Order Denying Leave to Intervene and Denying Preliminary Injunction (Dkt. 123) — East Bay Sanctuary v. Barr (N.D. Cal.)

Record facts

U.S. District Court, Northern District of California · No. 4:19-cv-04073-JST · Doc. 123 · 2020-11-10 · 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 DENYING LEAVE TO 
INTERVENE AND DENYING 
PRELIMINARY INJUNCTION 
Re: ECF No. 95 
 
 
 
One hundred twenty-eight mothers, fathers, and children who fled persecution in their 
home countries to seek asylum in the United States (“Proposed Intervenors”) now come before the 
Court.  They were denied the right to apply for asylum because immigration authorities applied a 
rule that categorically denies asylum to aliens arriving at the border with Mexico unless they have 
first applied for, and have been denied, asylum in Mexico or another country through which they 
have traveled (the “Rule”).  The Rule has since been vacated as unlawful , and it is no longer in 
effect.  Capital Area Immigrants’ Rights Coalition v. Trump (“CAIR”), No. 19-cv-2117 (TJK), 
2020 WL 3542481, at *1 (D.D.C. Jun. 30, 2020).  Nonetheless, immigration authorities have 
refused to rescind the Proposed Intervenors’ orders of removal, even though those orders were 
based on application of the unlawful Rule.   
Proposed Intervenors, who seek to intervene in this case and stay their removal from the 
United States, present a powerful case on the equities.  “The Immigration and Naturalization Act 
(‘INA’) ‘deals with one of the oldest and most important themes in our Nation’s history: 
welcoming homeless refugees to our shores,’ and it ‘give[s] statutory meaning to our national 
commitment to human rights and humanitarian concerns.’ 125 Cong. Rec. 23231-32 (Sept. 6, 
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United States District Court 
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1979).”  E. Bay Sanctuary Covenant v. Trump, 349 F. Supp. 3d 838, 843 (N.D. Cal. 2018), aff’d, 
950 F.3d 1242 (9th Cir. 2020), and aff’d, 950 F.3d 1242 (9th Cir. 2020).  The Court concludes, 
however, that it lacks jurisdiction over Proposed Intervenors’ claims.  Judicial review of removal 
orders is “strictly limited” by statute, Ahmed v. Sessions, 695 F. App’x 290, 291 (9th Cir. 2017), 
and Proposed Intervenors’ claims do not fall within those limits.  Therefore, although “the facts 
amassed by the [Proposed Intervenors] are deeply troubling,” M.M.V. v. Barr, 456 F. Supp. 3d 
193, 217 (D.D.C. 2020), this Court cannot review Proposed Intervenors’ claims.  The Court 
accordingly denies their motions to intervene and for preliminary injunction.    
I. 
BACKGROUND 
The background of this case is set forth in an earlier order granting Plaintiffs’ motion for a 
preliminary injunction enjoining the continued implementation and enforcement of the challenged 
“Asylum Eligibility and Procedural Modifications” Rule.  E. Bay Sanctuary Covenant v. Barr, 385 
F. Supp. 3d 922 (N.D. Cal. 2019).  The Court summarizes only the relevant details here.   
A. 
The Challenged Rule and Procedural History of This Case 
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”).  84 Fed. Reg. 33,829 (July 16, 2019) (codified at 8 C.F.R. pts. 208, 
1003, 1208).  The effect of the Rule is to categorically deny asylum to most persons entering the 
United States at the southern border if they have not first applied for asylum in Mexico or another 
third country through which they have passed.  Id.  In promulgating the Rule, the agencies invoked 
their authority to establish conditions consistent with 8 U.S.C. § 1158.  84 Fed. Reg. at 33,834.   
The Rule makes changes to the standards and procedures that are used in “expedited 
removal” proceedings.  See 8 U.S.C. § 1225(b)(1).  “An applicant [for admission to the United 
States] is subject to expedited removal if . . . the applicant (1) is inadmissible because he or she 
lacks a valid entry document; (2) has not ‘been physically present in the United States 
continuously for the 2-year period immediately prior to the date of the determination of 
inadmissibility’; and (3) is among those whom the Secretary of Homeland Security has designated 
for expedited removal.”  Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1964-65 
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(2020) (quoting 8 U.S.C. §§ 1225(b)(1)(A)(i), (iii)(I)-(II)).  Applicants determined to fall within 
these categories shall be “removed from the United States without further hearing or review unless 
the alien indicates either an intention to apply for asylum under [8 U.S.C. § 1158] or a fear of 
persecution.”  8 U.S.C. § 1225(b)(1)(A)(i).   
If an applicant expresses an intent to seek asylum, that person is referred to an asylum 
officer for a credible fear interview to determine whether the applicant “has a credible fear of 
persecution.”  Id. § 1225(b)(1)(B)(v).  To have a credible fear, “there [must be] a significant 
possibility, taking into account the credibility of the statements made by the alien in support of the 
alien’s claim and such other facts as are known to the officer, that the alien could establish 
eligibility for asylum.”  Id.  Applicants who demonstrate a credible fear as a basis for asylum, 
withholding of removal, or protection under the Convention Against Torture (“CAT”), are 
generally placed in full removal proceedings for further adjudication of their claims.  Id. 
§ 1225(b)(1)(B)(ii); 8 C.F.R. § 208.30(e)(2)-(3), (f).  By contrast, if the officer concludes that no 
credible fear exists, applicants are “removed from the United States without further hearing or 
review,” except for an expedited review by an Immigration Judge (“IJ”), which is ordinarily 
concluded within 24 hours and must be concluded within 7 days.  8 U.S.C. § 1225(b)(1)(B)(iii)(I), 
(III); see also 8 C.F.R. § 1208.30(g).   
The Rule significantly changes this process in certain respects.  Under the Rule, “any alien 
who enters, attempts to enter, or arrives in the United States across the southern land border on or 
after July 16, 2019, after transiting through at least one country outside the alien’s country of 
citizenship, nationality, or last lawful habitual residence en route to the United States, shall be 
found ineligible for asylum.”  8 C.F.R. § 208.13(c)(4).  The Rule provides three exceptions.  First, 
the Rule does not apply if the alien “applied for protection from persecution or torture in at least 
one country . . . through which the alien transited en route to the United States, and the alien 
received a final judgment denying the alien protection in such country.”  Id. § 208.13(c)(4)(i).  
Second, the Rule exempts “victim[s] of a severe form of trafficking in persons,” as defined in 8 
C.F.R. § 214.11.  Id. § 208.13(c)(4)(ii).  Finally, the Rule does not apply if “[t]he only countries 
through which the alien transited en route to the United States were, at the time of the transit, not 
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parties to [the 1951 Convention, the 1967 Protocol, or CAT].”  Id. § 208.13(c)(4)(iii).  In sum, 
except for qualifying trafficking victims, the Rule requires any alien transiting through a third 
country that is a party to one of the above agreements to apply for protection and receive a final 
denial prior to entering through the southern border and seeking asylum relief in the United States.   
The Rule also sets forth special procedures for how the mandatory bar applies in expedited 
removal proceedings.  In general, “if an alien is able to establish a credible fear of persecution but 
appears to be subject to one or more of the mandatory [statutory] bars to applying for, or being 
granted, asylum . . . [DHS] shall nonetheless place the alien in proceedings under [8 U.S.C. 
§ 1229a] for full consideration of the alien’s claim.”  8 C.F.R. § 208.30(e)(5)(i).  An alien subject 
to the Rule’s third country bar, however, is automatically determined to lack a credible fear of 
persecution.  Id. § 208.30(e)(5)(iii).  The asylum officer must then consider whether the alien 
demonstrates a reasonable fear of persecution or torture (as necessary to support a claim for 
withholding of removal or CAT protection).  Id.  The alien may seek review from an IJ, on the 
expedited timeline described above, of the determination that the Rule’s mandatory bar applies 
and that the alien lacks a reasonable fear of persecution or torture.  Id. § 1208.30(g)(1)(ii).   
Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central 
American Resource Center filed this lawsuit against relevant federal agencies and agency officials 
on July 16, 2019, the day the Rule went into effect.  ECF No. 1.  On July 24, 2019, the Court 
granted Plaintiffs’ motion for a preliminary injunction, finding that Plaintiffs were likely to 
succeed on the merits of their claims that the rule was substantively invalid, that the Rule was 
arbitrary and capricious, and that there were serious questions as to Defendants’ attempts to rely 
on the foreign affairs and good cause exceptions to notice and comment rulemaking requirements.  
ECF No. 42.  Defendants appealed the Court’s order to the Ninth Circuit on July 29, 2019, ECF 
No. 46, and again on September 10, 2019, ECF No. 75, after the Court restored the nationwide 
scope of the injunction, ECF No. 73.  On August 26, 2019, Defendants applied to the United 
States Supreme Court for an emergency stay of the preliminary injunction pending resolution of 
their appeal.  Barr v. E. Bay Sanctuary Covenant, No. 19A230 (Aug. 26, 2019).  The Supreme 
Court granted Defendants’ request and stayed the order granting the preliminary injunction and 
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order restoring the injunction’s nationwide scope.  Id. (Sept. 11, 2019).  The Supreme Court’s stay 
remains in effect “pending disposition of the Government’s appeal in the United States Court of 
Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, 
if such a writ is sought.”  Id.   
On July 6, 2020, the Ninth Circuit affirmed both preliminary injunction orders, holding 
that the Rule was “not in accordance with law” and that the injunctions properly “cover[ed] the 
four states along our border with Mexico.”  E. Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 857 
(9th Cir. 2020).  On October 5, 2020, Defendants filed a petition for rehearing en banc, E. Bay 
Sanctuary Covenant, Nos. 19-16487, 19-16773, ECF No. 117 (9th Cir. Oct. 5, 2020), which 
remains pending.   
B. 
Related Litigation 
Proposed Intervenor’s motion implicates certain other federal cases related to the 
challenged Rule.  Because the parties rely on these cases’ procedural histories to support their 
arguments before this Court, the Court summarizes them briefly here.1   
In CAIR v. Trump, two consolidated cases brought by immigrants’ rights organizations and 
individual asylum seekers challenged the Rule, contending that it was contrary to the INA, 
arbitrary and capricious, and issued without adherence to proper notice and comment procedures.  
2020 WL 3542481, at *1.  The court granted plaintiffs’ motions for summary judgment, finding 
that exemptions to the Administrative Procedure Act’s (“APA”) notice-and comment procedures 
did not apply, and thus Defendant’s issuance of the Rule without adherence to those requirements 
meant that “they issued the rule ‘without observance of procedure required by law.’”  Id. at *21 
(quoting 5 U.S.C. § 706).  Having found the Rule enacted unlawfully, the court held that vacatur 
was the appropriate remedy and vacated the Rule.  Id. at *23.   
In M.M.V. v. Barr, individual plaintiffs “d[id] not challenge the [Rule] directly,” but rather 
challenged “written regulations, directives, or procedures . . . issued by the administration to 
 
1 Judge Cooper provides a further useful description of the cases before the District of Columbia 
courts in D.A.M. v. Barr, Case No. 20-cv-1321 (CRC), 2020 WL 5525056, at *2-4 (D.D.C. Sept. 
15, 2020).  
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implement and enforce the new asylum restrictions.”  456 F. Supp. 3d at 199.  On April 27, 2020, 
that court granted Defendants’ partial motion to dismiss, finding all but one of the challenged 
policies related to the Rule were unwritten policies which the court lacked jurisdiction to review.  
Id. at 209-20.  The plaintiffs’ motion to stay their removals pending appeal was denied.  Order, 
M.M.V. v. Barr, No. 20-5106, 2020 WL 2515998 (D.C. Cir. May 15, 2020) (per curiam).   
Finally, in D.A.M. v. Barr, petitioners filed a complaint and petition for habeas corpus 
alleging originally that the government’s plan to remove them from the United States during the 
COVID-19 pandemic would violate the Constitution and the APA.  Case No. 20-cv-1321 (CRC), 
2020 WL 5525056, at *3 (D.D.C. Sept. 15, 2020).  Following the decision in CAIR, petitioners 
amended their complaint to argue that their removal orders – issued subject to the vacated Rule – 
were no longer lawful, and sought entry of a TRO on that basis.  Id.  As in M.M.V., the court held 
that because petitioners’ claims fell within the scope of 8 U.S.C. § 1252(a)(2)(A) and were not 
subject to an exception under Section 1252(e), the court lacked jurisdiction.  Id. at *5, *10.  In 
light of that conclusion, the court found that petitioners were unlikely to succeed on the merits on 
their claim and denied entry of a TRO.  Id. at *12, *14.   
The D.A.M. court ordered that plaintiffs’ removals be administratively stayed for seven 
days in order for them to seek emergency relief from the circuit court.  D.A.M., No. 20-cv-1321 
(CRC) (D.D.C. Sept. 15, 2020).  On September 17, 2020, with their notice of appeal, appellants 
filed an emergency motion to stay the district court’s underlying order, and the D.C. Circuit 
ordered that appellants removal from the country be administratively stayed pending further order 
from the court.  D.A.M. v. Barr, No. 20-5281, Dkt. No. 1862170 (D.C. Cir. Sept. 17, 2020).  On 
September 30, 2020, the emergency motion for a stay was denied and the administrative stay 
dissolved.  D.A.M. v. Barr, No. 20-5281, 2020 WL 6140502, at *1 (D.C. Cir. Sept. 30, 2020).  On 
October 1, 2020, appellants filed another emergency motion to stay pending their motion for en 
banc reconsideration, and on October 2, 2020, the court granted another administrative stay 
pending disposition of that motion.  Id., Dkt. No. 1864701.  On October 16, 2020, the motion for 
en banc reconsideration was denied and the emergency motion for a stay was dismissed as 
moot.  D.A.M. v. Barr, No. 20-5281, 2020 WL 6140504, at *1 (D.C. Cir. Oct. 16, 2020).   
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C. 
Proposed Intervenors’ Motion for Relief 
As noted above, Proposed Intervenors are parents and children, most of whom are 
currently detained at Family Residential Centers in Pennsylvania and Texas, who have fled 
persecution in their home countries and sought asylum in the United States.  ECF No. 95 at 7.  
They are all subject to final orders of removal issued pursuant to the Rule.2  Id.  Each of them is 
also a party to either one or both of M.M.V. and/or D.A.M.  Id. at 8.  As set forth above, their 
removal orders have previously been stayed by one or more courts, but those stays have now all 
been vacated or have expired.   
On October 16, 2020, immediately following the lifting of the administrative stay by the 
D.C. Circuit in D.A.M., Proposed Intervenors filed an emergency motion in this case seeking leave 
to intervene, the issuance of a temporary restraining order, and a preliminary injunction enjoining 
Defendants from taking any action to remove Proposed Intervenors from the United States.  ECF 
No. 95.  They also filed a motion for an administrative stay pending the adjudication of their 
motion to intervene.  ECF No. 96.   
On October 17, 2020, the Court issued an order granting a temporary restraining order 
enjoining Defendants or their agents from removing Proposed Intervenors from the United States.  
ECF No. 98 at 8.  Acknowledging that Defendants had not had the opportunity to submit an 
opposition, the Court found that “specific facts in an affidavit or a verified complaint clearly show 
that immediate and irreparable injury, loss, or damage will result to the movant[s].”  Id. (quoting 
Fed. R. Civ. P. 65(b)(1)(A).  The Court further ordered Defendants to show cause why a 
preliminary injunction should not issue to enjoin them from taking action to remove Proposed 
Intervenors.  Id. at 9.  The Court recognized that its jurisdiction was uncertain, but noted that “[a] 
federal district court may issue an injunction to preserve the status quo even when subject matter 
jurisdiction is disputed or unclear.”  Id. at 3 (citing United States v. United Mine Workers of Am., 
330 U.S. 258, 293 (1947)).  The Court therefore issued a TRO “pending further examination of its 
 
2 Two Proposed Intervenors are the mothers of children who are subject to final orders of removal 
issued under the Rule.  ECF No. 95 at 7.  These mothers move for intervention and injunctive 
relief on their children’s behalf.  Id. 
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jurisdiction.”  Id.   
Defendants submitted an opposition, ECF No. 110, and Proposed Intervenors replied, ECF 
No. 112.  The Court held a hearing on the motion on October 29, 2020.   
II. 
LEGAL STANDARD 
Federal Rule of Civil Procedure 24(a)(2) provides for intervention as a matter of right 
where the potential intervenor “claims an interest relating to the property or transaction that is the 
subject of the action, and is so situated that disposing of the action may as a practical matter 
impair or impede the movant’s ability to protect its interest, unless existing parties adequately 
represent that interest.”  The Ninth Circuit has summarized the requirements for intervention as of 
right under Rule 24(a)(2) as follows: 
 
(1) [T]he [applicant’s] motion must be timely; (2) the applicant must 
have a ‘significantly protectable’ interest relating to the property or 
transaction which is the subject of the action; (3) the applicant must 
be so situated that the disposition of the action may as a practical 
matter impair or impede its ability to protect that interest; and (4) the 
applicant’s interest must be inadequately represented by the parties 
to the action. 
Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 841 (9th Cir. 2011) (quoting 
California ex rel. Lockyer v. United States, 450 F.3d 436, 440 (9th Cir. 2006)).  Proposed 
intervenors must satisfy all four criteria, as “[f]ailure to satisfy any one of the requirements is fatal 
to the application.”  Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir. 2009).    
In evaluating motions to intervene, “courts are guided primarily by practical and equitable 
considerations, and the requirements for intervention are broadly interpreted in favor of 
intervention.”  United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir. 2004).  “Courts are 
to take all well-pleaded, nonconclusory allegations in the motion to intervene, the proposed 
complaint or answer in intervention, and declarations supporting the motion as true absent sham, 
frivolity or other objections.”  Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th 
Cir. 2001).  Nonetheless, “the applicant bears the burden of showing that each of the four elements 
is met.”  Freedom from Religion Found., 644 F.3d at 841; see also Smith v. L.A. Unified Sch. 
Dist., 830 F.3d 843, 853 (9th Cir. 2016).   
“Permissive intervention,” by contrast, “is committed to the broad discretion of the district 
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court.”  Orange Cnty. v. Air Cal., 799 F.2d 535, 539 (9th Cir. 1986).  Federal Rule of Civil 
Procedure 24(b) “requires (1) an independent ground for jurisdiction; (2) a timely motion; and (3) 
a common question of law and fact between the movant’s claim or defense and the main action.”  
Freedom from Religion Found., 644 F.3d at 843 (citations omitted).  “Where a putative intervenor 
has met these requirements, the court may also consider other factors in the exercise of its 
discretion.”  Perry, 587 F.3d at 955.  Additionally, “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).   
The Court applies a familiar four-factor test on both 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).  Preliminary relief is “an extraordinary remedy that 
may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”  Winter v. 
Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).  To obtain preliminary injunctive relief, the 
moving party must show: (1) a likelihood of success on the merits; (2) a likelihood of irreparable 
harm to the moving party in the absence of preliminary relief; (3) that the balance of equities tips 
in favor of the moving party; and (4) that an injunction is in the public interest.  Id. at 20.  
“[S]erious 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.”  All. for 
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotation marks 
omitted).   
III. 
DISCUSSION 
In issuing the TRO, the Court found that Proposed Intervenors established serious 
questions going to the merits of their request to intervene, particularly in light of the “practical and 
equitable considerations” and because “the requirements for intervention are broadly interpreted in 
favor of intervention.”  ECF No. 98 at 7 (quoting Alisal, 370 F.3d at 919).  However, with the 
benefit of full briefing, the Court now finds that intervention is not appropriate because Proposed 
Intervenors lack an interest which is “protectable” by this Court.   
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“Whether an applicant for intervention as of right demonstrates sufficient interest in an 
action is a ‘practical, threshold inquiry,’ and ‘[n]o specific legal or equitable interest need be 
established.’” Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 837 (9th Cir. 1996) (quoting 
Greene v. United States, 996 F.2d 973, 976 (9th Cir. 1993)).  What an applicant must demonstrate 
instead is a “significant protectable interest,” by establishing that the asserted interest is 
“protectable under some law and that there is a relationship between the legally protected interest 
and the claims at issue.”  Citizens for Balanced Use v. Montana Wilderness Ass’n, 647 F.3d 893, 
897 (9th Cir. 2011).  If a proposed intervenor cannot show that desired remedies remain available, 
such requests for relief “cannot implicate a significant protectable interest.”  Donnelly v. 
Glickman, 159 F.3d 405, 411 (9th Cir. 1998).   
Proposed Intervenors say that because they are “subject to removal orders as a result of the 
Rule, . . . therefore they have an interest directly relating to the subject of the litigation.”  ECF No. 
112 at 12.  They argue that this interest is protectable if an order of this Court finds the rule invalid 
and vacates it, and “order[s] Defendants to set aside Intervenors’ removal orders and provide them 
access to the asylum process to which they would have been entitled absent the Rule.”  Id.  
Proposed Intervenors point to Ninth Circuit and D.C. Circuit case law establishing that “when a 
rule violates the Administrative Procedures Act (‘APA’), the court may vacate adverse agency 
decisions or decisions taken pursuant to the unlawful rule.”  Id. at 8, 12-14.   
The difficulty with Proposed Intervenors’ argument is that the Court lacks jurisdiction to 
adjudicate their claims.  In Title 8, Section 1252 of the INA, “Congress sharply circumscribed 
judicial review of the expedited removal process.”  Thuraissigiam v. U.S. Dep’t of Homeland Sec., 
917 F.3d 1097, 1101 (9th Cir.), rev’d on other grounds and remanded, 140 S. Ct. 1959 (2020).  
Pursuant to Section 1252, “[N]o court shall have jurisdiction to review . . . any individual 
determination [or] . . . the application of § 1225(b)(1) to individual aliens” outside of the review 
permitted by the habeas review provision, Section 1252(e).  8 U.S.C. § 1252(a)(2)(A)(iii).3  
 
3 These provisions are often referred to as the “jurisdiction-stripping” provisions of the INA.  See, 
e.g., E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1270 (9th Cir. 2020).  
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“Under § 1252(e)(2), a person in expedited removal proceedings may file a habeas petition in 
federal district court to contest three DHS determinations: whether the person is a noncitizen, 
whether he ‘was ordered removed’ via expedited removal, and whether he is a lawful permanent 
resident or has another status exempting him from expedited removal.”  Thuraissigiam, 917 F.3d 
at 1101 (citing 8 U.S.C. § 1252(e)(2)(A)-(C)).  Review of whether a petitioner “was ordered 
removed” is “limited to whether such an order in fact was issued and whether it relates to the 
petitioner.”  8 U.S.C. § 1252(e)(5).  “There shall be no review of whether the alien is actually 
inadmissible or entitled to any relief from removal.”  Id.  The law permits an action challenging 
the “validity of the system,” id. § 1252(e)(3), but it must be commenced in the District for the 
District of Columbia, id.  Here, Proposed Intervenors do not dispute that they are noncitizens, they 
were “ordered removed” via expedited removal, and they do not have lawful permanent resident 
status or another status exempting them from expedited removal.  Thus, the Court lacks 
jurisdiction over their claims.   
The sum total of Proposed Intervenors’ argument regarding the Court’s jurisdiction is that 
“Defendants’ actions violate the APA, which is a classic federal question over which this Court 
has jurisdiction under 28 U.S.C. § 1331” and that “Section 1252(a)(2)(A) was created to insulate 
four specific, discretionary types of decisions from judicial review: as applied challenges to 
removal orders, see 8 U.SC. § 1252(a)(2)(A)(i)-(iii) and ‘procedures and policies adopted by the 
Attorney General to implement the provisions of section 1225(b)(1),’ see 8 U.S.C. 
§ 1252(a)(2)(A)(iv).”  ECF No. 112 at 19.  They argue that by “intervening in this case, [they] are 
not making as applied challenges to their removal orders.”  Id.  Rather, they argue, their motion is 
an attack on a process that deprived them of a credible fear determination based on a Rule that has 
now been vacated.  See id. at 7 (“After the District Court for the District of Columbia held that the 
Rule was unlawful and vacated it without qualification, rendering it void ab initio, Defendants 
refused to provide the Intervenors access to the asylum process that they would have had the right 
to access absent the vacated Rule.”); see also id. at 20 (contending that as Proposed Intervenors 
“seek to join this action and challenge their removal alongside the Rule, they are not making as 
applied challenges to their individual removal orders” (emphasis added)).   
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  Thuraissigiam forecloses this argument.  There, the plaintiff argued that DHS’s credible 
fear screening had deprived him “‘of a meaningful right to apply for asylum’ and other forms of 
relief, in violation of 8 U.S.C. § 1225(b)(1), its implementing regulations, and the United States 
Convention Against Torture.”  Thuraissigiam, 917 F.3d at 1102.  He also argued that the asylum 
officer and IJ violated those statutes “by applying an incorrect legal standard” to Thuraissigiam’s 
credible fear application.  Id.  The Ninth Circuit held that the district court lacked jurisdiction to 
review “the statutory, regulatory, and constitutional claims raised in his habeas petition.”  Id. at 
1103.  Rather, the court held, “Section 1252(e)(2), including Subsection (B), limits a district court 
to reviewing three basic factual determinations related to an expedited removal order” and 
“[b]ecause Thuraissigiam’s petition [did] not challenge any of those determinations, § 1252(e)(2) 
[did] not authorize jurisdiction over the petition.”  Id.  The same result obtains here.  Because the 
substance of the relief Proposed Intervenors request is identical to that which would be sought 
through judicial review of a removal order – that the Court will “vacate[] the Rule” and “order 
Defendants to set aside Intervenors’ removal orders and provide them access to the asylum process 
to which they would have been entitled absent the Rule,” ECF No. 112 at 12 – the Court lacks 
jurisdiction to provide such review.   
Proposed Intervenors point to Ninth Circuit administrative law cases holding that a court 
may vacate a rule as void if it is found to have violated the APA.  ECF No. 112 at 12; see also 
W.C. v. Bowen, 807 F.2d 1502, 1505 (9th Cir. 1987).  Proposed Intervenors then point to four 
other cases where courts have “held similarly in the immigration context.”  ECF No. 112 at 13.  
Unfortunately, these cases do not address the Section 1252 jurisdictional restrictions which 
proscribe review by this Court.  S.A. v. Trump involved a challenge to DHS’s termination of the 
CAM Parole Program and decision to rescind prior conditional approvals of parole.  No. 18-cv-
03539-LB, 2019 WL 990680, at *2 (N.D. Cal. Mar. 1, 2019).  That legal change applied to 
potential migrants, and none of the plaintiffs in that case were subject to orders of removal.  Id.  
The remaining three cases cited by Proposed Intervenors are also distinguishable as they were 
brought before the District Court for the District of Columbia, the only venue in which Congress 
has allowed claims involving challenges to the “validity of the system.”  8 U.S.C. § 1252(e)(3)(A).  
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In each of these cases, the court found that the requirements of Section 1252(e)(3)(A) were met.  
See L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 18-19 (D.D.C. 2020); see also Grace v. Whitaker, 
344 F. Supp. 3d 96, 108 (D.D.C. 2018), aff'd in part, rev'd in part and remanded sub nom. Grace 
v. Barr, 965 F.3d 883 (D.C. Cir. 2020) (“[T]he second proceeding available for judicial review is a 
systemic challenge to the legality of a ‘written policy directive, written policy guideline, or written 
procedure issued by or under the authority of the Attorney General to implement’ the expedited 
removal process.  Jurisdiction to review such a systemic challenge is vested solely in the United 
States District Court for the District of Columbia.” (citations omitted)); Make the Road New York 
v. McAleenan, 405 F. Supp. 3d 1, 28 (D.D.C. 2019) (expressing “little doubt” that Plaintiffs’ 
claims qualified for review before the D.C. District Court under Section 1252).  None of these 
cases changes the Court’s conclusion that it lacks jurisdiction.   
The Court takes no pleasure in this holding.  “[T]he facts amassed by the plaintiffs are 
deeply troubling, and . . . Congress has been too parsimonious with judicial review in an area 
where individual lives and liberty are at stake.”  M.M.V., 456 F. Supp. at 217.  The Court respects 
the limitations on its jurisdiction set by Congress, but feels compelled to observe that Defendants 
may now remove Proposed Intervenors from the United States after denying them the right to 
apply for asylum based on an illegal rule.  To put it mildly, that result is both “unsatisfying” and 
“unduly harsh.”  Garcia de Rincon v. Dep’t of Homeland Sec., 539 F.3d 1133, 1142 (9th Cir. 
2008).4   
CONCLUSION 
For the foregoing reasons, the Court finds that Proposed Intervenors cannot establish a 
protectable interest and therefore denies their motion for preliminary injunction and motion to 
intervene.  The Court’s prior temporary restraining order will remain in effect through and  
/ / / 
/ / / 
/ / / 
 
4 In light of this conclusion, the Court need not reach the parties’ remaining arguments.   
 
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including November 14, 2020 to permit Proposed Intervenors to seek emergency relief in the 
Ninth Circuit.5   
IT IS SO ORDERED. 
Dated:  November 10, 2020 
______________________________________ 
JON S. TIGAR 
United States District Judge 
 
5 The Court encourages the parties to negotiate an expedited briefing schedule to eliminate the 
unnecessary urgency that characterized Proposed Intervenors’ original motion.   
 
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