Order Granting Motion to Restore Nationwide Scope of Injunction — East Bay Sanctuary v. Barr (N.D. Cal., 2019-09-09)

Record facts

U.S. District Court, Northern District of California · No. 4:19-cv-04073-JST · Doc. 73 · 2019-09-09 · 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 MOTION TO 
RESTORE NATIONWIDE SCOPE OF 
INJUNCTION 
Re: ECF No. 57 
 
 
Now before the Court is Plaintiffs’ motion “to consider supplemental evidence and restore 
the nationwide scope of injunction.”  ECF No. 57.  For the reasons set forth below, the Court will 
grant the motion.   
I. 
BACKGROUND 
The factual background to this case is discussed at length in the Court’s preliminary 
injunction order, and the Court will not repeat those details here except as necessary to explain its 
ruling on the present motion.   
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.   
Plaintiffs in this case – East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, 
and Central American Resource Center (the “Organizations”) – are legal and social service 
organizations that provide assistance, advocacy, and legal services to undocumented persons.  On 
July 17, 2019, the Organizations filed a motion for temporary restraining order to prevent the Rule 
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from taking effect.  ECF No. 3.  By consent of the parties, the motion was converted to one for 
preliminary injunction, which the Court granted on July 24, 2019.  ECF No. 42.  The injunction 
prevented the Defendants1 “from taking any action continuing to implement the Rule” and ordered 
them “to return to the pre-Rule practices for processing asylum applications.”  E. Bay Sanctuary 
Covenant v. Barr (“East Bay IV”), 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019).2  Among other 
things, the Court found that “the Organizations [had] . . . established a sufficient likelihood of 
irreparable harm through ‘diversion of resources and the non-speculative loss of substantial 
funding from other sources.’”  Id. at 957-58 (quoting E. Bay Sanctuary Covenant v. Trump (“East 
Bay III”), 354 F. Supp. 3d 1094, 1116 (N.D. Cal. 2018)).   
Defendants appealed that order to the Ninth Circuit and moved for a stay pending appeal.  
The Ninth Circuit denied the motion for stay pending appeal, but only “insofar as the injunction 
applies within the Ninth Circuit.”  E. Bay Sanctuary Covenant v. Barr (“East Bay V”), --- F.3d ---, 
No. 19-16487, 2019 WL 3850928, at *1 (9th Cir. Aug. 16, 2019).  The court “grant[ed] the motion 
for stay pending appeal insofar as the injunction applies outside the Ninth Circuit, because the 
nationwide scope of the injunction is not supported by the record as it stands.”  Id.  The Ninth 
Court also ordered that this Court “retains jurisdiction to further develop the record in support of a 
preliminary injunction extending beyond the Ninth Circuit.”  Id. at *3.  That court did not disturb 
this Court’s prior findings regarding the nature of the harms the Organizations were likely to 
suffer if the Rule were given effect.   
The Organizations then filed this motion “to consider supplemental evidence and restore 
                                                 
1 Defendants in this action are Attorney General William Barr; the Department of Justice (“DOJ”); 
the Executive Office for Immigration Review (“EOIR”); James McHenry, the Director of EOIR; 
the Department of Homeland Security (“DHS”); Kevin K. McAleenan, the Acting Secretary of 
DHS; U.S. Citizenship and Immigration Services (“USCIS”); Kenneth T. Cuccinelli, the Acting 
Director of USCIS; Customs and Border Protection (“CBP”); John P. Sanders, the Acting 
Commissioner of CBP; Immigration and Customs Enforcement (“ICE”); and Matthew T. Albence, 
the Acting Director of ICE.  
2 In its prior order, the Court referred to the district court’s temporary restraining order in Case No. 
18-cv-06810-JST as “East Bay I,” to the Ninth Circuit’s order denying a stay of that order as “East 
Bay II,” and the district court’s order issuing a preliminary injunction as “East Bay III.”  See 
generally id.  Consistent with that nomenclature, the Court therefore refers to its July 24, 2019 
order in this case as “East Bay IV” and the Ninth Circuit’s order partially denying and partially 
granting a stay of that order as “East Bay V.”      
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the nationwide scope of injunction,” ECF No. 57, as well as a supplemental brief ordered by the 
Court, ECF No. 63.  The Government filed an opposition, ECF Nos. 65, 66, and the Organizations 
filed a reply, ECF No. 67.3   
After the Organizations filed their motion, but before the Government filed its opposition, 
three of the defendants – EOIR, USCIS, and ICE – issued guidance regarding the implementation 
of the Court’s injunction as modified by the Ninth Circuit’s stay order.  The guidance requires 
employees of those agencies to treat individuals as covered by the injunction if: “(1) the alien was 
apprehended in the Ninth Circuit, (2) the alien is detained in the Ninth Circuit, or (3) the interview 
or adjudication itself occurs in the Ninth Circuit.”  ECF No. 65-1 (EOIR Guidance) at 1; see also 
ECF No. 65-2 (USCIS Guidance) at 1 (“the IFR should not apply to any [credible fear] 
determination or asylum adjudication in which: (1) the alien was apprehended in the jurisdiction 
of the Ninth Circuit . . . (2) the alien is detained in the jurisdiction of the Ninth Circuit; or (3) the 
interview itself occurs in the jurisdiction of the Ninth Circuit”); ECF No. 65-3 (ICE Guidance) at 1 
(ICE “will consider the PI to apply in situations where the alien: (i) was initially apprehended by 
DHS within the jurisdiction of the Ninth Circuit; (ii) is detained within the Ninth Circuit at the 
time of adjudication of the asylum application; or (iii) was initially located outside the Ninth 
Circuit but whose asylum application is subsequently adjudicated within the Ninth Circuit”).   
The Court conducted a hearing on the motion on September 5, 2019.   
II. 
JURISDICTION 
The Court has subject-matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.  
However, the parties dispute the nature and extent of the Court’s jurisdiction to decide the present 
motion.  The Organizations contend that this Court retains jurisdiction to further develop the 
record and affirm or disaffirm the nationwide scope of its injunction order.4  ECF No. 67 at 17-21.  
                                                 
3 With leave of court, a consortium of non-profit organizations and law school clinics filed an 
amicus curiae brief in support of the Organizations’ motion.  ECF Nos. 60, 61.   
4 Defendants have previously agreed with this characterization.  See Defendants’ Application to 
the United States Supreme Court for Stay Pending Appeal, Barr v. E. Bay Sanctuary Covenant, 
Case No. 19A230 (Aug. 26, 2019) (describing the Ninth Circuit’s order in East Bay V as “stat[ing] 
that the district court retained jurisdiction to further develop the record and to re-extend the injunction 
beyond the Ninth Circuit.”).   
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Defendants contend that the Court lacks jurisdiction to restore the nationwide scope of the 
injunction, and that the Court at most has jurisdiction to issue an indicative ruling pursuant to Rule 
62.1 of the Federal Rules of Civil Procedure.  ECF No. 65 at 12-16.  The parties’ positions turn on 
their competing interpretations of the Ninth Circuit’s language that “the district court retains 
jurisdiction to further develop the record in support of a preliminary injunction extending beyond 
the Ninth Circuit.”  East Bay V, 2019 WL 3850928, at *1.   
The normal rule is that “[o]nce a notice of appeal is filed, the district court is divested of 
jurisdiction over the matters being appealed.”  Nat’l Res. Def. Council v. Sw. Marine Inc., 242 
F.3d 1163, 1166 (9th Cir. 2001).  This rule is “judge-made” rather than jurisdictional, designed to 
“promote judicial economy and avoid the confusion that would ensue from having the same issues 
before two courts simultaneously.”  Id.  One exception to this rule is when the court of appeals 
orders a limited remand to the district court.  See Wright & Miller, Retained Jurisdiction, 16 Fed. 
Prac. & Proc. Juris. § 3937.1 (3d ed.) (“Whatever the reason, the courts of appeals often have 
retained jurisdiction while making a limited remand for additional findings or explanations.”).  
Such remands often come with specific instructions.  See, e.g., Friery v. Los Angeles Unified Sch. 
Dist., 448 F.3d 1146, 1147 (9th Cir. 2006) (remanding to district court “for the limited purpose of 
finding facts and making a determination of the plaintiff’s standing” and empowering the court to 
“entertain any appropriate motions” and “enter an appropriate order” if it found abstention or 
dismissal appropriate).  Here, although the Ninth Circuit did not provide instructions as to what 
action the Court should take if it finds that the supplemented record supports a nationwide 
injunction, the most plausible reading of East Bay V’s language is that it grants the Court 
jurisdiction to consider the augmented record in its totality and, based on that record, affirm or 
disaffirm the nationwide scope of its prior order.  Several considerations support this conclusion.   
First, there is a longstanding exception to the divestiture rule, providing that a “district 
court retains jurisdiction during the pendency of an appeal to act to preserve the status quo.”  Sw. 
Marine Inc., 242 F.3d at 1166.  This exception is codified in Federal Rule of Civil Procedure 
62(d), which allows a district court to “suspend, modify, restore, or grant an injunction” while an 
appeal of a prior injunction is pending.  Id.; Fed. R. Civ. Proc. 62(d).  Any action taken pursuant to 
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Rule 62(d) “may not materially alter the status of the case on appeal.”  Sw. Marine Inc., 242 F.3d 
at 1166 (citation omitted).   
For the purposes of Rule 62(d), “status quo” means the state of affairs at the time the 
appeal was filed, i.e., the nationwide injunction originally issued by the Court.  Mayweathers v. 
Newland, 258 F.3d 930 (9th Cir. 2001) is instructive.  In that case, a prison appealed a preliminary 
injunction forbidding it from disciplining inmates for missing work to attend religious services.  
Id. at 933.  Because the injunction expired under the terms of the Prison Litigation Reform Act, 
the district court entered a second, identical injunction while the appeal was pending.  Id. at 934.  
The Ninth Circuit held that the district court had jurisdiction to issue the second injunction under 
Rule 62(d)5 because it “neither changed the status quo at the time of the first appeal nor materially 
altered the status of the appeal.”  Id. at 935 (emphasis added); see also Sw. Marine, 242 F.3d at 
1167 (affirming district court’s modification of injunction while appeal was pending because it 
“left unchanged the core questions before the appellate panel”).  The Mayweathers court noted 
that the case involved “defendants who were subject to an injunction at the time of appeal” and 
that “the renewed injunction was identical to the original one.”  258 F.3d at 935.  
Defendants cite McClatchy Newspapers v. Cent. Valley Typographical Union No. 46, 686 
F.2d 731 (9th Cir. 1982) to support their argument that the Court lacks authority to consider the 
Organizations’ motion, ECF No. 65 at 13, but that case is not helpful.  In McClatchy Newspapers, 
a publisher appealed a district court’s confirmation of an arbitration award in favor of a union.  
686 F.2d at 732.  While the appeal was pending, the district court entered an amended judgment 
that swept more broadly than the original, this time requiring the publisher to return certain 
employees to their positions.  Id. at 733.  The Ninth Circuit held that, “by ordering the publisher to 
reinstate employees who were not working when the appeal was filed, the amended judgment 
required a change from the status quo” and thus fell outside the bounds of Rule 62.  Id. at 735 
(emphasis added).  Notably, in Mayweathers, which Defendants do not discuss, the court 
distinguished McClatchy Newspapers, 258 F.3d at 935 finding that unlike in that case, the 
                                                 
5 The Mayweathers court, like other courts cited in this section, refers to Rule 62(c).  Rule 62 was 
reorganized in 2018, and the pertinent subsection is now 62(d).  
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Mayweathers injunction “involve[d] defendants who were subject to an injunction at the time of 
appeal, and the renewed injunction was identical to the original one.”  258 F.3d at 935-36.  
As in Mayweathers, the injunction now before the Court is the same as the one the Court 
originally issued.  Should the Court agree with the Organizations that the supplemented record 
demands restoration of the injunction’s nationwide scope, it would not, as Defendants allege, be 
entering a “new injunction.”  ECF No. 65 at 14 (emphasis omitted).  Rather, it would be using its 
Rule 62(d) power to preserve the status quo at the time the government appealed the injunction.  If 
anything, the Court would be entering the “old injunction.”  The “core questions before the 
appellate panel” – the propriety and scope of the preexisting nationwide injunction – would be 
unchanged.  Sw. Marine, 242 F.3d at 1167.   
This conclusion is also consistent with the case law holding that a court has the authority to 
issue additional factual findings while an appeal is pending.  See East Bay III, 354 F. Supp. 3d at 
1105 n.3 (noting that a district court “may act to assist the court of appeals in the exercise of its 
jurisdiction . . . such as by fil[ing] written findings of fact and conclusions of law in support of the 
preliminary injunction order on appeal”) (quoting Davis v. United States, 667 F.2d 822, 824 (9th 
Cir. 1982) and Thomas v. County of Los Angeles, 978 F.2d 504, 507 (9th Cir. 1992), as amended 
(Feb. 12, 1993)) (quotation marks omitted).  As well, it is consistent with the Ninth Circuit’s 
citation to the instructions issued by that court’s merits panel in City & County of San Francisco v. 
Trump:  
 
Because the record is insufficiently developed as to the question of 
the national scope of the injunction, we vacate the injunction to the 
extent that it applies outside California and remand to the district 
court for a more searching inquiry into whether this case justifies the 
breadth of the injunction imposed.  
897 F.3d 1225, 1245 (9th Cir. 2018).   
The Court thus concludes that it has jurisdiction to consider the Organizations’ motion to 
restore the nationwide scope of the injunction.  Should the Ninth Circuit conclude otherwise, 
however, the Court adds that, to the extent that the Organizations’ motion may also be construed 
as one for an indicative ruling under Rule 62.1, the Court would grant it.   
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III. 
LEGAL STANDARD 
A district court has “considerable discretion in ordering an appropriate equitable remedy.”  
City & Cty. of San Francisco, 897 F.3d at 1244.  “Crafting a preliminary injunction is ‘an exercise 
of discretion and judgment, often dependent as much on the equities of a given case as the 
substance of the legal issues it presents.’”  California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) 
(quoting Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017)).  Injunctive 
relief “should be no more burdensome to the defendant than necessary to provide complete relief 
to the plaintiffs.”  Califano v. Yamasaki, 422 U.S. 682, 702 (1979).  “Where relief can be 
structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown.”  
Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir. 1987).  But in certain “exceptional cases,” an 
injunction “is not necessarily made overbroad by extending benefit or protection to persons other 
than prevailing parties in the lawsuit . . . if such breadth is necessary to give prevailing parties the 
relief to which they are entitled.”  City & Cty. of San Francisco, 897 F.3d at 1244 (quoting 
Bresgal, 843 F.2d at 1170-71) (internal quotation marks omitted).  The record must show, 
however, that nationwide relief is necessary to remedy plaintiffs’ harms.  City & Cty. of San 
Francisco, 897 F.3d at 1244 (vacating injunction to the extent it applied outside of California 
because “the record [was] not sufficiently developed on the nationwide impact of the Executive 
Order”). 
Recently, there has arisen in some quarters “a growing uncertainty about the propriety of 
universal injunctions.”6  E. Bay Sanctuary Covenant v. Trump (“East Bay II”), 932 F.3d 742, 779 
(9th Cir. 2018).  One concern is that nationwide injunctions “have detrimental consequences to the 
development of law and deprive appellate courts of a wider range of perspectives.”  Azar, 911 F.3d 
at 583.  Another is “the equities of non-parties who are deprived the right to litigate in other 
                                                 
6 Some writers also use the term “universal injunctions.”  See Amanda Frost, In Defense of 
Nationwide Injunctions, 93 NYU L. Rev. 1065, 1071 (2018) (“[N]o one denies that district courts 
have the power to enjoin a defendant’s conduct anywhere in the nation (indeed, the world) as it 
relates to the plaintiff; rather, the dispute is about who can be included in the scope of the 
injunction, not where the injunction applies or is enforced.  For that reason, some scholars refer to 
injunctions that bar the defendant from taking action against nonparties as ‘universal injunctions,’ 
‘global injunctions,’ or ‘defendant-oriented injunctions.’”) (citations omitted).   
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forums.”  Id.  Lastly, “[n]ationwide injunctions are . . . associated with forum shopping, which 
hinders the equitable administration of laws.”  Id.  Nonetheless, there is a robust jurisprudence 
supporting the issuance of nationwide injunctions, especially in immigration cases.  See, e.g., East 
Bay II, 932 F.3d at 779 (“In immigration matters, we have consistently recognized the authority of 
district courts to enjoin unlawful policies on a universal basis.”) (citing Regents of the Univ. of 
Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018), cert. granted, 139 S. Ct. 
2779 (2019)).  In East Bay II, for example, the Ninth Circuit upheld a nationwide injunction in 
circumstances very similar to those present here, because “the Government raise[d] no grounds on 
which to distinguish this case from our uncontroverted line of precedent” and “‘fail[ed] to explain 
how the district court could have crafted a narrower [remedy]’ that would have provided complete 
relief to the Organizations.”  Id. (quoting Regents, 908 F.3d 476 at 512).  
IV. 
DISCUSSION 
The Court previously found that the Organizations had “established a sufficient likelihood 
of irreparable harm through ‘diversion of resources and the non-speculative loss of substantial 
funding from other sources.’” East Bay IV, 385 F. Supp. 3d at 957-58 (citing East Bay III, 354 F. 
Supp. 3d at 1116).  The question now before the Court is whether those harms can be addressed by 
any relief short of a nationwide injunction.  The answer is that they cannot.   
A. 
A Nationwide Injunction Is Necessary to Provide Complete Relief  
The primary reason a nationwide injunction is appropriate is that it is the only means of 
affording complete relief to the Organizations.  As one commentator has observed, the principle 
that “injunctive relief should be no more burdensome to the defendant than necessary to provide 
complete relief to the plaintiffs,” Califano, 422 U.S. at 702, “suggests that when a national 
injunction is needed for complete relief a court should award one,” Samuel L. Bray, Multiple 
Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 466 (2017) (emphasis in 
original).  And as the Supreme Court has observed in analogous circumstances, “the scope of 
injunctive relief is dictated by the extent of the violation established, not by the geographical 
extent of the plaintiff class.”  Califano, 442 U.S. at 702.  Accordingly, “[the Ninth Circuit has] 
upheld nationwide injunctions where such breadth was necessary to remedy a plaintiff’s harm.”  
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East Bay V, 2019 WL 3850928, at *2.   
Bresgal v. Brock provides an example.  Plaintiffs in that case were the Northwest Forest 
Workers Association and individual migrant agricultural workers who worked in forestry on a 
seasonal basis.  Bresgal, 843 F.2d at 1165.  They sought, and the district court granted, a 
declaratory judgment that the Migrant and Seasonal Agricultural Workers Protection Act applied 
to forestry workers and an injunction requiring the Secretary of Labor to enforce the Act in the 
industry.  Id.  The Ninth Circuit affirmed the nationwide scope of the injunction, even though it 
would impact labor contractors who were not parties to the suit, including contractors located 
outside the Ninth Circuit.  Id. at 1171.  The court concluded that a nationwide scope was necessary 
to provide the plaintiffs complete relief because “[m]igrant laborers who are parties to this suit 
may be involved with contractors whose operations are concentrated elsewhere.  Similarly, these 
plaintiffs, as migrant laborers, may travel to forestry jobs in other parts of the country under the 
supervision of labor contractors.”  Id.  See also Texas v. United States, 787 F.3d 733, 769 (5th Cir. 
2015) (refusing to narrow preliminary injunction of Deferred Action for Parents of Americans and 
Lawful Permanent Residents (DAPA) to Texas or the plaintiff states due to “a substantial 
likelihood that a partial injunction would be ineffective because DAPA beneficiaries would be free 
to move between states”); Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501-02 
(9th Cir. 1996) (upholding statewide injunction where 14 named plaintiffs were spread across four 
counties because “plaintiffs would not receive the complete relief to which they are entitled 
without statewide application of the injunction”). 
By contrast, a district court abuses its discretion when it grants a geographically broader 
injunction than is necessary to prevent a plaintiff’s injury.  In Azar, for example, five plaintiff 
states challenged the federal government’s implementation of two interim final rules exempting 
employers with religious and moral objections from the Affordable Care Act’s contraceptive 
coverage requirement.  911 F.3d at 566.  The states claimed that enforcement of the rules would 
cause them economic harm by forcing them to pay for contraceptive care for women whose 
employers would otherwise cover it.  Id. at 571, 581.  The record established that enjoining 
implementation of the rules within the plaintiff states would prevent this harm, but “it was not 
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developed as to the economic impact on other states.”  Id. at 584.  Because a narrower injunction 
“would provide complete relief” to the plaintiff states, the court held that the district court abused 
its discretion by enjoining the rules nationwide.  Id.  See also City & Cty. of San Francisco, 897 
F.3d at 1244 (remanding to the district court for reexamination of the nationwide scope of a 
permanent injunction where plaintiff counties’ “tendered evidence [wa]s limited to the effect of 
the [executive order] on their governments and the State of California”). 
The circumstances here are much more like those in Bresgal than those in Azar.  Some of 
the plaintiff Organizations serve clients within and outside of the Ninth Circuit.  In addition to 
representing individuals seeking asylum, three of the organizations serve individuals who are not 
retained clients by, for example, offering asylum law training for pro bono lawyers and pro se 
asylum workshops for immigrants.  ECF No. 67 at 8-9, 11; ECF No. 3-2 ¶ 7.  Under the current 
bifurcated asylum regime, at least two of the Organizations must expend significant resources 
determining which of their clients are subject to which regime and adjusting their legal services 
accordingly, as well as revising centralized resources to reflect the complicated landscape of the 
limited injunction.  A nationwide injunction is thus necessary to provide complete relief from the 
diversion of resources harms the Court identified in its order granting the first preliminary 
injunction.  East Bay IV, 385 F. Supp. 3d at 957.   
A discussion of two of the plaintiffs’ circumstances makes this point.  Plaintiff Innovation 
Law Lab (“Law Lab”) is a nonprofit focused on “improv[ing] the legal rights of immigrants and 
refugees in the United States.”  ECF No. 3-4 ¶ 2.  Law Lab has offices in California, Oregon, 
Missouri, Texas, and Georgia.  ECF No. 57-2 ¶ 4.  Law Lab offers workshops and support to 
noncitizens and pro bono attorneys in Georgia, Kansas, Missouri, North Carolina, and Oregon, as 
well as to legal service providers at immigrant detention centers throughout the country.  Id. ¶ 5.  
Law Lab can offer such a geographically diverse set of services partly thanks to template materials 
it has developed to assist asylum seekers.  Id. ¶ 7.  Law Lab also directly represents persons 
applying for asylum inside and outside the Ninth Circuit.  Id. ¶ 5.  While many of these clients 
cross the border in the Ninth Circuit, they “move between jurisdictions throughout the lifetime of 
their asylum case.”  Id. ¶ 16.   
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Law Lab will suffer a variety of harms if the third country transit bar goes into effect 
outside the Ninth Circuit.  For example, it will have to redesign its workshops and templates and 
“devote significant time to re-training . . . volunteers on the new standards and how to screen for 
attendees who might be subject to the ban.”  Id. ¶¶ 7, 9.  Its direct representation work will 
“become significantly more complicated and burdensome.”  Id. ¶ 15.  Implementation of the Rule 
outside the Ninth Circuit would also adversely impact Law Lab’s work within the Ninth Circuit by 
diverting resources to clients who are subject to the Rule.  Id. ¶ 17.  Because these clients will no 
longer be eligible for asylum, they will instead have to apply for withholding of removal or relief 
under the Convention Against Torture (“CAT”), which “have a higher standard of proof than 
asylum, do not allow for derivative applications, and are more time-consuming cases to handle.”  
ECF No. 3-4 ¶ 17.  As a result, Law Lab would be “forced to serve fewer people overall because 
of the increased time burden required for a subset of cases.”  ECF No. 57-2 ¶ 17.   
Plaintiff Al Otro Lado is a nonprofit whose mission is, in part, “to provide screening, 
advocacy, and legal representation for individuals in asylum and other immigration proceedings.”  
ECF No. 3-3 ¶ 4.  Al Otro Lado is based in California as well as Tijuana, Mexico.  Id. ¶¶ 4, 8.  It 
offers “legal orientation workshops” at its Tijuana office, “providing information about the U.S. 
asylum system to migrants who wish to seek asylum in the United States.”  Id. ¶ 5.  Al Otro Lado 
“recruits and trains volunteers and pro bono attorneys” to assist with these workshops.  Id. ¶ 6.  A 
number of Al Otro Lado’s clients end up crossing the border in Texas or New Mexico or later 
relocate (or are detained) outside the Ninth Circuit.  ECF No. 57-4 ¶ 5.  As a result, “[i]t is 
impossible for Al Otro Lado to know with certainty ex ante where a given asylum seeker whom 
[Al Otro Lado] serve[s] prior to their entry will ultimately enter the United States, or where they 
will end up once they are in the United States, or where a given asylum seeker whom [Al Otro 
Lado] serve[s] while in detention will end up if released from custody.”  Id. ¶ 8.   
If the injunction is limited to the Ninth Circuit, it will force Al Otro Lado to provide a 
much broader range of advice to pre-entry asylum seekers to account for different outcomes based 
on where they choose to enter the country and travel within it.  Id. at ¶ 9.  This will require the 
expenditure of “significant organizational resources regarding training materials, staff time, 
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resources, and capacity . . . .”  Id.; see also ECF No. 67 at 11.7   
Defendants do not dispute this evidence or engage with the applicable law.  Instead, they 
devote much of their argument to focusing on the lack of harm to identified asylum seekers.  See, 
e.g., ECF No. 65 at 7 (“Yet, despite multiple opportunities, Plaintiffs’ counsel does not identify a 
single, bona fide client who suffers injury as a result of the rule, or explain how an injunction 
limited to such aliens would not cure their alleged injuries while this litigation proceeds.”).  But 
this is a strawman – the harm to the Organizations, not their potential clients, was the focus of the 
Court’s injunction.  See East Bay IV, 385 F. Supp. 3d at 957 (“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.”) (citation and quotation marks 
omitted).  And, rather than dispute that harm, Defendants disagree with Ninth Circuit law on 
organizational standing, see ECF No. 28 at 16 n.1; East Bay IV, 385 F. Supp. 3d at 937, and repeat 
their contention from earlier phases of this litigation that the organizational harms Plaintiffs allege 
are speculative, see ECF No. 65 at 23; ECF 28 at 32.8  These issues have already been decided.   
The Organizations have presented sufficient evidence that they will suffer organizational 
and diversion of resources harms unless the Rule is enjoined outside of, as well as within, the 
Ninth Circuit.9  A nationwide injunction is thus “necessary to give prevailing parties the relief to 
which they are entitled.”  City & Cty. of San Francisco, 897 F.3d at 1244 (quoting Bresgal, 843 
F.2d at 1170-71) (internal quotation marks omitted).   
                                                 
7  Because the Court finds that a nationwide injunction is necessary to provide complete relief to 
Law Lab and Al Otro Lado, it need not examine the supplemental evidence provided by plaintiffs 
CARECEN and EBSC.  
8 Indeed, at the hearing on this motion, in response to a direct question from the Court, the 
Government did not dispute that (1) the Organizations would suffer harm if the Rule were applied 
outside the Ninth Circuit, and (2) that a nationwide injunction was necessary to remedy that harm.  
ECF No. 72 at 19-23.    
9 Defendants also argue that the Organizations’ supplemental evidence does not go beyond the 
declarations that were already in the record at the time of the Ninth Circuit’s stay.  ECF No. 65 at 
19.  This is incorrect.  While some of the material in the Organizations’ five supplemental 
declarations is redundant with their original declarations, compare ECF Nos. 57-2, 57-3, 57-4, 57-
5, 57-6 with ECF Nos. 3-2, 3-3, 3-4, 3-5, 3-6, 3-7, they have provided additional detail about 
where the organizations operate, how they train their staff and volunteers, and how the limited 
injunction will impact their operations.   
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B. 
Additional Factors Supporting a Nationwide Injunction  
The need to provide complete relief to the Plaintiffs, standing alone, is sufficient reason for 
the re-issuance of the nationwide injunction.  In addition to that factor, however, three other 
factors support such relief.   
First, a nationwide injunction is supported by the need to maintain uniform immigration 
policy.  See East Bay II, 932 F.3d at 779 (collecting cases and stating that “[i]n immigration 
matters, we have consistently recognized the authority of district courts to enjoin unlawful policies 
on a universal basis”); Regents of the Univ. of Cal., 908 F.3d at 511 (affirming nationwide 
injunction against the government’s rescission of the Deferred Action for Childhood Arrivals 
(DACA) program based in part on “the need for uniformity in immigration policy”).  While this 
factor may not, by itself, support the issuance of a nationwide injunction, it weighs in its favor.   
Second, nationwide relief is supported by the text of the Administrative Procedure Act 
(APA), which requires the “reviewing court,” “[t]o the extent necessary and when presented,” to 
“hold unlawful and set aside agency action, findings, and conclusions” found to be “arbitrary, 
capricious, an abuse of discretion, or otherwise not in accordance with law . . . .”  5 U.S.C. § 706.  
The Ninth Circuit has cited this language in upholding a nationwide injunction of regulations that 
conflicted with the governing statute.  Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th 
Cir. 2007), aff’d in part, rev’d in part on other grounds sub nom. Summers v. Earth Island Inst., 
555 U.S. 488 (2009); see also Regents of the Univ. of Cal., 908 F.3d at 511 (“In [the APA] 
context, ‘[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary 
result is that the rules are vacated – not that their application to the individual petitioners is 
proscribed.’”) (quoting Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. 
Cir. 1998)).10   
                                                 
10 Although Defendants attempt to address the propriety of vacatur, ECF No. 65 at 27, that issue is 
not before the Court.  Defendants also misstate the law.  They cite California Communities 
Against Toxics v. U.S. E.P.A., 688 F.3d 989, 994 (9th Cir. 2012) for the proposition that “[e]ven 
where rules are declared invalid under the APA, ‘remand without vacatur’ is a remedy that courts 
must consider.”  ECF No. 65 at 27 (emphasis added).  But California Communities does not stand 
for that proposition.  To the contrary, California Communities is clear that remand without vacatur 
should be ordered only in “limited circumstances.”  688 F.3d at 994.  Defendants do not explain 
what “limited circumstances” are present here.  Furthermore, as Defendants themselves note, 
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Lastly, anything but a nationwide injunction will create major administrability issues.  
Although the Government’s recently-issued guidance with regard to the Rule is intended to allow 
the Court’s injunction to be applied within the Ninth Circuit, problems in administration would 
remain.  For one thing, ambiguities within the guidance documents will lead to uneven 
enforcement.  See ECF No. 67 at 12 (comparing the Government’s description of the injunction as 
covering those “whose adjudications and proceedings occur in the Ninth [C]ircuit” to the EOIR 
Guidance’s instruction that the Rule does not apply to those whose “interview or adjudication” 
occurs in the Ninth Circuit).  For another, it is not clear what effect the guidance will have on an 
asylum applicant who transits between circuits.  For example, an applicant who crosses the border 
and has a credible fear interview outside the Ninth Circuit would, in the absence of a nationwide 
injunction, be subject to the Rule and thus (barring an exception) eligible only for withholding of 
removal or CAT.  Id.  If that individual’s removal proceedings were later moved to the Ninth 
Circuit, it is unclear whether the immigration judge would be bound by the original denial of 
credible fear or, since the Rule is enjoined within the Ninth Circuit, able to allow the individual to 
apply for asylum.   
CONCLUSION 
While nationwide injunctions are not the “general rule,” they are appropriate “where such 
breadth [is] necessary to remedy a plaintiff’s harm.”  East Bay V, 2019 WL 3850928, at *2.  This 
is such a case.  Accordingly, and for the reasons set forth above, the Court grants the 
Organizations’ motion to restore the nationwide scope of the injunction.  
IT IS SO ORDERED. 
Dated:  September 9, 2019 
______________________________________ 
JON S. TIGAR 
United States District Judge 
 
                                                 
“[o]rdinarily, when a regulation is not promulgated in compliance with the APA, the regulation is 
invalid.”  Ida. Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995); ECF No. 65 at 
27. 
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