Defendants' Response to Intervenors' Notice of Supplemental Authority — East Bay Sanctuary Covenant v. Barr (Dkt. 122, N.D. Cal.)

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U.S. District Court, N.D. Cal. · No. 4:19-cv-04073-JST · Doc. 122 · 2020-11-05 · Docket on CourtListener

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RESPONSE TO NOTICE OF SUPP. AUTHORITY 
East Bay Sanctuary v. Trump, Case No. 4:19-cv-04073-JST 
 
 
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JEFFREY BOSSERT CLARK  
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 
 
 
UNITED STATES DISTRICT COURT  
FOR THE NORTHERN DISTRICT OF CALIFORNIA 
 
 
) 
East Bay Sanctuary Covenant, et al., 
) 
) 
 
Plaintiffs, 
 
) 
) 
v. 
) 
Civil Action No. 4:19-cv-04073-JST 
) 
Donald J. Trump, President of the United    ) 
States, et al., 
) 
 
) 
 
Defendants. 
 
) 
 
) 
 
RESPONSE TO INTERVENORS’ NOTICE OF SUPPLEMENTAL AUTHORITY 
 
We write in response to intervenor’s suggestion that Kiakombua v. Wolf, No. 19-CV-1872 
(KBJ), 2020 WL 6392824 (D.D.C. Oct. 31, 2020), supports their position.  
In Kiakombua, the court, in a suit challenging expedited removal policies under 8 U.S.C. 
§ 1252(e)(3), concluded on final judgment that the agency’s “credible fear lesson plan” was 
contrary to law, vacated the lesson plan, and ordered that the named plaintiffs receive new credible 
fear interviews. 2020 WL 6392824, at *40; Dkt. 83, No. 19-CV-1872 (KBJ) (D.D.C.). That 
decision in fact supports the government’s position in this case that the vacatur of the Transit Rule 
did not retroactively vacate intervenors’ final orders of expedited removal and that the Court lacks 
Case 4:19-cv-04073-JST   Document 122   Filed 11/05/20   Page 1 of 4

 
RESPONSE TO NOTICE OF SUPP. AUTHORITY 
East Bay Sanctuary v. Trump, Case No. 4:19-cv-04073-JST 
 
 
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jurisdiction over any of intervenors’ claims because they all seek to nullify the ongoing effects of 
their final orders of removal. Dkt. 110 at 16-24.  
First, Kiakombua explicitly rejects the argument that intervenors advance here, that 
“[v]acatur,” of the Transit Rule “without limitation or qualification, is retroactive and restores 
every party affected by the Rule to the status quo ante.” Dkt. 95 at 4. In Kiakombua, the plaintiffs—
five aliens with final orders of expedited removal—sought vacatur not only of their own orders, 
but also all “credible fear proceedings” conducted while the challenged policy—a training 
document called the “credible fear lesson plan”—was operative as “inconsistent with and/or not 
in accordance with law.” Dkt. 6 at 26, No. 19-CV-1872 (KBJ) (D.D.C.); see also Dkt. 36-4 at 1, 
No. 19-CV-1872 (KBJ) (D.D.C.) (requesting, as relief, an order that “declares that the negative 
credible fear determinations made from the date the Lesson Plan was first implemented to the 
present were contrary to law”). The government contended such relief would exceed the Court’s 
authority under 8 U.S.C. § 1252(e)(1)(B), which bars class-action style-relief on behalf of non-
parties in cases arising under section 1252(e). Dkt. 49 at 34-35, No. 19-CV-1872 (KBJ) (D.D.C.) 
(“invalidating all negative credible fear determinations—without even determining whether the 
Lesson Plan ever applied to these absent individuals—is tantamount to class relief, which Congress 
prohibited”).  
The district court rejected Plaintiffs’ request, concluding that the appropriate relief was 
limited to (1) “vacatur” of the credible fear lesson plan prospectively “for everyone,” meaning that 
the lesson plan “cannot be lawfully enforced against others,” 2020 WL 6392824, at *35-36, and 
(2) “new credible fear interviews” for the named plaintiffs whose removal orders were based on 
the lesson plan. Id., *40; Dkt. 83, No. 19-CV-1872 (KBJ) (D.D.C.). And that is consistent with the 
many other cases arising in the expedited removal context under section 1252(e)(3) which 
similarly hold that vacatur of already final orders of removal is not an available remedy in cases 
arising under section 1252(e)(3). See Dkt. 110 at 20-21 (citing D.A.M. v. Barr, --- F. Supp. 3d ---, 
2020 WL 5525056, *8 (D.D.C. Sept. 15, 2020); L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 34 
(D.D.C. 2020); Grace v. Whitaker, 344 F. Supp. 3d 96, 144 n.31 (D.D.C. 2018)). 
Second, Kiakombua further supports the government’s argument that sections 
Case 4:19-cv-04073-JST   Document 122   Filed 11/05/20   Page 2 of 4

 
RESPONSE TO NOTICE OF SUPP. AUTHORITY 
East Bay Sanctuary v. Trump, Case No. 4:19-cv-04073-JST 
 
 
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1252(a)(2)(A) and (e)(2) eliminate jurisdiction in federal courts over intervenors’ claims 
challenging the validity of their removal orders. Kiakombua, like the other cases cited by the 
government, Dkt. 110 at 20-22, shows that Judge Kelly cannot be understood to have intended to 
vacate the many thousands of orders of removal premised on the Transit Rule that became final 
before the decision in Capital Area Immigrants’ Rights Coal. v. Trump (“CAIR”), --- F. Supp. 3d 
---, 2020 WL 3542481 (D.D.C. June 30, 2020). Thus, even if section 1252(a)(2)(A) contemplated 
review of whether an order issued in the past is presently lawful—which it does not, Dkt. 110 at 
16-20, 22-23—intervenors’ orders continue to exist, and so their claims are not subject to judicial 
review in light of 8 U.S.C. § 1252(a)(2)(A) and (e)(2). See id. 
Respectfully submitted, 
 
 
 
 
 
 
JEFFREY BOSSERT CLARK  
Acting 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 
 
Dated: November 5, 2020 
 
 
Attorneys for Defendant
Case 4:19-cv-04073-JST   Document 122   Filed 11/05/20   Page 3 of 4

 
RESPONSE TO NOTICE OF SUPP. AUTHORITY 
East Bay Sanctuary v. Trump, Case No. 4:19-cv-04073-JST 
  
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CERTIFICATE OF SERVICE 
 
I hereby certify that on November 5, 2020, 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 122   Filed 11/05/20   Page 4 of 4

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