Court filing
Joint Motion to Stay Proceedings — East Bay Sanctuary Covenant v. Barr (N.D. Cal.)
Filed February 25, 2021 in East Bay Sanctuary v. Barr; one of 69 filings from this case.
Record facts
| Court | U.S. District Court, N.D. California |
|---|---|
| Filed | 2021-02-25 |
U.S. District Court, N.D. California · No. 4:19-cv-04073-JST · Doc. 140 · 2021-02-25 · Docket on CourtListener
Full text
JOINT MOTION TO STAY PROCEEDINGS
East Bay Sanctuary Covenant v. Wilkinson, Case No. 4:19-cv-04073-JST
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SARAH HARRINGTON
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
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.
)
)
JOINT MOTION TO STAY PROCEEDINGS
Case 4:19-cv-04073-JST Document 140 Filed 02/25/21 Page 1 of 5
JOINT MOTION TO STAY PROCEEDINGS
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East Bay Sanctuary Covenant v. Wilkinson, Case No. 4:19-cv-04073-JST
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The parties respectfully move this Court to hold this case in abeyance pending the
Department of Homeland Security’s and the Attorney General’s (“Departments”) review of the
rule at issue in this case, Asylum Eligibility and Procedural Modifications (the “final rule”). 85
Fed. Reg. 82,260 (Dec. 17, 2020) (codified at 8 C.F.R. §§ 208, 1208). In support of this motion,
the parties state as follows:
1. This case involves an Administrative Procedure Act (“APA”) challenge to an interim final
rule and final rule, both of which render ineligible for asylum most persons entering the United
States at the southern border who did not first apply for and receive a denial of protection from
persecution or torture while in a third country through which they transited en route to the United
States.
2. The case was previously stayed pending resolution of the government’s appeal from this
Court’s order issuing a preliminary injunction of the interim final rule, “Asylum Eligibility and
Procedural Modifications, 84 Fed. Reg. 33,829 (“interim final rule”). Dkt. 93.
3. However, on December 17, 2020, Defendants issued the final rule, which superseded the
interim final rule when it became effective on January 19, 2021.
4. On January 19, 2021, Plaintiffs filed a proposed amended complaint and a motion to lift
the stay of proceedings to challenge the final rule. Dkt. 130. Plaintiffs subsequently filed a motion
for a preliminary injunction of the final rule. Dkt. 131.
5. The Court lifted the stay on January 28, 2021, following the parties’ stipulation that the
stay should be lifted to allow Plaintiffs to amend their complaint to challenge the final rule. Dkt.
128.
6. This Court preliminarily enjoined the final rule on February 16, 2021. Dkt. 138.
7. While Plaintiffs’ motion for a preliminary injunction was pending, President Biden signed
an Executive Order which directed “[t]he Attorney General and the Secretary of Homeland
Security [to] promptly review and determine whether to rescind . . . the final rule titled ‘Asylum
Eligibility and Procedural Modifications,’ 85 Fed. Reg. 82,260 (December 17, 2020), as well as
any agency memoranda or guidance that were issued in reliance on th[at] rule[].” See Executive
Order 14010, Executive Order on Creating a Comprehensive Regional Framework to Address the
Case 4:19-cv-04073-JST Document 140 Filed 02/25/21 Page 2 of 5
JOINT MOTION TO STAY PROCEEDINGS
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Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide
Safe and Orderly Processing of Asylum Seekers at the United States Border (the “Executive
Order”), § 4.a.ii.C, 86 Fed. Reg. 8257, 8269-70 (Feb. 5, 2021).
8. In light of the ongoing review of the final rule by the new administration, the parties
respectfully request that the Court hold the case in abeyance pending the conclusion of the
Departments’ review of the final rule. See Clinton v. Jones, 520 U.S. 681, 706 (1997) (“The District
Court has broad discretion to stay proceedings as an incident to its power to control its own
docket.”). Given the President’s directive that “[t]he Attorney General and the Secretary of
Homeland Security [] promptly review and determine whether to rescind the interim final rule,”
Executive Order, § 4.a.ii.C, the rule may eventually be modified or rescinded. If, following their
review, the Departments elect to promulgate a new rule that is different from the final rule or to
rescind it entirely, that could obviate the need for judicial review of the final rule. See California
v. Azar, 911 F.3d 558, 569 (9th Cir. 2018). Accordingly, holding the case in abeyance will serve
judicial economy and prevent potentially unnecessary expenditures of the resources of the Court
and the parties.
9. No party will be prejudiced by an abeyance under the current circumstances. As to the
government, “[a]n initial agency interpretation is not instantly carved in stone. On the contrary,
the agency must consider varying interpretations and the wisdom of its policy on a continuing
basis,” for example, in response to changed factual circumstances, or a change in administration.”
Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).
An abeyance would permit the new administration time to reconsider the wisdom of the final rule,
as directed by the President’s February 2, 2021 Executive Order, without the need to meet
simultaneous litigation deadlines. See, e.g., Save Jobs USA v. Dep’t of Homeland Sec., 942 F.3d
504, 508 (D.C. Cir. 2019) (previously holding “the case in abeyance, initially to allow the incoming
administration time to consider the case and later because the Department expected to begin the
process of rescinding the rule”). In addition, Plaintiffs will not be harmed by a stay, so long as the
Court’s preliminary injunction remains in effect, preventing the rule from being applied
nationwide.
Case 4:19-cv-04073-JST Document 140 Filed 02/25/21 Page 3 of 5
JOINT MOTION TO STAY PROCEEDINGS
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Dated: February 25, 2021
Respectfully submitted,
SARAH HARRINGTON
Deputy 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
Attorneys for Defendants
/s/Katrina Eiland
Katrina Eiland
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-0782
F: (415) 395-0950
Email: keiland@aclu.org
Attorneys for Plaintiffs
Case 4:19-cv-04073-JST Document 140 Filed 02/25/21 Page 4 of 5
JOINT MOTION TO STAY PROCEEDINGS
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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 25, 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 140 Filed 02/25/21 Page 5 of 5File and source
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