S. 407, 428 n.22 (1984), they provide relevant guidance for interpreting the asylum 
statutes, see Cardoza-Fonseca, 480 U.S. at 439-40.   
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility 
Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996) (“IIRIRA”).  Under IIRIRA, an 
immigrant’s ability to lawfully reside in the United States ordinarily turns on whether the 
immigrant has been lawfully “admitted,” meaning that there has been a “lawful entry of the alien 
into the United States after inspection and authorization by an immigration officer.”  8 U.S.C. 
§ 1101(a)(13)(A); see also E. Bay II, 909 F.3d at 1232 (explaining that Congress has “established 
‘admission’ as the key concept in immigration law”).  U.S. immigration law sets forth numerous 
reasons why aliens may be “ineligible to receive visas and ineligible to be admitted to the United 
States.”  8 U.S.C. § 1182(a).  
But “[a]sylum is a concept distinct from admission.”  E. Bay II, 909 F.3d at 1233.  Asylum 
“permits the executive branch – in its discretion – to provide protection to aliens who meet the 
international definition of refugees.”  Id.  Accordingly, “the decision to grant asylum relief is 
ultimately left to the Attorney General’s discretion,” see I.N.S. v. Aguirre-Aguirre, 526 U.S. 415, 
420 (1999); Delgado v. Holder, 648 F.3d 1095, 1101 (9th Cir. 2011), subject to the court of 
appeals’ review for whether the Attorney General’s decision was “manifestly contrary to the law 
and an abuse of discretion,” 8 U.S.C. § 1252(b)(4)(D). 
The Immigration and Nationality Act (“INA”) sets forth the general rule regarding 
eligibility for asylum:   
 
Any 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 
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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).  Notwithstanding the grant of discretion to the Attorney General, Congress 
has established certain categorical bars to asylum.  These exceptions to the general rule apply to 
aliens who (1) may be removed to a safe third country with which the United States has a 
qualifying agreement, (2) did not apply within one year of arriving in the United States, or 
(3) have previously been denied asylum.  Id. § 1158(a)(2)(B)-(C).2  Neither the safe third country 
exception nor the one-year rule apply to “an unaccompanied alien child.”  Id. § 1158(a)(2)(E).3 
 
Congress also mandated that certain categories of aliens are ineligible for asylum.  Id. 
§ 1158(b)(2)(A)(i)-(vi).  Most relevant here, an alien is ineligible for asylum if she “was firmly 
resettled in another country prior to arriving in the United States.”  Id. § 1158(b)(2)(A)(vi).  
Congress further empowered the Attorney General to “by regulation establish additional 
limitations and conditions, consistent with [§ 1158], under which an alien shall be ineligible for 
asylum.”  Id. § 1158(b)(2)(C). 
In addition to asylum, two other forms of relief from removal are generally available under 
U.S. immigration law.  With some exceptions not relevant here, an alien is entitled to withholding 
of removal if “the Attorney General decides that the alien’s life or freedom would be threatened in 
that country because of the alien’s race, religion, nationality, membership in a particular social 
group, or political opinion.”  Id. § 1231(b)(3)(A).  However, “[t]he bar for withholding of removal 
is higher; an applicant must demonstrate that it is more likely than not that he would be subject to 
                                                 
2 An application ordinarily foreclosed by the latter two exceptions may nonetheless be considered 
if the alien demonstrates either a material change in circumstances or that extraordinary 
circumstances prevented the alien from filing a timely application.  Id. § 1158(a)(2)(D).   
3 Congress has further defined an “unaccompanied alien child” as “a child who – 
 
(A) has no lawful immigration status in the United States; 
(B) has not attained 18 years of age; and 
(C) with respect to whom-- 
(i) there is no parent or legal guardian in the United States; or 
(ii) no parent or legal guardian in the United States is available 
to provide care and physical custody. 
 
6 U.S.C. § 279(g)(2). 
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persecution on one of the [protected] grounds.”  Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th 
Cir. 2014).   
An alien may also seek protection under the Convention Against Torture (“CAT”), which 
requires the alien to prove that “it is more likely than not that he or she would be tortured if 
removed to the proposed country of removal,” 8 C.F.R. § 1208.16(c)(2), and that the torture would 
be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or 
other person acting in an official capacity,” id. § 1208.18(a)(1).   
These forms of relief differ in meaningful respects.  While an asylum grant is ultimately 
discretionary, withholding of removal or CAT protection are mandatory if the applicant makes the 
requisite showing of fear of persecution or torture.  See Nuru v. Gonzales, 404 F.3d 1207, 1216 
(9th Cir. 2005).  At the same time, an applicant must meet a higher threshold to be eligible for the 
latter two forms of relief.  See Ling Huang, 744 F.3d at 1152; Nuru, 404 F.3d at 1216.  Moreover, 
“[u]nlike an application for asylum, . . . a grant of an alien’s application for withholding is not a 
basis for adjustment to legal permanent resident status, family members are not granted derivative 
status, and [the relief] only prohibits removal of the petitioner to the country of risk, but does not 
prohibit removal to a non-risk country.”  Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004) 
(second alteration in original) (citation omitted); see also E. Bay II, 909 F.3d at 1236 (describing 
additional asylum benefits).   
2. 
Procedures for Asylum Determinations 
Asylum claims may be raised in three different contexts.  First, aliens present in the United 
States may affirmatively apply for asylum, regardless of their immigration status.  See 8 U.S.C. 
§ 1158(a)(1); Dep’t of Homeland Sec. & Dep’t of Justice, Instructions for Form I-589: 
Application for Asylum and Withholding of Removal, at 2 (rev. Apr. 9, 2019), 
https://www.uscis.gov/system/files force/files/form/i-589instr.pdf.  Affirmative applications are 
processed by U.S. Citizenship and Immigration Services (“USCIS”).  8 C.F.R. § 208.2(a).  A 
USCIS asylum officer interviews each applicant and renders a decision.   Id. §§ 208.9, 208.19.  
The officer may grant asylum based on that interview.  Id. § 208.14(b).  If, however, the officer 
determines that the applicant is not entitled to asylum and that the applicant is otherwise 
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“removable” – i.e., lacks lawful immigration status – the officer is generally required to refer the 
applicant to immigration court for the appropriate removal proceeding before an immigration 
judge (“IJ”).  Id. § 208.14(c). 
Second, an asylum claim may be raised as a defense in removal proceedings conducted 
pursuant to 8 U.S.C. § 1229(a), sometimes referred to as “full removal proceedings.”  Matter of 
M-S-, 27 I. & N. Dec. 509, 510 (BIA 2019).  An alien in full removal proceedings may renew a 
previously denied affirmative asylum application or file one with the immigration judge in the first 
instance.  See 8 C.F.R. § 1208.4(b)(3)(iii).  If the application is denied, the immigration judge 
must also consider the alien’s eligibility for withholding of removal and, if requested by the alien 
or suggested by the record, protection under CAT.  Id. § 1208.3(c)(1).  An alien who is denied 
relief in these proceedings has a number of options for obtaining additional review.  The alien may 
file a motion to reconsider or reopen proceedings with the IJ, 8 U.S.C. § 1229(a)(6)-(7), or appeal 
the decision to the Board of Immigration Appeals (“BIA”), 8 C.F.R. § 1003.1(b)(3).  If the BIA 
denies relief, the alien may likewise file a motion to reconsider or reopen with the BIA, 8 C.F.R. 
§ 1003.2(b)-(c), or petition for review of the BIA’s adverse decision with the relevant circuit court 
of appeals, 8 U.S.C. § 1252(d). 
Finally, asylum claims may be raised in expedited removal proceedings.  By statute, these 
proceedings apply “[w]hen a U.S. Customs and Border Protection (‘CBP’) officer determines that 
a noncitizen arriving at a port of entry is inadmissible for misrepresenting a material fact or 
lacking necessary documentation.”  Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097, 
1100 (9th Cir. 2019) (citing 8 U.S.C. §§ 1182(a)(6)(C), 1182(a)(7), 1225(b)(1)(A)(i)).  As a 
further exercise of its regulatory authority, 8 U.S.C. § 1225(b)(1)(A)(iii), DHS had, at the time this 
suit was filed, “also applie[d] expedited removal to inadmissible noncitizens arrested within 100 
miles of the border and unable to prove that they have been in the United States for more than the 
prior two weeks.”  Thuraissigiam, 917 F.3d at 1100.  On July 23, 2019, however, DHS published 
a notice that it was expanding the scope of expedited removal to apply “to aliens encountered 
anywhere in the United States for up to two years after the alien arrived in the United States.”  
Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409, 35,409 (July 23, 2019); see also 
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8 U.S.C. § 1225(b)(1)(A)(iii).  Aliens determined to fall within those categories shall be “removed 
from the United States without further hearing or review unless the alien indicates either an 
intention to apply for asylum under [8 U.S.C. § 1158] or a fear of persecution.”  8 U.S.C. § 
1225(b)(1)(A)(i).   
If a noncitizen expresses an intent to seek asylum, the applicant is referred to an asylum 
officer for a credible fear interview to determine whether the applicant “has a credible fear of 
persecution.”  Id. § 1225(b)(1)(B)(v).  To have a credible fear, “there [must be] a significant 
possibility, taking into account the credibility of the statements made by the alien in support of the 
alien’s claim and such other facts as are known to the officer, that the alien could establish 
eligibility for asylum.”  Id.  Applicants who demonstrate a credible fear of a basis for asylum, 
withholding of removal, or protection under CAT, are generally placed in full removal 
proceedings for further adjudication of their claims.  Id. § 1225(b)(1)(B)(ii); 8 C.F.R. 
§ 208.30(e)(2)-(3), (f).  By contrast, if the officer concludes that no credible fear exists, applicants 
are “removed from the United States without further hearing or review,” except for an expedited 
review by an IJ, which is ordinarily concluded within 24 hours and must be concluded within 7 
days.  8 U.S.C. § 1225(b)(1)(B)(iii)(I), (III); see also 8 C.F.R. § 1208.30(g).   
B. 
The Challenged Rule 
On July 16, 2019, the DOJ and the DHS published a joint interim final rule, entitled 
“Asylum Eligibility and Procedural Modifications.”  84 Fed. Reg. 33,829 (July 16, 2019) (codified 
at 8 C.F.R. pts. 208, 1003, 1208).  In general terms, the Rule imposes “a new mandatory bar for 
asylum eligibility for aliens who enter or attempt to enter the United States across the southern 
border after failing to apply for protection from persecution or torture in at least one third country 
through which they transited en route to the United States.”  Id. at 33,830. 
Under the Rule, “any alien who enters, attempts to enter, or arrives in the United States 
across the southern land border on or after July 16, 2019, after transiting through at least one 
country outside the alien’s country of citizenship, nationality, or last lawful habitual residence en 
route to the United States, shall be found ineligible for asylum.”  8 C.F.R. § 208.13(c)(4).  The 
Rule provides three exceptions.  First, the Rule does not apply if the alien “applied for protection 
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from persecution or torture in at least one country . . . through which the alien transited en route to 
the United States, and the alien received a final judgment denying the alien protection in such 
country.”  Id. § 208.13(c)(4)(i).  Second, the Rule exempts “victim[s] of a severe form of 
trafficking in persons,” as defined in 8 C.F.R. § 214.11.  8 C.F.R. § 208.13(c)(4)(ii)).  Finally, the 
Rule does not apply if “[t]he only countries through which the alien transited en route to the 
United States were, at the time of the transit, not parties to [the 1951 Convention, the 1967 
Protocol, or CAT].”  Id. § 208.13(c)(4)(iii).  In sum, except for qualifying trafficking victims, the 
Rule requires any alien transiting through a third country that is a party to one of the above 
agreements to apply for protection and receive a final denial prior to entering through the southern 
border and seeking asylum relief in the United States. 
The Rule also sets forth special procedures for how the mandatory bar applies in expedited 
removal proceedings.  In general, “if an alien is able to establish a credible fear of persecution but 
appears to be subject to one or more of the mandatory [statutory] bars to applying for, or being 
granted, asylum . . . [DHS] shall nonetheless place the alien in proceedings under [8 U.S.C. 
§ 1229a] for full consideration of the alien’s claim.”  8 C.F.R. § 208.30(e)(5)(i).  An alien subject 
to the Rule’s third country bar, however, is automatically determined to lack a credible fear of 
persecution.  Id. § 208.30(e)(5)(iii).  The asylum officer must then consider whether the alien 
demonstrates a reasonable fear of persecution or torture (as necessary to support a claim for 
withholding of removal or CAT protection).  Id.  The alien may then seek review from an IJ, on 
the expedited timeline described above, of the determination that the Rule’s mandatory bar applies 
and that the alien lacks a reasonable fear of persecution or torture.  Id. § 1208.30(g)(1)(ii). 
In promulgating the Rule, the agencies invoked their authority to establish conditions 
consistent with 8 U.S.C. § 1158.  84 Fed. Reg. at 33,834.  They also claimed exemption from the 
Administrative Procedure Act’s (“APA”) notice-and-comment requirements.  See 5 U.S.C. 
§ 553(b)-(d).  As grounds for an exemption, they invoked § 553(a)(1)’s “military or foreign affairs 
function” exemption and § 553(b)(B)’s “good cause” exemption.  84 Fed. Reg. at 33,840-42.  
They also invoked § 553(d)(3)’s “good cause” waiver of the thirty-day grace period that is usually 
required before a newly promulgated rule goes into effect.  Id. at 33,841.  The Court discusses the 
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proffered reasons for both the Rule and the waiver of § 553 requirements as relevant below. 
C. 
Procedural History 
Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central 
American Resource Center (the “Organizations”) filed this lawsuit on July 16, 2019, the day the 
Rule went into effect.  Complaint (“Compl.”), ECF No. 1.4  The Organizations filed a motion for 
temporary restraining order (“TRO”) the following day.  ECF No. 3.  The Court set a scheduling 
conference for the morning of July 18, 2019.  ECF No. 13, 15.5  At the conference, the 
government suggested that the parties proceed directly to a hearing on a preliminary injunction on 
the administrative record but represented that it would likely not be able to produce the record 
until July 23, 2019.  After considering the parties’ positions, the Court ordered the government to 
file its opposition to the TRO on July 19, 2019, and the Organizations to file a reply on July 21, 
2019.  ECF No. 18 at 1.  The Court further ordered the government to file the administrative 
record by July 23, 2019, stating that the Court “contemplates that the administrative record may be 
useful in subsequent proceedings but will not be the subject of argument at the July 24 hearing.”  
Id. at 1-2. 
The government filed the administrative record simultaneously with its opposition to the 
TRO on July 19, 2019, ECF No. 29, citing extensively to the record throughout its opposition, 
ECF No. 28.  The Court then issued a notice to the parties that it was considering converting the 
motion to a preliminary injunction, given that both sides would have an opportunity to address the 
administrative record in their papers.  ECF No. 30.  The Organizations’ reply did, in fact, address 
the record and the government’s citations to it.  ECF No. 31.  At the hearing, both parties agreed 
that it would be appropriate to convert the motion to a preliminary injunction.  The Court therefore 
does so.  See ECF No. 30. 
                                                 
4 The Organizations named as defendants a number of relevant agencies and agency officials.  The 
Court refers to them collectively as the government. 
 
5 After considering the parties’ briefing on an expedited basis, the Court granted the 
Organizations’ motion to relate this case to another action pending before this Court regarding a 
different asylum eligibility regulation.  E. Bay Sanctuary Covenant v. Trump, No. 18-cv-06810-
JST (N.D. Cal.), ECF Nos. 115, 117, 118. 
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The Organizations’ motion relies on the three claims advanced in their complaint.  First, 
they claim that the Rule is substantively invalid because it is inconsistent with the statutes 
governing asylum.  Compl. ¶¶ 137-143.  Second, they claim that the Rule is procedurally invalid 
because the agencies violated the APA’s notice-and-comment requirements, 5 U.S.C. § 553(b)-(d).  
Compl. ¶¶ 144-147.  Finally, they argue that the Rule is procedurally invalid because the agencies 
failed to articulate a reasoned explanation for their decision.  Id. ¶¶ 148-150.   
II. 
MOTION FOR PRELIMINARY INJUNCTION 
A. 
Legal Standard 
The Court applies a familiar four-factor test on a motion for a preliminary injunction.  See 
Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839-40 & n. 7 (9th Cir. 2001).  A 
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.”  Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 
559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 
(2008)).  Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear 
showing that the plaintiff is entitled to such relief.”  Winter, 555 U.S. at 22. 
To grant preliminary injunctive relief, a court must find that “a certain threshold showing 
[has been] made on each factor.”  Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per 
curiam).  Assuming that this threshold has been met, “‘serious questions going to the merits’ and a 
balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary 
injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and 
that the injunction is in the public interest.”  All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 
1135 (9th Cir. 2011).   
B. 
Likelihood of Success on the Merits 
1. 
Standing 
The government challenges the Organizations’ Article III and statutory standing, but only 
in a footnote.  ECF No. 28 at 16 n.1.  The government concedes that its positions are generally 
irreconcilable with the Ninth Circuit’s and this Court’s rulings in a prior case brought by the 
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Organizations, challenging a different regulation imposing a mandatory bar on asylum eligibility 
(the “illegal entry bar”).  Id.; see generally E. Bay Sanctuary Covenant v. Trump, No. 18-cv-
06810-JST (N.D. Cal.).  While the Court considers these arguments, it does so correspondingly 
briefly.  Cf. Holley v. Gilead Scis., Inc., 379 F. Supp. 3d 809, 834 (N.D. Cal. 2019) (“‘Arguments 
raised only in footnotes, or only on reply, are generally deemed waived’ and need not be 
considered.” (quoting Estate of Saunders v. Comm’r, 745 F.3d 953, 962 n.8 (9th Cir. 2014)).   
First, the Organizations have adequately demonstrated injury-in-fact to support Article III 
standing.  The Ninth Circuit has repeatedly recognized that “‘a diversion-of-resources injury is 
sufficient to establish organizational standing’ for purposes of Article III, if the organization 
shows that, independent of the litigation, the challenged ‘policy frustrates the organization’s goals 
and requires the organization to expend resources in representing clients they otherwise would 
spend in other ways.’”  E. Bay II, 909 F.3d at 1241 (first quoting Nat’l Council of La Raza v. 
Cegavske, 800 F.3d 1032, 1040 (9th Cir. 2015); then quoting Comite de Jornaleros de Redondo 
Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011) (en banc)).  As in East Bay II, 
the Organizations have “offered uncontradicted evidence that enforcement of the Rule has 
required, and will continue to require, a diversion of resources, independent of expenses for this 
litigation, from their other initiatives.”  Id. at 1242; see also ECF No. 3-2 ¶¶ 14-15, 17, 19; ECF 
No. 3-3 ¶¶ 12-17, 19; ECF No. 3-4 ¶¶ 16-19; ECF No. 3-5 ¶¶ 10-14.  The Ninth Circuit likewise 
recognized that the Organizations “can demonstrate organizational standing by showing that the 
Rule will cause them to lose a substantial amount of funding.”  E. Bay II, 909 F.3d at 1243.  For 
similar reasons, three of the four Organizations have shown that the majority of the clients they 
serve would be rendered “categorically ineligible for asylum,” and that they “would lose a 
significant amount of business and suffer a concomitant loss of funding” as a result.  Id.; see also 
ECF No. 3-2 ¶¶ 15-16, ECF No. 3-3 ¶ 18; ECF No. 3-5 ¶¶ 6-7.  
Second, the Organizations’ interests are “arguably within the zone of interests to be 
protected or regulated by the statute.”  Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians 
v. Patchak, 567 U.S. 209, 224 (2012) (quoting Ass’n of Data Processing Serv. Orgs., Inc. v. 
Camp, 397 U.S. 150, 153 (1970)).  Here, the Ninth Circuit has already determined that the 
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Organizations’ “interests fall within the zone of interests protected by the INA,” and these same 
“asylum provisions” in particular.  E. Bay II, 909 F.3d at 1244.6   
Accordingly, the Organizations have standing to prosecute this lawsuit.   
2. 
Substantive Validity: Chevron 
a. 
Legal Standard 
The Organizations challenge “the validity of the [Rule] under both Chevron and State 
Farm, which ‘provide for related but distinct standards for reviewing rules promulgated by 
administrative agencies.’”  Altera Corp. & Subsidiaries v. Comm’r of Internal Revenue, 926 F.3d 
1061, 1075 (9th Cir. 2019) (quoting Catskill Mountains Chapter of Trout Unlimited, Inc. v. Envtl. 
Prot. Agency, 846 F.3d 492, 521 (2d Cir. 2017)).  “State Farm review for arbitrariness focuses on 
the rationality of an agency’s decisionmaking process – i.e., ‘whether a rule is procedurally 
defective as a result of flaws in the agency’s decisionmaking process.’”  33 Charles Alan Wright, 
Charles H. Koch & Richard Murphy, Federal Practice and Procedure, § 8435 at 538 (2d ed. 
2018) (footnotes omitted) (quoting Catskill Mountains, 846 F.3d at 521).  By contrast, the 
Chevron analysis considers “whether the conclusion reached as a result of that process – an 
agency’s interpretation of a statutory provision it administers – is reasonable.”  Altera Corp., 926 
F.3d at 1075 (quoting Catskills Mountains, 846 F.3d at 521).  Thus, where a plaintiff alleges that, 
as a result of an erroneous legal interpretation, the agency’s action was “not in accordance with the 
law,” 5 U.S.C. § 706(2)(A), or “in excess of statutory jurisdiction, authority, or limitations, or 
short of statutory right,” id. § 706(2)(C), courts apply the Chevron framework.  See Nw. Envtl. 
                                                 
6 The government contends that the Ninth Circuit’s legal conclusion is flawed because it failed to 
consider the judicial review provisions of 8 U.S.C. §§ 1252 and 1329, which the government reads 
to require that “review may be sought only by the affected alien.”  ECF No. 28 at 16 n.1.  But the 
government did, in fact, argue to the Ninth Circuit that “the immigration statutes . . . presuppose 
that only aliens may challenge certain asylum-related decisions and limit when and where aliens 
may seek judicial review.”  E. Bay Sanctuary Covenant v. Trump, No. 18-17274 (9th Cir.), ECF 
No. 14 at 9 (citing 8 U.S.C. §§ 1225, 1252); see also Day v. Apoliona, 496 F.3d 1027, 1031 (9th 
Cir. 2007) (district courts are bound by circuit precedent); cf. Miller v. Gammie, 335 F.3d 889, 900 
(9th Cir. 2003) (en banc) (“As a general rule, the principle of stare decisis directs us to adhere not 
only to the holdings of our prior cases, but also to their explications of the governing rules of law.”  
(quoting County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 668 (1989) 
(Kennedy, J., concurring in part and dissenting in part))). 
 
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Advocates v. U.S. E.P.A., 537 F.3d 1006, 1014 (9th Cir. 2008) (citing Chevron, U.S.A., Inc. v. Nat. 
Res. Def. Council, Inc., 467 U.S. 837 (1984)).7 
Under Chevron, the Court first considers “whether Congress has directly spoken to the 
precise question at issue.  If the intent of Congress is clear, that is the end of the matter.”  Campos-
Hernandez v. Sessions, 889 F.3d 564, 568 (9th Cir. 2018) (quoting Chevron, 467 U.S. at 842).  
The Court “starts with the plain statutory text and, ‘when deciding whether the language is 
plain, . . . must read the words in their context and with a view to their place in the overall 
statutory scheme.’”  Altera Corp., 926 F.3d at 1075 (quoting King v. Burwell, 135 S. Ct. 2480, 
2489 (2015)).  Consideration of “the legislative history, the statutory structure, and ‘other 
traditional aids of statutory interpretation’” supplements this plain text analysis.  Id. (quoting 
Middlesex Cty. Sewerage Auth. v. Nat’l Sea Clammers Ass'n, 453 U.S. 1, 13 (1981)).  In recent 
years, the Supreme Court has cautioned that courts may not “engage[] in cursory analysis” of these 
statutory questions.  Pereira v. Sessions, 138 S. Ct. 2105, 2120 (2018) (Kennedy, J., concurring) 
(observing that “reflexive deference” to the agency under Chevron “suggests an abdication of the 
Judiciary’s proper role in interpreting federal statutes”).  Rather, as it emphasized in an analogous 
context, “only when that legal toolkit is empty and the interpretive question still has no single right 
answer can a judge conclude that it is ‘more [one] of policy than of law.’”  Kisor v. Wilkie, 139 S. 
Ct. 2400, 2415 (2019) (alteration in original) (quoting Pauley v. BethEnergy Mines, Inc., 501 U.S. 
680, 696 (1991)). 
If, after exhausting those tools, the Court concludes the rule or regulation is ambiguous, it 
turns to Chevron step two.  Id.  There, the Court determines whether the agency’s construction is 
“arbitrary, capricious, or manifestly contrary to the statute,” again taking into account “the 
statute’s text, structure and purpose.”  Altera Corp., 926 F.3d at 1075 (first quoting Chevron, 467 
U.S. at 843; then quoting Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007)).  “Thus, 
an agency interpretation that is ‘inconsisten[t] with the design and structure of the statute as a 
whole,’ does not merit deference.”  Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 321 (2014) 
                                                 
7 Despite the government’s failure to invoke Chevron deference, the Court nonetheless applies the 
governing standard.  See E. Bay II, 909 F.3d at 1247-48 (citing Chevron).  
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(alteration in original) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013)).  
Ultimately, the regulation “fails if it is ‘unmoored from the purposes and concerns’ of the 
underlying statutory regime.”  Altera Corp., 926 F.3d at 1076 (quoting Judulang v. Holder, 565 
U.S. 42, 64 (2011)); see also S.J. Amoroso Const. Co. v. United States, 981 F.2d 1073, 1075 (9th 
Cir. 1992) (“If a regulation is fundamentally at odds with the statute, it will not be upheld simply 
because it is technically consistent with the statute.”). 
b. 
Statutory Framework 
The Organizations argue that the Rule conflicts with the two statutory provisions that 
currently disqualify asylum applicants based on third countries: (1) the firm resettlement bar and 
(2) the safe third country bar.  These provisions reflect “[t]he core regulatory purpose of asylum,” 
which “is not to provide [applicants] with a broader choice of safe homelands, but rather, to 
protect [refugees] with nowhere else to turn.”  Matter of B-R-, 26 I. & N. Dec. 119, 122 (BIA 
2013) (quoting Tchitchui v. Holder, 657 F.3d 132, 137 (2d Cir. 2011)).  To determine whether the 
Rule is consistent with these statutory bars, the Court reviews their history in greater depth. 
i. 
Firm Resettlement Bar 
The concept of firm resettlement has a long history in U.S. immigration law.  It was first 
introduced in a 1948 statute, although the language was later dropped in 1957 legislation and 
subsequent acts.  Rosenberg v. Yee Chien Woo, 402 U.S. 49, 53 (1971).  Interpreting those later 
statutes, which limited asylum to those fleeing persecution, the Supreme Court concluded that they 
nonetheless required the government to take the “the ‘resettlement’ concept . . . into account to 
determine whether a refugee seeks asylum in this country as a consequence of his flight to avoid 
persecution.”  Id. at 56.  “[T]he correct legal standard,” the Rosenberg Court explained, was 
whether the applicant’s presence in the United States was “reasonably proximate to the flight and 
not . . . following a flight remote in point of time or interrupted by intervening residence in a third 
country reasonably constituting a termination of the original flight in search of refuge.”  Id. at 57. 
In 1980, Congress passed the Refugee Act “to bring the INA into conformity with the 
United States’s obligations under the Convention and Protocol.”  E. Bay II, 909 F.3d at 1233.  
Congress barred from asylum any alien “convicted of an aggravated felony,” 8 U.S.C. § 1158(d) 
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(1980), but did not impose other categorical restrictions.  The agency then charged with 
administering asylum, the Immigration and Naturalization Service (“INS”) adopted additional 
regulatory bars, including one that required INS district directors to deny asylum to an applicant 
who had “been firmly resettled in a foreign country.”  8 C.F.R. § 208.8(f)(1)(ii) (1981).  The 
regulations went on to define “firm resettlement” in greater detail.8  In addition, those regulations 
imposed a discretionary bar, providing that a district director could deny asylum if “there is an 
outstanding offer of resettlement by a third nation where the applicant will not be subject to 
persecution and the applicant’s resettlement in a third nation is in the public interest.”  Id. 
§ 208.8(f)(2).   
 
Because this regulatory bar applied only to district directors, the BIA subsequently 
concluded that it did “not prohibit an immigration judge or the Board from granting asylum to an 
alien deemed to have been firmly resettled.”  Matter of Soleimani, 20 I. & N. Dec. 99, 104 (BIA 
1989).  Instead, it explained, “firm resettlement is a factor to be evaluated in determining whether 
asylum should be granted as a matter of discretion under the standards set forth in Matter of Pula, 
19 I & N Dec. 467 (BIA 1987).”  Matter of Soleimani, 20 I. & N. Dec. at 103.  In Matter of Pula, 
the BIA had rejected a rule that accorded illegal entry so much weight that its “practical effect 
                                                 
8 Specifically, the Attorney General defined an alien as “firmly resettled” if: 
 
[H]e 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, unless 
the refugee establishes . . . that the conditions of his residence in that 
nation were so substantially and consciously restricted by the 
authority of the country of asylum/refuge that he was not in fact 
resettled. 
 
8 C.F.R. § 208.14 (1980).  Officers making the firm resettlement determination were instructed to  
 
[C]onsider, in light of 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, education, 
public relief, or naturalization) available to others resident in the 
country. 
 
Id. 
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[was] to deny relief in virtually all cases,” instructing instead that “the totality of the circumstances 
and actions of an alien in his flight from the country where he fears persecution should be 
examined in determining whether a favorable exercise of discretion is warranted.”  19 I. & N. Dec. 
at 473.  And although the BIA included as relevant factors “whether the alien passed through any 
other countries or arrived in the United States directly from his country, whether orderly refugee 
procedures were in fact available to help him in any country he passed through, and whether he 
made any attempts to seek asylum before coming to the United States,” 19 I. & N. Dec. at 473-74, 
those factors were not given dispositive weight, and they were to be considered among a host of 
other relevant factors in their totality:   
 
In addition, the length of time the alien remained in a third country, 
and his living conditions, safety, and potential for long-term 
residency there are also relevant.  For example, an alien who is 
forced to remain in hiding to elude persecutors, or who faces 
imminent deportation back to the country where he fears 
persecution, may not have found a safe haven even though he has 
escaped to another country.  Further, whether the alien has relatives 
legally in the United States or other personal ties to this country 
which motivated him to seek asylum here rather than elsewhere is 
another factor to consider.  In this regard, the extent of the alien’s 
ties to any other countries where he does not fear persecution should 
also be examined.  
Id.  
 
In 1990, the Attorney General expanded the mandatory firm resettlement bar to include IJ 
asylum determinations, thereby superseding Matter of Soleimani.  See 8 C.F.R. § 208.14(c)(2) 
(1990).  The 1990 regulations also amended the firm resettlement definition to permit an applicant 
to rebut a showing of a firm offer by establishing “[t]hat his entry into that nation was a necessary 
consequence of his flight from persecution, that he remained in that nation only as long as was 
necessary to arrange onward travel, and that he did not establish significant ties in that nation.”  Id. 
§ 208.15(a).  The Ninth Circuit subsequently upheld this regulatory bar as “a permissible 
construction of the statute,” noting that “[f]irm resettlement has long been a decisive factor in 
asylum policy,” and that “[e]ven before the regulation was promulgated in 1990, firm resettlement 
seems to have precluded a grant of asylum in practice.”  Yang v. I.N.S., 79 F.3d 932, 939 (9th Cir. 
1996).  Moreover, it reasoned, “[b]ecause firmly resettled aliens are by definition no longer 
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subject to persecution, the regulation create[d] no conflict with” the Refugee Act.  Id.
 
Congress revisited the issue of firm resettlement in 1996, when it enacted IIRIRA.  In 
IIRIRA, Congress codified the firm resettlement bar, providing that asylum was unavailable to an 
alien who “was firmly resettled in another country prior to arriving in the United States.”  8 U.S.C. 
§ 1158(b)(2)(A)(vi).   
 
Following IIRIRA, the Attorney General issued interim implementing regulations.  In 
addition to tracking the mandatory firm resettlement bar, 8 C.F.R. §§ 208.13(c)(2)(B), 208.15 
(1997), the regulations also included a provision for discretionary denials “if the alien can be 
removed to a third country which has offered resettlement and in which the alien would not face 
harm or persecution,” id. § 208.13(d).  In subsequent cases, the Ninth Circuit concluded that these 
regulations had replaced the factors cited in Matter of Pula as a basis for discretionary denial of 
asylum.  See Mamouzian v. Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004) (“Stays in third 
countries are now governed by 8 C.F.R. § 208.15, which specifies how and when an opportunity 
to reside in a third country justifies a denial of asylum.”); Andriasian v. I.N.S., 180 F.3d 1033, 
1044 (9th Cir. 1999) (“The amended regulations now specify how and when an opportunity to stay 
in a third country justifies a mandatory or discretionary denial of asylum by an IJ or the BIA.”).  In 
Andriasian, the Ninth Circuit elaborated on its rationale, explaining that a contrary reading would 
defeat the regulations’ “purpose . . . to ensure that if this country denies a refugee asylum, the 
refugee will not be forced to return to a land where he would once again become a victim of harm 
or persecution.”  180 F.3d at 1046-47.  “[T]he discretionary authority to deny asylum when a 
refugee has spent a brief period of time in a third country but has no opportunity to return there or, 
if he does, would be subject to further serious harm, would permit just such a result and would 
totally undermine the humanitarian policy underlying the regulation.”  Id. at 1047.  Thus, “[t]hat a 
refugee has spent some period of time elsewhere before seeking asylum in this country is relevant 
only if he can return to that other country.  Otherwise, that fact can in no way, consistent with the 
statute and the regulations, warrant denial of asylum.”  Id. at 1047. 
 
In 2000, the Attorney General finalized the regulations implementing IIRIRA.  During the 
rulemaking process, the government received comments expressing concern that the discretionary 
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denial regulation was inconsistent with the statutory safe third country bar.  Asylum Procedures, 
65 Fed. Reg. 76,121-01, 76,126 (Dec. 6, 2000).  Although the government maintained that the 
regulation was a proper exercise of the Attorney General’s authority pursuant to 8 U.S.C. 
§ 1158(b)(2)(C), it nonetheless “decided to remove it from the regulations to avoid confusion.”  
Id.; cf. 8 C.F.R. § 208.13 (2001).  Consistent with the Ninth Circuit’s recognition that these 
regulations created a unified scheme “specif[ying] how and when an opportunity to reside in a 
third country justifies a denial of asylum,” Mamouzian, 390 F.3d at 1138, some courts have since 
held that a “stay in a third country before arriving in the United States cannot support a denial of 
[an] asylum claim” where the IJ finds that applicant “was not firmly resettled,” Tandia v. 
Gonzales, 437 F.3d 245, 249 (2d Cir. 2006) (per curiam) (emphasis omitted); see also Prus v. 
Mukasey, 289 F. App’x 973, 976 (9th Cir. 2008); cf. Shantu v. Lynch, 654 F. App’x 608, 617 (4th 
Cir. 2016) (noting the Tandia court’s decision and inviting the BIA to consider on remand whether 
a finding that a third country provides a “‘safe haven’ remains a factor that may properly be 
considered in a discretionary asylum determination”).9   
Under the current statutory scheme, “[d]etermining whether the firm resettlement rule 
applies involves a two-step process:  First, the government presents ‘evidence of an offer of some 
type of permanent resettlement,’ and then, second, ‘the burden shifts to the applicant to show that 
the nature of his [or her] stay and ties was too tenuous, or the conditions of his [or her] residence 
too restricted, for him [or her] to be firmly resettled.’”  Arrey v. Barr, 916 F.3d 1149, 1159 (9th 
Cir. 2019) (alterations in original) (quoting Maharaj v. Gonzales, 450 F.3d 961, 976-77 (9th Cir. 
2006) (en banc)); see also 8 C.F.R. § 208.15.  Further, because “firmly resettled aliens are by 
definition no longer subject to persecution,” an applicant may provide evidence of persecution in 
the third country to “rebut the finding of firm resettlement” there.  Arrey, 916 F.3d at 1159-60 
(first quoting Yang, 79 F.3d at 939). 
ii. 
Safe Third Country Bar 
Though a more recent innovation, the safe third country bar also provides guidance 
                                                 
9 Pursuant to Fourth Circuit Rule 36 and Ninth Circuit Rule 36-3, Shantu and Prus are not binding 
precedent.  The Court nonetheless relies on them as persuasive authority. 
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regarding the statutory scheme that Congress enacted. 
Shortly prior to IIRIRA, the Attorney general promulgated a regulation providing for 
discretionary denials of asylum where “the alien can and will be deported or returned to a country 
through which the alien traveled en route to the United States and in which the alien would not 
face harm or persecution and would have access to a full and fair procedure for determining his or 
her asylum claim in accordance with a bilateral or multilateral arrangement with the United States 
governing such matter.”  8 C.F.R. § 208.14(e) (1995).  At that time, no such agreement existed. 
 
Congress then codified that bar as part of IIRIRA, converting it into a mandatory bar that 
disqualified aliens from applying for asylum if: 
 
[T]he Attorney General 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. 
8 U.S.C. § 1158(a)(2)(A).  Congress further provided that the bar would not apply to 
“unaccompanied alien child[ren].”  Id. § 1158(a)(2)(E). 
To date, the United States has entered into only one such agreement, with Canada.  
Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third 
Countries, Can.-U.S., Dec. 5, 2002 (“Canada Third Country Agreement”).  The agreement 
generally provides that, between the two nations, the country through which the alien transited 
(i.e., “the country of last presence”) will adjudicate the alien’s claim for refugee status.  Id., art. 
IV, ¶ 1.  However, the agreement contains exceptions where the “receiving country” will 
adjudicate the claim, including where the applicant has at least one family member with refugee or 
other lawful status or a family member who is at least 18 years old and has a pending refugee 
claim.  Id., art. IV, ¶ 2.  Notwithstanding that allocation of adjudicatory responsibility, each 
country reserved the right to examine any claim at its own discretion if it would serve its public 
interest to do so.  Id., art. VI. 
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Discussion 
The government represents that, like the firm resettlement and safe third country bars, the 
Rule provides a means of separating asylum applicants who truly have “nowhere else to turn” to 
avoid persecution, 84 Fed. Reg. at 33,834 (quoting Matter of B-R-, 26 I. & N. Dec. at 122), from 
“economic migrants seeking to exploit our overburdened immigration system,” id. at 33,839; see 
also ECF No. 28 at 17 (“[T]he Department heads determined . . . that aliens who fail to apply for 
protection in at least one third country through which they transited should not be granted the 
discretionary benefit of asylum, because they are not refugees with nowhere else to turn.”).   
The Organizations first contend that “Congress spoke directly to the issue of seeking 
asylum in another country and created two narrow circumstances where asylum can be denied 
based on a third country.”  ECF No. 3-1 at 14.  Implicit in this argument is that the Rule fails at 
Chevron step one because Congress has articulated the only permissible mandatory bars in this 
area.  See Chevron, 467 U.S. at 842.10  The Organizations’ position has some force.  As noted 
above, some courts, including the Ninth Circuit, have treated the regulations based on the firm 
resettlement bar as establishing the only circumstances under which “an opportunity to stay in a 
third country justifies a mandatory or discretionary denial of asylum by an IJ or the BIA.”  
Andriasian, 180 F.3d at 1044; see also Prus, 289 F. App’x at 97; Tandia, 437 F.3d at 249; 
Mamouzian, 390 F.3d at 1138.  But as the Organizations acknowledged at the hearing, the Court 
need not decide that question today.   
Even assuming that the statute does not prohibit the government from adopting additional 
mandatory bars based on an applicant’s relationship with a third country, any such bar must be 
consistent “with the design and structure of the statute as a whole” to survive Chevron step two.  
Util. Air Regulatory Grp., 573 U.S. at 321 (citation omitted).  The Rule fails this test in at least 
two respects. 
                                                 
10 At the outset, the Court rejects the government’s reliance on Lopez v. Davis, 531 U.S. 230, 243-
44 (2001), and R-S-C- v. Sessions, 869 F.3d 1176, 1187 n.9 (10th Cir. 2017).  Those cases stand 
for the undisputed principle that the agencies have the authority to adopt additional categorical 
limitations, but do not shed light on the specific statutory conflicts and arbitrariness arguments 
raised in this case.  See E. Bay II, 909 F.3d at 1248 n.13. 
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First, as the government emphasizes, the two statutory bars “limit an alien’s ability to 
claim asylum in the United States when other safe options are available.”  Matter of B-R-, 26 I. & 
N. Dec. at 122.  But in keeping with that purpose, both provisions incorporate requirements to 
ensure that the third country in question actually is a “safe option[].”  Id.  The safe third country 
bar requires a third country’s formal agreement to accept refugees and process their claims 
pursuant to safeguards negotiated with the United States.  8 U.S.C. § 1158(a)(2)(A).  As part of 
that process, the United States must determine that (1) “the alien’s life or freedom would not be 
threatened on account of [a protected characteristic]” if removed to that third country and (2) “the 
alien would have access to a full and fair procedure for determining a claim to asylum or 
equivalent temporary protection” there.  Id.   
Similarly, in enacting the firm resettlement bar, Congress left in place the pre-existing 
regulatory definition, under which the government must make individualized determinations that 
the applicant received “an offer of some type of permanent resettlement” in a country where the 
applicant’s “stay and ties [were not] too tenuous, or the conditions of his [or her] residence too 
restricted, for him [or her] to be firmly resettled.”  Arrey, 916 F.3d at 1159 (alterations in original) 
(quoting Maharaj, 450 F3d at 976).  As the Ninth Circuit has recognized, the purpose of these 
requirements “is to ensure that if this country denies a refugee asylum, the refugee will not be 
forced to return to a land where he would once again become a victim of harm or persecution.”  
Andriasian, 180 F.3d at 1046-47; see also Yang, 79 F.3d at 939 (“[F]irmly resettled aliens are by 
definition no longer subject to persecution . . . .”).   
By contrast, the Rule does virtually nothing to ensure that a third country is a “safe 
option.”  The Rule requires only that the third country be a party to the 1951 Convention, the 1967 
Protocol, or the CAT.  8 C.F.R. § 208.13(c)(4)(iii).  While the firm resettlement bar requires a 
determination regarding each alien’s individual circumstances, and the safe third country bar 
requires a formalized determination as to the individual country under consideration, the Rule 
ignores an applicant’s individual circumstances and categorically deems most of the world a “safe 
option” without considering – or, as set forth below, in contravention of – the evidence in its own 
record.  See AR 560-62, 581-83, 588.  For example, the administrative record demonstrates 
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abundantly why Mexico is not a safe option for many refugees, despite its party status to all three 
agreements.  AR 561, 582, 588.11  In short, Congress requires consideration of an applicant’s 
circumstances and those of the third country; the Rule turns its back on those requirements.  On its 
face, this approach fundamentally conflicts with the one Congress took in enacting mandatory bars 
based on a safe option to resettle or pursue other relief in a third country. 
The government’s contrary arguments are not persuasive.  First, the government contends 
that there is no conflict with the firm resettlement bar because that bar concerns aliens who have 
already received an offer of permanent resettlement, while the Rule disqualifies “those who could 
have applied (but did not apply) for protection in a third country.”  ECF No. 28 at 18.  The 
government similarly asserts that the Rule need not resemble the safe third country bar because 
that bar, as implemented by the United States’ sole safe third country agreement, (1) requires 
consideration of withholding of removal in Canada and (2) allows an alien to seek relief in the 
United States if Canada denies the asylum claim.  Id. at 21; see also 8 C.F.R. § 208.30(e)(6). 
The government’s focus on the type of conduct that is subject to each bar, or any 
difference in consequences that flow from its application, is misplaced.  ECF No. 28 at 18, 21-22.  
If a country is not a safe option, there is no reason to infer that an alien’s failure to seek protection 
there undermines her claim.  For purposes of the particular question of safety, it makes no 
difference whether the safe option is one that the alien had or has (in the case of the firm 
resettlement bar), will have (in the case of the safe third country bar) or forewent (in the case of 
the Rule).   
 
In sum, when Congress barred asylum to an applicant with an alternative safe option in 
another country, it required “reasonable assurance that he will not suffer further harm or 
persecution there,” Andriasian, 180 F.3d at 1046, in keeping with the long-held understanding that 
these bars apply to those who have somewhere else to turn, see Matter of B-R-, 26 I. & N. Dec. at 
122.  The Rule’s sweeping approach makes no attempt to accommodate this concern, and so is 
                                                 
11 The Organizations suggest examples of other countries that might support the same conclusion, 
but do not seek to expand the administrative record to include the relevant information.  ECF No. 
3-1 at 18.  The Court therefore does not rely on those arguments. 
 
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antithetical to the statute’s structure and “unmoored from the purposes and concerns of the 
underlying statutory regime.”  Altera Corp., 926 F.3d at 1076 (quoting Judulang, 565 U.S. at 64). 
 
Second, the Rule is based on an unrebuttable categorical inference that is arbitrary and 
capricious.  The Rule’s major premise is that “[a]n alien’s decision not to apply for protection at 
the first available opportunity, and instead wait for the more preferred destination of the United 
States” is sufficiently probative that the alien should be denied asylum.  84 Fed. Reg. at 33,839.   
The Ninth Circuit has rejected this assumption as unreasonable as applied to an individual 
on multiple occasions, consistent with the general principle that “[a] valid asylum claim is not 
undermined by the fact that the applicant had additional reasons (beyond escaping persecution) for 
coming to or remaining in the United States, including seeking economic opportunity.”  Dai v. 
Sessions, 884 F.3d 858, 873 (9th Cir. 2018) (citing Li v. Holder, 559 F.3d 1096, 1105 (9th Cir. 
2009)).  In Melkonian v. Ashcroft, for instance, the IJ found the applicant ineligible for asylum 
“because he came to the United States in order to better himself and his family economically, 
when he could have remained in Russia without facing persecution.”  320 F.3d 1061, 1067 (9th 
Cir. 2003).  The Ninth Circuit deemed this reasoning erroneous as a matter of law, stressing “that 
a refugee need not seek asylum in the first place where he arrives.”  Id. at 1071.  Rather, the Ninth 
Circuit 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] and that offers more 
promising economic opportunities.’”  Id. (alteration in original) (quoting Damaize-Job v. I.N.S., 
787 F.2d 1332, 1337 (9th Cir. 1986)).  The court has similarly rejected the Rule’s theory as a basis 
for finding claims of persecution not credible.  See Damaize-Job, 787 F.2d at 1337 (“[The 
applicant’s] failure to apply for asylum in any of the countries through which he passed or in 
which he worked prior to his arrival in the United States does not provide a valid basis for 
questioning the credibility of his persecution claims.”); Garcia-Ramos v. I.N.S., 775 F.2d 1370, 
1374-75 (9th Cir. 1985) (“We do not find it inconsistent with a claimed fear of persecution that a 
refugee, after he flees his homeland, goes to the country where he believes his opportunities will 
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be best.  Nor need fear of persecution be an alien’s only motivation for fleeing.”).12  If this 
inference is unreasonable as applied to one asylum applicant, it is manifestly more so when 
applied to all such applicants.   
Moreover, the government cites nothing in the administrative record to support the 
inference.13  Instead, the government relies on a series of cases of which none supports its 
position, placing its greatest weight on the BIA’s discussion of third country transit in Matter of 
Pula, 19 I. & N. at 473-74.  See 84 Fed. Reg. at 33,839 n.8; ECF No. 28 at 17.  The government 
notes that Matter of Pula includes as adverse factors supporting denial of asylum “whether the 
alien passed through other countries or arrived in the United States directly from his country, 
whether orderly refugee procedures were in fact available to help him in any country he passed 
through, and whether he made any attempts to seek asylum before coming to the United States.”  
Id.   
As an initial matter, the Court again notes that courts have concluded that Matter of Pula 
was superseded by the mandatory firm resettlement bar on this point.  See, e.g., Andriasian, 180 
F.3d at 1044.  Moreover, Matter of Pula’s nuanced discussion only highlights the ways in which 
the Rule fails to account for other factors influencing whether the failure to seek official protection 
in a third country is probative as to “the validity and urgency of the alien’s claim.”  84 Fed. Reg. at 
33,839.  There, the BIA instructed that adjudicators should consider “the length of time the alien 
remained in a third country, and his living conditions, safety, and potential for long-term 
residency,” as well as “whether the alien has relatives legally in the United States or other personal 
ties to this country which motivated him to seek asylum here rather than elsewhere.  Matter of 
Pula, 19 I. & N. Dec. at 473-74.  The BIA further emphasized that “an alien who is forced to 
                                                 
12 The Rule notes a different category of cases where the lack of economic opportunity in one’s 
home country is asserted as the persecution suffered.  84 Fed. Reg. at 33,839 n.9.  In that instance, 
the applicant must show that she suffered “‘substantial economic disadvantage’ that interferes with 
the applicant’s livelihood” on account of a protected ground.  He v. Holder, 749 F.3d 792, 796 
(9th Cir. 2014) (citation omitted).   
 
13 At the hearing, the government suggested that the holdings of these Ninth Circuit cases were 
factual conclusions that the agencies were free to subsequently overrule.  Without reaching the 
legal merits of this argument, the Court notes that the agencies have cited no facts in support of 
their conclusion, but only prior agency precedent, which the Court discusses below. 
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remain in hiding to elude persecutors, or who faces imminent deportation back to the country 
where he fears persecution, may not have found a safe haven even though he has escaped to 
another country.”  Id. at 474.  Read fairly and completely, Matter of Pula does not support the 
rationale for the Rule’s categorical bar.   
The government also cites Kalubi v. Ashcroft, 364 F.3d 1134 (9th Cir. 2004), but Kalubi is 
not on point.  There, the Ninth Circuit suggested in dicta that “[i]n an appropriate case, ‘forum 
shopping’ might conceivably be part of the totality of circumstances that sheds light on a request 
for asylum in this country.”  Id. at 1140 (emphasis added).  Because that dicta simply restates the 
Matter of Pula analysis, it provides no additional justification for a categorical bar.   
Tellingly, the government does not cite a single case where third country transit, short of 
firm resettlement, played a substantial role in denying asylum.  Cf. Matter of Pula, 19 I. & N. Dec. 
at 475 (granting asylum and noting that it did “not appear that [the applicant] was entitled to 
remain permanently in either [third] country” and reasonably “decided to seek asylum in the 
United States because he had many relatives legally in the United States to whom he could turn for 
assistance”).  The government’s lone citation related to the safe third country bar further 
underscores the arbitrary and capricious nature of the Rule’s failure to account for alternative 
explanations for failing to apply elsewhere.  In United States v. Malenge, the Second Circuit noted 
that a criminal defendant’s asylum claim would normally have been barred by the Canada Third 
Country Agreement.  294 F. App’x 642, 644-45 (2d Cir. 2008).  But, “[u]nder an exception 
created by Article 4 of the Agreement, [the defendant] was entitled to pursue asylum in the United 
States at the time of her arrival, because her husband was already living here as a refugee with a 
pending asylum claim.”  Id. at 645. 
Finally, as discussed in greater detail below, the administrative record evidence regarding 
conditions in Mexico abundantly demonstrates alternative reasons why aliens might not seek 
protection while transiting through third countries. 
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of their claim that the Rule is substantively invalid.14   
3. 
Notice-and-Comment Requirements 
The Court next turns to the Organizations’ notice-and-comment claims. 
a. 
Legal Standard 
The APA requires agencies to publish notice of proposed rules in the Federal Register and 
then allow “interested persons an opportunity to participate in the rule making through submission 
of written data, views, or arguments with or without opportunity for oral presentation.”  5 U.S.C. 
§ 553(c).  “These procedures are ‘designed to assure due deliberation’ of agency regulations and 
‘foster the fairness and deliberation that should underlie a pronouncement of such force.’”  E. Bay 
II, 909 F.3d at 1251 (quoting United States v. Mead Corp., 533 U.S. 218, 230 (2001)); see also 
Batterton v. Marshall, 648 F.2d 694, 703 (D.C. Cir. 1980) (“The essential purpose of according 
[§] 553 notice and comment opportunities is to reintroduce public participation and fairness to 
affected parties after governmental authority has been delegated to unrepresentative agencies.”).  
Accordingly, agencies may not treat § 553 as an empty formality.  Rather, “[a]n agency must 
consider and respond to significant comments received during the period for public comment.”  
Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015).  It is therefore “antithetical to the 
structure and purpose of the APA for an agency to implement a rule first, and then seek comment 
later.”  United States v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010) (citation omitted). 
These purposes apply with particular force in important cases.  As Judge Posner has stated, 
“[t]he greater the public interest in a rule, the greater reason to allow the public to participate in its 
formation.”  Hoctor v. U.S. Dep’t of Agric., 82 F.3d 165, 171 (7th Cir. 1996). 
Nonetheless, the APA contains some limited exceptions to the notice-and-comment 
requirements.  First, the APA provides that notice-and-comment procedures do not apply to 
regulations involving “a military or foreign affairs function of the United States.” 5 U.S.C. 
                                                 
14 At the hearing, the government argued for the first time that the Court should deny a 
preliminary injunction if it found the Rule consistent with the statute but inadequately explained 
by the agency, because the government would ultimately seek the equitable remedy of remand 
without vacatur at the final relief stage.  See All. for the Wild Rockies v. U.S. Forest Serv., 907 
F.3d 1105, 1121 (9th Cir. 2018).  Because the Court concludes that the Rule is likely substantively 
invalid, it does not reach this argument, which the parties did not brief. 
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§ 553(a)(1).  In addition, an agency need not comply with notice and comment when it “for good 
cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules 
issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the 
public interest.”  Id. § 553(b)(B).  Section 553(d) also provides that a promulgated final rule shall 
not go into effect for at least thirty days.  Independently of this good-cause exception to notice and 
comment, an agency may also waive this grace period “for good cause found and published with 
the rule.”  Id. § 553(d)(3).  
b. 
Foreign Affairs 
The Court first considers whether the Rule involves a “foreign affairs function of the 
United States.”  To invoke this exception, the government must show that “ordinary application of 
‘the public rulemaking provisions [will] provoke definitely undesirable international 
consequences.’”  E. Bay II, 909 F.3d at 1252 (second alteration in original) (quoting Yassini v. 
Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980).  This standard may be met “where the 
international consequence is obvious or the Government has explained the need for immediate 
implementation of a final rule.”  Id.  The Ninth Circuit has explained that this showing is required 
because “[t]he foreign affairs exception would become distended if applied to [an immigration 
enforcement agency’s] actions generally, even though immigration matters typically implicate 
foreign affairs.”  Id. (alterations in original) (quoting Yassini, 618 F.2d at 1360 n.4).15   
The Court rejects the government’s suggestions that the exception is met simply because 
the Rule involves illegal immigration at the southern border or would facilitate ongoing 
negotiations regarding that general issue.  ECF No. 28 at 26 (citing 84 Fed. Reg. at 33,841-42).  
These are the same preamble justifications that the Ninth Circuit found insufficient in East Bay II.  
Cf. Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for 
                                                 
15 As a threshold matter, the government disputes whether the APA requires a showing of 
undesirable international consequences.  ECF No. 28 at 28.  This argument is foreclosed by the 
Ninth Circuit’s clear guidance.  See East Bay II, 909 F.3d at 1252-53 (explaining that “courts have 
approved the Government’s use of the foreign affairs exception where the international 
consequence is obvious or the Government has explained the need for immediate implementation 
of a final rule” and concluding that the challenged rule’s explanation was insufficient); see also E. 
Bay III, 354 F. Supp. 3d at 1113-14. 
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Protection Claims, 83 Fed. Reg. 55,934, 55,950 (Nov. 9, 2018) (“The flow of aliens across the 
southern border, unlawfully or without appropriate travel documents, directly implicates the 
foreign policy interests of the United States. . . .  Moreover, this rule would be an integral part of 
ongoing negotiations with Mexico and Northern Triangle countries . . . .”).  Relatedly, pointing to 
negotiations regarding a different policy does not suffice.  Cf. id. at 55,951 (“Furthermore, the 
United States and Mexico have been engaged in ongoing discussions of a safe-third-country 
agreement, and this rule will strengthen the ability of the United States to address the crisis at the 
southern border and therefore facilitate the likelihood of success in future negotiations.”).  The 
government must articulate some connection between the Rule and these various initatives.  E. 
Bay II, 909 F.3d at 1252.  It does not.   
The government also repeats its argument that the Rule is “linked intimately with the 
Government’s overall political agenda concerning relations with another country.”  ECF No. 28 at 
27 (quoting Am. Ass’n of Exporters & Importers-Textile & Apparel Grp. v. United States, 751 
F.2d 1239, 1249 (Fed. Cir. 1985)); see also E. Bay I, 349 F. Supp. 3d at 861 (same).  As the Court 
previously explained, the fact that a rule is “part of the President’s larger coordinated effort in the 
realm of immigration” is not sufficient to justify the foreign affairs exception.  E. Bay I, 349 F. 
Supp. 3d at 861.  The Ninth Circuit then confirmed that the government must “explain[] how 
immediate publication of the Rule, instead of announcement of a proposed rule followed by a 
thirty-day period of notice and comment, is necessary for negotiations with Mexico.”  E. Bay II, 
909 F.3d at 1252 (emphasis in original).  The government does nothing to meet this burden.  Nor 
is the government’s citation to Rajah v. Mukasey much help, given that the present case involves 
neither “sensitive foreign intelligence,” the government’s “ability to collect intelligence,” or “a 
public debate over why some citizens of particular countries [are] a potential danger to our 
security.”16  544 F.3d 427, 437 (2d Cir. 2008). 
Next, after resisting the need to make the showing, the government asserts that the record 
                                                 
16 The government’s contention that immediate publication is necessary to address illegal 
immigration levels, ECF No. 28 at 28, is more properly addressed in the context of good cause, 
which the Court addresses below.   
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nonetheless demonstrates that “definitively undesirable international consequences” would result 
from following the APA’s procedures.   E. Bay II, 909 F.3d at 1252 (quoting Yassini, 618 F.2d at 
1360 n.4); see also ECF No. 28 at 28.  The Rule asserts for instance, that “[d]uring a notice-and-
comment process, public participation and comments may impact and potentially harm the 
goodwill between the United States and Mexico and the Northern Triangle countries.”  84 Fed. 
Reg. at 33,842.  This assertion obviously cannot support the agencies’ decision to forego notice 
and comment, because the Rule actually invites public comment for the next 30 days.  Id. at 
33,830.  And even if the agencies’ actions did not entirely contradict their words, crediting that 
unexplained speculation would expand the exception to swallow the rule.  To the extent the 
government anticipates that negative comments regarding those other countries will emerge during 
the comment process, the same could be said any time the government enacts a rule touching on 
international relations or immigration.  As the Ninth Circuit noted, courts have construed the 
foreign affairs exception narrowly in this context so that it does not “eliminate[] public 
participation in this entire area of administrative law.”  E. Bay II, 909 F.3d at 1252 (quoting City 
of New York v. Permanent Mission of India to United Nations, 618 F.3d 172, 202 (2d Cir. 2010)). 
Finally, the government’s unexplained string citations do not show any consequences 
attributable to the notice-and-comment process, as they largely pertain to the issues discussed 
above, such as implementation of the Migrant Protocol Policy or the general fact of ongoing 
negotiations on migration issues.  See, e.g., AR 46-50, 537-57, 635-37. 
The Court therefore concludes that the Organizations raised serious questions regarding the 
government’s invocation of the foreign affairs exception.   
c. 
Good Cause 
An agency “must overcome a high bar if it seeks to invoke the good cause exception to 
bypass the notice and comment requirement.”  Valverde, 628 F.3d at 1164.  In other words, the 
exception applies “only in those narrow circumstances in which ‘delay would do real harm.’”  Id. 
at 1165 (quoting Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982)).  Courts must 
conduct this analysis on a “case-by-case [basis], sensitive to the totality of the factors at play.”  Id. 
at 1164 (quoting Alcaraz v. Block, 746 F.2d 593, 612 (9th Cir. 1984)).  “[T]he good cause 
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exception should be interpreted narrowly, so that the exception will not swallow the rule.”  
Buschmann, 676 F.2d at 357 (citation omitted). 
As in the first East Bay case, the government asserts that good cause exists to dispense 
with notice-and-comment and the 30-day grace period because the announcement of the rule 
before its enactment would encourage a “surge in migrants.”  84 Fed. Reg. at 33,841.  There, the 
Court found that an October 2018 newspaper article provided a slender but sufficient reed for the 
agencies to infer that “smugglers might similarly communicate” the rule’s unfavorable terms to 
potential asylum seekers.  E. Bay III, 354 F. Supp. 3d at 1115.  Once again, the government asks 
the Court to reach the same conclusion.  Indeed, the Court’s prior East Bay decision and its 
reliance on the October 2018 article are the only relevant authority cited in the body of the Rule’s 
good cause explanation.  See 84 Fed. Reg. at 33,841.17 
Although the government includes that same article in this administrative record, AR 438, 
the Court is hesitant to give it as much weight as the government requests.  A single, progressively 
more stale article cannot excuse notice-and-comment for every immigration-related regulation ad 
infinitum.18  Otherwise, as the Organizations point out, every immigration regulation imposing 
more stringent requirements would pass the good cause threshold – a result that would violate the 
Ninth Circuit’s instruction that “the good cause exception should be interpreted narrowly, so that 
the exception will not swallow the rule.”  Buschmann, 676 F.2d at 357. 
The Court’s reluctance is further reinforced by the government’s failure to produce more 
robust evidence.  Why is there no objective evidence to link a similar announcement and a spike in 
border crossings or claims for relief?  Seemingly aware of the need to provide such evidence, the 
government cites to a newspaper documenting “a huge spike in unauthorized migration” in the 
“past several months” preceding June 2019, AR 676, but does not connect it to any “public 
                                                 
17 Although the Rule cites past instances where the agencies invoked good cause for immigration 
rules, 84 Fed. Reg. at 33,841, these “prior invocations of good cause to justify different [rules] 
– the legality of which are not challenged here – have no relevance.”  California v. Azar, 911 F.3d 
558, 575-76 (9th Cir. 2018). 
 
18 As the government acknowledged at today’s hearing, “We don’t need to rest on one article and 
have [it] frozen in time.”   
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announcement[] . . . regarding changes in our immigration laws and procedures,” 84 Fed. Reg. at 
33,841.  The government also cites two articles reporting that Mexico experienced an influx of 
migrants when it implemented a humanitarian visa program.  AR 663-65, 683.  While these do 
provide some additional support for the government’s theory, the government makes no effort to 
address the similarities and differences between the two situations.  Accordingly, the 
government’s citation is reduced to a generic rule that immigration-related regulations can never 
be the subject of notice-and-comment – which, for the reasons just given, is untenable.19     
The Court therefore concludes that the Organizations have raised serious questions 
regarding the government’s invocation of good cause. 
4. 
Arbitrary and Capricious: State Farm 
Finally, the Court addresses the Organizations’ claim that the agencies’ explanation for the 
Rule itself is inadequate. 
a. 
Legal Standard 
“Under State Farm, the touchstone of ‘arbitrary and capricious’ review under the APA is 
‘reasoned decisionmaking.’”  Altera Corp., 926 F.3d at 1080 (quoting State Farm, 463 U.S. at 52).  
Basic principles of administrative law require the agency to “examine the relevant data and 
articulate a satisfactory explanation for its action including a ‘rational connection between the 
facts found and the choice made.’”  State Farm, 463 U.S. at 43 (quoting Bowman Transp., Inc. v. 
Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)).  In reviewing that explanation, “a 
court is not to substitute its judgment for that of the agency.”  Turtle Island Restoration Network v. 
U.S. Dep’t of Commerce, 878 F.3d 725, 732 (9th Cir. 2017) (quoting State Farm, 463 U.S. at 43).  
Nonetheless, a court must “strike down agency action as ‘arbitrary and capricious if the agency 
has relied on factors which Congress has not intended it to consider, entirely failed to consider an 
important aspect of the problem, offered an explanation for its decision that runs counter to the 
evidence before the agency,’ or if the agency’s decision ‘is so implausible that it could not be 
                                                 
19 A similarly generic statement in another article that “[m]igrants generally lack understanding of 
United States immigration law,” but that “they appear to be informed about the basics,” provides 
only ambiguous support for the same untenable argument.  AR 768.   
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ascribed to a difference in view or the product of agency expertise.’”  Id. at 732-33 (quoting State 
Farm, 463 U.S. at 43). 
b. 
Discussion 
A number of the Organizations’ critiques under State Farm overlap with the reasons why 
the Rule is substantively invalid under Chevron.  As previously discussed, the government has 
failed to provide any reasoned explanation for the Rule’s methodology of determining that a third 
country is safe and asylum relief is sufficiently available, such that the failure to seek asylum there 
casts doubt on the validity of an applicant’s claim.  Nor has the government provided any reasoned 
explanation for the Rule’s assumption that the failure to seek asylum in a third country is so 
damning standing alone that the government can reasonably disregard any alternative reasons why 
an applicant may have failed to seek asylum in that country.  These deficiencies support a finding 
that the Rule is arbitrary and capricious.    
State Farm review, however, also encompasses additional points the Court has not 
previously addressed, and the Court discusses them in greater detail here.  First, the government 
suggests that its determination that “asylum in Mexico is a feasible alternative to relief in the 
United States” supports the Rule.  ECF No. 28 at 31.  The argument appears to run that, even if the 
Rule itself provides inadequate safeguards for identifying third countries where transiting aliens 
should first seek asylum, it will provide such safeguards in practice because applicants subject to 
the Rule must necessarily transit through Mexico.  Putting aside the legal sufficiency of the 
analysis, the factual premise “runs counter to the evidence before the agency.”  State Farm, 463 
U.S. at 43. 
The government’s explanation on this point falters at the outset because, as the 
Organizations correctly note, the “feasible alternative” determination is based on a post hoc 
attempt to rewrite the Rule’s supporting findings.  “[T]he principle of agency accountability . . . 
means that ‘an agency’s action must be upheld, if at all, on the basis articulated by the agency 
itself.’”  Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 643 (1986) (quoting State Farm, 463 U.S. at 
50).  In the Rule’s preamble, the agencies noted that “[a]ll seven countries in Central America plus 
Mexico are parties to both the Refugee Convention and the Refugee Protocol.”  84 Fed. Reg. at 
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33,839.  They then found that “Mexico has expanded its capacity to adjudicate asylum claims in 
recent years, and the number of claims submitted in Mexico has increased,” from 8,789 asylum 
claims filed in 2016, to 12,716 claims filed in the first three months of 2019 alone.  Id.  These 
facts do not make asylum in Mexico a “feasible alternative.”   
The statistics regarding the number of claims submitted in Mexico contradict the 
government’s suggestion that Mexico provides an adequate alternative.  While the Rule notes that 
Mexico has expanded its system’s capacity, it also projects that, independently of the Rule, 
Mexico will receive over five times the claims in 2019 that it received in 2016.  84 Fed. Reg. at 
33,839.  The Rule does not discuss whether Mexico is adequately processing this unprecedented 
increase, let alone whether Mexico has capacity to handle additional claims.  At the same time, the 
Rule notes that USCIS received 99,035 credible fear claims in 2018, that the immigration courts 
received over 162,000 asylum applications in 2018, and that “non-Mexican aliens . . . now 
constitute the overwhelming majority of aliens encountered along the southern border with 
Mexico, and the overwhelming majority of aliens who assert claims of fear.”  Id. at 33,838.  By 
any reasonable estimation, the Rule anticipates that tens of thousands of additional asylum 
claimants – i.e., most of the persons who would otherwise seek asylum in the United States – will 
now seek relief in Mexico.  The Rule does not even acknowledge this outcome, much less suggest 
that Mexico is prepared to accommodate such a massive increase.  To the contrary, the record 
contains reports that Mexico’s “increased detentions have overwhelmed capacity at [an] 
immigration center,” AR 698, and that the head of Mexico’s refugee agency “was so overwhelmed 
that he had turned to [the United Nations] for help,” AR 700.  Again, the administrative record 
fails to support the conclusion that asylum in Mexico is a “feasible alternative.”   
In its opposition, the government attempts to declare its way past the issue, arguing “the 
government determined that Mexico is a signatory to and in compliance with the relevant 
international instruments governing consideration of refugee claims, that its domestic law and 
procedures regarding such relief are robust and capable of handling claims made by Central 
American aliens in transit to the United States, and that the statistics regarding the influx of claims 
in that country support the conclusion that asylum in Mexico is a feasible alternative to relief in 
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the United States,” followed by a string citation to the administrative record.  ECF No. 28 at 31.  
But nowhere in the Rule do the agencies find that Mexico “is in compliance with the relevant 
international instruments governing consideration of refugee claims.”  ECF No. 28 at 31.  Nor 
does the government cite any finding in the Rule that Mexico’s “domestic law and procedures 
regarding such relief are robust and capable of handling claims made by Central American aliens 
in transit to the United States.”  Id.20  Because the Court cannot “accept [government] counsel’s 
post hoc rationalizations for agency action,” State Farm, 463 U.S. at 50, these arguments do not 
help the Rule survive arbitrary and capricious review.  Moreover, the record cites actually weaken 
the government’s position.  With limited exceptions that are at best unresponsive to the question,21 
the cited evidence consists simply of an unbroken succession of humanitarian organizations 
explaining why the government’s contention is ungrounded in reality. 
First, the government cites a report from the international organization Médecins Sans 
Frontières, Forced to Flee Central America’s Northern Triangle: A Neglected Humanitarian 
Crisis (May 2017).  AR 286-317.  The report found that, during transit through Mexico, “68.3 
percent of people from the [Northern Triangle of Central America (“NTCA”)] reported that they 
were victims of violence,” and that “31.4 percent of women and 17.2 percent of men had been 
sexually abused.”  AR 296-97.  Moreover, Médecins Sans Frontières concluded that “[d]espite the 
exposure to violence and the deadly risks . . . face[d] in their countries of origin, the non-
refoulement principle is systematically violated in Mexico.”  AR 306.22  Although the report noted 
                                                 
20 The Rule contains two ipse dixit references to Mexico’s “robust protection regime” and 
“functioning asylum system.”  84 Fed. Reg. at 33,835, 33,838.  Even were the Court to construe 
this as a finding by the agencies, it runs contrary to the evidence, as explained below. 
 
21 The government cites a State Department press release documenting Mexico’s commitment to 
increase enforcement against migration and human smuggling and trafficking networks, as well as 
providing temporary protections to asylum seekers whose claims are being processed in the United 
States.  AR 231-32.  This does not address, however, the adequacy of Mexico’s asylum process.  
The remaining citations consist of reports explaining why people flees certain Northern Triangle 
countries, AR 318-433, documents showing Mexico as a party to the three agreements, AR 560-
65, 581-83, 588, and a series of appendices explaining how the State Department prepares its 
Country Reports on Human Rights Practices, AR 728-55. 
 
22 The non-refoulement principle is “a binding pillar of international law that prohibits the return 
of people to a real risk of persecution or other serious human rights violations.”  AR 708.   
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that Mexico had made some official attempts to improve its system, it observed a significant “gap 
between rights and reality,” citing “[l]ack of access to the asylum and humanitarian visa processes, 
lack of coordination between different governmental agencies, fear of retaliation in case of official 
denunciation to a prosecutor, [and] expedited deportation procedures that do not consider 
individual exposure to violence.”  Id.  As a result, “[t]he lack of safe and legal pathways 
effectively keeps refugees and migrants trapped in areas controlled by criminal organizations.”  Id.   
Second, an April 2019 factsheet from the United Nations High Commissioner for Refugees 
(“UNHCR”) lists “strong obstacles to accessing the asylum procedure” in Mexico, including 
“[t]he absence of proper protection screening protocols for families and adults, the lack of a 
systematic implementation of existing best interest determination procedures for unaccompanied 
children and detention of asylum-seekers submitting their claim at border entry points.”  AR 534.  
Further, “[t]he abandonment rate of asylum procedures, especially in Southern Mexico is a key 
protection concern.  This situation, compounded by insufficient resources and limited field 
presence of [Comisíon Mexicana de Ayuda a Refugiados (“COMAR”)] in key locations in 
Northern and Central Mexico, continues to pose challenges to efficient processing of asylum 
claims.”  Id.  The UNCHR also observed that “[p]ersons in need of international protection often 
take dangerous routes to reach COMAR offices” and that “[w]omen and girls in particular are at 
risk of sexual and gender-based violence.”  Id.  While UNCHR indicated that it was partnering 
with Mexico on various initiatives, it did not suggest that these problems would be easily solved, 
let alone consider how a massive influx of claimants might affect the situation.   
Third, the government cites to the UNCHR’s July 2018 review of Mexico’s refugee 
process.  AR 638-57.  The report notes two positive developments in response to a prior round of 
recommendations, AR 639, but documents a host of additional problems.  For instance, the 
UNCHR stated that “concerns persist regarding the rise in crimes and the increased risk towards 
migrants throughout the country, the high levels of impunity for crimes committed against 
migrants, and the difficulties that migrants who are victims of crime and asylum-seekers continue 
to face in accessing justice and obtaining regularization for humanitarian reasons under article 52 
of the 2011 Migration Act.”  AR 640.  In addition, the UNCHR highlighted ongoing problems in 
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the areas of (1) “[s]exual and gender-based violence against migrants, asylum-seekers, and 
refugees”; (2) “[d]etention of migrants and asylum seekers, particularly children and other 
vulnerable persons”; and (3) “[a]ccess to economic, social and cultural rights for asylum-seekers 
and refugees.”  AR 640-42. 
Fourth, the government relies on a November 2018 factsheet from Human Rights First, 
which asks:  “Is Mexico Safe for Refugees and Asylum Seekers?”  AR 702.  Answering in the 
negative, the factsheet explains that “many refugees face deadly dangers in Mexico.  For many, 
the country is not at all safe.”  Id. (emphasis in original).  Human Rights First notes that “refugees 
and migrants face acute risks of kidnapping, disappearance, sexual assault, trafficking, and other 
grave harms in Mexico,” based not just on “their inherent vulnerabilities as refugees but also on 
account of their race, nationality, gender, sexual orientation, gender identity, and other reasons.”  
AR 703 (emphasis omitted).  The factsheet also concludes that “[d]eficiencies, barriers, and flaws 
in Mexico’s asylum system leave many refugees unprotected and Mexican authorities continue to 
improperly return asylum seekers to their countries of persecution.”  Id. (emphasis omitted).  For 
example, “refugees are blocked from protection under an untenable 30-day filing deadline, denied 
protection by COMAR officers who claim that refugees targeted by groups with national reach can 
safely relocate within their countries, and lack an effective appeal process to correct wrongful 
denials of protection.”  Id. (emphasis omitted).   
Fifth, the government cites to a 2018 report from Amnesty International entitled 
“Overlooked, Under-Protected:  Mexico’s Deadly Refoulement of Central Americans Seeking 
Asylum.”  AR 704-27.  As its title suggests, the report concludes that “the Mexican government is 
routinely failing in its obligations under international law to protect those who are in need of 
international protection, as well as repeatedly violating the non-refoulement principle, a binding 
pillar of international law that prohibits the return of people to a real risk of persecution or other 
serious human rights violations.  These failures by the Mexican government in many cases can 
cost the lives of those returned to the country from which they fled.”  AR 708.  Among its 
highlights include testimony that Mexican officials systematically coerced asylum seekers into 
waiving their right to asylum, including by denying detainees food, AR 718, and “a number of 
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reports of grave human rights violations committed by . . . officials during the moments of 
apprehension as well as in detention centres,” AR 722. 
Sixth, the government points to a New York Times article, ‘They Were Abusing Us the 
Whole Way’:  A Tough Path for Gay and Trans Migrants (July 11, 2018).  AR 756-66.  The article 
notes that “[t]rans women in particular encounter persistent abuse and harassment in Mexico at the 
hands of drug traffickers, rogue immigration agents and other migrants.”  AR 758.  It then goes on 
to recount the story of one migrant who was robbed and sexually exploited in transit.  AR 760.  
Additional portions of the administrative record not cited by the government bolster the 
already overwhelming evidence on this point.  The Women’s Refugee Commission likewise 
concluded that “Mexico is clearly not a safe, or in many cases viable, alternative for many 
refugees and vulnerable migrants seeking international protection.”  AR 771.  Another article 
discusses the detention of unaccompanied minors in Mexico, noting that the country “deported 
more than 36,000 unaccompanied Central American children, toddlers to 17-year-olds” in a two-
year period.  AR 784.   
In sum, the bulk of the administrative record consists of human rights organizations 
documenting in exhaustive detail the ways in which those seeking asylum in Mexico are 
(1) subject to violence and abuse from third parties and government officials, (2) denied their 
rights under Mexican and international law, and (3) wrongly returned to countries from which they 
fled persecution.  Yet, even though this mountain of evidence points one way, the agencies went 
the other – with no explanation.23  This flouts “[o]ne of the basic procedural requirements of 
administrative rulemaking,” namely “that an agency must give adequate reasons for its decisions.”  
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016).  Its failure to do so here, 
particularly viewed against the mass of contrary evidence, renders the agencies’ conclusion 
regarding the safety and availability of asylum in Mexico arbitrary and capricious.   
                                                 
23 To be clear, the Court does not review this evidence de novo.  If the government offered a 
reasoned explanation why it reached a contrary conclusion from respected third-party 
humanitarian organizations, the Court would give that explanation the deference that it was due.  
But “[i]t is not the role of the courts to speculate on reasons that might have supported an agency’s 
decision.”  Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2127 (2016). 
 
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Moreover, because every alien subject to the Rule must pass through Mexico, this arbitrary 
and capricious conclusion fatally infects the whole Rule.  And because Mexico is a party to the 
1951 Convention, 1967 Protocol, and CAT, almost every alien24 must apply for asylum in Mexico 
and receive a final judgment through its system before seeking asylum in the United States.25  In 
other words, if the agencies are wrong about Mexico, the Rule is wrong about everyone it covers.  
The Court notes also that Mexico’s example demonstrates for a second time why two of the Rule’s 
critical assumptions are arbitrary, not just as to Mexico, but as a general matter.  First, even though 
Mexico is a party to the agreements listed in the Rule, the unrefuted record establishes that it is 
categorically not a “safe option[]” for the majority of asylum seekers.  Matter of B-R-, 26 I. & N. 
Dec. at 122.  Second, the record offers an abundance of reasons besides economic gain why an 
asylum seeker with a meritorious claim might choose to transit through Mexico without 
attempting to pursue an asylum claim there.  For all these reasons, the Rule “is arbitrary and 
capricious and so cannot carry the force of law.”  Encino Motorcars, LLC, 136 S. Ct. at 2125. 
While the foregoing analysis is sufficient to resolve the Organizations’ State Farm claim in 
their favor, the Court briefly addresses their remaining arguments. 
 
The Organizations contend that the agencies “entirely failed to consider an important 
aspect of the problem,” State Farm, 463 U.S. at 43, because the Rule does not create an exception 
for unaccompanied minors, ECF No. 3-1 at 27-28.  The government responds that the failure to 
include such an exception does not conflict with any statutory provisions.  ECF No. 28 at 31-32.  
Regardless whether there is any true statutory conflict, Congress’s enactment of special provisions 
regarding unaccompanied minors, including excepting them from the related safe third country 
bar, 8 U.S.C. §§ 279, 1158(a)(2)(E), demonstrates that such children are “an important aspect of 
                                                 
24 Except for the limited category of aliens who qualify as a “victim of a severe form of trafficking 
in persons.”  8 C.F.R. § 208.13(c)(4)(ii). 
 
25 Though asylum applicants might also seek protection in a different third country under the Rule, 
the Rule does not consider the asylum systems of any other countries.  For instance, persons 
fleeing some of the so-called Northern Triangle countries that are the focus of the Rule, 84 Fed. 
Reg. at 33,831, 33,838, 33,840, 33,842, i.e., El Salvador and Honduras, must pass through 
Guatemala before reaching Mexico.  But whereas the Rule asserts that Mexico has a “robust 
protection regime,” id. at 33,835, it makes no conclusions at all regarding Guatemala, and the 
administrative record contains no information about that country’s asylum system.   
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the problem,” State Farm, 463 U.S. at 43, when it comes to administering the asylum scheme.   
 
Although not cited by the government, the Rule does contain a brief discussion explaining 
why it “does not provide for a categorical exception for unaccompanied alien children.”  84 Fed. 
Reg. at 33,839 n.7.  First, the Rule notes that Congress did not exempt those children from every 
statutory bar to asylum eligibility.  Id.  As just explained, however, that does not mean that the 
agencies need not consider whether such an exception was appropriate.  Second, the Rule reasons 
that an exception is unnecessary because unaccompanied children can still apply for withholding 
of removal or protection under CAT.  Id.  This explanation suggests that the agencies at least 
considered the problem of unaccompanied minors.  But there are at least serious questions whether 
this conclusion was supported by the record.  For one, the agencies did not expressly consider 
whether the Rule’s rationale applies with full force to those children.  Given that children have 
more difficulty than adults pursuing asylum claims in Mexico, AR 641-42, 778-86, the agencies 
have not explained why it is rational to assume that an unaccompanied minor’s failure to apply has 
the same probative value on the merits as an adult’s – assuming for the moment that an adult’s 
failure has any meaningful value.  Also, as the Court has previously explained, the availability of 
alternative forms of immigration relief, which are subject to a higher bar and different collateral 
consequences, are not interchangeable substitutes.  See E. Bay I, 349 F. Supp. 3d at 864-65.  Last, 
the agencies did not address whether placing unaccompanied minors in the more rigorous 
reasonable fear screening process, combined with the higher standard for withholding of removal 
and protection under CAT, creates a significantly greater risk that even those alternative claims 
will be decided wrongly. 
Finally, the Organizations assert that the Rule is counterproductive because applicants 
whose claims have already been denied in third countries are likely to have weaker rather than 
stronger claims.  ECF No. 3-1 at 27.  The Organizations’ argument is based on a misunderstanding 
of the Rule’s purposes.  As the government points out, the Rule’s intent is to incentivize putative 
refugees to seek relief at the first opportunity, preferably elsewhere.  ECF No. 28 at 31.  The 
agency’s explanation as to how this exhaustion requirement serves its stated aims is adequate.   
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C. 
Irreparable Harm 
The irreparable harm “analysis focuses on irreparability, ‘irrespective of the magnitude of 
the injury.’”  Azar, 911 F.3d at 581 (quoting Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th 
Cir. 1999)).  “A threat of irreparable harm is sufficiently immediate to warrant preliminary 
injunctive relief if the plaintiff ‘is likely to suffer irreparable harm before a decision on the merits 
can be rendered.’”  Boardman v. Pac. Seafood Grp., 822 F.3d 1011, 1023 (9th Cir. 2016) (quoting 
Winter, 555 U.S. at 22). 
The government contends that the Organizations’ injuries are not irreparable, again relying 
on the general rule that “monetary injury is not normally considered irreparable” because it can 
“be remedied by a damage award.”  L.A. Mem’l Coliseum Comm’n v. Nat'l Football League, 634 
F.2d 1197, 1202 (9th Cir. 1980).  As the Court has previously explained, controlling precedent 
establishes that this rule “does not apply where there is no adequate remedy to recover those 
damages, such as in APA cases.”  E. Bay III, 354 F. Supp. 3d at 1116 (first citing Azar, 911 F.3d 
at 581; then citing Idaho v. Coeur d’Alene Tribe, 794 F.3d 1039, 1046 (9th Cir. 2015)); accord 
Pennsylvania v. President of the United States, -- F.3d --, No. 17-3752, 2019 WL 3057657, at *17 
(3d Cir. July 12, 2019), amended in part on other grounds, 2019 WL 3228336 (3d Cir. July 18, 
2019).   
Here, the Organizations have again established a sufficient likelihood of irreparable harm 
through “diversion of resources and the non-speculative loss of substantial funding from other 
sources.”  E. Bay III, 354 F. Supp. 3d at 1116; see also ECF No. 3-2 ¶¶ 14-16; ECF No. 3-3 ¶¶ 12-
19; ECF No. 3-4 ¶¶ 16-19; ECF No. 3-5 ¶¶ 6-7, 10-14.  “That the [Organizations] promptly filed 
an action following the issuance of the [Rule] also weighs in their favor.”  Azar, 911 F.3d at 581. 
The Court therefore finds that the Organizations have satisfied the irreparable harm factor. 
D. 
Balance of the Equities and the Public Interest 
The Court turns to the final two Winter factors.  “When the government is a party, these 
last two factors merge.”  Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).  
Given the overlap with the arguments made in this case, the Ninth Circuit’s decision in East Bay II 
“provide[s] substantial guidance on the equities involved” and the public interest.  E. Bay III, 354 
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F. Supp. 3d at 1116.   
Responding there to a similar argument from the government, the Ninth Circuit observed 
that “aspects of the public interest favor both sides,” given that “the public has a ‘weighty’ interest 
‘in efficient administration of the immigration laws at the border,’” counterbalanced by an 
“interest in ensuring that ‘statutes enacted by [their] representatives’ are not imperiled by 
executive fiat.”  E. Bay II, 909 F.3d at 1255 (first quoting Landon v. Plasencia, 459 U.S. 21, 34 
(1982); then quoting Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers)).  
Once again, these same factors sit on opposite sides of the scale.26  But as in the earlier East Bay 
case, additional considerations weigh strongly in favor of injunctive relief. 
First, an injunction would “restore[] the law to what it had been for many years prior to” 
July 16, 2019, E. Bay II, 909 F.3d at 1255, by requiring the government to take into account 
whether an applicant’s “life or freedom would . . . be threatened on account of race, religion, 
nationality, membership in a particular social group, or political opinion” in a third country before 
denying asylum on that basis, 8 U.S.C. § 1158(a)(2)(A); see also Andriasian, 180 F.3d at 1046 
(“[T]he circumstances must show that [the applicant] has established, or will be able to establish, 
residence in another nation, and that he will have a reasonable assurance that he will not suffer 
further harm or persecution there.”).   
Next, the Rule implicates to an even greater extent than the illegal entry rule “the public’s 
interest in ensuring that we do not deliver aliens into the hands of their persecutors.”  Leiva-Perez, 
640 F.3d at 971.  One of the Rule’s express purposes is to incentivize all asylum applicants to seek 
relief in other countries.  84 Fed. Reg. at 33,831.  Indeed, by imposing a categorical bar on asylum 
in the United States, it will force them to seek relief elsewhere.  For the reasons explained above, 
however, the Organizations have made a strong showing that the Rule contains insufficient 
safeguards to ensure that applicants do not suffer persecution in those third countries or will not be 
                                                 
26 The Ninth Circuit’s analysis in Innovation Law Lab v. McAleenan, is not on point here, because 
the Organizations have shown that the Rule is unlikely to be a “congressionally authorized 
measure[].”  924 F.3d 503, 510 (9th Cir. 2019).  And in Innovation Law Lab, the Mexican 
government had made a specific “commitment to honor its international-law obligations and to 
grant humanitarian status and work permits to individuals” who would temporarily reside in 
Mexico while the United States processed their claims.  Id. 
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wrongfully returned to their original countries of persecution – as underscored by the unrefuted 
evidence regarding Mexico in particular.  See AR 286-317, 534, 638-57, 702-27, 771.   
Nor does it change the equities that putative refugees barred by the Rule from seeking 
asylum may nonetheless pursue withholding of removal and CAT protections.  For reasons the 
Court previously discussed, E. Bay I, 349 F. Supp. 3d at 864-65, those other forms of relief are not 
coextensive in important ways, most notably that they require aliens to meet a higher bar to avoid 
removal.  See Ling Huang, 744 F.3d at 1152.  The difference between those substantive standards 
is amplified by the Rule’s use of the more stringent “reasonable fear” standard in the screening 
process.  84 Fed. Reg. at 33,836-37; compare 8 C.F.R. § 208.30(e)(2)-(3), with id. 
§ 208.30(e)(5)(iii).  And channeling those claims into the expedited removal process only 
increases the risk of error.  See Thuraissigiam, 917 F.3d at 1118 (“[The expedited screening 
process’s] meager procedural protections are compounded by the fact that § 1252(e)(2) prevents 
any judicial review of whether DHS complied with the procedures in an individual case, or applied 
the correct legal standards.” (emphasis in original)). 
The Court notes one additional equitable consideration suggested by the administrative 
record.  The administrative record contains evidence that the government has implemented a 
metering policy that “force[s] migrants to wait weeks or months before they can step onto US soil 
and exercise their right to claim asylum.”  AR 686.  At the same time, the record also indicates 
that Mexico requires refugees seeking protection to file claims within 30 days of entering the 
country.  AR 703.  For asylum seekers that forfeited their ability to seek protection in Mexico but 
fell victim to the government’s metering policy, the equities weigh particularly strongly in favor of 
enjoining a rule that would now disqualify them from asylum on a potentially unlawful basis. 
Finally, the government rightly notes that the strains on this country’s immigration system 
have only increased since the fall of 2018.  See 84 Fed. Reg. at 33,831; AR 119, 121, 208-32.  The 
public undoubtedly has a pressing interest in fairly and promptly addressing both the harms to 
asylum applicants and the administrative burdens imposed by the influx of persons seeking 
asylum.  But shortcutting the law, or weakening the boundary between Congress and the 
Executive, are not the solutions to these problems.  See Food & Drug Admin. v. Brown & 
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Williamson Tobacco Corp., 529 U.S. 120, 125 (2000) (“Regardless of how serious the problem an 
administrative agency seeks to address, however, it may not exercise its authority in a manner that 
is inconsistent with the administrative structure that Congress enacted into law.” (internal 
quotation marks and citation omitted)).  As the Ninth Circuit noted, “[t]here 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.”  E. Bay II, 909 F.3d at 1250-51.   
The Court also acknowledges the government’s frustration that its other immigration 
policies have also been subjected to suit.  ECF No. 28 at 10-11.  These other cases are largely 
beyond the scope of the Court’s consideration.  In any event, the presence of other lawsuits does 
not absolve the agencies from scrutiny.  Cf. Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 69 
(2011) (Scalia, J., dissenting) (explaining in another context that deference is particularly 
unwarranted where “an agency . . . has repeatedly been rebuked in its attempts to expand the 
statute beyond its text, and has repeatedly sought new means to the same ends”).    
For the foregoing reasons, the Court concludes that injunctive relief is appropriate.  
E. 
Scope of Relief 
1. 
Statutory Constraints 
The government raises a now-familiar argument that the Court’s authority to issue relief is 
constrained by 8 U.S.C. § 1252(e).  ECF No. 28 at 33.  The Court again acknowledges that “it 
lacks the authority to enjoin ‘procedures and policies adopted by the Attorney General to 
implement the provisions of section 1225(b)(1) of [Title 8].’”  E. Bay III, 354 F. Supp. 3d at 1118 
(emphasis in original) (quoting 8 U.S.C. § 1252(a)(2)(A)(iv)); see also 8 U.S.C. § 1252(e)(3).  
But, as the Court has twice previously observed, the government has “‘provided no authority to 
support the proposition that any rule of asylum eligibility that may be applied in the expedited 
removal proceedings is swallowed up’ by these restrictions.”  E. Bay III, 354 F. Supp. 3d at 1118 
(quoting E. Bay I, 349 F. Supp. 3d at 867 (emphasis in original)).  The government does not 
attempt to renew the arguments the Court previously rejected or offer new ones in their stead.  The 
Court therefore reaches the same conclusion. 
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2. 
Nationwide Injunction 
The government’s arguments against a nationwide injunction likewise travel well-trod 
ground.  ECF No. 28 at 33-34.  But the Ninth Circuit has “consistently recognized the authority of 
district courts to enjoin unlawful policies on a universal basis.”  E. Bay II, 909 F.3d at 1255 
(collecting cases).  While the government disagrees with that ruling, it provides no contrary 
authority from the immigration context and “no grounds on which to distinguish this case from 
[the Ninth Circuit’s] uncontroverted line of precedent.”  Id. at 1256. 
CONCLUSION 
For the foregoing reasons, the Organizations’ motion for preliminary injunction is granted. 
Defendants are hereby ORDERED AND ENJOINED, pending final judgment herein or 
further order of the Court, from taking any action continuing to implement the Rule and 
ORDERED to return to the pre-Rule practices for processing asylum applications.  
The Court sets this matter for a case management conference on October 21, 2019 at 
2:00 p.m.  A joint case management statement is due by October 11, 2019. 
IT IS SO ORDERED. 
Dated:  July 24, 2019 
________ _________________ ___________ 
JON S. TIGAR 
United States District Judge 
Case 3:19-cv-04073-JST   Document 42   Filed 07/24/19   Page 45 of 45

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