Defendants' Emergency Motion to Stay Injunction — East Bay Sanctuary Covenant v. Barr (N.D. Cal.)

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U.S. District Court, N.D. California · No. 3:19-cv-04073-JST · Doc. 47 · 2019-07-29 · Docket on CourtListener

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DEFENDANTS’ MOTION FOR STAY 
East Bay Sanctuary v. Barr,                       
 
 
 
 
Case No. 1:19-cv-04073-JST 
 
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JOSEPH H. HUNT 
Assistant Attorney General 
SCOTT G. STEWART 
Deputy Assistant Attorney General 
WILLIAM C. PEACHEY 
Director 
EREZ REUVENI 
Assistant Director  
Office of Immigration Litigation 
U.S. Department of Justice, Civil Division 
P.O. Box 868, Ben Franklin Station 
Washington, DC 20044 
Tel: (202) 307-4293 
Email: Erez.R.Reuveni@usdoj.gov 
PATRICK GLEN 
Senior Litigation Counsel 
 
UNITED STATES DISTRICT COURT  
FOR THE NORTHERN DISTRICT OF CALIFORNIA 
 
 
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East Bay Sanctuary Covenant, et al., 
) 
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Plaintiffs, 
 
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  EMERGENCY MOTION TO STAY    
 
 
 
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  PRELIMINARY-INJUNCTION ORDER   
 
 
 
) 
  PENDING APPEAL 
) 
v. 
) 
Civil Action No. 1:19-cv-04073-JST 
William Barr, et al., 
) 
 
) 
 
Defendants. 
 
) 
 
) 
Case 3:19-cv-04073-JST   Document 47   Filed 07/29/19   Page 1 of 10

 
DEFENDANTS’ MOTION FOR STAY 
East Bay Sanctuary v. Trump,                        
 
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Case No. 1:19-cv-04073-JST 
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INTRODUCTION 
Defendants hereby move the Court to stay its preliminary injunction barring enforcement 
of the Department of Justice’s and Department of Homeland Security’s rule, Asylum Eligibility 
and Procedural Modifications, 84 Fed. Reg. 33,829 (July 16, 2019), pending a decision from the 
Ninth Circuit on Defendants’ forthcoming appeal.  Defendants also ask that the Court enter an 
order staying its preliminary injunction during the interim period while the Court considers this 
motion.  Defendants advise the Court that they intend to seek emergency relief from the Ninth 
Circuit by Friday, August 2, 2019, if this Court does not grant stay relief.  If, upon reviewing this 
motion, the Court does not believe that Defendants have met the requirements for a stay, 
Defendants request that the Court summarily deny the motion without awaiting a response from 
Plaintiffs.  Otherwise, the government respectfully asks that the Court rule on the motion no later 
than noon Pacific time on August 2, 2019, after which time Defendants intend to promptly seek 
relief in the Ninth Circuit.  Defendants have notified Plaintiffs, who oppose the relief requested in 
this motion. 
As explained below, the balance of harms weighs strongly in favor of a stay and, 
respectfully, Defendants are likely to prevail on the merits in their appeal.  This Court’s injunction 
directly undermines the Executive’s constitutional and statutory authority to enact new regulations 
to address the ongoing border crisis and conflicts with a ruling from the U.S. District Court for the 
District of Columbia that denied a temporary restraining order of the same rule based on a similar 
record of alleged harms to the Plaintiffs.  The Court’s injunction immediately harms the public by 
thwarting this rule, issued in accordance with the Departments’ broad and express statutory 
authority over asylum.  The injunction undermines the Executive Branch’s efforts, including its 
international diplomatic efforts, to encourage the large number of aliens transiting Mexico to seek 
asylum in other available countries.  Defendants acted well within their statutory and constitutional 
authority to address a major crisis, and the Court’s injunction irreparably harms the government 
and jeopardizes important national interests.  The organizational Plaintiffs, by contrast, have 
identified only speculative harms to their abstract missions and to their administrative interests 
that they claim they would suffer from implementation of the rule. 
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DEFENDANTS’ MOTION FOR STAY 
East Bay Sanctuary v. Trump,                        
 
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STANDARD OF REVIEW 
In deciding a motion to stay an order pending appeal, courts consider four factors: 
“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; 
(2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay 
will substantially injure the other parties interested in the proceeding; and (4) where the public 
interest lies.”  Nken v. Holder, 556 U.S. 418, 434 (2009).  A stay is appropriate if the movant 
demonstrates serious questions going to the merits on appeal and the balance of hardships tips 
sharply in its favor.  All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). 
ARGUMENT 
I. 
The Balance of Harms Weighs Strongly in Favor of a Stay 
The serious and irreparable harms to the government and the public from this Court’s 
injunction outweigh any harm that Plaintiffs might suffer if the injunction is stayed.  The Supreme 
Court reached a similar conclusion when it stayed in full the injunctions issued by district courts 
in Trump v. Hawaii, No. 17A550, 2017 WL 5987406 (U.S. Dec. 4, 2017), and Trump v. 
International Refugee Assistance Project (IRAP), No. 17A560, 2017 WL 5987435 (U.S. Dec. 4, 
2017).  The Supreme Court necessarily determined that the government’s national-security and 
foreign-policy interests outweighed the plaintiffs’ interests in those cases.  See Nken, 556 U.S. at 
434.  The government’s foreign-policy and border-security interests here—which relate to 
negotiations with Mexico and other countries to address large groups of aliens leaving the Northern 
Triangle and illegally crossing or presenting themselves at our southern border—are similarly 
weighty. 
A. 
The Preliminary Injunction Irreparably Harms the Government and Public 
This Court’s injunction undermines the Executive Branch’s constitutional and statutory 
authority to prioritize those seeking asylum and address the crisis at the border.  The Executive 
Branch’s protection of these interests warrants the utmost deference, particularly where, as here, 
it acts based on “[p]redictive judgment[s]” regarding the rule’s effect on the border and 
negotiations with foreign countries.  Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988); see 
Holder v. Humanitarian Law Project, 561 U.S. 1, 33-35 (2010).  Rules “concerning the 
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admissibility of aliens” also “implement[] an inherent executive power.”  United States ex rel. 
Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950).  Thus, a stay pending appeal is appropriate 
where an injunction “is not merely an erroneous adjudication of a lawsuit between private litigants, 
but an improper intrusion by a federal court into the workings of a coordinate branch of the 
Government.”  INS v. Legalization Assistance Project, 510 U.S. 1301, 1305-06 (1993) (O’Connor, 
J., in chambers); see Heckler v. Lopez, 463 U.S. 1328, 1330 (1983) (Rehnquist, J., in chambers); 
see also Adams v. Vance, 570 F.2d 950, 954 (D.C. Cir. 1978) (per curiam). 
The Court’s order enjoining enforcement of the rule necessarily imposes irreparable harm 
on the government and the public.  Even a single State “suffers a form of irreparable injury” “[a]ny 
time [it] is enjoined by a court from effectuating statutes enacted by representatives of its people.”  
Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers) (citation omitted); see, 
e.g., Council for Economic Equity v. Wilson, 122 F.3d 692, 698 n.4 (9th Cir. 1997).  A fortiori, this 
Court’s injunction imposes irreparable injury on the Executive Branch and the public given that 
the rule rests on the discretion-laden judgments of two Cabinet members designed to prioritize 
certain asylum seekers and address the humanitarian crisis at the border. 
In issuing the rule, the Departments explained that during the first eight months of FY2019 
the Department of Homeland Security has apprehended 524,446 non-Mexican border-crossers—
nearly double from the prior two years combined.  84 Fed. Reg. at 33,838.  Based on historical 
trends, the Departments explained that many of these aliens will claim a fear of persecution, secure 
release into our country, and then never apply for asylum, never show up for their asylum hearings, 
or ultimately have their asylum claims rejected as meritless.  Id. at 33,839-41.  The Executive 
Branch is entitled to use every legal tool available to stem the flow of aliens who lack valid asylum 
claims.  The rule thus addresses the problems presented by the many aliens who have no bona fide 
asylum claim “by restricting the claims of aliens who, while ostensibly fleeing persecution, chose 
not to seek protection at the earliest possible opportunity,” raising “questions about the validity 
and urgency of the alien’s claim.”  Id. at 33,839.  The rule encourages aliens to apply for protection 
in other countries that they enter before proceeding to the United States, aids ongoing negotiations 
with Mexico and other countries on deterring mass migration to the United States, and promotes 
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asylum’s purpose of helping desperate refugees who reach our shores with truly nowhere else to 
turn.  Immediate action is warranted for the prioritization of legitimate asylum claims and to 
respond to the conditions at the border, which is suffering from a surge in border crossings.  The 
problem is all the greater given this Court’s extension of its order not only to the organizations 
before the Court, or even to aliens with whom these organizations have an attorney-client 
relationship, but also to all aliens worldwide who traverse third countries to come to the United 
States.  See Dkt. 28, Council on Am.-Islamic Relations v. Trump, 1:19-cv-2117 (D.D.C. July 24, 
2019) (CAIR) (denying TRO in organizations’ challenge to same rule). 
The Supreme Court has warned of “the danger of unwarranted judicial interference in the 
conduct of foreign policy.”  Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 116 (2013).  The 
injunction here effects such interference by substituting the Court’s independent views on 
conditions in Mexico for the policy determinations of the political branches of the U.S. 
government.  See id.; EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (courts should 
not “run interference” in a “delicate field of international relations”).  The Executive Branch—
tasked with international relations—found that the “rule will facilitate ongoing diplomatic 
negotiations with foreign countries regarding migration issues, including measures to control the 
flow of aliens into the United States ... and the urgent need to address the current humanitarian and 
security crises along the southern land border between the United States and Mexico.”  84 Fed. 
Reg. at 33,842.  It is not the province of any court to itself determine that “Mexico is not a safe 
third option for many refugees, despite its party status to all three agreements.”  Order 23.  Thus, 
the United States suffers a separation-of-powers harm in the Court’s blocking of the Executive 
Branch’s lawful action, on top of the harms to the Nation and the public described above and in 
Defendants’ prior briefing. 
B. 
A Stay Pending Expedited Appeal Would Not Substantially Harm Plaintiffs 
 
As the government explained in its opposition brief and at the July 24, 2019 hearing, 
Plaintiffs themselves have not shown that they face irreparable harm on their own account that is 
tied to the rule, and cognizable under the INA, because expending resources does not constitute 
irreparable harm.  See TRO Br. 23-34.  Indeed, they have not even identified an actual client in 
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fact affected by the rule.  Nor can they rely on financial concern.  See, e.g., Sampson v. Murray, 
415 U.S. 61, 90 (1974) (“Mere injuries, however substantial, in terms of money, time and energy 
necessarily expended … are not enough.”).  And their professed inability to comment does not 
present irreparable harm:  Plaintiffs may comment on the rule now, and any harms tied to the 
impact of the rule at present are again purely monetary.  L.A. Mem’l Coliseum Comm’n v. Nat’l 
Football League, 634 F.2d 1197, 1202 (9th Cir. 1980).   
 
Plaintiffs failed to establish irreparable harm sufficient to warrant an injunction.  The 
balance of harms strongly supports a stay of this Court’s injunction pending appeal.  
II. 
The Government is Likely to Prevail on the Merits 
The government respectfully submits that, notwithstanding this Court’s order, the 
government is likely to succeed on the merits of its appeal.1  
This Court held that the rule is inconsistent with the safe-third-country provision, 8 U.S.C. 
§ 1158(a)(2)(A), and the firm-resettlement bar to asylum eligibility, id. § 1158(b)(2)(A)(vi).  Order 
21-27.  In the Court’s view, “both [of these] provisions incorporate requirements to ensure that the 
third country in question actually is a safe option,” Order 22, evidencing a congressionally-
mandated requirement that the agency consider “an applicant’s circumstances and those of the 
third country” before asylum could be denied based on a failure to apply in that third country, 
Order 22-23.   
But the statute contains no such mandate.  The firm-resettlement statutory bar contains no 
express requirements regarding what the agency must consider in applying that bar.  See 8 U.S.C. 
§ 1158(b)(2)(A)(vi).   The “requirements” that the Court found compelling are regulatory, not 
statutory, and thus a result of a determination by the Attorney General regarding how his discretion 
should be used.  8 C.F.R. §§ 208.15; 1208.15.  That the Attorney General determined that certain 
considerations should govern the analysis of whether the firm-resettlement bar applies says 
nothing about the permissibility of adopting a distinct rule, applying to a different class of aliens, 
and without mandating an individualized assessment of third country conditions.   
                           
1 The government also reasserts its objections to Plaintiffs Article III standing and their failure to 
plead a claim within the statutory zone of interests.  See TRO Br. 7. 
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As for the safe-third-country provision, Congress did incorporate specific language to 
govern application of the bar:  removal must be pursuant to a valid agreement, to a country where 
the alien would not face persecution on account of a protected ground, and “where the alien would 
have access to a full and fair procedure for determining a claim to asylum or equivalent temporary 
protection.”  8 U.S.C. § 1158(a)(2)(A).  But mandating these requirements in the specific context 
of removal to a safe third country says nothing about the permissibility of adopting the third-
country-transit rule, which is not concerned with the removal of aliens to a safe third country, but 
with barring a discretionary benefit to aliens who failed to seek available relief while en route to 
the southern border.  Indeed, the safe-third-county provision does not even require that an alien set 
foot in the country to which he may be removed; the rule here does.  
In the end, although the Court expressly disclaimed a holding that the statute prohibits the 
“government from adopting additional mandatory bars based on an applicant’s relationship with a 
third country,” Order 21, its opinion effectively embraces that view.  Yet, as the government noted 
in its response, there is no indication on the face of the statute that the Attorney General may not 
take into account an alien’s transit to the United States in considering whether to exercise his 
discretion to grant asylum, and no conflict between the rule and the existing statutory bars.  See 
TRO Br. 9-14.  The existing third-country-transit rule complements, rather than displaces, either 
bar, and all three are concerned with different classes of aliens—a fact that the Court recognized.  
See Order 23 (noting that the firm resettlement bar applies to an option “the alien had or has,” that 
the safe-third-country provision applies to an option the alien “will have,” and that the challenged 
rule applies to an option the alien “forewent”). 
 
The Court’s good-cause and foreign-affairs analysis is also erroneous.  As to foreign 
affairs, the Court incorrectly concluded that the rule must be supported by a showing of “definitely 
undesirable international consequences,” and that “facilitat[ing] ongoing negotiations” regarding 
illegal immigration is not enough.  Order 28.  Neither conclusion is correct.  See 5 U.S.C. 
§ 553(a)(1) (no such showing required to invoke); Yassini v. Crosland, 618 F.2d 1356, 1360 (9th 
Cir. 1980) (“prompt response” required to embassy takeover sufficient for foreign affairs 
exception).  The choice of the Executive Branch here—to require aliens seeking asylum to seek it 
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in the countries they traverse en route to the United States, as part of the Executive Branch’s efforts 
in negotiations with other countries—is a “[d]ecision[] involving the relationships between the 
United States and its alien visitors” that “implicate[s] our relations with foreign powers” and 
“implement[s] the President’s foreign policy.”  Id. at 1361. 
 
Likewise, the good-cause analysis was flawed.  Although the Court recognized that the 
record contained the same newspaper article that permitted “the agencies to infer that ‘smugglers 
might [] communicate’ the rule’s unfavorable terms to potential asylum seekers,” thereby inducing 
a surge to the border if notice and comment was undertaken, Order 31 (quoting East Bay Sanctuary 
Covenant v. Trump, 354 F. Supp. 3d 1094, 1115 (2018)), it nevertheless rejected the same article 
as a basis for good cause here because “[a] single, progressively more stale article cannot excuse 
notice-and-comment for every immigration-related regulation ad infinitum.”  Order 31. But the 
article in question no less demonstrates that aliens respond to changes in immigration policies now 
than it did in October, 2018.  It is not the age of the article, but it the logic contained within it that 
is important—it discusses the current trends toward information-sharing and responses to changes 
in policy, as do several other sources in the record that the Court ignored.  See AR438-48.  
Moreover, the court’s second-guessing of the inferences drawn by the agencies based on these 
articles is contrary to bedrock principle of administrative law which preclude courts from “second-
guessing the” Attorney General’s and Secretary’s “weighing of risks and benefits” and decisions 
based on that weighing. Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2571 (2019). 
 
The Court’s holding that the rule is arbitrary and capricious—because the agencies failed 
to address whether “asylum in Mexico is a feasible alternative to relief in the United States,” Order. 
33; see also id. 33-39—is equally mistaken.  None of the rule’s stated rationales depends on the 
feasibility of Mexico’s asylum system to absorb transiting aliens.  See 84 Fed. Reg. at 33,831.  And 
even if they did, it is “reasonable for the [agency] to rely on its experience” to arrive at its 
conclusions, even if those conclusions are not supported with “empirical research.”  Sacora v. 
Thomas, 628 F.3d 1059, 1068-69 (9th Cir. 2010).  More importantly, the Court’s review and 
second-guessing (Order 34-39) of the agencies’ assessment of conditions in Mexico or Northern 
Triangle countries was contrary to the well-settled “recogni[tion] that it is for the political 
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DEFENDANTS’ MOTION FOR STAY 
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branches, not the judiciary, to assess practices in foreign countries and to determine national policy 
in light of those assessments.”  Munaf v. Geren, 553 U.S. 674, 700-01 (2008).  And if that is so 
even in cases implicating the denial or violation of constitutional rights of citizens, see id., a fortiori 
it is true with aliens like those on whose behalf Plaintiffs purport to speak, who are seeking initial 
admission to this country.  See U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). 
 
Finally, the court’s injunction imposes particularly sweeping harm because it defies the 
rule that injunctions “be no more burdensome to the defendant than necessary to provide complete 
relief to the plaintiffs”—particularly when, on the same day, the U.S. District Court for the District 
of Columbia denied a temporary restraining order challenging the same rule.  Madsen v. Women’s 
Health Ctr., Inc., 512 U.S. 753, 765 (1994); see Dkt. 28, CAIR, 1:19-cv-2117. 
CONCLUSION 
 
For the reasons stated above, the Court should grant a stay pending appeal. 
 
 
 
 
 
 
 
Respectfully submitted, 
 
JOSEPH H. HUNT 
Assistant Attorney General 
 
SCOTT G. STEWART 
Deputy Assistant Attorney General 
 
WILLIAM C. PEACHEY 
Director 
 
      By: /s/ Erez Reuveni 
EREZ REUVENI 
Assistant Director  
Office of Immigration Litigation 
U.S. Department of Justice, Civil Division 
P.O. Box 868, Ben Franklin Station 
Washington, DC 20044 
Tel: (202) 307-4293 
Email: Erez.R.Reuveni@usdoj.gov 
 
PATRICK GLEN 
Senior Litigation Counsel 
 
Dated: July 29, 2019  
 
 
Attorneys for Defendants 
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CERTIFICATE OF SERVICE 
 
I hereby certify that on July 29, 2019, I electronically filed the foregoing document with 
the Clerk of the Court for the United States Court of for the Northern District of California by 
using the CM/ECF system. Counsel in the case are registered CM/ECF users and service will be 
accomplished by the CM/ECF system.  
 
    
 
 
 
     By:  /s/ Erez Reuveni            
 
 
 
 
 
EREZ REUVENI 
 
 
 
 
 
 
 
 
Assistant Director 
 
 
 
 
 
United States Department of Justice 
 
 
 
 
 
Civil Division 
 
 
Case 3:19-cv-04073-JST   Document 47   Filed 07/29/19   Page 10 of 10

 
PROPOSED ORDER  
East Bay Sanctuary v. Barr,                       
 
 
 
Case No. 1:19-cv-04073-JST 
 
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JOSEPH H. HUNT 
Assistant Attorney General 
SCOTT G. STEWART 
Deputy Assistant Attorney General 
WILLIAM C. PEACHEY 
Director 
EREZ REUVENI 
Assistant Director  
Office of Immigration Litigation 
U.S. Department of Justice, Civil Division 
P.O. Box 868, Ben Franklin Station 
Washington, DC 20044 
Tel: (202) 307-4293 
Email: Erez.R.Reuveni@usdoj.gov 
PATRICK GLEN 
Senior Litigation Counsel 
 
UNITED STATES DISTRICT COURT  
FOR THE NORTHERN DISTRICT OF CALIFORNIA 
 
) 
East Bay Sanctuary Covenant, et al., 
) 
 
) 
Civil Action No. 3:19-cv-04073-JST 
) 
 
Plaintiffs, 
 
) 
  [PROPOSED] ORDER GRANTING   
                                                          )             MOTION TO STAY 
)              
v. 
) 
 
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William Barr, et al., 
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) 
 
Defendants. 
 
) 
) 
 
Before the Court is the Defendants’ motion for a stay of the Court’s order entering a 
preliminary injunction (ECF No. 42) pending appeal. Having reviewed the motion, IT IS 
HEREBY ORDERED that the motion is GRANTED.  
 
Dated: July __, 2019  
 
 
 
_______________________ 
United States District Judge
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PROPOSED ORDER  
 
East Bay Sanctuary v. Barr,                       
 
 
 
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