Court filing
Defendants' Emergency Motion to Stay Preliminary Injunction Pending Appeal — East Bay Sanctuary v. Barr (N.D. Cal.)
Filed September 10, 2019 in East Bay Sanctuary v. Barr; one of 69 filings from this case.
Record facts
| Court | U.S. District Court, Northern District of California |
|---|---|
| Filed | 2019-09-10 |
U.S. District Court, Northern District of California · No. 4:19-cv-04073-JST · Doc. 77 · 2019-09-10 · Docket on CourtListener
Full text
DEFENDANTS’ MOTION FOR STAY
East Bay Sanctuary v. Barr,
Case No. 4:19-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
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PENDING APPEAL
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v.
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Civil Action No. 4:19-cv-04073-JST
William Barr, et al.,
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Defendants.
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)
Case 4:19-cv-04073-JST Document 77 Filed 09/10/19 Page 1 of 5
DEFENDANTS’ MOTION FOR STAY
East Bay Sanctuary v. Trump,
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Case No. 4:19-cv-04073-JST
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INTRODUCTION
Defendants hereby move the Court to stay the nationwide preliminary injunction that it
restored on September 9, 2019, pending a decision from the Ninth Circuit on Defendants’ pending
appeal. The injunction that this Court re-instituted bars 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) (“Rule”), anywhere in the United States. Defendants are
simultaneously seeking identical relief from the Ninth Circuit and the Supreme Court, and
accordingly ask that this Court rule on this motion as soon as possible. Defendants further ask that
the Court enter an order staying its preliminary injunction during the interim period while the Court
considers this motion. Defendants have notified Plaintiffs, who oppose the relief requested in this
motion.
ARGUMENT
As explained below and in Defendants’ previously-submitted motion to stay, see Dkt. 47,
the balance of harms weighs strongly in favor of a stay and, respectfully, Defendants are likely to
prevail on the merits in their appeal that a nationwide injunction is unwarranted. First, the balance
of harms firmly favors a stay, as the nationwide injunction undermines the Executive Branch’s
constitutional and statutory authority to prioritize those seeking asylum and address the crisis at
the southern border. See Dkt. 47 at 2-4.
Next, the government is likely to succeed on the merits of its appeal that a nationwide
injunction was inappropriate in this case. As an initial matter, this Court lacked jurisdiction to
restore the nationwide injunction while the initial injunction this Court imposed is being appealed
to the Ninth Circuit. See Dkt. 65 at 5-10. Though this Court relied on a single sentence from the
Ninth Circuit’s stay opinion stating that “the district court retains jurisdiction to further develop
the record in support of a preliminary injunction extending beyond the Ninth Circuit,” Stay Op.
11, Dkt. 73 at 4, no part of that limited grant of authority extended to allowing this Court to impose
a new injunction upon the conclusion of any record development. And although this Court stated
that it was merely preserving the “status quo ... at the time the appeal was filed,” Dkt. 73 at 5, the
proper construction of the term “status quo” as it pertains to Federal Rule of Civil Procedure 62(d)
Case 4:19-cv-04073-JST Document 77 Filed 09/10/19 Page 2 of 5
DEFENDANTS’ MOTION FOR STAY
East Bay Sanctuary v. Trump,
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Case No. 4:19-cv-04073-JST
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is that, at most, this Court can take actions to preserve the status quo in the present, i.e., the
injunction as modified by the Ninth Circuit to only have effect within the Ninth Circuit. Because
this Court exceeded that authority, it lacked jurisdiction to restore the nationwide injunction.
Moreover, a nationwide injunction is not warranted in this case, and would create the very
deleterious consequences that the Ninth Circuit emphasized in granting the Government’s motion
to stay this Court’s injunction outside the Ninth Circuit. See Stay Op. 8 (“The Supreme Court has
repeatedly emphasized that nationwide injunctions have detrimental consequences to the
development of law and deprive appellate courts of a wider range of perspectives.”). “[O]ther
litigants wishing to challenge the Rule” “already have” commenced litigation in other forums, and
the nationwide injunction imposed by this Court prevents such challenges from being
meaningfully considered elsewhere, which undermines the development of legal viewpoints that
can ultimately aid the Supreme Court, should it decide to “address the Rule.” Stay Op. 10.
In granting Plaintiffs’ motion to restore the nationwide injunction, this Court placed
substantial emphasis on the fact that the Plaintiff organizations will not “know with certainty ex
ante where a given asylum seeker ... will ultimately enter the United States, or where they will end
up once they are in the United States.” Dkt. 73 at 11. As the government has repeatedly explained,
however, these concerns are eliminated by the government’s implementation of the injunction,
which treats individuals initially apprehended within the jurisdiction of the Ninth Circuit,
individuals detained at the time of adjudication of their asylum application within the Ninth
Circuit, and individuals initially located outside the Ninth Circuit but whose asylum application is
subsequently adjudicated within the Ninth Circuit as all being subject to the Circuit-wide scope of
the injunction. Dkt. 65 at 2. That implementation mitigates the “major administrability issues”
that this Court alluded to in restoring the nationwide scope of the injunction. Dkt. 73 at 14.
In addition, because none of the Plaintiff organizations have identified a single, bona fide
client that is subject to the Rule, despite their clear ability to do so, it is impossible to conclude
that any of the Plaintiff organizations’ operations outside the Ninth Circuit will be meaningfully
affected by the Rule so as to warrant a nationwide injunction. The burden is on Plaintiffs to
substantiate the “harm to the Organizations,” Dkt. 73 at 12, and they have failed to offer sufficient
Case 4:19-cv-04073-JST Document 77 Filed 09/10/19 Page 3 of 5
DEFENDANTS’ MOTION FOR STAY
East Bay Sanctuary v. Trump,
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Case No. 4:19-cv-04073-JST
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concrete evidence that this case presents an exceptional circumstance where a nationwide
injunction is necessary to remedy Plaintiffs’ alleged harms.
Finally, this Court relied on the need for “uniform immigration policy” and the “text of the
Administrative Procedure Act” to support its decision. Dkt. 73 at 13. As to the former, the Ninth
Circuit found this justification insufficient in this case, see Stay Op. 8, and as to the latter, the
Ninth Circuit has found that even in Administrative Procedure Act cases, nationwide injunctive
relief is not automatic. See Dkt. 65 at 19-20.
CONCLUSION
For the reasons stated above and in Defendants’ previously submitted motion to stay, see
Dkt. 47, 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: September 10, 2019
Attorneys for Defendants
Case 4:19-cv-04073-JST Document 77 Filed 09/10/19 Page 4 of 5
DEFENDANTS’ MOTION FOR STAY
East Bay Sanctuary v. Trump,
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Case No. 4:19-cv-04073-JST
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CERTIFICATE OF SERVICE
I hereby certify that on September 10, 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 77 Filed 09/10/19 Page 5 of 5File and source
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