Proposed Intervenors' Motion for Leave to Intervene and Temporary Restraining Order — East Bay Sanctuary v. Barr

Record facts

U.S. District Court, Northern District of California · No. 4:19-cv-04073-JST · Doc. 95 · 2020-10-16 · Docket on CourtListener

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PROPOSED INTERVENORS’ NOTICE OF MOTION FOR LEAVE TO INTERVENE AND 
MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION 
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  Adam Siegler  (SBN 116233) 
GREENBERG TRAURIG LLP 
1840 Century Park East 
Suite 1900 
Los Angeles, CA 90067 
Telephone: (310) 586-7700 
Facsimile: (310) 586-7800 
Email:sieglera@gtlaw.com 
 
Jonathan K. Ogata (SBN 325914) 
GREENBERG TRAURIG, LLP  
1201 K Street, Suite 1100 
Sacramento, CA 
Telephone: (916) 442-1111 
Email:ogataj@gtlaw.com 
 
Steven G. Barringer* 
GREENBERG TRAURIG, LLP 
2101 L Street, NW, Suite 1000 
Washington, DC 20037 
Telephone: (202) 331-3108   
Facsimile: (202) 261-0114  
Email: barringers@gtlaw.com 
 
* Pro Hac Vice Forthcoming 
 
Caroline J. Heller*  
GREENBERG TRAURIG LLP 
200 Park Ave 
New York, NY 10166 
Telephone: (212) 801-9200 
Facsimile: (212) 801-6400 
Email: hellerc@gtlaw.com 
 
Gregory P. Copeland* 
Sarah T. Gillman* 
RAPID DEFENSE NETWORK 
11 Broadway, Suite 615 
New York, NY 10004-1490 
Telephone: (212) 843-0910 
Facsimile: (212) 257-7033 
Email: gregory@defensenetwork.org 
Email: sarah@defensenetwork.org 
 
Attorneys for Proposed Plaintiff-Intervenors  
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
 
EAST BAY SANCTUARY 
COVENANT, et al.,  
 
Plaintiffs, 
         vs. 
 
WILLIAM BARR, et al., 
Defendants. 
 Case No. 4:19-cv-04073-JST 
[Judge:  Hon. Jon S. Tigar] 
PROPOSED INTERVENORS’ 
MOTION FOR LEAVE TO 
INTERVENE AND MOTION FOR 
TEMPORARY RESTRAINING 
ORDER AND PRELIMINARY 
INJUNCTION  
 
 
 
Date Action Filed: July 16, 2019 
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:  
PLEASE TAKE NOTICE Proposed Plaintiff-Intervenors J.S.M.; D.M.S., a minor; 
S.L.V.; M.F.L., a minor; M.M.B.; N.M.M., a minor; M.M.V.; A.A.M.; a minor; I.F.L.; 
R.F.L., a minor; M.G.V.; A.R.G., a minor; R.P.F.; J.F.P., a minor; M.C.M.; S.M.C., a 
minor; M.A.A.; A.R.A., a minor; C.A.A., a minor; A.L.V.; I.G.L., a minor; A.G.L., a 
minor; M.R.A.; L.C.R., a minor; C.C.G.; E.C.G., a minor; K.N.E.; E.A.N., a minor; 
D.P.R.; S.B.P., a minor; R.L.A.; N.C.L., a minor; Y.V.O. E.P.V., a minor; S.L.R; A.V.L., 
a minor; I.H.L.; S.R.H., a minor; S.J.A.; W.A.A., a minor; E.V.M.; A.V.M., a minor; 
M.P.O.; G.G.L., a minor; O.T.G.; T.T.G.; a minor; B.H.I.; D.M.H., a minor; N.V.; Z.F., 
a minor; J.H.R.; A.M.H., a minor; I.C.T.; V.T.P., a minor; C.N.; B.L.; B.L.N., a minor; 
P.M.; M.N.; H.M.N., a minor; N.P.; R.D.P., a minor; Y.U.; F.G.U, a minor; Y.O.T.; 
V.L.O., a minor; D.L.O., a minor; L.H.H..; Y.F.H., a minor; A.B.C.; E.C.B, a minor; 
K.P.P.; M.P.P., a minor; I.P.P., a minor; M.H.; J.M.H., a minor; B.C.A.; G.S.C., a minor; 
L.M.P.; Y.M.M., a minor; L.P.M, a minor; A.S.G., a minor; E.G.; J.G.M., a minor; 
B.G.C.; S.M.G., a minor; T.S.J.; L.P.S, a minor; G.S.J., a minor; I.C.A.; S.P.C., a minor; 
M.T.T.; Y.L.T., a minor; R.C.H.; E.P.C., a minor; L.M.B.; Z.R.M., a minor; E.R.M., a 
minor; C.H.G.; M.G.H., a minor; T.R.M.; J.R.R., a minor; M.P.A.; G.S.P., a minor; 
M.T.B.; A.V.B., a minor; W.A.B., a minor; I.F.; Z.M.F., a minor; E.G.F., a minor; J.M.F., 
a minor; M.P.T.; A.A.P., a minor; H.A.P., a minor; M.C.P.; J.C.P.; a minor; M.R.C., a 
minor; M.L.M.; J.R.L., a minor; M.Z.L; F.P.Z., a minor; F.F.A.; D.A.B.; A.A.B., a minor; 
R.S.J.; S.A., a minor; L.G.G.; W.C.G., a minor, (“Proposed Intervenors”) by and through 
their counsel, Rapid Defense Network and Greenberg Traurig, LLP, will, and hereby do 
make the following motion at Ronald V. Dellums Federal Building & United States 
Courthouse.  
Proposed Intervenors move for an order granting Proposed Intervenors leave to 
intervene in this action and move for a temporary restraining order and preliminary 
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injunction, enjoining the Defendants from removing Proposed Intervenors from the 
United States pending further order of this Court. 
WHEREFORE, Proposed Intervenors respectfully pray that the Court: 
(a) Grant Proposed Intervenors’ Temporary Restraining Order;    
(b) Enjoin Defendants from taking any action to remove from Proposed      
Intervenors from the United States pending further order of this Court; and  
(c) Grant Proposed Intervenors’ Motion to Intervene.  
BASIS FOR MOTION: This Motion is based upon this Notice and the 
following Memorandum of Points and Authorities. 
 
 
 
Dated: October 16, 2020 
 
 
Respectfully submitted, 
 
GREENBERG TRAURIG LLP 
Adam Siegler 
Jonathan K. Ogata 
Caroline J. Heller (Pro Hac Forthcoming) 
Steven G. Berringer (Pro Hac Forthcoming) 
 
RAPID DEFENSE NETWORK 
Gregory P. Copeland (Pro Hac Forthcoming) 
Sarah T. Gillman (Pro Hac Forthcoming) 
 
 
By 
/s/ Adam Siegler 
 
Adam Siegler 
Jonathan K. Ogata  
Attorneys for Proposed Intervenors  
 
 
 
 
 
 
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MEMORANDUM OF POINTS AND AUTHORITIES 
I. 
INTRODUCTION/SUMMARY OF ARGUMENT  
Pursuant to Federal Rule of Civil Procedure 24, Proposed Intervenors seek an 
order permitting them to intervene in this action to permit them to avail themselves of 
any relief that may be granted in connection with any vacatur of an interim final rule 
entitled “Asylum Eligibility and Procedural Modifications,” 84 Fed. Reg. 33,829 (July 
16, 2019) (the “Rule”).   
Pursuant to Federal Rule of Civil Procedure 65, Proposed Intervenors also move 
by order to show cause for a temporary restraining order and preliminary injunction 
prohibiting Defendants from removing Proposed Intervenors from the United States 
pending further order of the Court.   
Proposed Intervenors are mothers, fathers, and children who fled persecution in 
their home countries to seek asylum in the United States.  Upon arrival in the United 
States, they were subjected to the Rule, interviewed under the Rule’s “reasonable fear” 
standards, were found not to have reasonable fear, and issued final orders of removal.  
Petitioners are detained either in the South Texas Family Residential Center in Dilley, 
Texas (“Dilley”) or Berks Family Residential Center in Leesport, Pennsylvania 
(“Berks”), or have been released into the United States and are subject to ongoing orders 
of supervision, monitoring, and electronic custody.   
On June 30, 2020, in Capital Area Immigrants’ Rights Coalition v. Trump, Civil 
Action Nos. 19-2117, 19-2530 (TJK), 2020 WL 3542481 (D.D.C. June 30, 2020) 
(“CAIR”), the District Court for the District of Columbia entered an Order vacating the 
Rule because it violates the Administrative Procedures Act (“APA”).  The Government 
appealed from the order, but there is no stay.  The well-settled law is that a regulation 
not promulgated pursuant to the APA has no ‘force or effect of law’ and therefore is void 
ab initio”, United States v. Goodner Bros. Aircraft, Inc., 966 F.2d 380, 384 (8th Cir. 
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1992) (citing Chrysler Corp. v. Brown, 441 U.S. 281, 313 (1979)).  Vacatur, without 
limitation or qualification, is retroactive and restores every party affected by the Rule to 
the status quo ante.  See Envtl. Def. v. Leavitt, 329 F. Supp. 2d 55, 64 (D.D.C. 2004) 
(citing Indep. U.S. Tanker Owners Comm. v. Dole, 809 F.2d 847, 854 (D.C. Cir. 1987)).  
Thus, the consequence of CAIR’s vacatur of the Rule is that the Proposed Intervenors 
are restored to the status quo ante prior to the Rule, i.e., they are noncitizens in 
expedited removal proceedings pursuant to 8 U.S.C. § 1225(b) and they are entitled to 
participate in that process.  Put another way, because of the CAIR decision, the Proposed 
Intervenors have the right to seek asylum through a lawful process created by Congress, 
which the Rule unlawfully took from them, and is now restored.  
However, in a separate litigation, Defendants William Barr, Attorney General of 
the United States of America and Chad Wolf, Acting Secretary, Department of 
Homeland Security, have taken the position that Proposed Intervenors are not entitled to 
the relief rendered by CAIR’s vacatur of the Rule, alleging that vacatur is not retroactive 
for those who were not parties to that action.  Essentially, the Government’s position is 
that unless a noncitizen is a party to an action that vacates the Rule, that noncitizen is 
unable to avail herself of the relief granted by vacatur, i.e., restoration to the status quo 
ante with access to the asylum process under 8 U.S.C. § 1225(b).   
Proposed Intervenors seek to intervene in this action because their interests are 
not capable of being adequately represented by the existing Plaintiffs.  Should this Court 
vacate the Rule, as it has indicated it will do in finding that the Rule is arbitrary and 
capricious, E. Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 956 (N.D. Cal. 
2019), order reinstated, 391 F. Supp. 3d 974 (N.D. Cal. 2019), affd, 19 -16487, 2020 WL 
3637585 (9th Cir. July 6, 2020), and aff’d, 19-16487, 2020 WL 3637585 (9th Cir. July 
6, 2020), unless Proposed Intervenors are parties to this action, the Government will 
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take the position that vacatur does not provide Proposed Intervenors relief as they have 
because Proposed Intervenors are not parties in CAIR.   
Proposed Intervenors seek an order staying their removal because even if this 
Court vacates the Rule and orders that relief is retroactive to non-parties, without a stay 
of removal, Proposed Intervenors will no longer be in the United States and will not be 
permitted to access asylum, which requires noncitizens be present in the United States 
to apply.  See 8 U.S.C. § 1225(b)(1).  Proposed Intervenors remain in the United States 
because of stays of removal issued by the District Court for the District of Columbia and 
the Court of Appeals for the District of Columbia Circuit in connection with two 
separate litigations.  On October 16, 2020, the District of Columbia Circuit dissolved 
the most recent stay.  D.A.M. v. Barr, Case No. 20-5821 (D.C. Cir.), Doc. No. 1866602].   
Proposed Intervenors are now at risk of imminent removal from the United States.  
Proposed plaintiff-intervenors were recently clustered together in the same 
“neighborhood” within the facility. ICE regularly moves families within the facility 
when preparing them for removal.  Additionally, today, October 16, 2020, ICE spoke 
with proposed plaintiff-intervenors to secure contact information for the person who 
will receive them when they are removed and advised proposed plaintiff-intervenors 
that this person should be immediately ready to receive them.  Heller Exh. 4, 
(Declaration of Shalyn Fluharty, Esq. dated October 16, 2020 (Fluharty Declaration) ¶ 
3).   If this Court grants Proposed Intervenors’ motion to intervene, but they are 
removed from the United States, they will be unable to benefit from any relief to which 
they may be entitled to as parties in this action.  The Government has no obligation to 
return them and it is unlikely they will ever be able to make their harrowing journeys 
back to the United States.  
Thus, the Proposed Intervenors remain subject to final orders of removal based 
upon an unlawfully heightened standard unless they intervene as parties in this case and 
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this Court grants a stay of removal.  Proposed Intervenors seek an order immediately 
granting them leave to intervene to protect their interests and staying their removal 
pending further order of the Court. 
II. 
PROPOSED INTERVENORS 
Descriptions of the Proposed Intervenors are set forth in Heller Exhibit 1, ⁋⁋ 37-
40, 42, 44, 46, 47, 49-, 51, 53, 54, 56, 59, 64, 66-73,76-80, 82, 83, 85-87, 89-91, 95, 96, 
98, 100, 102, 105-107, 109, 110, 113, 116, 118, 119, and 121.  Since Heller Exhibit 1 
was filed, the Proposed Intervenors families in paragraphs 39, 62, 107 and 109 have 
been released from Dilley and are subject to ongoing orders of supervision, monitoring, 
and electronic custody.    
III. 
FACTUAL BACKGROUND 
The Proposed Intervenors are parents and children who have fled persecution in 
their home countries to seek asylum in the United States.  See M.M.V. v. Barr, No. CV 
19-2773 (ABJ), 2020 WL 1984309, at *1 (D.D.C. Apr. 27, 2020); Heller Exh. 2 
(D.A.M. v. Barr, No. 20-CV-1321 (CRC), 2020 WL 5525056 (D.D.C. Sept. 15, 2020)); 
Heller Exh. 3 (Declaration of Bridget Cambria, Esq. dated October 16, 2020 (Cambria 
Decl.) ¶¶ 2, 3, 5, 9); Heller Exh. 4, (Declaration of Shalyn Fluharty, Esq. dated October 
16, 2020 (Fluharty Declaration) ¶¶ 2, 3).  They are detained at either Dilley or Berks or 
they have been released from one of those detention centers and are subject to ongoing 
orders of supervision, monitoring, and electronic custody.  See Section II, supra.  All the 
Proposed Intervenors have final orders of removal issued pursuant to the Rule except for 
Proposed Intervenors E.V.M. and N.V., who are the mothers of children who were 
subjected to the Rule, A.V.M. and Z.F., and move on behalf of their children.  Id.; 
Heller Exhibit 1 ⁋⁋ 83, 102, 159.  Proposed Intervenors E.V.M. and N.V. should be 
included in the scope of any stay because they have a liberty interest in family unity 
with their children.  The Proposed Intervenors were and are categorically prevented 
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from avoiding persecution by establishing a significant possibility of asylum eligibility 
under the “credible fear” standard, with few exceptions.  Cambria Decl. ¶¶ 2, 3, 5, 9; 
Fluharty Decl. ¶ 2. 
Proposed Intervenors are parties in either one or both of two civil lawsuits.  In 
M.M.V. et al. v. Barr, et al., Proposed Intervenors challenged clandestine directives and 
policies implemented by the Government and those operating under their supervision or 
control intended to eviscerate the “credible fear” process after the Rule.  See M.M.V., et 
al. v. Barr et al., No. 19-cv-02773 (D.D.C.)  The District Court ordered an 
administrative stay of removal of the parties in that case and for families who later 
moved to join that case.  Id. ECF No. 16; Minute Order (October 17, 2019); ECF No. 
50; Minute Orders (March 25, April 4, 6, 15, 23, 2020).  On April 27, 2020, the Court 
granted the government’s partial motion to dismiss and denied the motions for joinder.  
Id. ECF Nos. 96, 97.  Proposed Intervenors appealed from that decision.  See M.M.V., et 
al. v. Barr, at al., Nos. 20-5106 and 20-5129 (D.C. Cir.).  The appeal was fully briefed 
and oral argument was held on September 11, 2020 before Chief Judge Srinivasan, 
Circuit Judge Katsas, and Senior Circuit Judge Ginsburg.  That appeal is pending 
decision. 
On May 18, 2020, Proposed Intervenors filed a Petition for Writ of Habeas 
Corpus and Complaint for Declaratory and Injunctive Relief alleging, among other 
things, that the manner in which Respondents intended to deport them during the 
COVID-19 pandemic violated their procedural and substantive due process rights.  See 
D.A.M. v. Barr, 20-CV-1321 (CRC) (D.D.C.), ECF No. 3.  Proposed Intervenors filed 
an emergency motion for a temporary restraining order requesting a stay of removal of 
the detained families and an emergency judge granted their request for an administrative 
stay, later extended by the Court.  Id., ECF Nos. 7, 8, 22.  
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On June 30, 2020, the CAIR decision was issued.  CAIR, 2020 WL 3542481 at 
*1.  The government appealed from that order to the Court of Appeals for the District of 
Columbia Circuit Court on August 31, 2020 (D.C. Cir. Case Nos. 20-5271, 20-5273), 
but it has not sought a stay. 
After learning that the government did not intend to comply with the CAIR order, 
Proposed Intervenors amended their D.A.M. petition, asserting new claims alleging that 
the government’s attempts to remove the those who have final orders of removal 
unlawfully procured under the vacated Rule without providing them process under 8 
U.S.C. § 1225(b)(1) violated their substantive and procedural due process rights.  
D.A.M., 20-CV-1321, ECF No. 31.  Proposed Intervenors argued that vacatur of the 
Rule restored them to the status quo ante, and they are entitled to the process under 8 
U.S.C. § 1225(b)(1) they would have received but for the Rule.  Id.  Thus, Petitioners 
have “rights regarding admission that Congress has provided by statute”, DHS v. 
Thuraissigiam, 140 S. Ct. 1959, 1983 (2020), in this case, section 1225(b)(1).  Congress 
provided Petitioners the right to access the credible fear process as it existed prior to the 
now vacated Rule, and the Government’s refusal to provide that to Proposed Intervenors 
violates the Due Process Clause.  Id.   
On July 23, 2020, the court denied their motion for a temporary restraining order 
based upon the claims in the original Petition and lifted the stay of deportation.  D.A.M. 
v. Barr, No. 20-CV-1321, 2020 WL 4218003 (D.D.C. July 23, 2020) (“D.A.M. I”).  The 
Court held that it likely had jurisdiction over some of the claims but that they were 
unlikely to succeed on the merits of their claims.  Id.  That same day, Proposed 
Intervenors filed a motion for a temporary restraining order based upon the allegations 
in the Amended Petition, asking the Court to stay their removal pending resolution of 
those claims.  D.A.M., 20-CV-1321 ECF No. 35.  The Court granted an administrative 
stay pending disposition of the motion.  Id., Minute Order (July 23, 2020).  On 
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September 15, 2020, after briefing and oral argument, the Court denied the motion, 
finding that although Proposed Intervenors likely would suffer irreparable harm in the 
absence of the stay, and the balance of the equities and public interest did not favor 
either party, 8 U.S.C. § 1252(a)(2)(A) likely stripped it of jurisdiction over their claims, 
and thus they were not likely to succeed on the merits because the vacatur was not 
retroactive.  Heller Exh. 2 (D.A.M. v. Barr, 20-CV-1321 (CRC), 2020 WL 5525056 
(D.D.C. Sept. 15, 2020) (hereinafter “D.A.M. II”)).  Proposed Intervenors appealed from 
the Order and moved for an emergency stay pending appeal.  D.A.M. v. Barr, at al., 
Nos. 20-5281 (D.C. Cir.).  After the parties briefed the motion, on September 30, 2020, 
the panel issued an order dissolving the administrative stay, denying the emergency 
motion, and ordering a briefing schedule pursuant to which the appeal will be fully 
briefed by the end of 2020.  Id. Doc. No. 1864103.  On October 1, 2020, Petitioners 
filed a motion for rehearing en banc and an emergency motion for a stay of removal 
pending disposition of the motion.  Id. Doc. Nos. 1864319, 1864407.  After the parties 
briefed the motion, on October 2, 2020, an en banc panel issued a per curiam order 
administratively staying removal pending further order of the court while the court 
considered appellants’ motions.  Id., Doc. No. 1864701.  In an order dated October 16, 
2020, the court denied the motion for reconsideration en banc and dismissed the stay as 
moot.  Id. Doc. No. 1866599.  The court dissolved the administrative stay in a separate 
order on October 16, 2020.  Id., Doc. No. 1866602. 
Two federal courts have recognized that Defendants unlawfully promulgated the 
Rule.  First, in CAIR,1 a District Court for the District of Columbia vacated the Rule in a 
final, appealable order because it violated the APA.  There is no stay of this decision.  
Second, this Court granted Plaintiffs’ motion for a preliminary injunction, holding 
that the Rule is arbitrary and capricious, and the Ninth Circuit recently affirmed this 
                                                 
1 CAIR was consolidated with I.A. v. Barr, Civ. No. 19-2530 (TJK).  2020 WL 3542481 at *1. 
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Court’s preliminary injunction against its enforcement through published opinion.  E. 
Bay Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 952, 956 (N.D. Cal. 2019), order 
reinstated, 391 F. Supp. 3d 974 (N.D. Cal. 2019), aff'd, 19-16487, 2020 WL 3637585 
(9th Cir. July 6, 2020), and aff’d, 19-16487, 2020 WL 3637585 (9th Cir. July 6, 2020).  
The Supreme Court has issued a stay of the injunction.  Barr v. E. Bay Sanctuary 
Covenant, 140 S. Ct. 3 (2019).  
Even though the Proposed Intervenors are subject to removal based on the Rule, 
the Government has taken the position that unless the Proposed Intervenors are parties 
to a litigation vacating the Rule, they cannot avail themselves of the relief from such 
vacatur (the relief being nothing more than the correct credible fear process prescribed 
by statute).   
The Proposed Intervenors thus move to intervene in this action, and for temporary 
restraining order and preliminary injunction staying their removal, so that, as parties, 
should the Court vacate the Rule, they may avail themselves of the remedies under 
vacatur. 
Should Proposed Intervenors be deported, they will be returned to countries 
where they “fear physical harms, sexual harms, psychological harms and torture based 
on their status as women, as children, on their familial associations, and their political 
opinions.  Cambria Decl. ¶ 9; Fluharty Decl. ¶ 4.  Proposed Intervenors fear being 
killed, physical beatings and torture, sexual assaults and rape, kidnappings and other 
harms, should they be returned to their home counties. Id.  
On October 16, 2020, counsel for Proposed Intervenors contacted counsel for 
Defendants requesting their position on the motion to intervene and for a temporary 
restraining order.  Defendants oppose both motions. 
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On October 16, 2020, counsel for Proposed Intervenors contacted counsel for 
Plaintiffs requesting their position on this motion.  Plaintiffs do not oppose the motion 
to intervene. 
IV. 
     ARGUMENT 
A. 
     LEGAL STANDARDS 
1. 
Intervention as of Right 
Rule 24 of the Federal Rules of Civil Procedure provides that intervention may be 
allowed as of right or permissively; here, Proposed Intervenors request intervention on 
both grounds.  Fed. R. Civ. P. 24.  The Ninth Circuit has held that a district court must 
grant a motion to intervene as of right pursuant to Rule 24(a)(2), “if four criteria 
are met: timeliness, an interest relating to the subject of the litigation, practical 
impairment of an interest of the party seeking intervention if intervention is not granted, 
and inadequate representation by the parties to the action.”  United States v. 
Washington, 86 F.3d 1499, 1503 (9th Cir. 1996).  These factors are construed broadly in 
favor of intervention.  See id.; see also Donnelly v. Glickman, 159 F.3d 405, 409 (9th 
Cir. 1998); League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 
1997); Nw. Forest Res. Counsel v. Glickman, 82 F.3d 825, 836 (9th Cir. 1996). 
Timeliness is a threshold requirement for application to intervene as a matter of 
right.  League of United Latin Am. Citizens, 131 F.3d at 1302; see also NAACP v. New 
York, 413 U.S. 345, 369 (1973).  If a motion to intervene is not timely, the court need 
not consider the other factors in denying intervention.  Washington, 86 F.3d at 1503.  
“Timeliness is to be determined from all the circumstances.  And it is to be determined 
by the court in the exercise of its sound discretion; unless that discretion is abused, the 
court’s ruling will not be disturbed on review.”  NAACP, 413 U.S. at 366.  In 
determining whether a motion to intervene is timely, the Ninth Circuit considers three 
factors: (1) the stage of the proceedings at the time the applicant seeks to intervene; (2) 
the prejudice to the other parties if the motion is granted; and (3) the reason for and 
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length of the delay.  League of United Latin Am. Citizens, 131 F.3d at 1302; United 
States v. Oregon, 745 F.2d 550, 552 (9th Cir. 1984). 
A party’s interests are “practically impaired” absent a grant of intervention if they 
“would be substantially affected in a practical sense by the determination made in an 
action.”  Fed. R. Civ. P. 24 advisory comm. nn. (Am. 1966).  This requirement “is 
primarily a practical guide to disposing of lawsuits by involving as many apparently 
concerned persons as is compatible with efficiency and due process.” County of Fresno 
v. Andrus, 622 F.2d 436 (9th Cir. 1980) (quoting Nuesse v. Camp, 385 F.2d 694 (D.C. 
Cir. 1967)).  Intervention as of right is appropriate in order to afford affected parties the 
“opportunity to argue the propriety of, or limit the scope of, the injunctive relief sought 
by plaintiffs.”  Forest Conservation Council v. U.S. Forest Service, 66 F.3d 1489, 1498 
(9th Cir. 1995).  
2. 
Permissive Intervention 
Even if the Court finds that the Proposed Intervenors are not entitled to intervene 
as of right, they should nonetheless be permitted to intervene pursuant to Federal Rule 
of Civil Procedure 24(b).  The Court may allow “‘permissive intervention where the 
applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion 
is timely; and (3) the applicant’s claim or defense, and the main action, have a question 
of law or a question of fact in common.’”  United States v. City of Los Angeles, 288 F.3d 
391, 403 (9th Cir. 2002) (quoting Northwest Forest Res. Council v. Glickman, 82 F.3d 
825, 839 (9th Cir. 1996)).  In considering whether to grant permissive intervention, the 
Court “must consider whether the intervention will unduly delay or prejudice the 
adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).  
3. 
Temporary Restraining Order 
The same legal standard applies to a motion for a temporary restraining order and 
a motion for a preliminary injunction.  See Stuhlbarg Int’l Sales Co. v. John D. Brush & 
Co., 240 F.3d 832, 839 n. 7 (9th Cir. 2001). A plaintiff seeking either remedy “must 
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establish that he is likely to succeed on the merits, that he is likely to suffer irreparable 
harm in the absence of preliminary relief, that the balance of equities tips in his favor, 
and that an injunction is in the public interest.”  Am. Trucking Associations, Inc. v. City 
of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. NRDC, Inc., 555 
U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249 (2008)).  Injunctive relief is “an 
extraordinary remedy that may only be awarded upon a clear showing that the plaintiff 
is entitled to such relief.”  Winter, 555 U.S. at 22. 
To grant preliminary injunctive relief, a court must find that “a certain threshold 
showing is made on each factor.”  Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th Cir. 
2011). Provided that this has occurred, in balancing the four factors, “‘serious questions 
going to the merits’ and a balance of hardships that tips sharply towards the plaintiff can 
support issuance of a preliminary injunction, so long as the plaintiff also shows that 
there is a likelihood of irreparable injury and that the injunction is in the public 
interest.”  Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 
B. 
INTERVENTION SHOULD BE GRANTED UNDER RULE 24(A). 
1. 
     The Motion to Intervene is timely. 
Timeliness with respect to motions to intervene “is a flexible concept,” United 
States v. Alisal Water Corp., 370 F.3d 915, 921 (9th Cir. 2004).  When evaluating the 
timeliness of a motion, the “[m]ere lapse of time alone is not determinative.” Id. at 854 
(citing United States v. State of Oregon, 745 F.2d 550, 552 (9th Cir. 1984)).  Where a 
change of circumstances occurs, and that change is the “major reason” for the motion to 
intervene, the stage of proceedings factor should be analyzed by reference to the change 
in circumstances, and not the commencement of the litigation.  See id.  
Although this action was filed in July 2019, this request to intervene remains 
timely.  Respondents are refusing to provide Proposed Intervenors with the relief they 
are entitled to under CAIR.  The Government’s attempt to enforce an unlawfully 
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promulgated rule and in the process knowingly deprive the Proposed Intervenors of 
their rights constitute changed circumstances.   
2. 
The Proposed Intervenors have an interest relating to the subject 
of the litigation. 
The Proposed Intervenors are subject to removal orders under the Rule, and 
therefore they have an interest directly relating to the subject of the litigation.  The issue 
before the Court is the legality of the same interim final rule that has deprived the 
Proposed Intervenors with the ability to establish their credible fear under the proper, far 
lower standard that existed prior to the Rule and ultimately, their right to asylum in the 
United States.  The Proposed Intervenors seek to intervene to ensure that their legal 
positions and arguments are known and articulated to the Court, to ensure that the Court 
has all necessary factual information, and to ensure that they can obtain relief from any 
order that the Court enters regarding the legality of the Rule. 
3. 
The interests of the Proposed Intervenors will be practically 
impaired if intervention is not granted. 
Proposed Plaintiff-Intervenors’ interests will be practically impaired absent a 
grant of intervention.  Despite the well-settled law, the Government has expressly 
disagreed that vacatur of the Rule applies to Proposed Intervenors.  Heller Exh. 2.  Even 
though this Court, and the U.S. District Court for the District of Columbia have both 
determined that the Rule is unlawful, the Proposed Intervenors will remain subject to 
removal under that void policy unless they are permitted in intervene in this action. The 
Government could end this dispute by simply giving the Proposed Intervenors the 
credible fear process to which they have always been entitled; the Government’s refusal 
to do so is telling. 
4. 
Current representation of the Proposed \Intervenors’ interests is 
inadequate. 
The position and interests of the Proposed Intervenors are not currently 
adequately represented before this Court absent intervention, because unless 
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intervention is granted the Government will refuse to give Proposed Intervenors proper 
process based on the ruling of this, or any other court, in any action to which they are 
not parties.  “The ‘most important factor’ in assessing the adequacy of representation is 
‘how the interest compares with the interests of existing parties.’” Citizens for Balanced 
Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 898 (9th Cir. 2011).  While, like the 
Plaintiffs, the Proposed Intervenors also seek to invalidate the Rule, their interests are 
not precisely aligned with the Plaintiffs’.  The Proposed Intervenors seek not only to 
invalidate the Rule, but they also seek to preclude their removal based on the Rule 
absent a proper “credible fear” process.  Only the Proposed Intervenors can offer that 
argument.  To be clear, this has nothing to do with the sufficiency of counsel that 
currently represents the Plaintiffs.  Rather, the adequacy of representation has 
everything to do with the Government’s position, explained supra, that unless the 
Proposed Intervenors are parties in this case, they will remain subject to removal under 
the Rule, even though that interim rule has been enjoined by this Court and vacated by 
another court.  Under the Government’s position, the Plaintiffs cannot adequately 
represent the Proposed Plaintiff-Intervenors’ interests, no matter the effectiveness and 
talent of existing counsel.  Because the Proposed Intervenors cannot obtain relief absent 
intervention, the current representation of their interests is necessarily inadequate.      
C. 
INTERVENTION SHOULD BE GRANTED UNDER RULE 24(B). 
The standard for permissive intervention is easily satisfied here, as all that is 
required is “a common question of law or fact.”  Kootenai Tribe of Idaho v. Veneman, 
313 F.3d 1094, 1111 (9th Cir. 2002).  The Proposed Intervenors do not raise any novel or 
additional questions of law and fact.  Rather, they simply seek to appear as Plaintiff-
Intervenors to protect their substantive rights and ensure that the Government cannot 
force their removal under the void and unlawful Rule prior to providing them with the 
credible fear process outlined in the statute.  
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D. 
PROPOSED INTERVENORS ARE ENTITLED TO A TEMPORARY 
RESTRAINING ORDER AND INJUNCTIVE RELIEF 
Proposed Intervenors ask this Court to maintain the status quo so this Court may 
fully consider Proposed Intervenors’ motion to intervene.  Courts in this Circuit have 
issued stays of removal in order to preserve the status quo when the risk of deportation, 
as here, is present.  See Chaudhry v. Barr, No. 19-CV-00682-TLN-DMC, 2019 WL 
2009307, *5 (ED Cal. May 7, 2019) (granting Petitioner’s a stay of removal “pending 
briefing and disposition of Petitioner’s Motion for Preliminary Injunction, or until 
further order of this Court.”); Abdul Mehamed Sied v. Duke, No. 17-CV-06785-LB, 
2017 WL 6316821 (ND Cal. Dec. 11, 2017) (staying Petitioner’s removal “pending the 
court’s determination as to…jurisdiction.”); Jimenez v. Napolitano, No. C-12-03558 
RMW, 2012 WL 3144026, at *1 (N.D. Cal. Aug. 1, 2012) (granting motion for stay of 
removal pending disposition of petition for writ of habeas corpus).  
Proposed Intervenors respectfully request that the Court issue a temporary 
restraining order, staying their removal, so as to allow this Court to fully consider the 
merits of their motion to intervene.  Just as in Chaudhry, Sied, and Jimenez, Proposed 
Intervenors request is made to ensure that the status quo is maintained prior to Proposed 
Intervenors being subjected to the irreparable harm presented by deportation. 
1. 
Proposed Intervenors Are Likely to Succeed on the Merits  
As demonstrated above, Proposed Intervenors have satisfied the standards 
outlined in Rule 24 of the Federal Rules of Civil Procedure for intervention as of right 
and permissive intervention.  Proposed Intervenors have demonstrated they are entitled 
to intervention as of right.  Proposed Intervenors’ motion is timely and they have an 
interest relating to the subject of the litigation as the issue before the Court is the 
legality of the same interim final rule that has deprived the Proposed Intervenors with 
the ability to establish their credible fear under the proper standard and ultimately, their 
right to asylum in the United States.  Further, Proposed Intervenors have established 
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their interests are impaired absent intervention as the Government has expressly 
disagreed that vacatur of the Rule applies to Proposed Intervenors.  Additionally, 
Proposed Intervenors established they are inadequately represented by the 
current parties to the action because unless the Proposed Intervenors are parties in this 
case, they will remain subject to removal under the Rule, even though that interim rule 
has been enjoined by this Court and vacated by another court.   
Proposed Intervenors have also established they are entitled to permissive 
intervention because there is a common question of law or fact and Proposed 
Intervenors do not raise any novel or additional questions of law and fact.   
For these reasons, and those outlined in sections B and C supra, Proposed 
Intervenors are likely to succeed on the merits of their motion to intervene.  
2. 
Proposed Intervenors Will Suffer Irreparable Injury Absent 
Injunctive Relief 
   Proposed Intervenors are informed and believe they face imminent deportation 
to countries where they fear persecution and torture.  Cambria Decl. ¶¶ 8, 9; Fluharty 
Decl. ¶¶ 3,4; D.A.M. v. Barr, 20-CV-1321 (CRC), ECF No. 6.  This deportation could 
occur prior to this Court’s ruling on their motion to intervene and as soon as 24 hours 
from the time the District of Columbia Circuit’s stay was dissolved this morning.  Id.  
Such deportation would not only expose Proposed Intervenors to the harms from which 
they have fled but also result in irreparable injury.  Cambria Decl. ¶¶ 8, 9; Fluharty 
Decl. ¶ 4; D.A.M. v. Barr, 20-CV-1321 (CRC), 2020 WL 5525056, at *14 (D.D.C. Sept. 
15, 2020) (finding Proposed Intervenors will suffer irreparable injury).  For this reason, 
just as this Court and its sister district did in Chaudhry, Sied, and Jimenez, this Court 
too should enter a stay of removal, preventing Proposed Intervenors from suffering the 
irreparable harm of deportation prior to this Court’s adjudication of Proposed 
Intervenors pending motion.  
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Absent this Court’s intervention, Proposed Intervenors will be removed to their 
home countries where they fear persecution and torture.  Specifically, these families will 
be removed back to countries where they fear physical harm, sexual harms, 
psychological harms and torture based on their status as women, as children, and based 
on their familial associations and their political opinions.  Cambria Decl. ¶ 9; Fluharty 
Decl. ¶ 4.  Further, Proposed Intervenors fear being killed, physical beatings and torture, 
sexual assaults and rape, kidnappings, and other harms.  Id.  Should deportation occur, it 
would be the result of an illegal and void rule, improperly promulgated and enforced by 
Defendants, depriving Proposed Intervenors of the process due to them by law.  Id. ¶¶ 7, 
8. 
Further, Proposed Intervenors removal would likely cause irreparable harm 
because if it is ultimately determined that Proposed Intervenors are entitled to access the 
asylum system, they will not be able to access such asylum relief in their home 
countries.  See D.A.M., 2020 WL 5525056, at *14 (Proposed Intervenors demonstrated 
“a strong likelihood that if the Court denies the TRO and allows the government to carry 
out their removals, they will be unable to return, regardless of whether they are legally 
owed an opportunity to continue seeking asylum from inside the U.S.  Effectively, 
permanent removal from the U.S. to countries from which Petitioners fled from to seek 
safety in the United States would constitute irreparable injury.”); A.B.-B. v. Morgan, 20-
CV-846 (RJL), 2020 WL 51075 48, at *8 (D.D.C. Aug. 31, 2020) (“In the absence of 
preliminary injunctive relief, plaintiffs would be subject to immediate removal from the 
United States to countries where they face significant risk of physical harm….  To say 
the least, this harm could not be remedied after the court has an opportunity to rule on 
the merits of plaintiffs’ complaint.).   
Crucially, Proposed Intervenors are informed and believe their removal is 
imminent.  Indeed, their removal will likely occur immediately, if not within days of 
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this filing.  Cambria Decl. ¶ 8; Fluharty Decl. ¶¶ 5-10.  For this reason, the Proposed 
Intervenors face immediate irreparable harm absent an order from this Court.   
3. 
The Balance of the Interests Tips Sharply in      Proposed 
Intervenors Favor and the Injunction is in the Public Interest 
The Court here must balance the interests of asylum-seeking families, attempting 
to benefit from this Court’s determination that the Rule was unlawfully promulgated, 
with the Government’s interest in implementing that same unlawful Rule.  As outlined 
above Proposed Intervenors face very real very imminent irreparable harm absent an 
injunction from this Court staying their deportation.  If Proposed Intervenors are 
removed, they will be deprived of their rights as asylum seekers and sent back to the 
countries from which they have fled persecution.  Indeed, “[b]y definition, aliens 
seeking asylum contend that they are subject to persecution when they return to their 
own countries, where they risk further harm, potentially including imprisonment or even 
death.” Desta v. Ashcroft, 365 F.3d 741, 748 (9th Cir. 2004).  
The Government, to the contrary, has no legitimate interest at issue here.  The 
Government is attempting to enforce the illegal and unlawfully promulgated Rule 
against Proposed Plaintiff Intervenors.  The enforcement of this unlawful Rule 
demonstrates the absence of any legitimate government interest for, as this Court has 
recognized, “the [G]overnment has no justifiable interest in unlawful law enforcement.” 
Ramos v. Nielsen, No. 18-CV-01554-EMC, 2018 WL 3109604, at *2 (N.D. Cal. June 
25, 2018) (Chen, J.).  
Because Proposed Intervenors face severe and imminent harm and the 
Government has no legitimate interest at issue, the balance tips sharply in favor of 
Proposed Intervenors.  
Further, this injunction is in the public interest.  It is well established there is “a 
public interest in preventing aliens from being wrongfully removed, particularly to 
countries where they are likely to face substantial harm.”   Nken v. Holder, 556 U.S. 
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418, 436 (2009).  Proposed Intervenors are subject to orders of removal which were 
obtained pursuant to fear interviews conducted under the Rule, the same Rule this Court 
has found unlawful.  Cambria Decl. ¶ 3; Fluharty Decl. ¶¶ 2, 3.  As such, the removal of 
Proposed Plaintiff Intervenors, if effectuated, will occur as a direct result of the 
unlawful Rule.  Cambria Decl. ¶ 7; Fluharty Decl. ¶¶ 2, 3.  Additionally, as noted above, 
if removed Proposed Intervenors will be sent to countries “where they are likely to face 
substantial harm.”  Nken, 556 U.S. at 436; Cambria Decl. ¶ 9; Fluharty Decl. ¶ 4.  
Because Proposed Intervenors removal would be executed pursuant to the unlawful 
Rule and they would be removed to countries where they likely face substantial harm, 
the removal itself would be unlawful and in direct contravention of the public interest.  
As such, granting Proposed Plaintiff Intervenors’ motion for a TRO is in the public 
interest.  
V. 
CONCLUSION 
For all the foregoing reasons, Proposed Intervenors respectfully request that this 
Court: (1) grant their motion for a temporary restraining order, (2) enjoin Defendants 
from taking any action to remove Proposed Plaintiff-Intervenors, (3) issue and order to 
show cause why a preliminary injunction should not issue, and (4) grant Proposed 
Intervenors leave to intervene so as to protect their interests in the challenge to the Rule; 
and that the Court grant such other and further relief as it may deem just and proper.  
 
 
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Dated:  October 16, 2020 
 
 
Respectfully submitted, 
 
GREENBERG TRAURIG LLP 
Adam Siegler 
Jonathan K. Ogata   
Caroline Heller (Pro Hac Forthcoming) 
Steven G. Berringer (Pro Hac Forthcoming) 
 
RAPID DEFENSE NETWORK 
Gregory P. Copeland (Pro Hac Forthcoming) 
Sarah T. Gillman (Pro Hac Forthcoming) 
 
 
By 
/s/ Adam Siegler 
 
               Adam Siegler 
               Jonathan K. Ogata  
Attorneys for Plaintiff-Intervenors  
 
 
 
 
 
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