Order Denying Motion for Stay Pending Appeal — East Bay Sanctuary v. Trump

Record facts

U.S. District Court, N.D. Cal. · No. 3:18-cv-06810-JST · Doc. 61 · 2018-11-30 · 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. 
 
DONALD J. TRUMP, et al., 
Defendants. 
Case No. 18-cv-06810-JST   
 
 
ORDER DENYING MOTION FOR 
STAY PENDING APPEAL 
Re: ECF No. 52 
 
 
On November 19, 2018, the Court issued a temporary restraining order enjoining the 
implementation of a joint interim final rule promulgated by the Attorney General and the 
Department of Homeland Security.  ECF No. 43.  That rule allows asylum to be granted only to 
those who cross the southern border under conditions set by the President.  Aliens Subject to a Bar 
on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. 
Reg. 55,934 (Nov. 9, 2018) (to be codified at 8 C.F.R. pts. 208, 1003, 1208) (the “Rule”).  
Combined with the terms of a concurrently-enacted Presidential Proclamation, the Rule denies 
asylum to anyone who crosses the southern border anywhere besides a designated port of entry, 
even if he or she has a meritorious asylum claim.  The Court concluded that the Rule is probably 
invalid because it directly conflicts with a statute passed by Congress; that there were serious 
questions whether the Rule was passed without the required procedural protections; and that 
allowing the Rule to go into effect would harm both asylum seekers with legitimate claims and the 
organizations who represent them.   
Defendants now ask the Court to stay its ruling and allow the Rule to go into effect while 
they appeal the Court’s temporary restraining order to the Ninth Circuit.  The law provides that the 
Court should only grant a stay if the Defendants can show they are likely to win their appeal or if 
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the balance of harms tips in their favor.  Defendants have not met this burden.  They still have not 
shown that the Rule is a lawful exercise of Executive Branch authority or that any significant harm 
will accrue from continuing to implement the existing immigration laws passed by Congress, 
which is what the temporary restraining order requires.  Nor have Defendants rebutted the 
significant harms that will be suffered by asylum seekers with legitimate claims and the 
organizations that assist them.   
Accordingly, for the reasons set forth below, Defendants’ motion for stay will be denied.   
I. 
LEGAL STANDARD 
A district court has the power to stay proceedings “incidental to the power inherent in 
every court to control the disposition of the causes on its docket with economy of time and effort 
for itself, for counsel, and for [the] litigants.”  Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).  
The issuance of a stay is a matter of judicial discretion, not a matter of right, and the “party 
requesting a stay bears the burden of showing that the circumstances justify an exercise of that 
discretion.”  Nken v. Holder, 556 U.S. 418, 433-34 (2009).  In exercising its discretion, the Court 
must consider four factors: “(1) whether the stay applicant has made a strong showing that he is 
likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; 
(3) whether issuance of the stay will substantially injure the other parties interested in the 
proceeding; and (4) where the public interest lies.”  Id. at 434 (citation omitted).  Under Ninth 
Circuit precedent, the movant “must show that irreparable harm is probable and either: (a) a strong 
likelihood of success on the merits and that the public interest does not weigh heavily against a 
stay; or (b) a substantial case on the merits and that the balance of hardships tips sharply in the 
[movant’s] favor.”  Leiva-Perez v. Holder, 640 F.3d 962, 970 (9th Cir. 2011) (per curiam).   
II. 
DISCUSSION 
A. 
Likelihood of Success on the Merits 
In their motion for stay, Defendants argue that they are likely to prevail on appeal for two 
main reasons:  (1) the case is not justiciable because the Plaintiff Immigration Organizations do 
not have standing to bring their claims; and (2) the Court incorrectly found that the Rule was 
probably invalid.  The Court is not persuaded by these arguments.   
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As to the first point, Defendants have not carried their burden to show a substantial case 
that this action is not justiciable.  First, Defendants argue that any injury is not traceable to the 
Rule because the Rule does not cause the “metering” practices that interfere with the Immigration 
Organizations’ functions.  ECF No. 52 at 6-7.  The Court rejects this argument because a litigant 
“need not eliminate any other contributing causes to establish its standing.”  Barnum Timber Co. 
v. E.P.A., 633 F.3d 894, 901 (9th Cir. 2011).  Moreover, the express purpose of the Rule is to 
“channel [asylum seekers] to ports of entry,” by removing alternative avenues to apply for asylum, 
thereby exposing asylum seekers to the Government’s practices.  83 Fed. Reg. 55,934, 55,934 
(Nov. 9, 2018).  Defendants also suggest – with no citation to any authority – that it is irrelevant 
whether this interferes with the Immigration Organizations’ ability to provide their services, so 
long as they can still do so to some degree.  ECF No. 52 at 6-7.  This overlooks well-established 
binding precedent.  See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 
F.3d 936, 943 (9th Cir. 2011) (en banc); Constr. Indus. Ass’n of Sonoma Cty. v. City of Petaluma, 
522 F.2d 897, 903 (9th Cir. 1975). 
Second, Defendants’ argument that the zone-of-interests test cannot be satisfied by a third 
party’s interests lacks merit.  See Am. Immigration Lawyers Ass’n v. Reno (“AILA”), 199 F.3d 
1352, 1357 (D.C. Cir. 2000); FAIC Secs., Inc. v. United States, 768 F.2d 352, 357-58 (D.C. Cir. 
1985) (Scalia, J.).  Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 
1996), which did not involve third-party standing, is not to the contrary. 
Third, Defendants contest whether the Organizations have third-party standing to raise 
their clients’ claims.  As an initial matter, Defendants assert that this argument was improperly 
raised for the first time on reply.  ECF No. 52 at 5-6.  As noted in the Court’s temporary 
restraining order, Defendants neither requested an opportunity to respond nor raised an objection 
at the hearing on the TRO, even though Plaintiffs not only made these points in their reply brief 
but argued them at the hearing.  ECF No. 43 at 7 n.8; ECF No. 45 at 50:9-51:6.  The Court 
therefore exercised its discretion to consider the Immigration Organization’s third-party standing 
argument.  ECF No. 43 at 7 n.8.  The Court likewise now exercises its discretion to consider 
Defendants’ prudential standing objections raised for the first time in their stay motion. 
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Defendants contest only whether there is “some hindrance to the third party’s ability to 
protect his or her own interests.”  Powers v. Ohio, 499 U.S. 400, 411 (1991).  Their claim is 
unpersuasive.1  As the Organizations point out, courts have generally held that a third-party child’s 
minor status, standing alone, is a sufficient hindrance.  Marin-Garcia v. Holder, 647 F.3d 666, 670 
(7th Cir. 2011); Payne-Barahona v. Gonzales, 474 F.3d 1, 2 (1st Cir. 2007); see also Smith v. Org. 
of Foster Families For Equal. & Reform, 431 U.S. 816, 841 n.44 (1977) (“[C]hildren usually lack 
the capacity to make that sort of decision [as to how best to protect their interests], and thus their 
interest is ordinarily represented in litigation by parents or guardians.”).  While these cases have 
involved parents or foster parents asserting a child’s rights, here, the Organizations’ clients are 
unaccompanied alien minors for whom their attorneys are naturally the “best proponents.”  
Singleton v. Wulff, 428 U.S. 106, 114 (1976); see also Caplin & Drysdale, Chartered v. United 
States, 491 U.S. 617, 624 n.3 (1989).   
Moreover, Defendants ignore the practical realities facing the Organization’s other clients 
under the Rule.  Any asylum seeker who enters the United States in violation of the Rule in order 
to contest its validity undertakes a substantial risk of forfeiting an otherwise meritorious asylum 
claim.  As Justice Scalia noted in MedImmune, Inc. v. Genentech, Inc., “where threatened action 
by government is concerned, we do not require a plaintiff to expose himself to liability before 
bringing suit to challenge the basis for the threat[.]”  549 U.S. 118, 128-29 (2007); see also id. at 
129 (collecting cases).  On the other hand, an asylum seeker who endures the wait to apply for 
                                                 
1 Defendants cite AILA for the proposition that asylum seekers may not challenge asylum 
eligibility policies that have not yet been applied to them.  ECF No. 52 at 8.  AILA will not bear 
the weight Defendants place on it.  In AILA, the D.C. Circuit addressed a challenge under 8 U.S.C. 
§ 1252(e)(3), which provides for “[j]udicial review of determinations under section 1225(b) of 
[Title 8] and its implementation” only under extremely limited conditions.  199 F.3d at 1358.  
However, Congress did not impose such restrictions on review of claims pertaining to § 1158, 
such as the ones at issue here, or on asylum determinations in other proceedings, see 8 U.S.C. 
§ 1229; 8 C.F.R. § 208.9.  As the Supreme Court has observed, where “Congress wanted [a] 
jurisdictional bar to encompass [particular] decisions [under the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996] . . . it expressed precisely that meaning.”  Kucana v. 
Holder, 558 U.S. 233, 249 (2010).  It is therefore unlikely that a challenge to the Attorney 
General’s exercise of § 1158 rulemaking authority falls within § 1252(e)(3).  See id. (“[W]here 
Congress includes particular language in one section of a statute but omits it in another section of 
the same Act, it is generally presumed that Congress acts intentionally and purposely in the 
disparate inclusion or exclusion.”). 
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asylum at a designated port of entry complies with the Rule – and may therefore lack standing to 
challenge its validity.  Therefore, as a matter of logic, the only way for an asylum seeker to assert 
the invalidity of the Rule is to risk summary removal or to forego applying for asylum for the 
lifespan of the litigation.  And the Supreme Court has permitted attorneys to assert their clients’ 
rights without naming them as parties.  See Caplin & Drysdale, 491 U.S. at 623 n.3. 
Finally, notwithstanding their citations to various jurisdictional provisions of the 
Immigration and Nationality Act (“INA”), see 8 U.S.C. § 1252, Defendants do not argue that they 
preclude review of Plaintiffs’ claims under the Administrative Procedure Act (“APA”).  ECF No. 
52 at 8.  The APA’s zone-of-interests test is “not meant to be especially demanding,” and 
“forecloses suit only when a plaintiff’s interests are so marginally related to or inconsistent with 
the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to 
permit the suit.”  Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 
209, 225 (2012) (citations omitted).  Defendants ignore this test in favor of a misplaced focus on 
whether the INA itself provides an express cause of action.  See id. (“We do not require any 
‘indication of congressional purpose to benefit the would-be plaintiff.’” (quoting Clarke v. Sec. 
Indus. Ass’n, 479 U.S. 388, 399 (1987)); Doe v. Trump, 288 F. Supp. 3d 1045, 1068 (W.D. Wash. 
2017).  
Nor have Defendants demonstrated a strong likelihood of success or even a substantial 
case that the Rule is valid.  Defendants continue to rely on the Attorney General’s general 
authority to promulgate categorical bars, a point no one disputes.  ECF No. 52 at 8-9; see ECF No. 
43 at 21.  But Defendants fail to engage with the specific conflict at issue here: that where 
“Congress unambiguously stated that manner of entry has no effect on an alien’s ability to apply 
for asylum,” Defendants cannot plausibly contend that “it can be the sole factor by which the alien 
is rendered ineligible.”  ECF No. 43 at 21.2  And to the extent that Defendants now argue that the 
                                                 
2 Rather than address the statute’s own terms, Defendants appear to argue instead that Article 31 
of the 1967 U.N. Protocol does not provide an independently enforceable bar against the Rule.  
ECF No. 52 at 9-10.  But as the Supreme Court has explained, where “the plain language of th[e] 
statute appears to settle the question,” courts look to the U.N. Protocol “to determine only whether 
there is ‘clearly expressed legislative intention’ contrary to that language.”  I.N.S. v. Cardoza-
Fonseca, 480 U.S. 421, 432 n.12 (1987).  Because Defendants fail to address the statutory 
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statute is ambiguous and the Rule is entitled to Chevron deference, ECF No. 52 at 9, they fail to 
explain why their interpretation of § 1158 is reasonable, given that the Rule imposes a categorical 
bar based on a factor that has been universally recognized as bearing little weight, see ECF No. 43 
at 22 (collecting cases).  
Because the Court’s temporary restraining order concluded that the Immigration 
Organizations had established serious questions going to the merits of their notice-and-comment 
claims, ECF No. 43 at 27-29, it follows that Defendants also have shown serious questions going 
to the merits.  Cf. Leiva-Perez, 640 F.3d at 970 (explaining that the “serious questions” test 
requires less than “showing that success is more likely than not”).  Nonetheless, the existence of 
such questions does not support a stay.  First, Defendants have not shown a probability of 
demonstrating that the Rule is valid, so the presence or absence of defects in the process by which 
it was promulgated are largely immaterial to whether it should remain in place.  Second, as 
explained below, Defendants have not shown that “the balance of hardships tips sharply in [their] 
favor.”  Id. at 970. 
B. 
Irreparable Injury 
At the outset, the Court is compelled to reject Defendants’ argument that an injunction 
against the Executive Branch “a fortiori” imposes irreparable injury.  See Washington v. Trump, 
847 F.3d 1151, 1168 (9th Cir. 2017), cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448 
(2017) (“[T]o the extent that the Government claims that it has suffered an institutional injury by 
erosion of the separation of powers, that injury is not ‘irreparable.’ It may yet pursue and vindicate 
its interests in the full course of this litigation.”); Texas v. United States, 787 F.3d 733, 767-68 
(5th Cir. 2015) (finding no irreparable injury because, while the United States “claims that the 
injunction offends separation of powers and federalism, . . . it is the resolution of the case on the 
merits, not whether the injunction is stayed pending appeal, that will affect those principles.”).  
Cases identifying the irreparable harm from the injunction of State statutes do not hold otherwise.  
See Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers); O Centro 
                                                 
language of § 1158, their arguments about the U.N. Protocol are of little moment. 
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Espirita Beneficiente Uniao De Vegetal v. Ashcroft, 314 F.3d 463, 467 (10th Cir. 2002); cf. N.M. 
Dep’t of Game & Fish v. U.S. Dep’t of Interior, 854 F.3d 1236, 1255-56 (10th Cir. 2017)  
(distinguishing King where “Federal Appellants have been enjoined from effectuating their 
interpretation of the Act and their internal regulations”).3 
Defendants’ remaining claims of irreparable injury are inseparable from their arguments 
that the Rule best serves the public interest by avoiding harm to potential asylum seekers.  ECF 
No. 52 at 4-5.  As explained below, the Court finds those arguments unpersuasive. 
C. 
Substantial Injury to Other Parties 
Defendants’ argument on the third factor fails on both fronts.  First, Defendants’ argument 
that the Immigration Organizations themselves must have suffered “irreparable harm,” ECF No. 52 
at 6, fails because Defendants have not shown serious questions on third-party standing.  Further, 
Defendants conflate the preliminary injunction standard with “whether issuance of the stay will 
substantially injure the other parties interested in the proceeding.”  Nken, 556 U.S. at 433 
(citations omitted).  This test permits the Court to consider the harm to non-parties.  See Latta v. 
Otter, 771 F.3d 496, 500 (9th Cir. 2014); Lair v. Bullock, 697 F.3d 1200, 1215 (9th Cir. 2012).  
Defendants raise no credible argument that asylum seekers are not parties “interested” in the 
validity of the Rule, and the TRO Order details the injuries they face.  See ECF No. 43 at 30-31. 
Second, Defendants’ argument that the Immigration Organizations suffer no harm because 
they may now comment on the Rule is not supported by authority and does not address cases 
                                                 
3 Nor does a requirement to implement the existing statutory scheme per the status quo – under 
which the government retains the discretion to deny asylum in every case – come close to the 
affirmative intrusions required by the injunctions stayed in other cases.  See I.N.S. v. Legalization 
Assistance Project of Los Angeles Cty. Fed’n of Labor, 510 U.S. 1301, 1302-03 (1993) 
(O’Connor, J., in chambers) (injunction “requiring the INS to, among other things, identify and 
adjudicate legalization applications filed by certain categories of applicants, not arrest or deport 
certain classes of immigrants, and temporarily grant certain classes of immigrants stays of 
deportation and employment authorizations”); Heckler v. Lopez, 463 U.S. 1328, 1331 (1983) 
(finding injunction would likely be reversed on scope alone, regardless of the merits, because “its 
mandatory nature, its treatment of the statutory requirement of exhaustion of administrative 
remedies, and its direction to the Secretary to pay benefits on an interim basis to parties who have 
neither been found by the Secretary nor by a court of competent jurisdiction to be disabled, 
significantly interferes with the distribution between administrative and judicial responsibility for 
enforcement of the Social Security Act which Congress has established”); Adams v. Vance, 570 
F.2d 950, 954 (D.C. Cir. 1978) (“request for an order directing action by the Secretary of State in 
foreign affairs”). 
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holding otherwise.  See ECF No. 43 at 31; California v. Health & Human Servs., 281 F. Supp. 3d 
806, 830 (N.D. Cal. 2017).   
D. 
Public Interest 
The last factor in the analysis is the public interest.  As to this point, the Government 
largely repeats the arguments from its prior brief.  Similarly, the Court arrives at the same 
conclusion regarding where the public interest lies at this stage of the case.  ECF No. 43 at 32-33.  
Noting Congress’s clearly-expressed intent regarding the availability of asylum, the Court gives 
substantial weight to the political branches’ control over immigration, see Landon v. Plascencia, 
459 U.S. 21, 34 (1982), and in particular that the Supreme Court has “repeatedly emphasized that 
over no conceivable subject is the legislative power of Congress more complete than it is over the 
admission of aliens.”  Fiallo v. Bell, 430 U.S. 787, 792 (1977) (citation omitted).  The Court also 
considers that “where the agency’s discretion has been clearly constrained by Congress,” courts 
have concluded that “there is an overriding public interest . . . in the general importance of an 
agency’s faithful adherence to its statutory mandate.”  Ramirez v. U.S. Immigration & Customs 
Enf’t, 310 F. Supp. 3d 7, 33 (D.D.C. 2018) (alteration in original) (second quoting Jacksonville 
Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977)).  The Rule deviates substantially from this 
mandate.   
In addition to these more abstract considerations, Defendants argue that the public interest 
suffers a more practical harm because, while the Rule is enjoined, more asylum seekers will cross 
illegally between ports of entry.  ECF No. 52 at 4-5.  Defendants have the right, as they have 
asserted, to “use every legal tool available to halt this dangerous and illegal practice.”  ECF No. 52 
at 4.  But Defendants have not shown even serious questions that the Rule is, in fact, legal.  
Moreover, the record to date reveals that, far from using every available tool, Defendants have 
been actively deterring asylum seekers from ports of entry.  See, e.g., ECF No. 35-3 at 17-28.   
Finally, the Court rejects Defendants’ implicit suggestion that the only way to fix a statute 
they disagree with is to issue a rule that directly contravenes the statute.  As Justice Gorsuch 
noted, “[i]f a statute needs repair, there’s a constitutionally prescribed way to do it.  It’s called 
legislation.  To be sure, the demands of bicameralism and presentment are real and the process can 
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be protracted.  But the difficulty of making new laws isn’t some bug in the constitutional design: 
it’s the point of the design, the better to preserve liberty.”  Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 
1975, 1990 (2017) (Gorsuch, J., with Thomas, J., dissenting); see also U.S. Const., art. I, § 1 (“All 
legislative Powers herein granted shall be vested in a Congress of the United States[.]”).   
The motion is denied.   
IT IS SO ORDERED. 
Dated:  November 30, 2018 
______________________________________ 
JON S. TIGAR 
United States District Judge 
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