Court filing

Plaintiffs' Opposition to Emergency Motion to Stay Preliminary Injunction (Dkt. 51) — East Bay Sanctuary v. Barr

Record facts

Court	U.S. District Court, Northern District of California
Filed	2019-07-31

U.S. District Court, Northern District of California · No. 3:19-cv-04073-JST · Doc. 51 · 2019-07-31 · Docket on CourtListener

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Lee Gelernt*
Omar C. Jadwat*
Anand Balakrishnan*
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
ojadwat@aclu.org
abalakrishnan@aclu.org
Attorneys for Plaintiffs
(Additional counsel listed on following page)
Katrina Eiland (SBN 275701)
Cody Wofsy (SBN 294179)
Spencer Amdur (SBN 320069)
Julie Veroff (SBN 310161)
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-0770
F: (415) 395-0950
keiland@aclu.org
cwofsy@aclu.org
samdur@aclu.org
jveroff@aclu.org

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

East Bay Sanctuary Covenant; Al Otro Lado;
Innovation Law Lab; and Central American
Resource Center in Los Angeles,

Plaintiffs,

William Barr, Attorney General, in his official
capacity; U.S. Department of Justice; James
McHenry, Director of the Executive Office for
Immigration Review, in his official capacity; the
Executive Office for Immigration Review; Kevin
McAleenan, Acting Secretary of Homeland
Security, in his official capacity; U.S. Department
of Homeland Security; Ken Cuccinelli, Acting
Director of the U.S. Citizenship and Immigration
Services, in his official capacity; U.S. Citizenship
and Immigration Services; John Sanders,
Commissioner of U.S. Customs and Border
Protection, in his official capacity; U.S. Customs
and Border Protection; Matthew Albence, Acting
Director of Immigration and Customs
Enforcement, in his official capacity; Immigration
and Customs Enforcement,

Defendants.

Case No.: 3:19-cv-04073-JST

OPPOSITION TO DEFENDANTS’
EMERGENCY MOTION TO STAY
PRELIMINARY INJUNCTION
ORDER PENDING APPEAL
Case 3:19-cv-04073-JST Document 51 Filed 07/31/19 Page 1 of 9

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Melissa Crow*
SOUTHERN POVERTY LAW CENTER
1101 17th Street, NW Suite 705
Washington, D.C. 20036
T: (202) 355-4471
F: (404) 221-5857
melissa.crow@splcenter.org

Mary Bauer*
SOUTHERN POVERTY LAW CENTER
1000 Preston Avenue
Charlottesville, VA 22903
T: (470) 606-9307
F: (404) 221-5857
mary.bauer@splcenter.org

Attorneys for Plaintiffs

*Admitted pro hac vice
**Pro hac vice application forthcoming

Baher Azmy**
Angelo Guisado**
Ghita Schwarz**
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
T: (212) 614-6464
F: (212) 614-6499
bazmy@ccrjustice.org
aguisado@ccrjustice.org
gschwarz@ccrjustice.org

Christine P. Sun (SBN 218701)
Vasudha Talla (SBN 316219)
Angélica Salceda (SBN 296152)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
T: (415) 621-2493
F: (415) 255-8437
csun@aclunc.org
vtalla@aclunc.org
asalceda@aclunc.org

Case 3:19-cv-04073-JST Document 51 Filed 07/31/19 Page 2 of 9

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Opposition to Motion to Stay Preliminary Injunction
Case No.: 3:19-cv-04073

The Court should reject the government’s stay motion. The Court already concluded that a
preliminary injunction is warranted in this case. See ECF No. 42 (PI Order) at 45. The standard for
a stay pending appeal mirrors the standard for an injunction in the first instance. Compare id. at 11
(standard for a preliminary injunction) with ECF No. 47 (Stay Mot.) at 2 (standard for a stay). Thus,
in asking the Court for a stay, the government in effect is asking the Court to reverse its prior
decision granting injunctive relief. But in so doing, the government merely recycles its already
rejected arguments; it offers no new reason to revisit the Court’s decision to grant preliminary
injunctive relief. And every one of the preliminary injunction factors favors the relief issued, and
therefore weighs against a stay. In short, the Court’s decision was correct, and the government’s
stay motion should be denied.
I.
The Balance of Harms Tips Sharply Against a Stay

The balance of hardships and public interest tip decisively in favor of Plaintiffs. See PI
Order 3 (“[T]he balance of equities and the public interest tip strongly in favor of injunctive relief.”).
The government’s response to the harms inflicted on Plaintiffs by the Rule is simply to repeat
arguments previously made to and rejected by this Court. Compare Stay Mot. 4-5 with ECF No. 28
(PI Opp.) at 23-24. But as this Court held, the new Rule requires a diversion of Plaintiffs’ resources
and jeopardizes their funding, all in ways that cannot be remedied after the fact. See PI Order 41.
The Rule also denies Plaintiffs the critical opportunity Congress provided to comment on a Rule that
so deeply impacts their operations and missions—a harm that is not cured, as the government claims,
by the ability to comment after the Rule is already in effect. Stay Mot. 5. See East Bay Sanctuary
Covenant v. Trump (“East Bay I D.Ct. Stay”), 354 F. Supp. 3d 1085, 1093 (N.D. Cal. 2018)
(“Defendants’ argument that the Immigration Organizations suffer no harm because they may now
comment on the Rule is not supported by authority and does not address cases holding otherwise.”).1

In addition, as this Court previously explained, in considering whether to issue a stay pending
appeal, the Court may “consider the harm to non-parties.” East Bay I D.Ct. Stay, 354 F. Supp. 3d at

1 Plaintiffs refer to East Bay Sanctuary Covenant v. Trump, the first challenge to an asylum bar that
this Court considered, as East Bay I throughout, and provide a shorthand description of the specific
opinion being cited that indicates the stage of the case at which it was issued.

Case 3:19-cv-04073-JST Document 51 Filed 07/31/19 Page 3 of 9

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Opposition to Motion to Stay Preliminary Injunction
Case No.: 3:19-cv-04073

1092 (citing Nken v. Holder, 556 U.S. 418, 433 (2009)). As the Court already concluded, the Rule
puts asylum seekers at risk of being persecuted in third countries or “wrongfully returned to their
original countries of persecution,” and so jeopardizes “‘the public’s interest in ensuring that we do
not deliver aliens into the hands of their persecutors.’” PI Order 42-43 (quoting Leiva-Perez v.
Holder, 640 F.3d 962, 971 (9th Cir. 2011) (per curiam)).

For its own side of the balance, the government offers only vague platitudes about executive
power and the need for deference to its interest in immigration enforcement. See Stay Mot. 2-3. It
made the same argument in its brief opposing temporary injunctive relief. See PI Opp. at 23-24.
The Court should again reject this argument, for as the Court already explained, “[w]hile 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.” PI Order 3; see also East Bay I D.Ct. Stay, 354 F. Supp. 3d at 1093; East Bay
Sanctuary Covenant v. Trump (“East Bay I CA9 Stay”), 2018 WL 8807133, at *24 (9th Cir. Dec. 7,
2018).
Likewise, the government asserts that the public interest is harmed by an injunction because
asylum seekers with unsuccessful claims will continue to come to the United States, and “[t]he
Executive Branch is entitled to use every legal tool available to stem the flow of aliens who lack
valid asylum claims.” Stay Mot. 3. But the Court held that the Rule likely is not legal. See PI Order
1-2; see also East Bay I D.Ct. Stay, 354 F. Supp. 3d at 1093 (denying stay in first asylum ban case
and rejecting similar argument from the government because they had “not shown even serious
questions that the Rule [was], in fact, legal”).
Thus, the government’s assertions about harm to the separation of powers get it exactly
backwards; the injunction is necessary to protect the separation of powers and uphold duly enacted
statutes. See PI Order 43 (“[S]hortcutting the law, or weakening the boundary between Congress
and the Executive, are not the solutions to these problems [at the border].”); East Bay I CA9 Stay,
2018 WL 8807133 at *20 (“Here, the Executive has attempted an end-run around Congress. . . .
[C]ontinued inaction by Congress is not a sufficient basis under our Constitution for the Executive to
rewrite our immigration laws.”). Indeed, the Court’s order maintains a legal status quo that has been
Case 3:19-cv-04073-JST Document 51 Filed 07/31/19 Page 4 of 9

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Opposition to Motion to Stay Preliminary Injunction
Case No.: 3:19-cv-04073

in effect for decades. Accordingly, “a stay of the district court’s order would not preserve the status
quo; it would upend it, as the [preliminary injunction] has temporarily restored the law to what it had
been for many years prior to [the Rule’s enactment].” East Bay I CA9 Stay, 2018 WL 8807133 at
*24.

The government further contends that any time the executive is enjoined from effectuating its
policy, it is irreparably injured. See Stay Mot. 3. This Court “reject[ed] Defendants’ argument that
an injunction against the Executive Branch ‘a fortiori’ imposes irreparable injury” the last time the
government asked this Court for a stay pending appeal of an order enjoining an unlawful asylum
ban. East Bay I D.Ct. Stay, 354 F. Supp. 3d at 1092. As the government offers no new argument on
this front, the Court should do so again here. Otherwise, on the government’s logic, the government
will always win on the harms prong. But that is not the law.

Finally, the government’s vague invocation of foreign negotiations, see Stay Mot. 2, 4, is not
sufficient to warrant a stay, particularly in the context of a notice-and-comment claim where the
applicability of the foreign affairs exception is a disputed issue.
II.
Plaintiffs Are Likely to Succeed on the Merits2
The government offers nothing to disturb this Court’s conclusion that Plaintiffs are likely to
succeed on the merits because the Rule “is inconsistent with the existing asylum laws,” the
government failed “to comply with the Administrative Procedure Act’s notice-and-comment rules,”
and “the government’s decision to promulgate [the Rule] was arbitrary and capricious.” PI Order 1-
2.
1. As to Plaintiffs’ statutory claim, the government asserts that the requirements regarding
what the agency must consider in applying the firm resettlement bar “are regulatory, not statutory,”
and so cannot be the basis for a statutory conflict barring the current Rule. Stay Mot. 5. But that
argument ignores this Court’s conclusion that “Congress codified the firm resettlement bar” in 1996,

2 The government in a footnote “reasserts its objections” on standing and the zone of interests, Stay
Mot. 5 n.1, but offers no argument on those issues. As this Court already explained, the
government’s objections are “generally irreconcilable with the Ninth Circuit’s and this Court’s
rulings in a prior case brought by the Organizations . . . .” PI Order 11-12.

Case 3:19-cv-04073-JST Document 51 Filed 07/31/19 Page 5 of 9

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Opposition to Motion to Stay Preliminary Injunction
Case No.: 3:19-cv-04073

see PI Order 18, thus incorporating the longstanding regulatory definition, see id. at 15-18
(discussing the history of the firm resettlement bar).
Regarding the safe third country provision, the government notes, as it did before, that the
safe third country provision does not require that a noncitizen transit through a third country to be
removed there. See Stay Mot. 6; see also PI Opp. 12. That assertion misses the point that the Rule
and the safe third country provision both “disqualify asylum applicants based on third countries,” PI
Order 15, and is wholly unresponsive to the primary basis for the Court’s conclusion that the Rule is
inconsistent “with the design and structure of the statute as a whole”—namely, that “the Rule does
virtually nothing to ensure that a third country is a ‘safe option.’” PI Order 21-22 (citation omitted).
Ultimately, the government rests on the same unsuccessful arguments it made in opposing
Plaintiffs’ request for preliminary injunctive relief: that 8 U.S.C. § 1158 does not “on its face” forbid
the Attorney General from considering transit through a third country when exercising his discretion
to grant asylum, and that the Rule “complements” the firm resettlement and safe third country
provisions, which are “concerned with different classes of aliens.” Stay Mot. 6; see also PI Opp. 8-
9, 13. The Court already rejected these arguments, see PI Order 21-26, and the government offers
no basis to revisit that conclusion.
2. The government offers nothing to cast doubt on the Court’s notice-and-comment analysis.
On the foreign affairs exception, the Court held that the government failed to demonstrate the
“definitely undesirable consequences” required by Ninth Circuit precedent, because it had not shown
how immediate enactment of the Rule would aid negotiations. PI Order 28-30 (quoting East Bay I
CA9 Stay, 2018 WL 8807133 at *21). The government’s stay motion makes no attempt to address
this defect, instead arguing—contrary to binding precedent—that “no such showing [is] required”
and that every immigration action in some sense impacts foreign affairs. Stay Mot. 6-7. As to good
cause, the government simply defends the Rule’s reliance on “[a] single, progressively more stale
article” about a different policy that did not purport to document any surge. PI Order 31. It makes
no attempt to explain or correct its “failure to produce more robust evidence.” Id. The Court
correctly rejected the government’s view, because it would mean that no immigration policy would
ever be subject to the APA’s core procedural guarantees—a result the Ninth Circuit has rejected.
Case 3:19-cv-04073-JST Document 51 Filed 07/31/19 Page 6 of 9

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Opposition to Motion to Stay Preliminary Injunction
Case No.: 3:19-cv-04073

See Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982); Yassini v. Crosland, 618 F.2d
1356, 1360 n.4 (9th Cir. 1980).
3. The government similarly offers nothing new that would cast doubt on the Court’s
conclusion that the Rule is arbitrary and capricious. The Court’s order is clear that it does not
“second-guess[],” Stay Mot. 7, any considered agency findings, but rather holds the government to
its obligations under the APA to adequately explain its reasoning and to address the impact of highly
relevant and contrary evidence in the administrative record. See PI Order 33-40, 38 n.23. Indeed, as
the Court correctly found, the government “failed to provide any reasoned explanation” for the
Rule’s assumption that in every case 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.” PI Order 33. In reaching this conclusion, the Court did not substitute its own judgment for
the government’s assessment of conditions in Mexico—rather, it found that Defendants’ arguments
regarding the viability of Mexico’s asylum system were post hoc rationales not articulated in the
Rule itself. PI Order 33-35. And even if the Rule had concluded that Mexico provides a safe and
accessible asylum process for all transiting asylum seekers, the Court correctly held that such a
finding is contradicted by a “mountain” of evidence in the agency’s own administrative record that
the agency failed to acknowledge or address.3 PI Order 38. The cases the government cites, see
Stay Mot. 7, do not undermine the Court’s conclusion, as they do not address the situation here,
where the government wholly failed to explain the Rule’s assumptions and address evidence in the
record undermining the Rule’s rationale. See PI Opp. 19, 22.
III.
The Scope of the Injunction Is Appropriate

The government devotes a single sentence to the scope of the injunction. See Stay Mot. 8.
Yet again, it fails to explain how a narrower injunction could provide complete relief to the

3 Defendants’ post hoc explanations for the agency’s decision appear to be a moving target.
Although Defendants’ stay motion contends that the Rule’s rationales do not “depend[] on the
feasibility of Mexico’s asylum system to absorb transiting aliens,” Stay Mot. 7, Defendants’ own
opposition to Plaintiffs’ PI motion advanced such reasoning. See PI Opp. 21-22 (raising the alleged
feasibility of Mexico’s asylum system as supporting the reasonableness of the Rule’s use of an
individual’s transit through a third country without seeking asylum there as a proxy for those who
likely lack meritorious claims).

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Opposition to Motion to Stay Preliminary Injunction
Case No.: 3:19-cv-04073

Plaintiffs, and it fails “to distinguish this case from the Ninth Circuit’s uncontroverted line of
precedent” upholding nationwide injunctions against unlawful immigration policies. PI Order 45
(quoting East Bay I CA9 Stay, 2018 WL 8807133 at *24) (alteration omitted).
CONCLUSION

For the foregoing reasons, the Court should deny the government’s stay motion.

Case 3:19-cv-04073-JST Document 51 Filed 07/31/19 Page 8 of 9

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Opposition to Motion to Stay Preliminary Injunction
Case No.: 3:19-cv-04073

Dated: July 31, 2019

Katrina Eiland (SBN 275701)
Cody Wofsy (SBN 294179)
Spencer Amdur (SBN 320069)
Julie Veroff (SBN 310161)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-1198
F: (415) 395-0950
keiland@aclu.org
cwofsy@aclu.org
samdur@aclu.org
jveroff@aclu.org

Melissa Crow*
SOUTHERN POVERTY LAW CENTER
1101 17th Street, NW Suite 705
Washington, D.C. 20036
T: (202) 355-4471
F: (404) 221-5857
melissa.crow@splcenter.org

Mary Bauer*
SOUTHERN POVERTY LAW CENTER
1000 Preston Avenue
Charlottesville, VA 22903
T: (470) 606-9307
F: (404) 221-5857
mary.bauer@splcenter.org

Attorneys for Plaintiffs

* Admitted pro hac vice
**Pro hac vice application forthcoming

Respectfully submitted,

/s/ Lee Gelernt
Lee Gelernt*
Omar Jadwat*
Anand Balakrishnan*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
ojadwat@aclu.org
abalakrishnan@aclu.org

Christine P. Sun (SBN 218701)
Vasudha Talla (SBN 316219)
Angélica Salceda (SBN 296152)
AMERICAN CIVIL LIBERTIES UNION OF
NORTHERN CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
T: (415) 621-2493
F: (415) 255-8437
csun@aclunc.org
vtalla@aclunc.org
asalceda@aclunc.org

Baher Azmy**
Angelo Guisado**
Ghita Schwarz**
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
Telephone: (212) 614-6464
Facsimile: (212) 614-6499
bazmy@ccrjustice.org
aguisado@ccrjustice.org
gschwarz@ccrjustice.org

Case 3:19-cv-04073-JST Document 51 Filed 07/31/19 Page 9 of 9

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