Amicus Brief (Non-Profits and Law School Clinics) — East Bay Sanctuary Covenant v. Barr (N.D. Cal.)

Record facts

U.S. District Court, N.D. California (S.F. Division) · No. 4:19-cv-04073-JST · Doc. 60-1 · 2019-08-19 · Docket on CourtListener

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Exhibit A
Case 4:19-cv-04073-JST   Document 60-1   Filed 08/19/19   Page 1 of 9

   
 
 
BRIEF OF AMICI CURIAE NON-PROFITS AND  
LAW SCHOOL CLINICS  
Case No. 3:19-CV-04073-JST 
 
 
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Blaine Bookey (SBN 267596) 
Neela Chakravartula (SBN 254746)* 
Kate Jastram (SBN 127625) 
Karen Musalo (SBN 106882) 
Anne Peterson (SBN 258673)* 
CENTER FOR GENDER & REFUGEE STUDIES 
200 McAllister Street 
San Francisco, CA  94102 
Telephone: (415) 565-4877 
Fax: (415) 581-8824 
bookeybl@uchastings.edu 
neela@uchastings.edu 
musalok@uchastings.edu  
jastramkate@uchastings.edu 
petersonanne@uchastings.edu 
 
*Not admitted in this Court 
 
Attorneys for Amici Curiae 
 
Christine Lin (SBN 239266) 
CGRS-California 
200 McAllister Street 
San Francisco, CA  94102 
Telephone: (415) 565-4877 
Fax: (415) 581-8824 
linc@uchastings.edu 
 
IN THE UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA  
SAN FRANCISCO DIVISION 
East Bay Sanctuary Covenant, et al., 
Plaintiffs, 
v. 
William P. Barr, et al., 
Defendants. 
CASE NO.: 3:19-CV-04073-JST 
BRIEF OF AMICI CURIAE NON-PROFIT 
ORGANIZATIONS AND LAW SCHOOL 
CLINICS IN SUPPORT OF PLAINTIFFS’ 
MOTION TO CONSIDER 
SUPPLEMENTAL EVIDENCE AND 
RESTORE THE NATIONWIDE SCOPE 
OF THE INJUNCTION  
 
IMMIGRATION ACTION 
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INTRODUCTION AND INTEREST OF AMICI CURIAE 
This brief explains why this Court was correct to enjoin the third country asylum rule and 
why anything other than a nationwide injunction will cause substantial harm to the Plaintiffs and 
to thousands of migrants in desperate need of protection. 
The current Administration has displayed a singular focus over the last two years—to 
dismantle the U.S. asylum system by executive fiat in circumvention of the law and 
constitutionally mandated separation of powers. Its previous attempts to thwart the will of 
Congress and slam the United States’ doors on the persecuted have rightly been blocked by the 
courts, including this one. See, e.g., E. Bay Sanctuary Covenant v. Trump, 349 F. Supp. 3d 838 
(N.D. Cal. 2018) (enjoining rule banning asylum for individuals who cross the border outside a 
port of entry); O.A. v. Trump, No. 18-2838, 2019 WL 3536334 (D.D.C. Aug. 2, 2019) (same); 
J.O.P. v. U.S. Dep’t of Homeland Sec., No. GJH-19-1944, 2019 WL 3536786 (D. Md. Aug. 2, 
2019) (enjoining policy stripping unaccompanied children from having their claims first heard in 
a non-adversarial setting); Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018) (enjoining policy 
categorically foreclosing protection to certain groups of asylum seekers in expedited removal), 
appeal docketed, No. 19-5013 (D.C. Cir. Jan. 30, 2019). Its latest attempt to render ineligible for 
asylum individuals who transited through a third country before seeking protection at the southern 
border fared no better before this Court, which correctly enjoined the rule as inconsistent with 
existing asylum laws that only authorize sending asylum seekers to third countries in limited 
circumstances—where a Safe Third Country Agreement exists or the applicant is firmly 
resettled—to ensure “we do not deliver aliens into the hands of their persecutors.” E. Bay 
Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 958 (N.D. Cal. 2019). 
If permitted to take effect, the rule will have severe consequences across the country, 
eliminating a critical form of protection with life or death consequences for people long 
recognized as meriting asylum and violating the United States’ treaty obligations to administer 
protection without discrimination and to avoid “in any manner whatsoever” returning individuals 
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to danger. Convention Relating to the Status of Refugees, art. 33, ¶ 1, 198 U.N.T.S. 150, 176 
(July 28, 1951) (Refugee Convention).  
Amici curiae1 are twenty-four non-profit organizations and law school clinics that 
represent asylum seekers across the country. Of the thousands of asylum seekers they represent, a 
substantial portion of them sought safe haven at the U.S.-Mexico border and would be barred 
from protection from having transited through a third country under the Administration’s latest 
unlawful attempt to eviscerate the U.S. asylum system as we have known it for the last four 
decades. Amici thus have a strong interest in the scope of this Court’s rightful injunction of this 
unlawful policy; and in the proper application of federal laws to ensure they are applied uniformly 
and afford the right to asylum protection as widely as Congress intended and the United States’ 
international obligations require.2 
Amici respectfully urge this Court to issue a new nationwide injunction based on the 
Plaintiffs’ supplemented record to ensure uniform administration of our immigration statutes and 
to stop this cruel and unlawful policy that strikes at the core of the United States’ fundamental 
values and longstanding laws. 
ARGUMENT 
I. The Third Country Asylum Rule Would Eliminate Asylum for the Very People U.S. 
Laws Have Long Protected and Result in Refoulement of Bona Fide Refugees. 
Because this Court has already correctly concluded that the new rule is likely unlawful, 
amici provide only a brief overview of the merits.3 
Individuals seeking asylum at the United States’ southern border are fleeing gender-based 
violence, violence perpetrated by gangs, and politically, racially and religiously motivated 
 
1 Amici are listed and described in the accompanying Motion for Leave to File this Amicus Brief. 
2 The parties consent to this filing. Defendants’ consent is contingent upon this brief being filed 
today, August 19, 2019, and Defendants further reserve the right to raise challenges to the brief’s 
claims. No person or entity other than amici authored or contributed funds intended for its 
preparation or submission. 
 
3 Amici agree with Plaintiffs’ clear and cogent arguments, not repeated in this brief, regarding the 
inconsistency between the rule and the Safe Third Country and firm resettlement statutory 
provisions.  
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persecution, among other heinous acts. See, e.g., Administrative Record (AR) 293-95. There are 
many reasons asylum seekers fleeing this sort of violence are often unable to take a direct route to 
the United States, including the exigent circumstances of their flight and the lack of visas that 
would permit them to board a plane to the U.S. to seek asylum. The immigration agency and the 
courts have recognized this reality—that asylum seekers may pass through multiple countries 
while searching for refuge but continue on to the United States because they cannot find safety in 
the transited countries, or because they wish to reunify with family in the United States. See, e.g., 
Gulla v. Gonzales, 498 F.3d 911, 917 (9th Cir. 2007); Matter of Pula, 19 I&N Dec. 467, 474 
(B.I.A. 1987).  
Since passage of the Refugee Act in 1980, these individuals have been eligible for asylum 
so long as they satisfy the stringent burden of establishing they meet the definition of a refugee. 
See 8 U.S.C. §§ 1101(a)(42), 1158. The Administration aims to uproot Congress’ long held and 
unambiguous intent regarding the scope of the United States’ asylum laws. Under the new rule, 
asylum seekers who fail to apply for protection from persecution or torture in at least one country 
before coming to the United States “shall be found ineligible for asylum,” subject to only limited 
exceptions. 8 C.F.R. § 208.13(c)(4). This complete ban would eviscerate the U.S. asylum system, 
stripping this life saving protection for all non-Mexican asylum seekers entering at the southern 
border, who necessarily will have transited through a third country. 
The practical effect of this rule would be to force asylum seekers to seek protection in 
Mexico or Guatemala, which will undoubtedly result in U.S. violations of the duty of non-
refoulement wherever it is permitted to take effect. Refugee Convention, Article 33.1. News 
outlets, human rights organizations, the U.N. High Commissioner for Refugees (UNHCR), and 
the U.S. government have all documented the extreme dangers for migrants and shortcomings of 
the asylum processes in both countries. See, e.g., AR 636-37 (Wall Street Journal article); 700 
(Reuters article), 703 (Human Rights First Factsheet), 721-24 (Amnesty International report). 
Moreover, the rule violates the principle of non-discrimination found in Article 3 of the Refugee 
Convention and the U.S. refugee protection system by precluding from asylum protection any 
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non-Mexican fleeing persecution who is unable to enter by air, or sea, and therefore arrives at a 
land port of entry. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059-60 (9th Cir. 2017) (en 
banc) (examining history of the Refugee Act leading to the “nondiscriminatory definition of 
refugee”). In doing so, it clearly places cruel and manifestly unsafe obstacles in front of asylum 
seekers traveling by land from non-contiguous countries. Like its previous policies intent on 
eliminating the United States’ asylum system by decree, the Administration’s new rule is patently 
unlawful in flagrant violation of the United States’ bedrock domestic and international obligations 
to protect the persecuted. 
II. A Nationwide Injunction is Necessary to Avert the Grave Consequences of 
Permitting Third Country Asylum Rule to Take Effect. 
The third country asylum rule will cause harm to asylum seekers and their representatives 
across the country. To start, applying a different rule within the Ninth Circuit is not administrable 
given that asylum seekers, in amici’s vast experience, often do not appear in the same jurisdiction 
throughout the life of their case. Even though an asylum seeker may seek protection at a border 
point within the Ninth Circuit, for example, she may be transferred to a detention center in New 
Jersey and then, if able to secure release, end up before an immigration judge in Florida (and even 
later move and change venue to California). Moreover, ensuring that asylum seekers moving 
across jurisdictions have accurate information as to their eligibility for protection will be 
extremely difficult, made exponentially more so for those without an attorney. As many courts 
have recognized, asylum law, including its accompanying procedures, is one of the most complex 
areas of U.S. law and availability of this protection should not be left to chance. Moreover, 
offering asylum in one jurisdiction but denying that same life-saving protection in the rest of the 
country violates the important principle of uniformity, as well as the United States’ domestic and 
international obligations.  
// 
// 
// 
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// 
CONCLUSION 
Amici support the issuance of a nationwide injunction, and they respectfully request that 
the Court grant Plaintiffs’ request. 
 
 
 
Dated: August 19, 2019 
 
 
Respectfully submitted, 
 
 
  
 
 
 
 
 /s/ Blaine Bookey 
 
 
 
  
 
 
 
  
Blaine Bookey  
Neela Chakravartula* 
Anne Peterson* 
Karen Musalo 
Kate Jastram 
 
 
 
 
 
 
 
Center for Gender & Refugee Studies 
 
 
 
 
 
 
 
UC Hastings College of the Law 
200 McAllister Street 
San Francisco, CA  94102 
 
Christine Lin 
CGRS-California 
200 McAllister Street 
San Francisco, California  94102 
P: (415) 565-4877 
F: (415) 581-8824 
 
*Not admitted in this Court 
 
Attorneys for Amici Curiae 
 
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LIST OF AMICI 
 
Amnesty International 
New York, New York 
 
Asylum Seeker Assistance Project 
Washington, D.C.  
 
Catholic Charities, Immigrant and Refugee Services 
New York, New York 
 
Center for Gender & Refugee Studies 
San Francisco, California 
 
Centro Legal de La Raza 
Oakland, California  
 
Community Justice Alliance 
Sacramento, California 
 
Community Legal Services in East Palo Alto 
East Palo Alto, California  
 
Dolores Street Community Services 
San Francisco, California 
 
HIAS 
Silver Spring, Maryland 
 
Human Rights Initiative of North Texas 
Dallas, Texas 
 
Immigrant Legal Defense 
Oakland, California 
 
Immigrant Legal Resource Center 
San Francisco, California 
 
Immigration and Human Rights Clinic, University of the District of Columbia Law School 
Washington, D.C.  
 
International Refugee Assistance Project, Inc. 
New York, New York 
 
International Rescue Committee (IRC) 
New York, New York 
 
Loyola Immigrant Justice Clinic 
Los Angeles, California 
 
National Justice For Our Neighbors 
Annandale, Virginia 
 
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National Survivor Network 
Los Angeles, California  
 
Pangea Legal Services 
San Francisco, California 
 
Program for Torture Victims (PTV) 
Los Angeles, California 
 
Public Counsel 
Los Angeles, California 
 
Sanctuary for Families 
New York, New York 
 
The Advocates for Human Rights 
Minneapolis, Minnesota 
 
UC Davis Immigration Law Clinic 
Davis, California  
 
Case 4:19-cv-04073-JST   Document 60-1   Filed 08/19/19   Page 9 of 9

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