Defendants' Motion for Stay — East Bay Sanctuary v. Barr

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U.S. District Court for the Northern District of California · No. 4:19-cv-04073-JST · Doc. 76 · 2019-09-10 · Docket on CourtListener

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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 
 
 
) 
East Bay Sanctuary Covenant, et al., 
) 
) 
 
Plaintiffs, 
 
) 
  EMERGENCY MOTION TO STAY    
 
 
 
) 
  PRELIMINARY-INJUNCTION ORDER   
 
 
 
) 
  PENDING APPEAL 
) 
v. 
) 
Civil Action No. 4:19-cv-04073-JST 
William Barr, et al., 
) 
 
) 
 
Defendants. 
 
) 
 
) 
Case 4:19-cv-04073-JST   Document 76   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 76   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 76   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/ Draft 
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 76   Filed 09/10/19   Page 4 of 5

 
DEFENDANTS’ MOTION FOR STAY 
East Bay Sanctuary v. Trump,                        
 
        4 
 
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 76   Filed 09/10/19   Page 5 of 5

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