Defendants' Response to Motion for Preliminary Injunction — East Bay Sanctuary v. Wilkinson (N.D. Cal.)

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U.S. District Court, N.D. Cal. · No. 4:19-cv-04073-JST · Doc. 136 · 2021-02-01 · Docket on CourtListener

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DEFENDANTS’ RESPONSE TO MOTION FOR  
PRELIMINARY INJUNCTION 
East Bay Sanctuary Covenant v. Wilkinson, Case No. 4:19-cv-04073-JST 
 
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BRIAN M. BOYNTON 
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, 
 
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v. 
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Civil Action No. 4:19-cv-04073-JST 
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Robert M. Wilkinson, et al., 
) 
 
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Defendants. 
 
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) 
 
RESPONSE TO MOTION FOR PRELIMINARY INJUNCTION 
Case 4:19-cv-04073-JST   Document 136   Filed 02/01/21   Page 1 of 4

 
DEFENDANTS’ RESPONSE TO MOTION FOR 
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PRELIMINARY INJUNCTION 
East Bay Sanctuary Covenant v. Wilkinson, Case No. 4:19-cv-04073-JST 
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On December 17, 2020, the prior administration issued a final rule adopting almost 
verbatim the interim final rule this Court previously enjoined on July 24, 2019. See Asylum 
Eligibility and Procedural Modifications, 85 Fed. Reg. 82,260 (Dec. 17, 2020) (“final rule”). The 
final rule superseded the interim final rule on January 19, 2020. Id. Like the interim final rule, the 
final rule relies on the Attorney General and the Secretary of Homeland Security’s authority under 
8 U.S.C. § 1158(b)(2)(C) to “by regulation establish additional limitations and conditions, 
consistent with this section, under which an alien shall be ineligible for asylum.” In enjoining the 
interim final rule this Court held, among other things, that the interim final rule “fundamentally 
conflicts” with the asylum statute, and is not “consistent” with section 1158. East Bay Sanctuary 
Covenant v. Barr, 385 F. Supp. 3d 922, 945 (N.D. Cal.), order reinstated, 391 F. Supp. 3d 974 
(N.D. Cal. 2019), aff'd, 964 F.3d 832 (9th Cir. 2020), and aff'd, 964 F.3d 832 (9th Cir. 2020). 
Although the Supreme Court stayed this Court’s injunction on September 11, 2019, see Barr v. 
East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019), the Ninth Circuit on July 6, 2020 upheld the 
Court’s injunction. See East Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 846 (9th Cir. 2020). 
Among other things, the Ninth Circuit concluded that the interim final rule is not “‘consistent with’ 
§ 1158, as required by § 1158(b)(2)(C).” Id. The government sought rehearing en banc of the 
decision, but that petition remains pending. See Dkt. 117, East Bay Sanctuary Covenant v. Barr, 
Nos. 19-16487, 19-16773 (9th Cir.). Unless and until the en banc court grants the petition, the 
Ninth Circuit’s published decision affirming this Court’s injunction—including its statutory 
authority ruling—is controlling law of the circuit. See East Bay Sanctuary Covenant v. Trump, 950 
F.3d 1242, 1261-65 (9th Cir. 2020). 
 
Plaintiffs have sought to amend their complaint and to lift the stay of proceedings,1 and 
move for a new preliminary injunction enjoining the final rule. Dkts. 130, 131-1. Among other 
things, as with the interim final rule, they contend that the final rule exceeds the Departments’ 
statutory authority under section 1158. Dkt. 131-1 at 6-7. Although the government’s petition for 
rehearing en banc at the Ninth Circuit remains pending, the government acknowledges that the 
Ninth Circuit’s decision is law of the circuit and therefore controlling in this case. The government 
                           
1 The government consents to the motions to lift the stay and to amend the complaint.  
Case 4:19-cv-04073-JST   Document 136   Filed 02/01/21   Page 2 of 4

 
DEFENDANTS’ RESPONSE TO MOTION FOR 
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PRELIMINARY INJUNCTION 
East Bay Sanctuary Covenant v. Wilkinson, Case No. 4:19-cv-04073-JST 
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similarly recognizes that this Court and the Ninth Circuit have both held that the other preliminary-
injunction factors support Plaintiffs’ prior motion. 
Should the Court find that an injunction is warranted, the government respectfully submits 
that the Court need only rely on the statutory-authority holding in the Ninth Circuit’s precedential 
decision in East Bay. See 964 F.3d at 846. As this Court has previously concluded, it need not 
address any of Plaintiffs’ other arguments where the statutory-authority holding in East Bay is 
“dispositive.” See  Cardone v. Cty. of Alameda, No. 19-CV-00221-JST, 2019 WL 7816822, at *2 
(N.D. Cal. July 30, 2019) (Tigar, J.) (when an “argument is dispositive” the Court need not “reach 
Defendants’ alternative argument”). 
 
Respectfully submitted, 
 
 
 
 
 
 
 
BRIAN M. BOYNTON  
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: February 1, 2021 
 
 
Attorneys for Defendants 
 
 
 
 
 
 
Case 4:19-cv-04073-JST   Document 136   Filed 02/01/21   Page 3 of 4

 
DEFENDANTS’ RESPONSE TO MOTION FOR 
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PRELIMINARY INJUNCTION 
East Bay Sanctuary Covenant v. Wilkinson, Case No. 4:19-cv-04073-JST 
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CERTIFICATE OF SERVICE 
 
I hereby certify that on February 1, 2021, 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 136   Filed 02/01/21   Page 4 of 4

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