Administrative Motion to File Guidance Documents Under Seal — East Bay Sanctuary v. Barr (N.D. Cal.)

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U.S. District Court, Northern District of California · No. 4:19-cv-04073-JST · Doc. 68 · 2019-09-03 · Docket on CourtListener

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DEFENDANTS’ ADMINISTRATIVE MOTION 
TO FILE GUIDANCE DOCUMENTS UNDER SEAL 
East Bat Sanctuary Covenant v. Barr                       
 
 
 
 
Case No. 4:19-cv-04073-JST 
 
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JOSEPH H. HUNT 
Assistant Attorney General 
WILLIAM C. PEACHEY 
Director 
EREZ REUVENI 
Assistant Director  
U.S. Department of Justice 
Civil Division 
Office of Immigration Litigation 
District Court Section 
P.O. Box 868, Ben Franklin Station 
Washington, DC 20044 
Tel: (202) 307-4293 
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., 
) 
) 
 
Plaintiffs, 
 
) 
   
)             
v. 
) 
Civil Action No. 4:19-cv-04073-JST 
 
) 
ADMINISTRATIVE MOTION 
 
) 
TO FILE PORTIONS OF GUIDANCE  
 
) 
DOCUMENTS UNDER SEAL 
) 
William Barr, et al., 
) 
 
) 
 
Defendants. 
 
) 
 
) 
 
 
 
Case 4:19-cv-04073-JST   Document 68   Filed 09/03/19   Page 1 of 5

 
DEFENDANTS’ ADMINISTRATIVE MOTION 
TO FILE GUIDANCE DOCUMENTS UNDER SEAL 
East Bay Sanctuary Covenant v. Barr,                     
 
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Case No. 4:19-cv-4073-JST 
 
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Pursuant to Civil Local Rules 7-11 and 79-5, Defendants submit this administrative motion 
requesting an order allowing Defendants to file portions of the following documents originally 
filed in redacted form with the Defendants’ opposition to the motion for a renewed injunction and 
(ECF Nos. 65) under seal:   
• Exhibit A (Executive Office of Immigration Review (“EOIR”)), Ninth Circuit Stay Order 
- Asylum Transit Interim Final Rule Litigation (ECF No. 65-1); and 
• Exhibit C (Immigration and Customs Enforcement (“ICE”)), Broadcast Message: 
UPDATED GUIDANCE - Asylum Eligibility and Procedural Modifications IFR (ECF No. 
65-3). 
The redacted versions of these documents appear presently on the docket at ECF Nos. 65-
1 and 65-3. The two documents submitted as Exhibit B to ECF 66 (ECF Nos. 66-1 and 66-2) 
contain no redactions and so are not subject to this motion.  
For the reasons set forth below, this Motion should be granted. 
1. 
Plaintiffs in this lawsuit are challenging the Interim Final Rule titled “Asylum 
Eligibility and Procedural Modifications,” 84 Fed. Reg. 33,829 (July 16, 2019) (“Rule”).  See ECF 
Nos. 1, 3.  
2. 
As part of their opposition to Plaintiffs’ renewed motion for a nationwide injunction 
(ECF No. 63), Defendants have attached guidance documents illustrating how Defendants are 
implementing the injunction.   
3. 
Two of the guidance documents issued by EOIR and ICE respectively, see Exhibits 
A, C (ECF Nos. 65-1 and 65-3 respectively), contain privileged attorney-client and work-product 
information, as well as personal identifying information.  See Declaration of Erez Reuveni 
(“Reuveni Decl.”) ¶¶ 4-6.    
Case 4:19-cv-04073-JST   Document 68   Filed 09/03/19   Page 2 of 5

 
DEFENDANTS’ ADMINISTRATIVE MOTION 
TO FILE GUIDANCE DOCUMENTS UNDER SEAL 
East Bay Sanctuary Covenant v. Barr,                     
 
      2 
 
Case No. 4:19-cv-4073-JST 
 
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4. 
The Ninth Circuit requires compelling reasons to seal records.  Kamakana v. City 
& County of Honolulu, 447 F. 3d 1172, 1178 (9th Cir. 2006).  Here, the “compelling reasons” 
standard is met.  The attorney client privilege shields “communications made in confidence” by a 
“client” to his or her “attorney” in order to “encourage clients to confide fully in their attorneys 
without fear of future disclosure of such confidences.”  In re Fischel, 557 F.2d 209, 211 (9th Cir. 
1977).  The work product privilege “protects from discovery documents and tangible things 
prepared by a party or his representative in anticipation of litigation.”  In re Grand Jury Subpoena 
(Mark Tort/Torf Env. Mgmt.), 357 F.3d 900, 906 (9th Cir. 2004); see also Federal Rule of Civil 
Procedure 26(b)(3).  As the guidance documents themselves reflect, they are clearly marked as 
privileged pursuant to the attorney-client and work-product privileges.  See ECF Nos. 65-1 and 
65-3.  The portions of the guidance documents that are redacted clearly meet the standards for 
being privileged under both the attorney-client and work-product privileges, as they contain 
attorney-client communications and were explicitly authored in connection with the pending 
litigation and in response to the preliminary injunction entered by this Court, as modified by the 
Ninth Circuit.  See Reuveni Decl. ¶¶ 4-5.  Not partially sealing these documents would result in 
Defendants divulging their litigation strategies, in contravention of the rationales behind both 
privileges.     
5. 
In addition, the guidance documents contain third party personal identifying 
information; such private information including “names,” are protected from disclosure.  Foltz v. 
State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1137 (9th Cir. 2003).  See Reuveni Decl. ¶ 6.     
6. 
Plaintiffs take no position on this motion.  See Reuveni Decl. ¶ 7.   
7. 
Consistent with Rule 79-5, Defendants, along with this motion, are filing a 
declaration (Reuveni Decl.), a proposed order, and the two unredacted documents submitted in 
Case 4:19-cv-04073-JST   Document 68   Filed 09/03/19   Page 3 of 5

 
DEFENDANTS’ ADMINISTRATIVE MOTION 
TO FILE GUIDANCE DOCUMENTS UNDER SEAL 
East Bay Sanctuary Covenant v. Barr,                     
 
      3 
 
Case No. 4:19-cv-4073-JST 
 
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redacted form at ECF Nos. 65-1 and 65-3.  
8. 
Accordingly, given the amount of specific, protected information in the EOIR and 
ICE guidance documents, Defendants request an order allowing the submission of those 
documents under partial seal, as redacted in ECF 65-1 and 65-3, and as attached here to this 
document as exhibits.   
DATED:  September 3, 2019  
 
 
Respectfully submitted, 
 
JOSEPH H. HUNT 
Assistant Attorney General 
 
WILLIAM C. PEACHEY 
Director 
 
 /s/ Erez Reuveni 
EREZ REUVENI 
Assistant Director 
U.S. Department of Justice 
Civil Division 
Office of Immigration Litigation 
District Court Section 
P.O. Box 868, Ben Franklin Station 
Washington, DC 20044 
Tel: (202) 307-4293 
Erez.R.Reuveni@usdoj.gov 
 
PATRICK GLEN 
Senior Litigation Counsel 
Attorneys for Defendants 
 
 
 
 
 
 
 
 
Case 4:19-cv-04073-JST   Document 68   Filed 09/03/19   Page 4 of 5

 
DEFENDANTS’ ADMINISTRATIVE MOTION 
TO FILE GUIDANCE DOCUMENTS UNDER SEAL 
East Bay Sanctuary Covenant v. Barr,                     
 
      4 
 
Case No. 4:19-cv-4073-JST 
 
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CERTIFICATE OF SERVICE 
 
I hereby certify that on September 3, 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 4:19-cv-04073-JST   Document 68   Filed 09/03/19   Page 5 of 5

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