Brief of Amicus Curiae for the States of Washington, Massachusetts, New York, and California — East Bay Sanctuary v. Trump

Record facts

U.S. District Court, N.D. Cal. · No. 3:18-cv-06810-JST · Doc. 19-1 · 2018-11-14 · Docket on CourtListener

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EXHIBIT A 
 
 
 
 
 
 
 
 
 
 
 
 
 
The Honorable Jon S. Tigar 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
 
East Bay Sanctuary Covenant; Al Otro 
Lado; Innovation Law Lab; and Central 
American Resource Center in Los 
Angeles, 
 
 
Plaintiffs, 
 
 
v. 
 
Donald J. Trump, President of the United 
States, in his official capacity; Matthew 
G. Whitaker, Acting Attorney General, in 
his official capacity; U.S. Department of 
Justice; James McHenry, Director of the 
Executive Office for Immigration 
Review, in his official capacity; the 
Executive Office for Immigration 
Review; Kirstjen M. Nielsen, Secretary of 
Homeland Security, in her official 
capacity; U.S. Department of Homeland 
Security; Lee Francis Cissna, Director of 
the U.S. Citizenship and Immigration 
Services, in his official capacity; U.S. 
Citizenship and Immigration Services; 
Kevin K. McAleenan, Commissioner of 
U.S. Customs and Border Protection, in 
his official capacity; U.S. Customs and 
Border Protection; Ronald D. Vitiello, 
Acting Director of Immigration and 
Customs Enforcement, in his official 
capacity; Immigration and Customs 
Enforcement, 
 
Defendants. 
Case No.  3:18-cv-06810   
 
BRIEF OF AMICUS CURIAE 
FOR THE STATE OF 
WASHINGTON, 
COMMONWEALTH OF 
MASSACHUSETTS, STATE OF 
NEW YORK, AND STATE OF 
CALIFORNIA  
 
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I. 
INTRODUCTION AND INTEREST OF AMICI CURIAE 
 
The States of Washington, Massachusetts, New York, and California (the States) 
respectfully submit this brief as amici curiae to address the need for emergency relief suspending 
the Acting Attorney General and Secretary of Homeland Security’s Interim Final Rule:  “Aliens 
Subject to a Bar on Entry under Certain Presidential Proclamations; Procedures for Protection 
Claims” (the Rule).1 
 
This is not the sort of rare circumstance that can excuse the Government’s failure to 
follow the APA’s foundational procedural requirements. If the States had been afforded an 
opportunity to comment on the effects of barring asylum claims for those who enter at the 
country’s southern border, they would have advised of the significant and deleterious impact of 
the Rule.  Under an appropriate rulemaking process, the agencies would have been required to 
consider how the Rule would further incentivize Customs and Border Protection (CBP) to turn 
asylum seekers away at points of entry (a practice known as “metering”), exacerbate unnecessary 
human suffering at our country’s doorstep, and cause asylum seekers with meritorious claims 
prolonged harm resulting from being needlessly forced to wait at the border while their claims 
are processed.  The agencies’ failure to utilize the standard APA process denied the States the 
right to submit their comments before the Rule – which enacts sweeping policy changes on an 
issue of national significance – went into effect. 
 
The States have a strong interest in ensuring that federal agencies comply with the APA 
and refrain from engaging in arbitrary and capricious decision-making, and that their public 
policies in favor of open government, transparency, and the Rule of Law are vindicated.  Further, 
                                                 
1 Available at https://www.regulations.gov/document?D=EOIR_FRDOC_0001-0039.  
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the States invest their own resources to provide education, health care, and other services to 
immigrant families – like all families that reside in our States – and will have a significant role 
in assisting immigrants and their relatives in the United States who will suffer the trauma and 
uncertainty that the Rule imposes. The States support the issuance of temporary relief to preserve 
the status quo and prevent widespread harm while the validity of the agency action is adjudicated, 
and such relief would clearly serve the public interest. 
II. 
ARGUMENT 
 
A. 
The Agencies Evaded Notice and Comment and Waiting Period Requirements, 
Denying States the Opportunity to Provide Input. 
 
The agencies’ failure to engage in notice and comment rulemaking as required by the 
APA deprived the States of their right to participate in the rulemaking process. “The notice and 
comment requirements are designed to ensure public participation in rulemaking.” Paulsen v. 
Daniels, 413 F.3d 999, 1004 (9th Cir. 2005) (ellipses and brackets removed). Public participation 
ensures that “agency regulations are tested via exposure to diverse public comment”; that the 
process is “fair[] to affected parties”; and that affected parties have “an opportunity to develop 
evidence in the record to support their objections to the rule and thereby enhance the quality of 
judicial review.” Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 407 
F.3d 1250, 1259 (D.C. Cir. 2005). “It is antithetical to the structure and purpose of the APA for 
an agency to implement a rule first, then seek comment later.” United States v. Valverde, 628 
F.3d 1159, 1164 (9th Cir. 2010) (quoting Paulsen, 413 F.3d at 1004). These procedural 
requirements are so fundamental that if an agency improperly fails to follow them, its regulation 
must be invalidated. 5 U.S.C. § 706(2)(D) (courts “shall . . . hold unlawful and set aside” agency 
action taken “without observance of procedure required by law”). 
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The agencies insist that this unilateral action is supported by “good cause,” and that 
giving the States and the public an opportunity to comment on drastic changes to federal 
immigration policy would be “impracticable” and “contrary to the public interest.” See Interim 
Final Rule at 65 (citing 5 U.S.C. § 553(b)(B)). They also purport to make the rule effective 
immediately, dispensing with the 30-day waiting period required by 5 U.S.C. 553(d), arguing 
that “immediate implementation of this rule is essential to avoid creating an incentive for aliens 
to seek to cross the border.” 83 Fed. Reg. 55950. The Rule was issued without notice, in the 
absence of any emergency such as an imminent threat of a terrorist attack, an accident or natural 
disaster that imperils human life, or even a fiscal emergency. See Motion for TRO at 7–8. Thus, 
the government fails to overcome the “high bar” to invoke the good cause exception. Valverde, 
628 F.3d at 1164. 
“The good cause exception is essentially an emergency procedure.” Id. at 1165 (quoting 
Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982)). Failing to follow notice and 
comment procedures may be excused “only in those narrow circumstances” in which taking the 
time to comply with the APA’s procedural requirements “would do real harm.” Id. at 1164–65. 
“[T]he good cause exception … authorizes departure from the APA’s requirements only when 
compliance would interfere with the agency’s ability to carry out its mission.” Cal-Almond, Inc. 
v. U.S. Dep't of Agric., 14 F.3d 429, 441 (9th Cir. 1993). It is to be “sparingly used in order to 
promote public input into agency rulemaking,” Serv. Emps. Int'l Union, Local 102 v. County of 
San Diego, 60 F.3d 1346, 1353 (9th Cir. 1994), lest it “carve the heart out of the statute.” Action 
on Smoking and Health v. CAB, 713 F.2d 795, 800 (D.C. Cir 1983).  
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The government also invokes the “foreign affairs” exception to the APA’s procedural 
requirements, 5 U.S.C. § 553(a)(1). 83 Fed. Reg. 55950.  However, the Ninth Circuit rejected 
this exception’s application to the kind of regulation at issue here, holding that: “The foreign 
affairs exception would become distended if applied to [DHS] actions generally, even though 
immigration matters typically implicate foreign affairs. For the exception to apply, the public 
rulemaking provisions should provoke definitely undesirable international consequences.” 
Yassini v. Crosland, 618 F.2d 1356, 1363 n.4 (9th Cir. 1980) (internal citations omitted). 
Although foreign relations are briefly discussed in the Rule, see 83 Fed. Reg. 55950, the 
government’s focus is on the United States’ internal interests, not international relations.   
 
The States’ interests in governmental transparency are furthered by the opportunity to 
comment on proposed federal rulemaking.  Moreover, as sovereigns responsible for the health, 
safety, and welfare of millions of people within their respective borders, the States have unique 
interests and perspectives to contribute on issues of national importance and widespread impact, 
particularly when such policies will cause prospective residents of our States unnecessary, 
substantial, and enduring harm.  If the States had been provided with an opportunity to comment 
on the Rule before it was promulgated, they would have raised these issues before the Rule took 
effect.2 The agencies would have been required to consider those comments in crafting the final 
regulation, see 5 U.S.C. § 553(c), and may have made changes to the proposed rule in response, 
as agencies often do. The record developed through the notice and comment process in turn 
                                                 
2 For example, since March 2016, Washington State has offered more than 45 comment letters on 
anticipated or proposed actions by the Administration to delay, repeal or adopt federal regulations. Massachusetts 
has submitted dozens of comment letters on proposed regulatory changes, New York offered 45 comment letters, 
and California has submitted 59 comment letters since February 2017. 
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would have aided the Court in its review of the action. United Mine Workers, 407 F.3d at 1259. 
That is the way the process is supposed to work.  
B. 
The Interim Final Rule Will Exacerbate Inhumane Border Conditions. 
 
 
Granting the temporary restraining order could prevent needless harm.  On the other side 
of the ledger, the federal government can assert little to no legally cognizable harm from entry 
of the injunction. “[T]he government[] . . . cannot suffer harm from an injunction that merely 
ends an unlawful practice or reads a statute as required to avoid constitutional concerns.”3 The 
balance of equities tips in favor of a TRO here. 
 
In addition to obvious legal infirmities detailed in the Motion, the Rule raises several key 
practical and humanitarian concerns. Because the Rule requires people fleeing violence to 
present requests for asylum only at official U.S. ports of entry, it will increase pressure on border 
officers to turn away people who try to present themselves—a process known as “metering.” 
Increasing metering will only exacerbate the inhumane border conditions migrants experience.  
 
Even if metering does not occur, the Rule will increase asylum seekers’ wait times at the 
border while their claims are being processed. During these long waits, children will not be 
educated and families will not receive the basic health services that they would receive if they 
were to be released to live in the States.   
1. 
Increasing Pressure on Ports of Entry Will Increase Metering. 
Along the southern border, CBP regularly prevents asylum seekers from requesting 
protection at official U.S. ports of entry by turning away individuals before they can reach the 
                                                 
3 Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013) (citing Zepeda v. I.N.S., 753 F.2d 719, 727 
(9th Cir. 1983)). See also NAACP v. Trump, 2018 U.S. Dist. LEXIS 139663, at *15 (D.D.C. Aug. 17, 2018) 
(finding lack of injury to federal government from order “simply correct[ing] the improper exercise of [DHS] 
authority” in case relating to rescission of Deferred Action for Childhood Arrivals [“DACA”]). 
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entry point. This is not an isolated practice, but a widespread policy intended to deter asylum 
seekers from accessing ports of entry at the U.S.–Mexico border, a policy that the federal 
government has repeatedly acknowledged over the past year.  
In June 2018, the DHS Office of Inspector General (OIG) conducted unannounced site 
visits to CBP and ICE facilities along the southern border.4 OIG’s report, issued in late 
September, confirmed that “CBP was regulating the flow of asylum-seekers at ports of entry 
through ‘metering[.]’” Id. at 5.  OIG described the process: “When metering, CBP officers stand 
at the international line out in the middle of the footbridges” and turn asylum-seekers away 
before they can cross onto U.S. soil, claiming that there is no space available. Id. at 6. CBP 
instructs officers to “inform individuals that the port is currently at capacity and that they will be 
permitted to enter once there is sufficient space and resources to process them.” Id. at 6. 
In recent years, CBP has increasingly utilized metering tactics. In April and May 2018, 
officials at the San Ysidro port of entry near San Diego, California denied entry to a large group 
of asylum seekers and forced them to wait outside the U.S. gate for days, enduring cold, rain, 
ants, and lice.5 CBP justified the denial of entry based on a lack of processing capacity, despite 
the fact that the agency had been anticipating the arrival of these 240 asylum seekers for weeks 
and regularly manages the daily crossing of 20,000 people at this port of entry. Id. Individuals 
seeking to cross were told by CBP that the US did not accept asylum claims at the border, or that 
they needed to obtain appointments from Mexican officials before they could proceed. Id.  
                                                 
4 OFFICE OF INSPECTOR GENERAL, SPECIAL REVIEW – INITIAL OBSERVATIONS REGARDING FAMILY 
SEPARATION ISSUES UNDER THE ZERO TOLERANCE POLICY (Sept. 27, 2018) at 1, available at 
https://www.oig.dhs.gov/sites/default/files/assets/2018-10/OIG-18-84-Sep18.pdf. 
5 JASON BOYD AND GREG CHEN, AMERICAN IMMIGRATION LAWYERS ASSOCIATION POLICY BRIEF: NEW 
BARRIERS AT THE BORDER IMPEDED DUE PROCESS AND ACCESS TO ASYLUM (June 1, 2018) at 3. Available at 
https://www.aila.org/File/DownloadEmbeddedFile/76208. 
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Legal representatives who accompanied immigrants wishing to present themselves to 
CBP officers at ports of entry from 2017 to present have witnessed dozens of people—mostly 
asylum seekers—being turned away repeatedly. Human Rights First documented over a hundred 
instances where CBP refused to grant individuals and families access at numerous ports of entry. 
BOYD AND CHEN, AMERICAN IMMIGRATION LAWYERS ASSOCIATION POLICY BRIEF at 3. Most of 
these were families fleeing violence in their home country. Id.  
There is no doubt that metering has and continues to be a policy at ports of entry on the 
southern border. The OIG noted that CBP “has utilized [metering] at least as far back as 2016 to 
regulate the flow of individuals at ports of entry.” OIG, INITIAL OBSERVATIONS REGARDING 
FAMILY SEPARATION at 5-6. In May 2018, DHS Secretary Kirstjen Nielsen publicly admitted 
that it was DHS policy to meter migrants at the U.S.-Mexico border: “We are ‘metering’, which 
means that if we don’t have the resources to let them [asylum-seekers] in on a particular day, 
they are going to have to come back.” AMNESTY INTERNATIONAL REPORT, USA: ‘YOU DON’T 
HAVE ANY RIGHTS HERE’ (2018) at 11.6 Commissioner Kevin McAleenan confirmed a few 
weeks ago that CBP is preparing to “expand” metering, stating  
that if the Border Patrol sees a significant increase in asylum seekers, it will 
expand metering to other border crossings — effectively blocking immigrants 
from entering. He said the agency already faced a “significant backlog” of asylum 
seekers in Tijuana and delays at three to four other crossings daily.7 
 
Unsurprisingly, metering puts enormous pressure on migrants to enter illegally, as 
persons fleeing violence are faced with indefinite waits at ports of entry. As OIG found, “DHS 
regulated the number of asylum-seekers entering the country through ports of entry at the same 
                                                 
6 Available at https://www.amnesty.org/download/Documents/AMR5191012018ENGLISH.PDF. 
7 http://www.latimes.com/nation/la-na-border-patrol-commissioner-20181026-story.html  
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time it encouraged asylum-seekers to come to ports.” OIG, INITIAL OBSERVATIONS REGARDING 
FAMILY SEPARATION at 1. OIG suggested that “limiting the volume of asylum-seekers entering 
at ports of entry leads some aliens who would otherwise seek legal entry into the United States 
to cross the border illegally.” Id. at 7. Indeed, interviews with a Border Patrol supervisor and 
migrants confirmed that there is “an increase in illegal entries when aliens are metered at ports 
of entry.” Id. at 7.   
 
2. 
Metering Exacerbates Inhumane Border Conditions. 
 
Media reports show how families, some with small children, have been forced to sleep 
on the ground outside ports of entry for weeks as they waited for CBP to allow them to present 
themselves: 
Families from El Salvador, Guatemala and Honduras huddle together on the 
ground near packages of donated diapers and cans of baby formula. Some have 
endured this limbo for nearly two weeks, sleeping on the ground at night and 
trying to stay cool during the day as temperatures in this outpost in the Sonoran 
Desert surpass 100 degrees.8 
 
Other reports describe the unofficial bureaucracy that grew out of CBP border refusals at the San 
Ysidro Port of Entry, where “metered” migrants live for weeks as they wait for CBP to allow 
them to seek asylum.9 Asylum seekers are left to camp out near the U.S.–Mexico border for “up 
to a month in more than two dozen temporary shelters in Tijuana.”   
 
Metering increases the wait at ports of entry for asylum seekers, many of whom are 
women with children. Faced with days of additional delay at the border, and fearful of losing 
their place in line, asylum seekers will be exposed to harsh weather conditions, lack of stable 
                                                 
8 https://www.nytimes.com/2018/06/12/us/asylum-seekers-mexico-border.html  
9 http://www.latimes.com/local/california/la-me-asylum-seekers-notebook-holds-key-to-entry-20180705-
story.html 
 
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shelter, and inadequate facilities.10  Just this week, freezing temperatures forced hundreds of 
waiting migrants outside an El Paso port of entry to seek other shelter.11 Vulnerable adults and 
children are exposed to greatly increased risks of crime, exploitation, and unsanitary conditions 
as they languish at the border.12  
 
During these periods, children do not go to school and families do not receive basic health 
and social services that the States would otherwise provide. For these people, whatever trauma 
caused them to flee their home country will only be compounded. Ultimately, the States will 
bear the costs of the Rule, as asylum seekers who are accepted will settle in our jurisdictions 
having unnecessarily experienced more trauma due to the Rule.  For example, in FY 2017, almost 
15,000 accompanied children (those arriving with their families) received positive credible fear 
determinations and were released from federal custody, many in the amicus States.  See 83 Fed. 
Reg. 45486, 45519 (Sept. 7, 2018). The prospective application of this illegal Rule will certainly 
affect future State residents. 
III. 
CONCLUSION 
 
The States support the issuance of temporary relief to preserve the status quo and prevent 
widespread harm while the validity of the agency action is being adjudicated, and they urge the 
Court to grant Plaintiffs’ Motion. 
 
 
                                                 
10 See https://www.nytimes.com/2018/06/12/us/asylum-seekers-mexico-border.html (describing father 
and toddler forced to sleep “on cardboard pizza boxes in a squalid entryway to a bathroom at the border crossing” 
as they wait for CBP to accept their asylum claim). 
11 See https://www.upi.com/Top_News/World-News/2018/11/13/Cold-weather-drives-migrants-camped-
at-border-bridge-into-shelter/2751542145667/ 
12 See http://cmsny.org/publications/heyman-slack-asylum-poe/ 
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DATED this _____ day of November, 2018. 
 
ROBERT W. FERGUSON 
Washington State Attorney General 
 
 
 
          
MEGAN D. LIN, SNB # 298267 
COLLEEN M. MELODY, WSBA #42275 
Civil Rights Division Chief 
LAURA K. CLINTON, WSBA #29846 
KRISTIN BENESKI, WSBA #45478 
Assistant Attorneys General 
Office of the Attorney General 
800 Fifth Avenue, Suite 2000 
Seattle, WA  98104 
Tel: (206) 464-5342  
MeganL@atg.wa.gov 
ColleenM1@atg.wa.gov 
LauraC5@atg.wa.gov 
KristinB1@atg.wa.gov 
Attorneys for the State of Washington 
 
 
MAURA HEALEY 
Attorney General for Massachusetts 
 
 
 
 
GENEVIEVE C. NADEAU 
Chief, Civil Rights Division 
Office of the Attorney General 
One Ashburton Place 
Boston, MA 02108 
Tel:  (617) 727-2200 
Genevieve.Nadeau@state.ma.us 
Attorneys for the Commonwealth of Massachusetts 
 
 
 
 
 
 
 
 
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BARBARA D. UNDERWOOD  
Attorney General of New York  
  
 
 
LOURDES ROSADO, Civil Rights Bureau Chief 
ANISHA DASGUPTA, Deputy Solicitor General 
Civil Rights Bureau 
Office of the New York State Attorney General 
28 Liberty Street  
New York, NY 10005 
(212) 416-8252 
lourdes.rosado@ag.ny.gov 
anisha.dasgupta@ag.ny.gov 
Attorneys for the State of New York 
 
 
 
XAVIER BECERRA 
Attorney General of California 
 
 
 
 
JAMES F. ZAHRADKA II 
Deputy Attorney General 
MICHAEL L. NEWMAN 
Senior Assistant Attorney General 
Civil Rights Enforcement Section 
California Department of Justice 
1515 Clay Street, Suite 2000 
Oakland, CA 94612 
Tel: (510) 879-1247 
James.Zahradka@doj.ca.gov 
Attorneys for the State of California 
 
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