Court filing

Plaintiffs' Motion for Preliminary Injunction — East Bay Sanctuary v. Trump

Filed December 4, 2018 in East Bay Sanctuary v. Trump; one of 67 filings from this case.

Record facts

Court	U.S. District Court, N.D. Cal.
Filed	2018-12-04

U.S. District Court, N.D. Cal. · No. 3:18-cv-06810-JST · Doc. 71 · 2018-12-04 · Docket on CourtListener

Full text

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Jennifer Chang Newell (SBN 233033)
Cody Wofsy (SBN 294179)
Spencer Amdur (SBN 320069)
Julie Veroff (SBN 310161)
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-0770
F: (415) 395-0950
jnewell@aclu.org
cwofsy@aclu.org
samdur@aclu.org
jveroff@aclu.org
Lee Gelernt*
Judy Rabinovitz*
Omar C. Jadwat*
Celso Perez (SBN 304924)
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
ojadwat@aclu.org
cperez@aclu.org
Attorneys for Plaintiffs (Additional counsel listed on following page)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
East Bay Sanctuary Covenant, et al.,
Plaintiffs,
v.
Donald J. Trump, President of the United States, et
al.,
Defendants.
Case No.: 18-cv-06810-JST
MOTION FOR PRELIMINARY
INJUNCTION
Hearing: December 19, 2018, 9:30 a.m.
Case 3:18-cv-06810-JST Document 71 Filed 12/04/18 Page 1 of 30

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Melissa Crow*
SOUTHERN POVERTY LAW CENTER
1666 Connecticut Avenue NW, Suite 100
Washington, D.C. 20009
T: (202) 355-4471
F: (404) 221-5857
melissa.crow@splcenter.org
Mary Bauer*
SOUTHERN POVERTY LAW CENTER
1000 Preston Avenue
Charlottesville, VA 22903
T: (470) 606-9307
F: (404) 221-5857
mary.bauer@splcenter.org
Attorneys for Plaintiffs
*Admitted pro hac vice
Baher Azmy*
Angelo Guisado*
Ghita Schwarz*
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
T: (212) 614-6464
F: (212) 614-6499
bazmy@ccrjustice.org
aguisado@ccrjustice.org
gshwartz@aclu.org
Christine P. Sun (SBN 218701)
Vasudha Talla (SBN 316219)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
T: (415) 621-2493
F: (415) 255-8437
csun@aclunc.org
vtalla@aclunc.org
Case 3:18-cv-06810-JST Document 71 Filed 12/04/18 Page 2 of 30

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Motion for Preliminary Injunction i Case No. 18-cv-06810

TABLE OF CONTENTS
BACKGROUND ............................................................................................................................ 1
LEGAL STANDARD ..................................................................................................................... 2
ARGUMENT .................................................................................................................................. 2
I.
PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.. ....................... 2
A.
The Rule Violates the INA. ........................................................................ 2

B.
The Rule Violates the APA......................................................................... 4

C.
Plaintiffs Have Standing And Satisfy The Prudential Rules. ..................... 7

1. Plaintiffs Have Established Article III Standing. .................................... 7

2. Plaintiffs Satisfy Third Party Standing. ................................................ 11

3. Plaintiffs Fall Within the Relevant Zones of Interest. .......................... 13

II.
THE BALANCE OF EQUITIES SHARPLY FAVORS PLAINTIFFS............... 16
A.
Plaintiffs Will Suffer Irreparable Injury Absent A Preliminary
Injunction. ................................................................................................. 16

B.
The Government Will Not Be Injured By An Injunction,
Which Is In the Public Interest.................................................................. 18

III.
THE COURT SHOULD ENJOIN THE RULE IN FULL.................................... 20
CONCLUSION ............................................................................................................................. 21

Case 3:18-cv-06810-JST Document 71 Filed 12/04/18 Page 3 of 30

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Motion for Preliminary Injunction ii
Case No. 18-cv-06810

TABLE OF AUTHORITIES
Cases
Aid for Women v. Foulston,
441 F.3d 1101 (10th Cir. 2006) ................................................................................................ 12
Al Otro Lado, Inc. v. Nielsen,
327 F. Supp. 3d 1284 (S.D. Cal. 2018) ..................................................................................... 14
All. for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011) .................................................................................................... 2
Am. Trucking Ass’n, Inc. v. Fed. Motor Carrier Safety Admin.,
724 F.3d 243 (D.C. Cir. 2013) .................................................................................................. 15
Animal Legal Defense Fund, Inc. v. Glickman,
154 F.3d 426 (D.C. Cir. 1998) ................................................................................................. 14
Apotex, Inc. v. FDA,
2006 WL 1030151 (D.D.C. Apr. 19, 2006) ............................................................................. 17
Barnum Timber Co. v. E.P.A.,
633 F.3d 894 (9th Cir. 2011) .................................................................................................... 10
Buschmann v. Schweiker,
676 F.2d 352 (9th Cir. 1982) ...................................................................................................... 6
California v. Health & Human Servs.,
281 F. Supp. 3d 806 (N.D. Cal. 2017) ................................................................................ 15, 17
Campos-Hernandez v. Sessions, 889 F.3d 564 (9th Cir. 2018) ...................................................... 3
Caplin & Drysdale, Chartered v. United States,
491 U.S. 617 (1989) .................................................................................................................. 11
City & Cty. of San Francisco v. Trump,
897 F.3d 1225 (9th Cir. 2018) .................................................................................................... 8
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach,
657 F.3d 936 (9th Cir. 2011) ............................................................................................... 9, 11
Constr. Indus. Ass’n of Sonoma Cty. v. City of Petaluma,
522 F.2d 897 (9th Cir. 1975) ...................................................................................................... 8
Doe v. Trump,
288 F.Supp.3d 1045 (W.D. Wash. 2017) ............................................................................ 14, 16
Earth Island Inst. v. Ruthenbeck,
490 F.3d 687 (9th Cir. 2007) ................................................................................................... 20
Exodus Refugee Immigration, Inc. v. Pence,
165 F. Supp. 3d 718 (S.D. Ind. 2016) ............................................................................. 8, 12, 16

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Motion for Preliminary Injunction iii
Case No. 18-cv-06810

FAIC Securities, Inc. v. United States,
768 F.2d 352 (D.C. Cir. 1985) .................................................................................................. 13
Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) .................................................................................................................. 11
Hawaii v. Trump,
859 F.3d 741 (9th Cir. 2017) .................................................................................................... 14
Hawaii v. Trump,
878 F.3d 662 (9th Cir. 2017) ................................................................................................... 21
Havasupai Tribe v. Provencio,
906 F.3d 1155 (9th Cir. 2018) ............................................................................................ 13, 15
Immigrant Assistance Project of Los Angeles Cty. Fed’n of Labor v. I.N.S.,
306 F.3d 842 (9th Cir. 2002) ................................................................................................... 14
Jacksonville Port Auth. v. Adams,
556 F.2d 52 (D.C. Cir. 1977) .................................................................................................... 20
Jean v. Nelson,
711 F.2d 1455 (11th Cir. 1983) ................................................................................................. 5
Kirwa v. Dep’t of Defense,
285 F. Supp. 3d 21 (D.D.C. 2007) ........................................................................................... 17
Kowalski v. Tesmer,
543 U.S. 125 (2004) .................................................................................................................. 11
League of Women Voters v. Newby,
838 F.3d 1 (D.C. Cir. 2016) ...................................................................................................... 16
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118 (2014) .................................................................................................................. 13
Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871 (1990) .................................................................................................................. 15
Marin-Garcia v. Holder,
647 F.3d 666 (7th Cir. 2011) ................................................................................................... 12
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
567 U.S. 209 (2012) ............................................................................................................ 13, 15
Matter of Pula,
19 I&N Dec. 467 (BIA 1987) .................................................................................................... 3
Mountain States Legal Found. v. Glickman,
92 F.3d 1228 (D.C. Cir. 1996) ................................................................................................. 16
Nat’l Cottonseed Products Ass’n v. Brock,
825 F.2d 482 (D.C. Cir. 1987) .................................................................................................. 13

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Motion for Preliminary Injunction iv
Case No. 18-cv-06810

Nat’l Council of La Raza v. Cegavske,
800 F.3d 1032 (9th Cir. 2015) ................................................................................................. 11
Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs,
145 F.3d 1399 (D.C. Cir. 1998) ................................................................................................ 20
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv.,
886 F.3d 803 (9th Cir. 2018) ................................................................................................... 10
Nken v. Holder,
556 U.S. 418 (2009) ............................................................................................................ 18, 20
NWIRP v. USCIS,
325 F.R.D. 671 (W.D. Wash. 2016) ......................................................................................... 14
Ocean Advocates v. U.S. Army Corps of Engineers,
402 F.3d 846 (9th Cir. 2005) .................................................................................................... 10
Open Comms. Alliance v. Carson,
286 F. Supp. 3d 148 (D.D.C. 2017) .......................................................................................... 17
Pac. Shores Properties, LLC v. City of Newport Beach,
730 F.3d 1142 (9th Cir. 2013) .................................................................................................... 8
Paulsen v. Daniels,
413 F.3d 999 (9th Cir. 2005) .................................................................................................... 15
Payne-Barahona v. Gonzales,
474 F.3d 1 (1st Cir. 2007) ......................................................................................................... 12
Perry v. Merit Sys. Prot. Bd.,
137 S. Ct. 1975 (2017) .............................................................................................................. 4
Penn. Psychiatric Soc. v. Green Spring Health Servs., Inc.,
280 F.3d 278 (3d Cir. 2002) .................................................................................................... 13
Powers v. Ohio,
499 U.S. 400 (1991) ......................................................................................................... 11, 13
Ramirez v. U.S. Immigration & Customs Enf't,
310 F. Supp. 3d 7 (D.D.C. 2018) ............................................................................................ 20
Regents of the Univ. of California v. U.S. Dep’t of Homeland Sec.,
908 F.3d 476 (9th Cir. 2018) ........................................................................................... 20, 21
Saravia for A.H. v. Sessions,
905 F.3d 1137 (9th Cir. 2018) .................................................................................................... 2
Singleton v. Wulff,
428 U.S. 106 (1976) ............................................................................................................ 12, 13
Smith v. Org. of Foster Families For Equal. & Reform,
431 U.S. 816 (1977) .................................................................................................................. 12

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Motion for Preliminary Injunction v
Case No. 18-cv-06810

Toor v. Lynch,
789 F.3d 1055 (9th Cir. 2015) .................................................................................................. 3
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ................................................................................................................ 4
United States v. Valverde,
628 F.3d 1159 (9th Cir. 2010) ........................................................................................... 4, 6, 7
U.S. Dep’t of Labor v. Triplett,
494 U.S. 715 (1990) .................................................................................................................. 11
Valle del Sol Inc. v. Whiting,
732 F.3d 1006 (9th Cir. 2013) ........................................................................................... 11, 16
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) .......................................................................................... 12, 21
Yassini v. Crosland,
618 F.2d 1356 (9th Cir. 1980) ............................................................................................... 4, 5
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ................................................................................................................. 19
Statutes
5 U.S.C. § 553 ............................................................................................................................... 15
5 U.S.C. § 553(a)(1) ........................................................................................................................ 4
5 U.S.C. § 553(b)(B) ....................................................................................................................... 6
8 U.S.C. § 1154(f)(3)(A)............................................................................................................... 14
8 U.S.C. § 1158(a)(1) .............................................................................................................. 2, 20
8 U.S.C. § 1158(d)(4)(A) .............................................................................................................. 14
8 U.S.C. § 1158(d)(4)(B) .............................................................................................................. 14
8 U.S.C. § 1229(a)(1) .................................................................................................................... 14
8 U.S.C. § 1229(b)(2) ................................................................................................................... 14
8 U.S.C. § 1325 ............................................................................................................................... 6
8 U.S.C. § 1522(a)(2)(A) .............................................................................................................. 14
8 U.S.C. § 1522(b)(1)(A) .............................................................................................................. 14
8 U.S.C. § 1522(c)(1)(A) .............................................................................................................. 14
8 U.S.C. § 1522(d)(2)(A) .............................................................................................................. 14
8 U.S.C. § 1525(b)(7) ................................................................................................................... 14
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Motion for Preliminary Injunction vi
Case No. 18-cv-06810

Regulations
83 Fed. Reg. 57661 ......................................................................................................................... 1
83 Fed. Reg. 55943 ......................................................................................................................... 1
83 Fed. Reg. 55950 ......................................................................................................................... 6
83 Fed. Reg. 55951 ......................................................................................................................... 5
Legislative History

H.R. Rep. 96-608, 96th Cong., 1st Sess. (Nov. 9, 1979) ............................................................. 20
Other Authorities
U.S. Customs and Border Protection, United States Border Patrol Southwest Family Unit Subject
and Unaccompanied Alien Children Apprehensions Fiscal Year 2016, Statement by Secretary
Johnson on Southwest Border Security (Oct. 18, 2016) ........................................................... 19
U.S. Citizenship and Immigration Services, Credible Fear Workload Summary ....................... 19
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Motion for Preliminary Injunction 1
Case No. 18-cv-06810

PLEASE TAKE NOTICE that Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado,
Innovation Law Lab, and Central American Resource Center of Los Angeles hereby move the Court
for a preliminary injunction. A hearing is scheduled for December 19, 2018, at 9:30 a.m., in the
courtroom of the Hon. Jon S. Tigar, located at 450 Golden Gate Ave., San Francisco, California.

Plaintiffs seek an order enjoining Defendants and all persons associated with them from
implementing or enforcing the Interim Final Rule/Proclamation. This motion is brought pursuant to
Federal Rule of Civil Procedure 65 and is based on this motion and materials cited herein; the
accompanying declarations; the pleadings and evidence on file in this matter; and such other
materials and argument as may be presented in connection with the hearing on the motion.
BACKGROUND

The Court is familiar with the statutory and factual background of this case, as set out in the
Court’s TRO order. TRO Order at 2-6. In brief, Defendants issued an interim final rule (“Rule”)
barring asylum for individuals who enter the country while covered by a presidential proclamation
suspending entry at the southern border, and simultaneously issued such a proclamation suspending
the entry of individuals who cross between ports at the southern border. See Aliens Subject to a Bar
on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed.
Reg. 55934 (Nov. 9, 2018); Presidential Proclamation Addressing Mass Migration Through the
Southern Border of the United States, 83 Fed. Reg. 57661 (Nov. 9, 2018). “The combined effect of
the Rule and the Proclamation is that any alien who enters the United States across the southern
border at least over the next ninety days, except at a designated port of entry, is categorically
ineligible to be granted asylum.” TRO Order at 6.

Plaintiffs, organizations that provide representation and services to asylum seekers, filed this
action. On November 19, this Court issued a TRO, holding that Plaintiffs have standing; that the
Rule squarely violates the INA; that Defendants’ failure to comply with the APA’s procedural
Case 3:18-cv-06810-JST Document 71 Filed 12/04/18 Page 9 of 30

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Motion for Preliminary Injunction 2
Case No. 18-cv-06810
requirements presented serious merits questions; and that a nationwide injunction was warranted.
The Court also denied a stay pending appeal of the TRO. The government filed a notice of appeal;
its request for a stay from the Ninth Circuit was filed on December 1 and remains pending.1
LEGAL STANDARD

On a motion for a preliminary injunction, the plaintiff “must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an injunction is in the public interest.” Saravia
for A.H. v. Sessions, 905 F.3d 1137, 1142 (9th Cir. 2018). A preliminary injunction may issue where
“serious questions going to the merits [are] raised and the balance of hardships tips sharply in
[plaintiff’s] favor.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).
ARGUMENT
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
A. The Rule Violates The INA.
As this Court concluded in issuing a TRO, the Rule “irreconcilably conflicts with the INA
and the expressed intent of Congress.” TRO Order at 2. In light of that conflict, “[b]asic separation
of powers principles dictate” that the Rule must be invalidated. Id. at 21.2
Congress specifically established that any noncitizen either “physically present in the United
States” or arriving at our borders is entitled to apply for asylum. 8 U.S.C. § 1158(a)(1). Congress
was clear: This command applies “whether or not” the individual arrives “at a designated port of
arrival,” and applies “irrespective of such alien’s status.” Id. Because “Congress has directly

1 The Court is familiar with the TRO record, which Plaintiffs incorporate by reference for purposes
of this motion. In addition, Plaintiffs now submit the following declarations: Joint Declaration of
Former Officials Madeleine K. Albright et al., Camila Alvarez, Michelle Brané, Lisa Mitchell-
Bennett, Second Supplemental Declaration of Stephen Manning, Supplemental Declaration of
Madeleine Penman, Nicole Ramos, Jeremy Slack, and Supplemental Declaration of Michael Smith.
Plaintiffs also submit a corrected version of the previously submitted Supplemental Declaration of
Erika Pinheiro, which was cut off due to a scanning error.
2 As the Court observed, “Congress’s determination that place of entry not be disqualifying to an
application for asylum is consistent with the treaty obligations underlying § 1158’s asylum
provisions.” TRO Order at 20; see also ECF No. 8-5 ¶ 6.
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Motion for Preliminary Injunction 3
Case No. 18-cv-06810
spoken to the precise question at issue,” its command “is the end of the matter.” TRO Order at 18
(quoting Campos-Hernandez v. Sessions, 889 F.3d 564, 568 (9th Cir. 2018)).
The Court also correctly rejected the government’s attempts to avoid the obvious conflict
between the statute’s plain text and the Rule. The government has asserted that § 1158(a)(1)
guarantees people who enter between ports only the right to submit an application, but permits the
government to categorically deny their application based solely on the fact that they entered between
ports. See TRO Order at 21. As this Court explained, that “argument strains credulity.” Id. Surely
Congress intended to have some effect when it enacted the emphatic language of § 1158(a)(1)
stating that asylum was available “whether or not” the applicant presents at a designated port of
entry. To accept the government’s argument would “render the right to apply a dead letter.” TRO
Order at 21.
Likewise, the government’s reliance on the Attorney General’s discretion fall flat. See TRO
Order at 21-22. Whatever power the Attorney General has to establish limitations on asylum
pursuant to 8 U.S.C. § 1158(b)(2)(C), such conditions must be “consistent” with the rest of the
section—including the command of 8 U.S.C. § 1158(a)(1). See TRO Order at 21. Nor can the
government justify violating the clear intent of Congress by invoking the discretionary authority to
deny asylum on a case-by-case basis. See Toor v. Lynch, 789 F.3d 1055, 1064 (9th Cir. 2015).
Indeed, “[n]ot only does the Rule flout the explicit language of the statute, it also represents an
extreme departure from prior practice.” TRO Order at 22. As this Court recognized, since at least
Matter of Pula, the government and courts have been clear that manner of entry is at most a second-
tier factor among many in the overall exercise of discretion, and “should not be considered in such a
way that the practical effect is to deny relief in virtually all cases.” 19 I&N Dec. 467, 473 (BIA
1987); TRO Order at 22 (collecting cases).
Finally, the Rule denying asylum cannot be justified because of the Proclamation. As the
government has agreed, “the Proclamation does not render any alien ineligible for asylum.” TRO
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Motion for Preliminary Injunction 4
Case No. 18-cv-06810
Order at 17. That concession is well taken. The President cannot “by proclamation . . . override
Congress’s clearly expressed legislative intent, simply because a statute conflicts with the
President’s policy goals.” Id. at 23. “No court has ever held that § 1182(f) ‘allow[s] the President to
expressly override particular provisions of the INA.’” Id. (quoting Trump v. Hawaii, 138 S. Ct.
2392, 2411 (2018)). And, for the reasons this Court has explained, the text and structure of
§§ 1182(f) and 1185 foreclose any suggestion that Congress delegated to the President authority to
dictate who would be eligible for asylum. Id.

Ultimately, as this Court observed in denying a stay, the government apparently just
disagrees with the statute. But executive action is not the lawful response in that event. “[T]here’s a
constitutionally prescribed way to do it. It’s called legislation.” Stay Order at 8 (quoting Perry v.
Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1990 (2017) (Gorsuch, J., dissenting)).
B.
The Rule Violates The APA.
As this Court observed, agencies “may not treat” the APA’s notice and comment
requirements “as an empty formality.” TRO Order at 24. The government has suggested, however,
that Plaintiffs “suffer no harm because they may now comment on the Rule” after implementation,
but that argument is foreclosed by settled law. Stay Order at 7-8. Indeed, “[i]t is . . . ‘antithetical to
the structure and purpose of the APA for an agency to implement a rule first, and then seek comment
later.’” TRO Order at 24 (quoting United States v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010)).
1. The government invokes the APA’s foreign affairs exception. 5 U.S.C. § 553(a)(1). As
this Court has already made clear, however, the mere fact that this case involves immigration is
insufficient. See TRO Order at 25 (“the Ninth Circuit cautioned that ‘[t]he foreign affairs exception
would become distended if applied to [an immigration enforcement agency’s] actions generally’”)
(quoting Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980)) (alterations in original).
Rather, “[f]or the exception to apply, the public rulemaking provisions should provoke definitely
undesirable international consequences.” Id. (internal quotation marks omitted).
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Motion for Preliminary Injunction 5
Case No. 18-cv-06810
At the TRO stage, the Court accepted “for the purposes of argument that the Rule was part of
the President’s larger coordinated effort in the realm of immigration.” Id. at 26. But, it explained,
that assumption did not answer the relevant “counterfactual, namely, whether ‘definitely undesirable
international consequences’ would result from following rulemaking procedures.” Id. (quoting
Yassini, 618 F.2d at 1360 n.4). In the TRO proceedings, “Defendants . . . were unable to explain . . .
how eliminating notice and comment would assist the United States in its negotiations.” Id. at 27.
The Court concluded that Plaintiffs’ challenge raised “serious questions,” but afforded the
government an opportunity to establish a sufficient explanation in the administrative record. Id. at
27-28 (internal quotation marks omitted).
The administrative record has now been produced, but there is still no adequate explanation
of how notice and comment is supposed to impact the negotiations. Nothing in the record sheds
further light on those negotiations, nor connects the dots this Court previously explained were
markedly disconnected. See Jean v. Nelson, 711 F.2d 1455, 1478 (11th Cir. 1983) (“Not every
request for international cooperation seriously may be called ‘foreign policy.’”), dismissed in
relevant part as moot, 727 F.2d 957 (11th Cir. 1984), aff’d, 472 U.S. 846 (1985). By contrast,
bipartisan foreign policy and security officials—including former Secretaries of State, Defense, and
Homeland Security—have submitted a sworn statement that the government’s actions are likely to
hurt, not help, U.S. foreign policy objectives. See Joint Decl. of Former Officials ¶ 10.
The gestures at negotiations with the Northern Triangle countries fare no better. The Rule
invokes such negotiations in the vaguest terms, asserting they cover “issues such as how these other
countries will develop a process to provide this influx with the opportunity to seek protection at the
safest and earliest point of transit possible, and how to establish compliance and enforcement
mechanisms for those who seek to enter the United States illegally, including for those who do not
avail themselves of earlier offers of protection.” 83 Fed. Reg. 55951. Such systems-level
negotiations may well be underway—and, indeed, these issues have been discussed for years. That
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is not an explanation for why a notice and comment process would make any difference to such
negotiations. See Joint Decl. of Former Officials ¶ 10 (“In our professional judgment, the failure to
move forward immediately with an emergency rule will not damage our relations with Mexico or
Northern Triangle countries. To the contrary, the most likely consequence of this apparently
unilateral step is to inflame tensions and undermine our diplomatic relations throughout the Western
Hemisphere, compromising critical security and other forms of cooperation with these nations in the
process.”).
The Court stopped short of finding a likelihood of success on this issue “[p]ending further
information produced in the administrative record.” TRO Order at 27. No such information speaks
to the counterfactual the Court identified. Plaintiffs are now likely to succeed on this issue.
2.
The administrative record also does not suffice to satisfy the APA’s good cause
exception. 5 U.S.C. § 553(b)(B). “[T]he good cause exception is essentially an emergency
procedure.” Valverde, 628 F.3d at 1165 (quoting Buschmann v. Schweiker, 676 F.2d 352, 357 (9th
Cir. 1982)) Thus, successfully invoking the good cause exception requires an agency to “overcome
a high bar,” as the exception is to be “‘narrowly construed and only reluctantly countenanced.’” Id.
at 1164. As this Court explained, “[t]he good cause exception should be interpreted narrowly, so
that the exception will not swallow the rule.” TRO Order at 28 (quoting Buschmann, 676 F.2d at
357).
The “linchpin assumption” of the government’s good-cause argument, id. at 29, is that
abiding by the normal notice and comment procedures “could lead to an increase in migration to the
southern border to enter the United States before the rule took effect,” 83 Fed. Reg. 55950. As this
Court observed, however, the government’s assertion was undercut by the TRO record. TRO Order
at 28. “Aliens who enter illegally are already subject to criminal and civil penalties, see 8 U.S.C. §
1325, which the government has been prosecuting under a ‘zero-tolerance’ policy,” and Plaintiffs
submitted evidence that “some of those aliens nonetheless cross illegally for reasons that may be
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unaffected by the Rule’s additional penalties, such as a lack of awareness of entry requirements or
by imminent necessity caused by, among other things, threats of immediate violence from criminal
groups near the border.” TRO Order at 29; Slack Decl. ¶ 19-20 (many migrants unable to safely go
to ports because of kidnapping rings and serious violence in border towns); Brané Decl. ¶¶ 22-28,
32-35; Ramos Decl. ¶¶ 5, 15-18. Again, the Court held plaintiffs had raised serious questions on this
issue, but deferred further decision pending a “more robust” record including the administrative
record. TRO Order at 29.
Here also, the administrative record does not supply the critical missing information.
Nothing in the record supports the government’s inferential leap—that eliminating notice and
comment will change migration flows that are driven by a multitude of factors. As the Ninth Circuit
has made clear, such assertions of “conclusory speculative harms” are not sufficient to justify
abandoning the APA’s fundamental procedural requirements. Valverde, 628 F.3d at 1167. It is not
enough to simply hypothesize that notice and comment might have some effect. Indeed, as in
Valverde, “the existence of stringent . . . criminal sanctions on the books at the time the [interim]
regulation was promulgated obviated the case for an emergency.” Id. at 1168 (second alteration in
original, internal quotation marks omitted). The Court does not simply take the government’s word
for it. Id. (calling it “difficult to see what substantial public safety interest was served”).
C. Plaintiffs Have Standing And Satisfy The Prudential Rules.
1. Plaintiffs Have Established Article III Standing.
As this Court previously held, Plaintiffs have suffered cognizable injuries in fact sufficient to
establish Article III standing in their own right. See TRO Order at 8-13; Stay Order at 3. That
conclusion remains correct, and is bolstered by Plaintiffs’ additional evidence.
First, as this Court observed, the “Rule’s impairment of the Organizations’ ability to pursue
asylum cases . . . impairs their functioning by jeopardizing their funding.” TRO Order at 12. Indeed,
Plaintiffs will suffer an imminent loss of funds and the potential closure of entire organizational
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programs because of the Rule. See id. at 13 (“the Court . . . finds that the Immigration Organizations’
loss of per-case funding is certainly impending”).
In particular, much of Plaintiffs’ funding is tied directly to their ability to pursue affirmative
asylum claims on a case-by-case basis. See ECF No. 8-7 ¶¶ 16-17 (EBSC at risk of losing $304,000
in government funding annually because it cannot serve clients who entered without inspection in
filing affirmative asylum applications, and of having to close its affirmative asylum program); Smith
Supp. Decl. ¶ 14 (similar); ECF No. 8-3 ¶¶ 7, 12 (CARECEN will suffer financial losses because
attorneys must now devote more hours per case to pursue complex non-asylum relief while still
receiving flat per-case fee from state funder); ECF No. 8-4 ¶¶ 11-12 (similar for Al Otro Lado,
which must now prepare additional applications for family members at greater financial cost);
Corrected Pinheiro Supp. Decl. ¶ 22 (long-term implementation would threaten Al Otro Lado’s
ability to comply with its funding obligations and jeopardize future funding); see also Manning 2nd
Supp. Decl. ¶¶ 11. As this Court noted, such threatened losses and programmatic closures are
“sufficient” to establish standing. TRO Order at 12; see City & Cty. of San Francisco v. Trump, 897
F.3d 1225, 1235 (9th Cir. 2018) (anticipated “loss of funds” sufficient for injury); Pac. Shores
Properties, LLC v. City of Newport Beach, 730 F.3d 1142, 1165 (9th Cir. 2013) (“closure” of
organization’s programmatic activities constituted injury); Constr. Indus. Ass’n of Sonoma Cty. v.
City of Petaluma, 522 F.2d 897, 903 (9th Cir. 1975) (holding that a construction association suffered
cognizable injury from a “restriction on building” where its members “contribute[d] dues to the
Association in a sum proportionate to the amount of business the builders d[id] in the area”); accord
Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d 718, 739 (S.D. Ind. 2016) (granting
preliminary injunction where organizational plaintiff presented evidence that as a result of a loss of
funding, even if only temporary and eventually recoverable, “its organizational objectives would be
irreparably damaged by its inability to provide adequate social services to its clients”), aff’d 838
F.3d 902 (7th Cir. 2016).
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Second, as this Court held, Plaintiffs “mission has been frustrated in numerous cognizable
ways.” TRO Order at 11. For example, the Rule frustrates EBSC’s mission to assist asylum seekers
in filing affirmative applications for asylum. See Smith Supp. Decl. ¶ 4. EBSC’s affirmative
asylum work is its most important program, and 80% of the clients in that program entered between
ports. Id. ¶¶ 2, 5. EBSC cannot represent asylum seekers who enter at a port because it is located
far away from the southern border, and because it almost never represents noncitizens who (like
those who present at a port of entry) are in removal proceedings, as it lacks the staffing and funding
to do so. Id. ¶¶ 6-13. Under the new policy, then, EBSC cannot deliver on its key mission. See also
ECF No. 8-7 ¶¶ 6, 8-9, 15. The missions of the other Plaintiffs are similarly frustrated. See e.g.,
Corrected Pinheiro Supp. Decl. ¶¶ 4-6, 10, 13, 15-22 (Al Otro Lado clients with potentially
meritorious asylum claims are now significantly delayed or wholly unable to pursue them; because
of diversion to non-legal work, organization has reduced ability to provide legal services); Ramos
Decl. ¶¶ 4-7, 9-13 (significant time now required for non-legal services at expense of legal services);
Alvarez Decl. ¶ 4 (CARECEN’s mission is to provide services to all noncitizens irrespective of
manner of entry); ECF No. 8-3 ¶¶ 6, 10 (CARECEN’s core client base—asylum seekers who enter
between ports—no longer eligible for asylum); ECF No. 8-6 ¶¶ 9-11 (similar for Innovation Law
Lab); Manning 2nd Supp. Decl. ¶¶ 4-6, 10, 17. As the Court explained, “[t]he inability of an
organization’s constituency to gain access to or participate in the organization’s core services is a
well-recognized impairment of an organization’s ability to function.” TRO Order at 12 (citing
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir.
2011) (en banc)).
The government has criticized the Court for pointing to the government’s practice of
“metering” asylum seekers at ports of entry and the barriers unaccompanied children face in getting
on the list to present at a port, arguing that those practices and policies are not part of the Rule. But
“the link” between the Rule and the inability of Plaintiffs’ clients to access U.S. asylum procedures
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is not “tenuous or abstract.” Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846, 860
(9th Cir. 2005). As this Court recognized, it is “[b]ecause of the Rule” that Plaintiffs’ clients have a
previously reliable avenue of seeking asylum closed off to them, and so “are significantly delayed or
wholly unable to pursue [their potentially meritorious asylum] claims, which are the Organizations’
core service.” TRO Order at 12 (emphasis added); see also Stay Order at 3. Plaintiffs “need not
eliminate any other contributing causes to establish [their] standing.” Barnum Timber Co. v. E.P.A.,
633 F.3d 894, 901 (9th Cir. 2011); see also Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 886
F.3d 803, 819 (9th Cir. 2018) (“[A] plaintiff [seeking preliminary injunctive relief] ‘need not further
show that the action sought to be enjoined is the exclusive cause of the injury.’”) .

The record also clearly demonstrates that Plaintiffs have been forced to respond to these
frustrations by diverting resources to efforts outside their core services, including providing non-
legal, effectively day care services for unaccompanied child clients; dialing back other core legal
services; and retraining staff, legal professionals, and community members on how to deal with the
new regulatory landscape. See TRO Order at 12-13; Corrected Pinheiro Supp. Decl. ¶¶ 14-16 (Al
Otro Lado forced to expend significant staff resources to accompany its unaccompanied children
clients full-time to safeguard them from danger, thus diverting resources away from providing core
legal services); Ramos Decl. ¶¶ 4-7, 9-13 (similar; Al Otro Lado has had to house children in its
office, attend to children’s emotional and mental health needs); Alvarez Decl. ¶¶ 6-7 (CARECEN
has already diverted resources to trainings and materials development it would not otherwise have
conducted); ECF No. 8-3 ¶¶ 10-11, 13 (shifting from asylum to withholding and CAT applications
forces CARECEN to divert resources away from other core legal services work); ECF No. 8-4 ¶¶ 9-
10, 12-13 (similar for Al Otro Lado); ECF No. 8-6 ¶¶ 8-12 (Innovation Law Lab must totally
overhaul training materials, deploy expensive and limited engineering resources to recode training
software, cease most of its pro bono activities, and divert resources away from noncitizens in its
Border X program); Manning 2nd Supp. Decl. ¶¶ 7-18 (programmatic staff and web-based database
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developers have been pulled from ongoing projects to provide emergency response to needs arising
at the border; staff already have had to devote additional time to screening cases and developing
training materials); ECF No. 8-7 ¶¶ 14-15, 17-19 (EBSC must divert resources to training staff and
educating community); Smith Supp. Decl. ¶ 15 (same).

Under Ninth Circuit law, these types of diversions are plainly sufficient to satisfy standing
under Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). See, e.g., Comite de Jornaleros,
657 F.3d at 943; Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013); Nat’l Council of
La Raza v. Cegavske, 800 F.3d 1032, 1040 (9th Cir. 2015).
2. Plaintiffs Satisfy Third-Party Standing.

This Court also correctly concluded that Plaintiffs have third-party standing to assert the
legal rights of their clients who wish to enter the United States to apply for asylum but cannot do so
in significant part because of the new asylum ban. To assert a third party’s rights, (1) “[t]he litigant
must have suffered an ‘injury in fact’”; (2) “the litigant must have a close relationship to the third
party”; and (3) “there must exist some hindrance to the third party’s ability to protect his or her own
interests.” Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (citation omitted). These factors are easily
met here.
First, as discussed above, Plaintiffs have adequately demonstrated an injury in fact.
Second, Plaintiff Al Otro Lado has documented an “existing attorney-client” relationship
with unaccompanied minor children who are stuck in Mexico and unable to seek asylum. Kowalski
v. Tesmer, 543 U.S. 125, 131 (2004) (emphasis omitted). The attorney-client relationship is “one of
special consequence” that the Supreme Court has made clear is sufficient to support third-party
standing. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n.3 (1989); U.S. Dep’t
of Labor v. Triplett, 494 U.S. 715, 720 (1990).
Third, these clients are plainly hindered in their ability to assert their own rights. The
Supreme Court has made clear that the “hindrance” factor is not a high bar. The third party need not
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face an “insurmountable” barrier to asserting her rights; it is enough that there be a “genuine
obstacle.” Singleton v. Wulff, 428 U.S. 106, 116-117 (1976). Indeed, the Ninth Circuit has made
clear that it is sufficient to show merely that “the third party is less able to assert her own rights.”
Washington v. Trump, 847 F.3d 1151, 1160 (9th Cir. 2017) (per curiam) (emphasis added).
Here, Plaintiff’s clients face several genuine obstacles, as this Court previously recognized.
Critically, the clients are minor children. “[C]ourts have generally held that a third-party child’s
minor status, standing alone, is a sufficient hindrance.” Stay Order at 4. See Payne-Barahona v.
Gonzales, 474 F.3d 1, 2 (1st Cir. 2007) (explaining that “hindrance” is “rather obvious in the case of
minor children”); Marin-Garcia v. Holder, 647 F.3d 666, 670 (7th Cir. 2011); Aid for Women v.
Foulston, 441 F.3d 1101, 1114 (10th Cir. 2006) (“the fact that those patients are minors is an
additional obstacle—minors are generally not legally sophisticated and are often unable even to
maintain suits without a representative or guardian”); 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.”). Because these children are unaccompanied, and
so lack parents or guardians, their attorneys—Plaintiffs—are naturally the “best proponents” for
asserting their rights. Stay Order at 4.
These children are also uniquely vulnerable given that they are fleeing persecution, see
Corrected Pinheiro Supp. Decl. ¶ 17, and so may wish to avoid drawing attention to themselves
through litigation, particularly in light of Defendants’ professed opposition to asylum seekers. See
Exodus Refugee Immigration, 165 F. Supp. 3d at 732. Finally, because the children are unable to
present themselves at ports of entry, see Corrected Pinheiro Supp. Decl. ¶¶ 4-6, 10; Ramos Decl. ¶¶
5, 8-10; Brané Decl. ¶ 16 and are thus trapped in dangerous border towns without any opportunity to
apply for asylum, their practical ability to bring a lawsuit is additionally hindered. See ECF No. 8-4
¶¶ 38-39 (noting recent record-high murder rate in border town); Corrected Pinheiro Supp. Decl. ¶¶
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13-15; Penman Supp. Decl. ¶ 15 (heightened risk of refoulement in Mexico); Ramos Decl. ¶¶ 14-18;
Slack Decl. ¶¶ 10-11; Brané Decl. ¶¶ 17, 22-28, 31-35 (children in border towns at risk of
trafficking).
Courts regularly recognize that such practical hindrances are sufficient to satisfy Powers.
See, e.g., Powers, 499 U.S. at 414-15 (financial disincentive); Singleton, 428 U.S. at 117-118 (desire
to protect privacy of medical decisions); Penn. Psychiatric Soc. v. Green Spring Health Servs., Inc.,
280 F.3d 278, 290 (3d Cir. 2002) (“stigma associated with receiving mental health services”).
3. Plaintiffs Fall Within The Relevant Zones Of Interests.
Lastly, as this Court correctly held, because Plaintiffs “are asserting the rights of their clients
as potential asylum seekers, they easily satisfy the APA’s lenient zone-of-interests inquiry.” TRO
Order at 16; see also Stay Order at 3. Indeed, courts have consistently concluded that where a
plaintiff has third-party standing, “the third parties’ interests c[an] be relied upon to satisfy the ‘zone
of interests’ requirement.” FAIC Securities, Inc. v. United States, 768 F.2d 352, 358 (D.C. Cir.
1985); see Nat’l Cottonseed Products Ass’n v. Brock, 825 F.2d 482, 490 (D.C. Cir. 1987) (same).
The government has not explained why Congress would have intended to foreclose suit by a party
that is seeking to apply for asylum.
Plaintiff organizations also come within the Refugee Act’s zone of interests in their own
right. As this Court recognized, the zone-of-interests “test is not ‘especially demanding.’” TRO
Order at 16 (quoting Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 130
(2014)). It forecloses suit only where a plaintiff’s interests are “so marginally related to or
inconsistent with the purposes implicit in the statute” that Congress could not have intended to allow
the suit. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225
(2012); see Lexmark, 572 U.S. at 130 (“[T]he benefit of any doubt goes to the plaintiff.”).
Plaintiffs’ interests are neither “marginal[]” nor “inconsistent” with the goals of the Refugee
Act. Their entire purpose is to facilitate the Refugee Act’s goal of protecting refugees and asylum
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seekers. See, e.g., ECF No. 8-3 ¶¶ 4-6; ECF No. 8-4 ¶ 4; ECF No. 8-6 ¶ 7; ECF No. 8-7 ¶¶ 5-8.
They are therefore “seek[ing] to vindicate some of the same concerns that underlie” the statute itself.
Havasupai Tribe v. Provencio, 906 F.3d 1155, 1167 (9th Cir. 2018) (test satisfied on this basis).
The Refugee Act, moreover, protects the interests of such organizations in multiple ways. It
directs the government to fund and advertise their services. See 8 U.S.C. §§ 1522(b)(1)(A) (grants to
non-profit organizations); 1158(d)(4)(B) (directory of non-profit asylum organizations); 1229(a)(1),
(b)(2) (similar). It requires the government to “consult regularly” with non-profit organizations in
setting refugee policy. See 8 U.S.C. §§ 1522(a)(2)(A); 1154(f)(3)(A) (same); 1522(c)(1)(A)
(similar); 1522(d)(2)(A) (similar). And it relies on such organizations to facilitate the Refugee Act’s
process for adjudicating asylum claims. See 8 U.S.C. § 1158(d)(4)(A) (right to counsel in asylum).
That is more than enough to bring the plaintiffs within the Refugee Act’s zone of interest.
See Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426, 444 (D.C. Cir. 1998) (requiring
only “some indicia—however slight,” that Congress had the plaintiffs in mind when enacting the
statutory scheme) (quotation marks omitted). Indeed, courts have repeatedly found that entities who
participate in the Refugee Act scheme come within its zone of interests. See Hawaii v. Trump, 859
F.3d 741, 766 (9th Cir. 2017) (States), vacated as moot, 138 S.Ct. 377 (2017); Al Otro Lado, Inc. v.
Nielsen, 327 F. Supp. 3d 1284, 1301 (S.D. Cal. 2018) (non-profit organizations); Doe v. Trump, 288
F. Supp. 3d 1045, 1068 (W.D. Wash. 2017) (same).
By contrast, the government has not identified any case in which an organization like the
Plaintiffs has been held to be outside the Refugee Act’s zone of interests. See Immigrant Assistance
Project v. INS, 306 F.3d 842, 867 (9th Cir. 2002) (addressing a different statute—the Immigration
Reform and Control Act—and relying on a non-precedential single-Justice opinion); NWIRP v.
USCIS, 325 F.R.D. 671, 688 (W.D. Wash. 2016) (holding that an organization was not within the
zone of interests of a DHS regulation).
Thus, even apart from their clients’ interests, the plaintiffs are at the very least “arguably”
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within the Refugee Act’s zone of interests. Match-E-Be-Nash-She-Wish, 567 U.S. at 225. There is
no reason Congress would deny them the ability to vindicate the precise role the Refugee Act assigns
them.
Finally, Plaintiffs independently fall within the zone of interests for the APA’s notice-and-
comment provision—an issue this Court had no occasion to address in its previous ruling. 5 U.S.C.
§ 553. Section 553 is the relevant statute for that claim, because it is the statute Plaintiffs “say[] was
violated.” Match-E-Be-Nash-She-Wish, 567 U.S. at 224; see Lujan v. Nat’l Wildlife Fed’n, 497 U.S.
871, 883 (1990) (zone-of-interest analysis looks to “the statutory provision whose violation forms
the legal basis for [the] complaint”). Courts have accordingly held that a plaintiff can assert a
notice-and-comment claim when it comes within the zone of interests of “the APA’s notice and
comment provision.” California v. Health & Human Servs., 281 F. Supp. 3d 806, 823 (N.D. Cal.
2017) (Gilliam, J.).3
As “interested participants in the notice and comment process,” it is “clear” that the Plaintiffs
fall within § 553’s zone of interests. Am. Trucking Ass’n, Inc. v. Fed. Motor Carrier Safety Admin.,
724 F.3d 243, 246-47 (D.C. Cir. 2013). Congress enacted § 553 “to ensure public participation in
rulemaking,” so that all “interested persons” would have “an opportunity to comment” on
regulations that affect them. Paulsen v. Daniels, 413 F.3d 999, 1004-05 (9th Cir. 2005) (emphasis
added, alterations and quotation marks omitted).
Moreover, in practical terms, organizations like the Plaintiffs form the main constituency that
is positioned to exercise this right. Noncitizens abroad are not likely to even know about proposed
rulemaking by U.S. agencies, much less submit detailed comments about their wisdom and legality.

3 This Court correctly observed that “[t]he relevant zone of interests is not that of the APA itself, but
the underlying statute.” TRO Order at 16 (citing Havasupai Tribe, 906 F.3d at 1166). That is true
where the plaintiff is bringing a substantive claim under a statute like the INA and arguing that the
regulation is ultra vires and therefore violates § 706 of the APA, as opposed to the APA’s procedural
requirements under APA § 533. Indeed, that was the situation in the case this Court cited,
Havasupai Tribe. But a procedural notice-and-comment violation brought under 5 U.S.C. § 553 is
quite different, as explained infra.
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See ECF No. 35-6 ¶¶ 2-4; ECF No. 35-10 ¶¶ 3-6. As a result, if the Plaintiffs could not bring a
notice-and-comment challenge, there would be virtually no one who could, and this critical APA
safeguard could be evaded at will. See Mountain States Legal Found. v. Glickman, 92 F.3d 1228,
1237 (D.C. Cir. 1996) (rejecting zone-of-interests argument that would leave a legal interest “with
no conceivable champion in the courts”).
II.
THE BALANCE OF EQUITIES SHARPLY FAVORS PLAINTIFFS.
A. Plaintiffs Will Suffer Irreparable Injury Absent A Preliminary Injunction.
As this Court correctly held in issuing a TRO, Plaintiffs, their clients, and other asylum
seekers will be substantially injured if the Rule is permitted to go back into effect. See TRO Order at
30-32; Stay Order 7-8. Plaintiffs now submit additional declarations in support of the Court’s
findings.
Plaintiffs themselves have suffered and will suffer irreparable injuries in the absence of the
protection of the TRO. As the Court held, the new rule requires dramatic diversion of Plaintiffs’
resources and efforts away from their core missions, and places their operations in jeopardy in ways
that cannot be remedied after the fact. See id. at 11-13, 31. The losses Plaintiffs face will force them
to lay off employees, restructure their operations, and potentially close down altogether, leaving
numerous asylum seekers in the lurch. See ECF No. 8-3 ¶¶ 11-12 (“enormous strain” on operations
and serious “financial strain”); Smith Supp. Decl. ¶ 14 (“EBSC stands to lose nearly all of our
funding for our affirmative asylum program”); ECF No. 8-4 ¶ 10 (re-routing “virtually all its
resources” to removal defense); ECF No. 8-6 ¶ 11 (“cease most of [Law Lab’s] pro bono activities”);
ECF No. 8-7 ¶¶ 14, 17 (layoffs, closing).
Courts have regularly found that such injuries are sufficient to demonstrate a likelihood of
irreparable harm and justify preliminary injunctive relief. See, e.g., Valle del Sol, 732 F.3d at 1018-
19, 1029; Doe, 288 F. Supp. 3d at 1082-83; Exodus Refugee Immigration, 165 F. Supp. 3d at 739;
League of Women Voters v. Newby, 838 F.3d 1, 9 (D.C. Cir. 2016) (obstacles that “make it more
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difficult for [organizations] to accomplish their primary mission” impose “irreparable harm”); Open
Comms. Alliance v. Carson, 286 F. Supp. 3d 148, 178 (D.D.C. 2017) (“to show irreparable harm,”
an organization “need only show that [a] Rule will perceptibly impair [its] programs and directly
conflict with the organization’s mission”) (quotation marks omitted).
Also, absent the protection of TRO, Plaintiffs have suffered and will suffer the loss of an
opportunity to comment before the government’s dramatic changes to asylum law enter into force.
See TRO Order at 31-32 (citing, e.g., California, 281 F. Supp. 3d at 830 (“Every day the IFRs stand
is another day Defendants may enforce regulations likely promulgated in violation of the APA’s
notice and comment provision, without Plaintiffs’ advance input.”)).
For Plaintiffs’ clients, meanwhile, the need for injunctive relief is a matter of the utmost
urgency. These asylum seekers, many of them families and young children, fled extraordinary
violence in their home countries. See, e.g., Penman Supp. Decl. ¶¶ 5-8 (describing violence and
persecution in Central America); Joint Decl. of Former Officials ¶ 5b (“legitimate humanitarian
crisis” in Northern Triangle countries); Ramos Decl. ¶ 6. As this Court observed, those clients
“experience lengthy or even indefinite delays waiting at designated ports of entry along the southern
border,” and face “high rates of violence and harassment while waiting to enter, as well as the threat
of deportation to the countries from which they have escaped.” TRO Order at 30 (collecting
citations to TRO record); see also Penman Supp. Decl. ¶¶ 11, 15; Ramos Decl. ¶¶ 5, 9-10; Decl. of
Lisa Mitchell-Bennett ¶¶ 5-14. As this Court further concluded, “[t]he Rule, when combined with
the enforced limits on processing claims at ports of entry, leaves those individuals to choose between
violence at the border, violence at home, or giving up a pathway to refugee status.” TRO Order at 32.

Courts regularly find irreparable harm when the government takes away “a statutory
entitlement,” Apotex, Inc. v. FDA, 2006 WL 1030151, at *17 (D.D.C. Apr. 19, 2006), or “block[s]
access to an existing legal avenue for avoiding removal,” Kirwa v. Dep’t of Defense, 285 F. Supp. 3d
21, 43 (D.D.C. 2007). And here, the loss of access to asylum in this manner is clearly irreparable.
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As this Court observed: “Congress has determined that the right to bring an asylum claim is
valuable,” “the application of the Rule will result in the denial of meritorious claims for asylum that
would otherwise have been granted,” “aliens who violate the Rule are placed in expedited removal
proceedings . . . where they receive far fewer procedural protections,” and “a grant of asylum confers
additional important benefits nor provided by withholding of removal or CAT protection, such as the
ability to proceed through the process with immediate family members . . . and a path to
citizenship.” Id. at 31.
B. The Government Will Not Be Injured By An Injunction, Which Is In The Public
Interest.

In cases against the government, the government’s interest and public interest factors
“merge.” Nken v. Holder, 556 U.S. 418, 435 (2009). For its part, the government has offered only
abstract interests and conclusory assertions. But this Court’s prior TRO, and the preliminary
injunction Plaintiffs now seek, only maintain a legal status quo—the statutorily recognized
entitlement to seek asylum between ports of entry—that has been in effect for nearly 40 years. As
this Court previously determined, no government interest warrants the denial of injunctive relief.

The government has cited the number of noncitizens apprehended entering between ports at
the southern border last year, but that number is far lower than in recent years, even as U.S. Customs
and Border Protection’s staff and resources have grown significantly. See ECF No. 8-2 ¶¶ 3-7; Joint
Decl. of Former Officials ¶ 5a (fewer individuals apprehended or deemed admissible at southern
border in October 2018 than October 2016; southwest border apprehensions today is half that in
2007 and one-fifth that in 2000). And the current influx of Central Americans seeking asylum at the
southern border is not new. Id. ¶ 5b (“These are long-term trends, rather than a sudden influx that
necessitates emergency action.”). Individuals apprehended between ports during these previous
influxes were provided an opportunity to apply for asylum, and the government offers no reason why
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the same circumstance now warrants a sudden deviation from longstanding asylum law.4

Furthermore, this Court noted, “[t]he Rule’s sole reference to the danger presented by
crossings appears in a quote from a 2004 rule, with no explanation as to how the situation may have
evolved in the intervening fourteen years.” TRO Order at 33. “The Rule contains no discussion, let
alone specific projections, regarding the degree to which it will alleviate these harms.” Id.

Finally, the government’s assertion that it is trying to channel noncitizens to ports of entry is
belied by the government’s efforts to deter asylum seekers from actually applying at ports. See, e.g.,
ECF No. 35-3 at 17-28; ECF No. 35-4 ¶¶ 5-9; Joint Decl. of Former Officials ¶ 8c. It also ignores
the reality that some asylum seekers, out of necessity, must cross between ports to apply. See, e.g.,
ECF No. 35-4 ¶ 12 (criminal gangs force asylum seekers to cross between ports).

At bottom, all the government has offered are vague platitudes about executive power. But
as this Court explained, “[t]he executive’s interest in deterring asylum seekers – whether or not their
claims are meritorious – on a basis that Congress did not authorize carries drastically less weight, if
any,” than actions that are consistent with Congress’s dictates. TRO Order at 32. Defendants have
endeavored to override by fiat Congress’s clear command. Id., at 2. And “[w]hen the President
takes measures incompatible with the expressed or implied will of Congress, his power is at its
lowest ebb . . . .” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
concurring).

Thus, the public interest sharply favors denying the stay request. Whereas the government
cannot identify, or support with evidence, any concrete injury that would occur in the absence of a
stay, Plaintiffs have submitted significant record evidence of the harms they, their clients, and other

4 See U.S. Customs and Border Protection, United States Border Patrol Southwest Family Unit
Subject and Unaccompanied Alien Children Apprehensions Fiscal Year 2016, Statement by
Secretary Johnson on Southwest Border Security (Oct. 18, 2016),
https://www.cbp.gov/newsroom/stats/southwest-border-unaccompanied-children/fy-2016; U.S.
Citizenship and Immigration Services, Credible Fear Workload Summary,
https://www.uscis.gov/sites/default/files/USCIS/Outreach/Notes%20from%20Previous%20Engagem
ents/PED_CredibleFearWorkloadReport.pdf.
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asylum seekers will experience if the Rule is in effect. See Nken, 556 U.S. at 436 (“Of course there
is a public interest in preventing aliens from being wrongfully removed, particularly to countries
where they are likely to face substantial harm.”). Indeed, Congress long ago determined that it is in
the public interest to give noncitizens a chance to apply for asylum, regardless of where they enter
our country. 8 U.S.C. § 1158(a)(1); see H.R. Rep. 96-608, 96th Cong., 1st Sess., at 17-18 (Nov. 9,
1979) (explaining that § 1158 serves “this country’s tradition of welcoming the oppressed of other
nations” and “our obligations under international law”). Simply put, “[t]he public interest surely
does not cut in favor of permitting an agency to fail to comply with a statutory mandate.” Ramirez v.
U.S. Immigration & Customs Enf't, 310 F. Supp. 3d 7, 33 (D.D.C. 2018) (citing Jacksonville Port
Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977)). That is especially true where, as here, Congress
has left that statutory mandate in place for four decades.

III.
THE COURT SHOULD ENJOIN THE RULE IN FULL.

This Court’s TRO remedy was commensurate with Defendants’ statutory violations, and the
same scope of relief is warranted for a preliminary injunction. As this Court observed, “[t]he scope
of the remedy is dictated by the scope of the violation.” TRO Order at 34. Indeed, it is bedrock
administrative law that when agency regulations are held unlawful, “the ordinary result is that the
rules are vacated—not that their application to the individual petitioners is proscribed.” Regents of
the Univ. of California v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018) (quoting
Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998)); see also
Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir. 2007) (“nationwide injunction” was
“compelled by the text of the Administrative Procedure Act”), aff’d in part, rev’d in part sub
nom. Summers v. Earth Island Inst., 555 U.S. 488 (2009). Because the Rule conflicts with the INA,
the Court should again enjoin the Rule as it applies to anyone, as is standard in APA actions.

The Ninth Circuit also has repeatedly upheld nationwide injunctions of the government’s
immigration policies. See Regents, 908 F.3d at 512; Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir.
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2017), rev’d on other grounds, 138 S. Ct. 2392 (2018); Washington v. Trump, 847 F.3d 1151, 1167
(9th Cir. 2017). Such relief “promotes uniformity in immigration enforcement.” Regents, 490 F.3d
at 512; see also TRO Order at 34 (“Given the need for uniformity in immigration law, the Court
concludes that a nationwide injunction is equally desirable here.”).
Practical considerations as well weigh heavily in favor of uniform relief in this case. The
government has made no effort to explain how an injunction limited to Plaintiffs would work as a
practical matter. Plaintiffs operate in various states, foreclosing any geographically limited
injunction as complete relief. See, e.g., ECF No. 8-6 ¶¶ 7, 9, 11 (Innovation Law Lab serves
asylum-seekers across the country). Nor is an injunction limited to Plaintiffs and their clients, as the
government suggested, remotely workable. As this Court observed, that approach would give
Plaintiffs’ clients “special rights that other immigrants would not have” and undermine “the
uniformity of the immigration laws.” TRO Order at 34 n.21.
CONCLUSION

The Court should grant the preliminary injunction.

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Case No. 18-cv-06810

Dated: December 4, 2018

Jennifer Chang Newell (SBN 233033)
Cody Wofsy (SBN 294179)
Spencer Amdur (SBN 320069)
Julie Veroff (SBN 310161)
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-0770
F: (415) 395-0950
jnewell@aclu.org
cwofsy@aclu.org
samdur@aclu.org
jveroff@aclu.org

Melissa Crow*
SOUTHERN POVERTY LAW CENTER
1666 Connecticut Avenue NW, Suite 100
Washington, D.C. 20009
T: (202) 355-4471
F: (404) 221-5857
melissa.crow@splcenter.org

Mary Bauer*
SOUTHERN POVERTY LAW CENTER
1000 Preston Avenue
Charlottesville, VA 22903
T: (470) 606-9307
F: (404) 221-5857
mary.bauer@splcenter.org

Attorneys for Plaintiffs

*Admitted pro hac vice

Respectfully submitted,

/s/Lee Gelernt
Lee Gelernt*
Judy Rabinovitz*
Omar C. Jadwat*
Celso Perez (SBN 304924)
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
lgelernt@aclu.org
jrabinovitz@aclu.org
ojadwat@aclu.org
cperez@aclu.org

Christine P. Sun (SBN 218701)
Vasudha Talla (SBN 316219)
AMERICAN CIVIL LIBERTIES UNION OF
NORTHERN CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
T: (415) 621-2493
F: (415) 255-8437
csun@aclu.org
vtalla@aclu.org

Baher Azmy*
Angelo Guisado*
Gita Schwarz*
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
T: (212) 614-6464
F: (212) 614-6499
bazmy@ccrjustice.org
aguisado@ccrjustice.org
gschwartz@ccrjustice.org

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

East Bay Sanctuary Covenant, et al.,

Plaintiffs,

Donald J. Trump, President of the United States, et
al.,

Defendants.

Case No.: 18-cv-06810-JST

[PROPOSED] PRELIMINARY
INJUNCTION

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[Proposed] Preliminary Injunction 1
Case No. 18-cv-06810

Plaintiffs’ application for a Preliminary Injunction came before this Court for consideration
on December 19, 2018. Upon consideration of the application, and for good cause shown, IT IS
HEREBY ORDERED as follows:
Preliminary Injunction

The Court finds that Plaintiffs have demonstrated a substantial likelihood of success on the
merits of their claims that Defendants’ Interim Final Rule/Presidential Proclamation are in violation
of (1) the Immigration and Nationality Act, and (2) the Administrative Procedure Act. The Court
further finds that Defendants’ conduct as alleged above has caused and, absent the requested relief,
will continue to cause irreparable harm to Plaintiffs. The balance of hardships tips sharply in
Plaintiffs’ favor, and the public interest will be served by the injunction.

Accordingly, IT IS HEREBY ORDERED that, pending the final disposition of this action,
Defendants 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; and Immigration and Customs
Enforcement, and all persons acting under their direction, are enjoined from implementing or
enforcing the Interim Final Rule/Presidential Proclamation.

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[Proposed] Preliminary Injunction 2
Case No. 18-cv-06810
IT IS SO ORDERED.

Dated:
________________________

JON S. TIGAR

United States District Judge

Case 3:18-cv-06810-JST Document 71-1 Filed 12/04/18 Page 3 of 3

CORRECTED SUPPLEMENTAL DECLARATION OF ERIKA PINHEIRO
I, Erika Pinheiro, under the penalty of perjury pursuant to 28 U.S.C. § 1746, declare as
follows:
1. I make this declaration based on my personal knowledge except where I have
indicated otherwise. If called as a witness, I would testify competently and truthfully to these
matters.
2. I submit this declaration to supplement my previous declaration in East Bay
Sanctuary Covenant v. Trump, which was executed on November 9, 2018.
3. The implementation of the interim final rule, “Aliens Subject to a Bar on Entry Under
Certain Presidential Proclamations; Procedures for Protection Claims,” and the Presidential
Proclamation Addressing Mass Migration Through the Southern Border of the United States has
created a crisis situation for Al Otro Lado.
4. In recent weeks, Grupo Beta, a service by the National Institute of Migration of
Mexico, has refused to allow unaccompanied minors who have journeyed to the southern border
to seek asylum to get on the list to cross the border at a port of entry. Al Otro Lado has been told
that if these children show up at the port of entry and attempt to get on the list, they will be taken
into custody by the Mexican child custody agency.
5. For example, Al Otro Lado is working with a child named B.I., a sixteen year old boy
from Mexico, who left his home along with his sister to escape from violent abuse they had been
suffering from years. On November 1, 2018, B.I. and his sister went to a port of entry (“POE”),
but the U.S. officials would not let them pass into the United States. Instead, the officials held
B.I. and his sister in the POE for several hours, and then moved them to a cell in a different
Case 3:18-cv-06810-JST Document 71-2 Filed 12/04/18 Page 1 of 6

building, where they stayed for about 18 hours. After speaking briefly with an official from the
Mexican consulate, B.I. and his sister were deported back to Tijuana without ever having been
given the opportunity to apply for asylum, despite the fact that they indicated that they wanted to
apply for asylum.
6. On November 6, 2018, B.I. and his sister went to a different POE. Rigo, a staff
member at Al Otro Lado, went with them. Grupo Beta, the group organizing the list of asylum
seekers at the POE, told Rigo and B.I. that children could not get on the list unless they had
original identity documents and were accompanied by a parent. B.I. was unaccompanied and did
not have original documents with him. Grupo Beta also said that if any unaccompanied children
tried to get on the list, they will be taken into custody by the Mexican child custody agency.
7. B.I. has no family he can live with safely in Mexico. He does not feel safe staying in
Mexico. He wants to apply for asylum in the United States. He is worried that if he goes back to
a port of entry, he will be unable to get on the list to apply for asylum.
8. Al Otro Lado is also working with another unaccompanied minor, D.D., who had the
same experience when an Al Otro Lado staff member went with her to a POE so that she could
get in line to apply for asylum. D.D. is fifteen years old and fled El Salvador to escape her
grandfather’s sexual abuse.
9. D.D. left El Salvador in the middle of October 2018. It took her about three weeks to
travel from El Salvador to Tijuana. When she got to Tijuana, she went to El Chaparral plaza
near the San Ysidro port of entry. People she was traveling with told her she had to go get a
number in order to apply for asylum in the United States. She went to the plaza and showed her
identity documents, and the people in charge of the list gave her a number. She waited at a

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shelter for youth in Tijuana called Casa Imca.
10. On November 6, 2018, Rigo from Al Otro Lado went with D.D. to El Chaparral
plaza. The people organizing the list of asylum seekers told Rigo and me that unaccompanied
minors could not get on the list unless they had original identity documents and were
accompanied by a parent. D.D. was not accompanied by her parents.
11. D.D. is afraid to return to El Salvador because her family there now knows about the
sexual abuse she suffered. She is afraid that she would be in danger from her grandfather if she
returns. She hopes she will be allowed to apply for asylum in the United States, but is concerned
because she was told that she cannot apply without her parents.
12. Before the new rule, those children who were refused entry at a port would then enter
the United States without inspection and turn themselves in to immigration authorities to apply
for asylum.
13. Since the new rule was announced on November 9, 2018, if these children enter
without inspection, they will not be able to apply for asylum. These children now have no way to
apply for asylum in the United States, and are effectively trapped in Mexico in dangerous border
towns, generally without any resources.
14. In the past, children not allowed on a list or not otherwise allowed to present at a port
of entry would have, out of necessity, entered between ports of entry in order to apply for
asylum.

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15. Since the new rule was announced, Al Otro Lado has been overwhelmed with
children who traveled to the southern border of the United States to apply for asylum but now
cannot do so. These children are very vulnerable, as they are unaccompanied and so have no one
to look out for them in Tijuana, a city currently seeing record levels of violence. Lesbian, gay,
bisexual, and transgender unaccompanied minors are especially vulnerable.
16. Caring for these children is incredibly time consuming and causing a near complete
diversion of Al Otro Lado’s resources away from its core mission, which is providing legal
services. In addition to providing these children with legal advice, attending to the many non-
legal needs of Al Otro Lado’s unaccompanied children clients is forcing Al Otro Lado to divert
resources away from advising the many other clients who need the organization’s legal help, thus
undermining our ability to achieve our core mission. For example, staff members are going with
the children to try to get them on the list to cross at the port of entry. Staff have also had to
negotiate with Mexican officials so that they will not take these children into custody and instead
allow them to stay at a local youth shelter while Al Otro Lado determines the best way to ensure
that the children have access to a legal means to seek asylum in the United States.
Accompanying one to two children to do this takes three to four hours. One staff member has
been taking care of these children full-time for the past three days.
17. Al Otro Lado currently is providing legal advice and support to nine children in
Tijuana, Mexico, who wish to seek asylum in the United States. Five of these children are from
Honduras and identify as LGBT (lesbian, gay, bisexual, or transgender); they have strong asylum
claims.

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18. Al Otro Lado was connected to these clients by Casa YMCA, a shelter where the
children are staying.
19. These clients have tried to obtain a number to join the list to present themselves for
asylum, but Al Otro Lado has been told by Grupo Beta that the children need to have a parent
and documents in order to present and that if they try to take a number they will be taken into
custody by Mexican officials.
20. These clients cannot be left alone in Tijuana because of the danger of apprehension
by Mexican officials. Al Otro Lado therefore has to accompany them anytime they leave the
shelter at which they are staying for legal proceedings. This effort is far beyond anything Al
Otro Lado usually does for its clients and has been a huge drain on Al Otro Lado’s resources.
21. LGBT children cannot safely stay in Mexico. They are at risk of violence and
persecution. Yet there is now no way for them to access the asylum system in the United States.
Al Otro Lado’s staff members have been overwhelmed by work outside our core mission since
the new rule went into effect.
22. The new rule also seriously jeopardizes a major source of Al Otro Lado’s funding. Al
Otro Lado receives funding from the California Department of Social Services to represent
detained immigrants in their bond proceedings. We have expended significant organizational
resources establishing referral systems with the Federal Public Defender office and Innovation
Law Lab’s Border X Project to receive cases of asylum seekers who have entered without
inspection. Al Otro Lado is required to complete a certain number of cases before the end of
next year. Since the rule went into effect, we have not received a single referral for a bond case,
as persons who enter without inspection are ostensibly being put into “Withholding-only”
proceedings and no longer initially eligible for bond. We will have to significantly remake our
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JOINT DECLARATION OF MADELEINE K. ALBRIGHT, WILLIAM J. BURNS, JOHN
FEELEY, JONATHAN FINER, CHUCK HAGEL, JOHN KERRY, CECILIA MUÑOZ,
JANET A. NAPOLITANO, JAMES C. O’BRIEN, THOMAS R. PICKERING, AMY
POPE, JEFFREY PRESCOTT, ANNE C. RICHARD, AND WENDY R. SHERMAN

We, Madeleine K. Albright, William J. Burns, John Feeley, Jonathan Finer, Chuck Hagel, John
Kerry, Cecilia Muñoz, Janet A. Napolitano, James C. O’Brien, Thomas R. Pickering, Amy Pope,
Jeffrey Prescott, Anne C. Richard, and Wendy R. Sherman, declare as follows:

1.
We are former national security, homeland security, foreign policy, and domestic
policy officials in the U.S. government. We have collectively devoted many decades to questions
of immigration, border security, and the relationship between the United States and countries
south of our border.

a.
Madeleine K. Albright served as Secretary of State from 1997 to 2001. A refugee
and naturalized American citizen, she served as U.S. Permanent Representative to
the United Nations from 1993 to 1997.
b.
William J. Burns served as Deputy Secretary of State from 2011 to 2014, and
previously served as Ambassador of the United States to the Russian Federation
and Under Secretary of Political Affairs.
c.
John Feeley served as Ambassador of the United States to Panama from 2016 to
2018, and previously served as the Principal Deputy Assistant Secretary of State
for Western Hemisphere Affairs and Deputy Chief of Mission and Chargé
d’Affaires for the U.S. Embassy in Mexico.
d.
Jonathan Finer served as Chief of Staff to the Secretary of State from 2015 until
January 20, 2017, and Director of the Policy Planning Staff at the U.S. State
Department from 2016 until January 20, 2017.
e.
Chuck Hagel served as Secretary of Defense from 2013 to 2015. From 1997 to
2009, he served as U.S. Senator for Nebraska.
f.
John Kerry served as Secretary of State from 2013 to January 20, 2017.
g.
Cecilia Muñoz served as Director of the White House Policy Council from 2012
to January 20, 2017.
h.
Janet A. Napolitano served as Secretary of Homeland Security from 2009 to 2013.
i.
James C. O’Brien served as Special Presidential Envoy for Hostage Affairs from
2015 to January 20, 2017. He served in the State Department from 1989 to 2001,
including as Principal Deputy Director of Policy Planning.
j.
Thomas R. Pickering served as Under Secretary of State for Political Affairs from
1997 to 2000, and previously served as Ambassador of the United States to
Jordan, Nigeria, El Salvador, Israel, the United Nations, India and Russia.
k.
Amy Pope served as Deputy Homeland Security Advisor at the National Security
Council from 2015 to January 20, 2017, Senior Director, Transborder Security at
the National Security Council from 2013 to 2015, and Director, Border and
Interior Enforcement at the National Security Council from 2012 to 2013.
l.
Jeffrey Prescott served as Deputy National Security Advisor to the Vice President
from 2013 to 2015 and Special Assistant to the President for National Security
Affairs from 2015 to 2017.

1
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m.
Anne C. Richard served as Assistant Secretary of State for Population, Refugees
and Migration from 2012 to January 20, 2017.
n.
Wendy R. Sherman served as Under Secretary of State for Political Affairs from
2011 to 2015.

2.
On November 9, 2018, the Trump Administration issued a Rule to bar eligibility
for asylum for people fleeing persecution who enter the United States across the southern border
outside of a port of entry. The Rule took the form of a Presidential Proclamation1 and an
administrative rule2 (“Interim Rule”) to take effect immediately without delay. In issuing these
measures, the Administration claimed an imperative for “urgent” and “immediate” action to
address a “crisis” at the border.3 The Administration has most recently sought “emergency”
relief from the U.S. District Court for the Northern District of California and the U.S. Court of
Appeals for the Ninth Circuit to reverse a temporary restraining order and allow the new policy
to take effect immediately. In our expert opinion, there is no national emergency that requires
such a drastic and punitive executive action to combat it, and this rule does not advance, but
rather harms, U.S. foreign policy.

3.
The United States has a proud and long-standing humanitarian tradition of
opening its borders to those fleeing violence or persecution. This country’s founding by the
descendants of those escaping religious persecution has defined our nation’s fundamental
values—including sanctuary for those most in need of help. Although the United States has not
always charted a steady path in this regard, it has long since turned away from the darkest days
of its history when it shunned people at the borders and returned them to danger. Today, the
United States rightly takes great pride in its defining role in establishing, promoting, and
enforcing the 1951 Refugee Convention. Across multiple administrations, it has sought to
embrace those seeking asylum and refugee, and played an enduring role as a beacon of hope and
a safe haven for the most vulnerable.

4.
The Proclamation and Interim Rule at issue are deeply punitive actions that will do great
harm to those seeking humanitarian relief. By denying those who enter outside a port of entry
eligibility for asylum, the Administration’s policy endangers some of the most vulnerable asylum
seekers, who face particular obstacles in accessing ports of entry, to include obstacles inherent in
their desperate flight from persecution, the violence in border areas they seek to traverse, and the
Administration’s own limitations on relief at the ports of entry. The people who have no choice
but to confront such risks are the ones most likely to be fleeing dire conditions and threats.
Furthermore, the Rule will lead to the denial or deterrence of countless legitimate asylees who
are unable to make their way to a port of entry, turning them back to countries so dangerous that
they evince what one report described as “unprecedented levels of violence outside a war zone.”4

1 Proclamation No. 9,822, 83 Fed. Reg. 57,661 (Nov. 9, 2018) [hereinafter Proclamation].
2 Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83
Fed. Reg. 55,934 (Nov. 9, 2018) [hereinafter Interim Rule].
3 Proclamation, supra note 1, at 55,661, 55,662; Interim Rule, supra note 2, at 55,941, 55,944, 55, 947, 55,950.
4 Forced to Flee Central America’s Northern Triangle: A Neglected Humanitarian Crisis, Doctors Without Borders
8 (May 2017), https://www.msf.org/sites/msf.org/files/msf_forced-to-flee-central-americas-northern-triangle_e.pdf.

Case 3:18-cv-06810-JST Document 71-4 Filed 12/04/18 Page 2 of 7

5.
Contrary to the Administration’s claims, there is no migration emergency
at the southern border.

a.
There has been no sudden increase in the number of individuals seeking to cross
the southern border. Fewer individuals were apprehended or deemed inadmissible
at the southern border in October 2018 than in October 2016.5 The month-to-
month trend in fiscal year 2018 crossings is similar to the trend for each of fiscal
years 2013 to 2016.6 The number of southwest border apprehensions today stands
at one-half of their levels in fiscal year 2007 and one-fifth of their levels in fiscal
year 2000.7 The United States currently hosts the lowest number of
undocumented immigrants since 2004, the result of a significant drop in the
number of new undocumented immigrants.8

b.
The number of those crossing the southern border who seek asylum has increased
over the last decade, but this number has coincided with a legitimate humanitarian
crisis. During this period, the Northern Triangle countries—Guatemala, El
Salvador, and Honduras—have been among the most violent countries in the
world. Civilians are often the targets of gang or cartel violence or forcible
recruitment, and gangs frequently employ sexual violence against women and
children as a means of controlling members or retaliating against rivals. State
governments have been unable to curb the violence or punish the perpetrators.
Especially in El Salvador, the United States has contributed to the spread of this
violence through the steady deportation of gang members—initially without
identifying them as such to the government of El Salvador—with little or no
assistance to El Salvador to absorb and retrain them for productive work. Many
Northern Triangle residents have seen no choice but to flee, often making their
way up through Mexico to seek asylum in the United States. The increase in the
percentage of migrants seeking asylum thus reflects a well-documented shift in
migration at the southern border from Mexican individuals looking for work, to
Central American families fleeing extreme violence and persecution in their home
countries. These are long-term trends, rather than a sudden influx that necessitates
emergency action.

5 Southwest Border Migration FY2019, U.S. Customs & Border Protection,
https://www.cbp.gov/newsroom/stats/sw-border-migration (last visited Dec. 2, 2018); Southwest Border Migration
FY 2017, U.S. Customs & Border Protection, https://www.cbp.gov/newsroom/stats/sw-border-migration-fy2017
(last visited Dec. 2, 2018).
6 Southwest Border Migration FY 2018, U.S. Customs & Border Protection,
https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2018 (last visited Dec. 2, 2018).
7 United States Border Patrol, Total Illegal Alien Apprehensions By Month – FY 2000, U.S. Border Patrol,
https://www.cbp.gov/sites/default/files/assets/documents/2017-
Dec/BP%20Total%20Monthly%20Apps%20by%20Sector%20and%20Area%2C%20FY2000-FY2017.pdf (last
visited Dec. 2, 2018); Southwest Border Migration FY 2018, supra note 6; see also Jeffrey S. Passel & D’Vera
Cohn, U.S. Unauthorized Immigrant Total Dips to Lowest Level in a Decade, Pew Research Ctr. (Nov. 27, 2018),
http://www.pewhispanic.org/2018/11/27/u-s-unauthorized-immigrant-total-dips-to-lowest-level-in-a-decade.
8 Passel & Cohn, supra note 7.

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c.
Changes in the number of asylum applicants—as well as their success rates,

the backlog to the adjudication of claims, the percent of claims dismissed in

absentia, and other considerations—have fluctuated over time in response to a

number of factors, including conditions in the home country, changes in U.S.

asylum rules and enforcement priorities, resource allocations, and
applicants’ ability to obtain representation. For instance, although the percent of
applicants in 2017 who were denied asylum is higher than it was several years
ago, it is lower than it was fifteen years ago.9

6.
The Administration has the tools to effectively manage the challenge of large
volumes of asylum applications. For example, the Administration could make it a priority to
substantially increase resources and personnel for the processing of asylum claims. It could
increase resources for the representation of asylum claimants, which would improve the
efficiency of the process because judges often give continuances to people mounting their own
cases. Or it could streamline the asylum system through any number of administrative measures.
The Administration’s unwillingness to fully commit to these less punitive tools does not create
an emergency that justifies taking more punitive action against those seeking humanitarian relief.

7.
To ease the burdens that the defendants describe, the last Administration launched
a number of proactive and non-punitive initiatives, each of which the Trump Administration
discontinued.

a.
The last Administration approved tens of millions in funding to Guatemala, El

Salvador, and Honduras to undertake measures to combat security threats.

President Trump has repeatedly sought to end this aid, and has attempted to cut

Northern Triangle funding each year of his presidency.

b.
The last Administration initiated the Central American Minors (“CAM”)

program, which allowed in-country processing of asylum claims for children and

families, to discourage them from making the dangerous trek to the border.

President Trump ended the CAM program during his first month in office.

c.
The last Administration launched experiments with family- and community-

focused alternatives to detention and implemented supervised release programs

for asylum seekers who had entered the United States, which proved cost-

effective and secured high appearance rates at hearings. President Trump

discontinued these policies as well.

8.
This Administration replaced these programs with several policy measures at the
southern border that have only exacerbated the challenges.

a.
First, the Administration sharply altered the detention policy for asylees in early
2017, requiring DHS to detain thousands of asylum seekers who would otherwise
9 Asylum Representation Rates Have Fallen Amid Rising Denial Rates, TRAC Immigration,
http://trac.syr.edu/immigration/reports/491 (last visited Dec. 2, 2018).

Case 3:18-cv-06810-JST Document 71-4 Filed 12/04/18 Page 4 of 7

have been released after their credible fear hearings. This policy diverts resources
that the Administration could otherwise commit to the range of other tools to
effectively manage large volumes of asylum applications.

b.
Second, the Administration announced a “zero tolerance” policy in which all

border crossers between ports of entry would be criminally prosecuted, further

overburdening the system.

c.
Third, the Administration has turned away asylees at ports of entry for weeks at a
time, forcing them to wait indefinitely to present their claims. There are now
families and children sleeping on concrete walkways, without medicine or food or
safe drinking water, waiting for the moment when their claims will be considered.
The data indicates that this policy decision has led to the predictable outcome of
an increase in crossings between ports of entry.10 Now the Administration wants
to turn asylees away merely because they crossed between ports of entry. The
implication is clear: the Administration does not want asylees to be able to cross
anywhere at all.

It is Kafkaesque to respond to a claimed overloading of an asylum system by denying asylum
altogether across the vast expanse of the southern border, then forcing asylees to wait for weeks
or months at already grossly overburdened ports of entry. These actions are not addressing any
issues with the asylum system—they are closing the doors of that system.

9.
In sum, the Administration has launched a series of counter-productive policy
measures that create new humanitarian problems, then mischaracterizes the predictably
calamitous outcome of these failed measures as an “emergency” that justifies further punitive
actions against asylees themselves. Instead of meaningfully addressing a bona fide humanitarian
crisis, the Administration’s actions have triggered a new humanitarian crisis of its own making.
The Administration’s policy effectively seeks to burden or expunge the right to asylum, a right
that is solemnly protected under domestic law, and the international law principle of non-
refoulement, which protects individuals against forced return to countries where they are likely to
face persecution.

10.
The Administration cannot plausibly justify this Rule on the basis that it is
indispensable to U.S. foreign policy or diplomatic relationships. In our professional judgment,
the failure to move forward immediately with an emergency rule will not damage our relations
with Mexico or Northern Triangle countries. To the contrary, the most likely consequence of this
apparently unilateral step is to inflame tensions and undermine our diplomatic relations in
Mexico—which constitutionally permits the free movement of nationals and non-nationals
throughout its sovereign territory—and across the Western Hemisphere, compromising critical
security and other forms of cooperation with these nations in the process. Beyond that, the Rule
will likely be used by leaders around the world to justify their own blanket restrictions on those
10 Dara Lind, The U.S. Has Made Migrants at the Border Wait Months to Apply for Asylum. Now the Dam is
Breaking, Vox (Nov. 28, 2018, 7:00 AM), https://www.vox.com/2018/11/28/18089048/border-asylum-trump-
metering-legally-ports.

Case 3:18-cv-06810-JST Document 71-4 Filed 12/04/18 Page 5 of 7

seeking humanitarian relief, in contravention of international law. Other countries have long
sought pretexts to deny access to refugees; many of these countries have far greater processing
burdens to contend with than we do at our southern border. The precedent set by this
Administration could have global ripple effects that will lead to dramatically decreased
opportunities for refugees and other vulnerable migrants to reach safety, with potentially severe
consequences for the individuals seeking safety and our broader interest in regional and global
stability. Finally, this Rule will inflict lasting damage on the credibility of the United States and
her commitment to the rule of law and basic human dignity. The United States has been a leader
in securing the international recognition of rights for the displaced throughout the world, and our
direct role in eroding those rights now is all the more devastating as a result.

11.
This Administration presents its Rule as a tailored response to a temporary
overloading of asylum processing at the southern border. But from its first days, in addition to
the steps described supra, this Administration has taken a series of actions targeting those
seeking humanitarian relief, including:

a.
a four-month moratorium on all refugees,

b.
a ban on Syrian refugees (enjoined by the courts and then abandoned in a later
executive order),

c.
a series of ever-shrinking caps on refugees, by far the lowest in the history of the
modern U.S. refugee system,

d.
a narrowing of the categories of individuals who can seek asylum to severely
restrict asylum for those fleeing gang or domestic violence,

e.
the forcible separation of asylees from their children, and

f.
the introduction of U.S. troops at the southern border with the authority to use
lethal force.

Placed alongside this series of events, as well as the President’s numerous hostile statements
against refugees and asylees, the punitive rule before this court is revealed for what it truly is: the
latest in an effort stretching back to the start of the Administration to prevent and deter people
from lawfully seeking humanitarian relief in the United States.

12.
Historically, the United States has proudly held high a beacon to those fleeing
oppression or persecution, and seeking safe refuge in our country. The Administration’s asylum
restriction at issue here once again dims that beacon. In our professional judgment, this claimed
emergency Rule—if allowed to go into effect—will undermine the credibility of the United
States, and its longstanding commitment to protecting the displaced and dispossessed.

Respectfully submitted,

s/MADELEINE K. ALBRIGHT*

6
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s/WILLIAM J. BURNS

s/JOHN FEELEY

s/JONATHAN FINER

s/CHUCK HAGEL

s/JOHN KERRY

s/CECILIA MUÑOZ

s/JANET A. NAPOLITANO

s/JAMES C. O’BRIEN

s/THOMAS R. PICKERING

s/AMY POPE

s/JEFFREY PRESCOTT

s/ANNE C. RICHARD

s/WENDY R. SHERMAN

Executed on this 4th day of December, 2018.

*Signatures on file with Harold Hongju Koh, Rule of Law Clinic, Yale Law School, New Haven,
CT. 06520-8215 203-432-4932.

We declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct.

7
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DECLARATION OF LISA MITCHELL-BENNETT
I, Lisa Mitchell-Bennett, hereby declare under the penalty of perjury pursuant to 28
U.S.C. § 1746:
1.
I make this declaration based on my personal knowledge except where
I have indicated otherwise. If called as a witness, I could and would testify
competently and truthfully to these matters.
2.
I was born on March 30, 1967. I am a United States citizen. I am
fluent in Spanish and English.
3.
I live in Brownsville, TX. I am employed at a local university as a
public health researcher. I have masters’ degrees in public health and international
development, and I am currently working on a doctorate in public health. I am
making this declaration in my personal capacity.
4.
I am a concerned citizen volunteering with an ad hoc group of
volunteers to help asylum seekers in the Brownsville, TX area. Since July 2018, I
have been assisting asylum seekers waiting to enter the United States at the B&M
Bridge (“the bridge”) in Matamoros, Mexico. I take breakfast to the asylum
seekers waiting at the bridge most Sunday mornings and occasional other days of
the week. Along with delivering food I bring supplies like diapers, blankets and
sanitary napkins in coordination with other volunteers. I have also visited the
bridge on and off on some weekdays over the last few months.
5.
I am particularly concerned about the asylum seekers from a public
health perspective. When I visit the bridge, the people I meet are often very wet
due to heavy rains or high humidity, and their blankets are soaked through.
Children and adults are often dehydrated and suffer severe heat exhaustion and
sunburn during the very hot South Texas summers. As winter sets in they are very
cold, sleeping on the hard cement with only a blanket and maybe a piece of
cardboard beneath them. I have seen skin irritations from lack of bathing and
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1
Lisa Mitchell-Bennett, MA, MPH
225 Hibiscus Ct. Brownsville, TX 78520
(956) 466-5657
lisa.mitchell-bennett@uth.tmc.edu

Education:

Master of Public Health, MPH
University of Texas, School of Public Health (2010)

Master of Arts, International Development Administration, MA
School for International Training, Brattleboro, VT (1994)

Bachelor of Arts, Political Science/International Relations, BA
University of California, Riverside, CA (1989)
Dean’s List; Departmental Honors

Certificate, Estudios Hispanicos (1987)
University of Granada, Spain

Experience:

Project Manager
University of Texas, School of Public Health
Brownsville, TX 2011 – present
Manage a large team of multi-project initiatives with numerous institutional
partners throughout the region. Projects include a diabetes chronic care
management program with community health workers, local hospitals, clinics and
behavioral health providers (Salud y Vida); an evidence-based youth obesity
intervention in the schools and community (MEND); a navigation program for a
mobile clinic serving uninsured, rural population; a community-wide campaign
with media, policy and environmental change working in 9 towns and cities (Tu
Salud ¡Si Cuenta!); and supervising numerous graduate and undergraduate
student for research internships.

Quality Assurance Coordinator
University of Texas, School of Public Health
Brownsville, TX 2011 - 2013
Coordinated monitoring and quality assurance for a multi-disciplinary team;
developed and evaluated interventions to address obesity and diabetes through
a community-wide campaign including media, policy and environmental change
to support healthy choices. Managed relationships with community partner
institutions, provided training and supervision to community health workers,
created and evaluated content for media campaign, involved in grant writing and
reporting. Responsible for monitoring, training and implementing coordinated
efforts with a clinical research unit, local community partners and research
Case 3:18-cv-06810-JST Document 71-6 Filed 12/04/18 Page 3 of 8

2
investigators. Developed and provided training for organizations and community-
health workers across the state.

Senior Research Associate
University of Texas, School of Public Health
Brownsville, TX 2003-2011
Coordinated intervention research and community outreach efforts for multiple
projects. Facilitated research center’s community advisory board; oversaw mini-
grant funding for community-based organizations, schools and clinics; provided
support and resources to community groups to engage in design, evaluation and
dissemination of culturally appropriate programs. Coordinated community health
worker training and a media campaign “Tu Salud, Si Cuenta” with U.S. and
Mexican media partners. Provided research coordination on numerous
community based participatory research studies addressing health disparities
including diabetes, teen pregnancy, obesity, cancer (HPV) and emergency
preparedness as well as Hispanic science education (manage multi-university
summer science high school internship program). Co-facilitated a course on
Conducting and Analyzing Focus Group Data and guest lecturer in Evaluation
and Health Promotion courses.

Project Director/Health Education Coordinator
Brownsville Community Health Center
Brownsville, TX 1997 - 2003
Managed Campus Care Centers, school-based health center with 3 full-service
clinics in a large school district serving uninsured and indigent students and their
families; supervised multi-disciplinary team including medical and mental health
care providers, social workers, medical assistants and office personnel. Also
served as coordinator of health education, prevention and outreach efforts for the
community health center (FQHC) in the satellite clinics and schools; coordinated
community-based health education on violence prevention and sex education for
the school district. Responsible for grant writing, reporting, staff supervision,
design and implementation of curriculum for award-winning health promotion
efforts in the schools and community.

Division Director, Adult Education and Job Training
Congreso de Latinos Unidos, Philadelphia, PA 1995 - 1997
Directed multi-facet job training and adult education programs for a large inner-
city agency in North Philadelphia. Provided contract and grant management;
supervision of a large staff including teachers, trainers, social workers and
project coordinators; worked closely with city-wide domestic violence programs to
recruit and retrain women looking to reenter the workforce; collaborated with the
Private Industry Council, the Community College of Philadelphia and the
American Street Empowerment Zone; participation on an Executive Management
Team for the larger agency.

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3
Project Director
Mano a Mano/One Border Foundation
Brownsville, TX—Matamoros, Mexico 1993-1995
Directed and co-founded a bi-national community health worker organization
“Mano a Mano” in U.S.-Mexico border communities of Matamoros, Mexico and
Brownsville, Texas. Designed and implemented recruitment, training, grant-
writing and facilitated project’s advisory board. Fostered cross-border, cross
institution relationships and supervised community health workers. Accompanied
health worker on home visits and addressed barriers.

Legal Advocate/Unaccompanied Minors Program Coordinator
Casa del Proyecto Libertad, Harlingen, TX 1991-1993
Coordinated advocacy and legal services to Central American unaccompanied
minors and refugees. Involved in local and national advocacy efforts; provided
legal services to detained adult political asylum applicants; represented in
Immigration Court as Accredited Representative, researched human rights policy
and provided legal rights presentations in immigration detention facilities and
shelters.

Associate Editor, Latin America Press
Lima, Peru 1990-1991:
Researched, edited and translated for a scholarly bilingual publication covering a
broad range of political and economic issues in Latin America and the Caribbean.
Publication based in Lima, Peru.

Trainer, Centro Cultural Costaricense-Norteamericano
San Jose, Costa Rica 1990:
Designed and implemented cross-cultural curriculum for rural Central American
youth preparing for high school exchange program and university agricultural
programs in the U.S. Worked with U.S. AID funded agricultural grant. Based in
San Jose, Costa Rica.

Organizer, Farm Labor Organizing Committee
Toledo, OH 1987
Recruited farmworkers to become members of a labor union through human
rights presentations; provided social services and outreach to labor camps
across northern Ohio. Organized FLOC annual convention which hosted Cesar
Chavez and United Farm Worker Delegates from across the county.

Publications/Presentations:

o Fernandez ME, McCurdy S, Arvey S, Morales-Campos D, Tyson, S,
Useche, B, Mitchell-Bennett, L, Sanderson, M. HPV Knowledge,
Attitudes, and Cultural Beliefs among Hispanic Men and Women in South
Texas. Ethnicity and Health. December 2009.
Case 3:18-cv-06810-JST Document 71-6 Filed 12/04/18 Page 5 of 8

o Heredia, N, Lee, M, Mitchell-Bennett, L, Reininger, B.M. Tu Salud¡ Sí
Cuenta! Your Health Matters! A Community-wide Campaign in a Hispanic
Border Community in Texas. Journal of Nutrition Education and Behavior,
2017.

o Heredia, N, Lee, M, Mitchell-Bennett, L, Reininger, B.M. Tu Salud, Si
Cuenta! Your Health Matters! A quasi-experimental design to assess the
contribution of a communitywide campaign to eating behaviors and
anthropometric outcomes in a Hispanic border community in Texas.
Journal of Nutrition Education and Behavior. In Press.

o Montoya, J. A., Salinas, J. J., Barroso, C. S., Mitchell-Bennett, L., &
Reininger, B. (2011). Nativity and nutritional behaviors in the Mexican
origin population living in the US–Mexico border region. Journal of
Immigrant and Minority Health, 13(1), 94–100. PMCID: PMC3034163

o Reininger, B. M., Mitchell-Bennett, L., Lee, M., Gowen, R. Z., Barroso, C.
S., Gay, J. L., & Saldana, M. V. (2015). Tu Salud,¡ Si Cuenta!: Exposure
to a community-wide campaign and its associations with physical activity
and fruit and vegetable consumption among individuals of Mexican
descent. Social Science & Medicine, 143, 98-106. PMCID: PMC4642277

o Reininger, B. M., Barroso, C. S., Mitchell-Bennett, L., Chavez, M.,
Fernandez, M. E., Cantu, E., Smith, K. L., & Fisher-Hoch, S. P. (2014).
Socio-ecological influences on healthcare access and navigation among
persons of Mexican descent living on the U.S./Mexico border. Journal of
Immigrant and Minority Health, 2014 Apr;16(2):218-28 PMCID:
PMC4377819

o Reininger, B. M., Barroso, C. S., Mitchell-Bennett, L., Cantu, E.,
Fernandez, M. E., Gonzalez, D. A., Chavez, M., Freeberg, D., & McAlister,
A. (2010). Process evaluation and participatory methods in an obesity-
prevention media campaign for Mexican Americans. Health Promotion
Practice, 11(3), 347–357. PMCID: PMC2877153

o Mitchell-Bennett, L., "Social cognitive theory and factors associated with
Mexican-American parents' beliefs, attitudes and practices regarding
communication with their adolescent children about sex" (2010). Texas
Medical Center Dissertations (via ProQuest). AAI1470749.
http://digitalcommons.library.tmc.edu/dissertations/AAI1470749

o American Public Health Association (APHA) Paper presented
(Washington D.C.,2007) “Latina mothers' communication with their
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adolescent children about sexuality, sexually transmitted diseases and the
reproductive system”
o American Public Health Association (APHA) Paper/Poster presentations
(Philadelphia, 2005); “Assessing Cultural Beliefs and Practices Regarding
Healthcare Utilization Among Hispanics in the Lower Rio Grande Valley
(LRGV)” & “Assessing Attitudes and Science Career Choices Among
Hispanic Youth in LRGV”
o Research Symposium, University of Texas, Brownsville. “Hispanic
Adolescent Attitudes and Preferences Regarding Employment During
High School” (2007)
o Healthy Communities Annual Meeting, “Assessing Cultural Beliefs,
Attitudes and Practices of Lower Rio Grande Valley Hispanic Parents’
Communicating With Their Adolescent Children About Sex” (2006)
o Rio Grande Valley Science Association Annual Conference, San Juan,
TX, “Assessing Attitudes and Science Career Choices Among Hispanic
Youth in the Lower Rio Grande Valley, Texas” (2005)
o U.S.-Mexico Border Health Conference, El Paso, TX “Campus Care
Centers: Comprehensive School Based Health Centers” (1997)
o University of Texas Health Science Center, Border Health Conference,
Presenter / Expert Panel Member San Antonio, TX, “Mano a Mano; A
Promotora de Salud Model” (1995)

Certifications:

o Department of State Health Services Community Health Worker Instructor
certification (2012- present)
o Accredited Representative, Accredited by the Board of Immigration to
represent political asylum cases in Federal Immigration Court (1995)

Community Service:

o Board of Directors, Brownsville Wellness Coalition (2017-Present)
o Guardian Ad Litem, Young Center for Immigrant Children’s Rights
(2015-2017)
o Friends of the West Rail Trail Organizing Committee (2015- Present)
o Board of Directors, Episcopal Day School (2012-2014)
o Board of Directors, Casa del Proyecto Libertad (1999-2005)
o United Brownsville Health Committee (2010-2013)
o Volunteer, La Posada Soup Kitchen, Brownsville, Texas (2010-2013)
o Institutional Animal Care Research Committee, University of Texas,
Brownsville (2010)
o Vestry, Church of the Advent Episcopal (2007-2008)
o Rio Grande Valley Science Association, Board Member (2004-2008)
o Steering Committee Member, REACH Coalition/Walk El Valle (2002-2003)
o Advisory Board Member, Mano A Mano Promotoras (1998-2000)
o Health Trendbenders, Healthy Communities of Brownsville (2002-2008)
o Member, National Assembly on School Based Health Care (1997-2000)
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o Steering Committee, American Lung Association (1997-1998)
o Executive Committee, Save Our Children Brownsville (1997)
o Board Member, American Street Empowerment Zone (1995-1997)
o Member, Philadelphia Job Developer’s Network (1995-1997)
o Member, Singing City Philadelphia Inner City Choral Music (1995-1997)
o Volunteer Director, Cameron Park Community Center (1993-94)
o Executive Committee, March of Dimes Rio Grande Valley (1993-1995)
o Delegate, Citizen’s Observer Mission to El Salvador (1994)
o Volunteer, General Board of Global Ministries UMC (1991-1993)
o Volunteer, Pamplona Alta Soup Kitchen, Lima, Peru (1990-91)

Awards and Honors:
Domonic Napoli Humanitarian Scholarship (1985); United Methodist Church
College Scholarship (1985); University of California Alumni Award for Community
Service (1989); University of California, Dept. of Political Science Honors (1989);
Ford Foundation Immigration Advocates Training Scholarship (1991); Rio
Grande Valley Human Rights Award (Holy Spirit Parish-1995); Congress of
United Latinos’ Service Award (1997); Award for Excellence in Texas School
Health (2000); University of Texas, Houston Health Science Center, American
Public Health Association Annual Conference Scholarship (2006); Finalist,
Fulbright U.S. Student Program Scholarship.

Other Experience:

o Teacher (English as a Second Language and Spanish),
o “The Language Connection”, Phoenix, Arizona, Phoenix Public Schools,
o Arizona, and Euroidiomas Language Institute, Lima, Peru.
o Intern, International Affairs Council, Riverside, CA
o Teacher Trainer, Brownsville Independent School District Developed and
implemented puberty and sexuality education training for district teachers,
counselors and nurses, Brownsville, TX

Languages:
English (Fluent); Spanish (Fluent); French (Proficient).
I have lived and/or worked in Mexico, Colombia, Indonesia, Switzerland,
Spain, Costa Rica, Peru and the U.S.

References available upon request.
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DECLARATION OF MICHELLE BRANE OF
THE WOMEN’S REFUGEE COMMISSION

I, Michelle Brané, hereby declare as follows:
1.
I am the Director of the Migrant Rights and Justice (MRJ) Program of
the Women’s Refugee Commission (WRC), where I have worked on research and
policy advocacy since August of 2006. Prior to joining the WRC, I was the
Director of the Access to Justice Program at Lutheran Immigrant and Refugee
Services, a Human Rights Officer and Election Monitor seconded by the U.S.
Department of State to the OSCE (Organization for Security and Cooperation in
Europe), and an Attorney Advisor at the U.S. Department of Justice, Board of
Immigration Appeals. I am admitted to practice law in New York. I make this
declaration based on my personal knowledge except where I have indicated
otherwise. If called as a witness, I could and would testify competently and
truthfully to these matters.
2.
I submit this declaration to document the widespread and systematic
denial by the U.S. government of the rights of asylum seekers and danger to which
this exposes asylum seekers and especially unaccompanied children, who present
themselves at the port of entry in Tijuana/San Isidro.
The Women’s Refugee Commission and the
Migrant Rights and Justice Program
3.
The WRC is a non-profit organization that advocates for the rights of
women, children, and youth fleeing violence and persecution. The WRC is based
in New York, New York; the MRJ Program is based in Washington, D.C.
4.
The WRC was founded in 1989, originally as a program within the
International Rescue Committee, after having identified a dearth of programming
to protect women and girls displaced by humanitarian crises around the world. It
subsequently evolved into an independent entity. WRC’s mission is to improve the
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lives and protect the rights of women, children and youth displaced by conflict and
crisis.
5.
The WRC is a leading expert on the needs of refugee women and
children, and the policies and programs that can protect and empower them. The
WRC regularly consults displaced women, children, and youth, and works with the
community-based organizations that are usually the first responders in any
humanitarian crisis. It then raises those needs with policy makers and
implementers, including local and national governments, the United Nations, and
other international non-governmental organizations that drive humanitarian policy
and practice.
6.
The MRJ program focuses on the right to seek asylum in the United
States. It strives to ensure that refugees, including women and children, are
provided with humane reception in transit and in the United States, given access to
legal protection, and protected from exposure to gender discrimination or gender-
based violence. The MRJ program regularly consults with diverse stakeholders,
including affected migrants and refugees; community-based, national, and
international organizations; policymakers, including Members of Congress and
their staff; and federal government officials from several departments and agencies
that work on immigration-related issues and conduct oversight.
7.
Since 1996, the MRJ team has made numerous visits to the southwest
border region, including along Mexico’s northern border, as well as to immigration
detention centers for adult women and families and to shelters housing
unaccompanied children throughout the country. Based on the information that we
collect on these visits and our legal and policy analysis of the issues, we advocate
for improvements through various methods, including meetings with government
officials and service providers, and by documenting our findings through fact
sheets, reports, backgrounders, and other materials. We make recommendations to
address identified or observed gaps or ways in which we believe the corresponding
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department or agency could improve its compliance with the relevant standards.
We use these materials in our advocacy work to inform the perspectives and
decisions of policymakers. Although the WRC has not litigated cases directly, the
MRJ program has filed amicus briefs and declarations in pending litigation on
issues such as the conditions and standards for the custody of unaccompanied
children.
Recent Experiences of Asylum Seekers in
Encounters with U.S. Authorities
8.
Since December 2016, members of my staff in the MRJ program and I
have conducted several visits to the U.S.–Mexico border, after receiving reports
from local advocates that asylum seekers were being systematically turned away
from U.S. land Ports of Entry. Most recently we visited Tijuana, Mexico and San
Isidro and San Diego, California on November 26 – 30, 2018. My focus today is
on observations and findings from this visit.
9.
The structure of our visit consisted of crossing the border from the
United States to Mexico by foot. Once in Tijuana, Mexico, we met with NGOs
Government officials, International Organizations, and migrants, over the course of
several days. We observed events and attempts to enter through the port of Entry at
“Garita El Chaparal” – or Pedestrain Access West. We spoke with migrants and
asylum seekers about their experiences crossing the border, trying to cross the
border, or before attempting to cross the border from Mexico into the United
States. All of the asylum seekers we encountered were seeking safe haven in the
United States after fleeing targeted violence or other serious harm in their home
countries.
10.
I also met with CBP representatives on the U.S. side of the border, to
learn more about what they were observing on these same issues and to share our
findings.

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Manner in Which Asylum Seekers Are Denied Processing
11.
All asylum seekers, including those from Mexico, are told by U.S.
border officials that prior to processing or entry they have to coordinate with
Mexican immigration authorities. In practice, what we observed – confirmed by
asylum seekers, Mexican and U.S. government officials, and NGOs working in
Tijuana – is that asylum seekers must register themselves on a list that is
maintained by migrants themselves and the Mexican agency known as “Grupo
Beta.”
12.
Asylum seekers maintaining “the list” are self-appointed through an
ad hoc nomination system. I observed that asylum seekers managing “the list” are
stationed at a table outside of the Port of Entry. Migrants who approach them are
asked for their identity documents, their name is put on the list, and they are given
a piece of paper with a number on it. Every evening, this list is given to the
Mexican agency, “Grupo Beta” for “safekeeping” overnight.
13.
Asylum seekers, NGO personnel, and Grupo Beta themselves
informed us that Grupo Beta maintains the lists of asylum seekers waiting to
present at a specific Port of Entry every night, and in the morning, after being
informed by U.S. authorities how many will be accepted, they escort the
individuals whose turn it is to the U.S. officials at the Port of Entry. We were told
that if an asylum seeker approaches the Port without being on ‘the list”, he or she
would be turned away by U.S. authorities, refused processing, and be told that they
need to get on “the list”.
14.
On this visit, we spoke to asylum seekers from Mexico, Honduras,
and Venezuela. All of the asylum seekers with whom I spoke were confused and
concerned about the process.
15.
Unaccompanied children are unable to access the port of entry
through the “metering” system implemented by the United States. Unaccompanied
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children are unable to get on the list – or present themselves at the border based on
the list. They are also unable to approach the port of entry without being on the
list.
16.
Any children who present themselves to Mexican authorities (as
required by U.S. officials) to be escorted to the Port of Entry are referred to
Desarrollo Integral de La Familia (DIF) – the Mexican agency charged with the
protection of children. Once referred to DIF, children risk detention and
deportation. As a result, children are unable to get on “the list” and access the port
of entry.
17.
DIF is charged with the care and custody of all unaccompanied
children in Mexico. Children and adults to whom we spoke reported that being
sent to DIF meant deportation. While DIF is responsible for screening children for
protection, the reality is that this often does not happen and children in custody are
often unable to access protection.1
18.
In addition to not being able to sign onto the list and access the port of
entry, children who are unaccompanied informed us that they are afraid to identify
themselves. Their status as unaccompanied children puts them at increased risk
(see examples below).
19.
We also met with Al Otro Lado (AOL), DIF officials, and leaders of
the Casa Inca YMCA shelter for unaccompanied children in Tijuana. Where
possible (when they are identified and when there is space available and where a
child is willing), unaccompanied children identified by NGOs or DIF are sent to
Casa Inca. When they become aware of unaccompanied children who are
interested in applying for asylum in the Unites States, AOL attorneys and
volunteers provide them with a legal orientation, do a screening, and in appropriate

1 Georgetown Law Human Rights Institute Fact Finding Project, The Cost of
Stemming the Tide, April 2015, https://www.law.georgetown.edu/human-rights-
institute/our-work/fact-finding-project/the-cost-of-stemming-the-tide/.
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cases will accompany a child to the Port of Entry.

Threatening Conditions along Mexico’s Northern Border
20.
During my visit to Tijuana, I saw and spoke with many asylum
seekers, who reported that CBP had refused to process them. These individuals,
who were waiting in shelters in northern Mexico while figuring out what to do next
were in a very vulnerable situation. A small number have found accommodations
either in rental space or with Mexican families. The majority are unable to afford
private accommodations. These asylum seekers were dependent on the Mexican
authorities or non-governmental entities to provide them with lodging and food.
21.
On the day I spoke to migrants whose number was expected to be
called who were waiting for entrance, I encountered Mexican, Venezuelan, and
Honduran families. They were fleeing violence and persecution and had been
waiting at the port for several weeks.
22.
Asylum seekers stranded along Mexico’s northern border are
particularly susceptible to opportunistic or predatory behavior.
23.
One of the shelters we visited – a sports complex known as Benito
Juarez– was located in the red light district of Tijuana. We were told to leave the
area before dark because it was extremely dangerous and that the neighborhood
was the home base for traffickers. We were told that it was “not safe” to walk or
spend time outside around the shelter. We were also told that there is an unofficial
5:00 p.m. curfew in place for the area, since violent crime picks up after dark.
24.
Sanitary conditions are extremely concerning at Benito Juarez. Toilet
facilities consisted of a small building with indoor toilets that were overflowing
and had a line of about a hundred people pushing to get in. In addition, there was a
line of about 25-30 port-a-potties. Many had doors completely broken off or
falling off the hinges. They were not segregated by gender. There were only two
showers, outdoor with no privacy barriers or proper drainage. The area around the
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toilets was flooded with standing water.
25.
Garbage receptacles were inadequate and overflowing.
26.
We saw no security within the shelter – which was housing over 4000
migrants, except for two civilian clothed municipal employees restricting access to
an indoor facility that housed a limited number of women and children, and single
men with children. Many women, children, and families remained outside the
enclosed area.
27.
The only public health presence we witnessed was public health
personnel handing out face masks as protection for respiratory illness.

28.
On November 30 the shelter was transferred to a new location known
as El Barretal. The new location is better equipped for sheltering in the winter
months because it has a roof and concrete floors. However, the new shelter is also
in a very dangerous neighborhood and is very remote from the city and ports of
entry. Getting access to the port of entry to request asylum, sign up on “the list”,
or report when your number is called, is difficult.
29.
We interviewed many asylum seekers at the shelter and in other
shelters in Tijuana. The majority were from Honduras and told us they were
fleeing violence ranging from extreme domestic violence, to gang and cartel
violence, and violence from governmental entities based on political opinion.
Information about asylum rights is extremely lacking in the shelters. The majority
of the people to whom we spoke expressed fear of returning home but were
unfamiliar with asylum or the criteria. We encountered many unaccompanied
children in the shelter who had no information about their rights to protection in
Mexico or the United States.
30.
Most of the unaccompanied children to whom we spoke did not know
how to ask for asylum in the U.S. They were either unaware of the list or knew
about the list and told us that they were unable to get on the list as unaccompanied
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children. Several told us they “need an adult” to help them cross.
31.
Unaccompanied children were very hesitant to tell us they were
unaccompanied. They explained that if they encountered authorities they would be
taken, detained, and deported. Most of the children we spoke to expressed great
fear of being returned to their home countries.
32.
In several cases their understanding gave us serious concern that they
were at risk of trafficking or of getting themselves into risky smuggling situations.
Where we identified unaccompanied children, we referred them to attorneys and
the children’s shelter but the children were often mistrustful and not sure what to
do, and both space at the shelter and attorneys are limited.
33.
We encountered one 16-year-old boy who was traveling with his 8-
year-old half-brother. The boy was afraid to stay at the Benito Juarez shelter or go
to the new shelter because conditions were so bad and dangerous. He was also
afraid to go to the border or to try to get on the list because he was unaccompanied
and feared he would be detained and deported. He wanted to go to his family in
the U.S. but had no idea how. We told him about the children’s shelter and he said
he would try to find his brother and bring him, but by the time he went to look for
his brother, he had left.
34.
We encountered a 13-year-old girl from Honduras who was looking
for safety. She was alone and knew that she would not be able to register at the job
fair offered by Mexican authorities because she was too young. She was also
aware of the risk of deportation if she presented herself to the Mexican authorities
for registration. She did not know how to get to the port of entry because she knew
she needed an adult to do so. While we were speaking to her we were approached
by a woman who said she was looking out for her. The girl looked uncomfortable.
The woman asked her why she was speaking to us and the girl said she was trying
to get information about seeking protection. The woman said “Why would you
need protection? You have me.” The girl had made an arrangement to care for the
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Lisa Mitchell-Bennett, MA, MPH
225 Hibiscus Ct. Brownsville, TX 78520
(956) 466-5657
lisa.mitchell-bennett@uth.tmc.edu

Education:

Master of Public Health, MPH
University of Texas, School of Public Health (2010)

Master of Arts, International Development Administration, MA
School for International Training, Brattleboro, VT (1994)

Bachelor of Arts, Political Science/International Relations, BA
University of California, Riverside, CA (1989)
Dean’s List; Departmental Honors

Certificate, Estudios Hispanicos (1987)
University of Granada, Spain

Experience:

2
investigators. Developed and provided training for organizations and community-
health workers across the state.

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Publications/Presentations:

o American Public Health Association (APHA) Paper presented
(Washington D.C.,2007) “Latina mothers' communication with their
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Certifications:

Community Service:

Other Experience:

Languages:
English (Fluent); Spanish (Fluent); French (Proficient).
I have lived and/or worked in Mexico, Colombia, Indonesia, Switzerland,
Spain, Costa Rica, Peru and the U.S.

References available upon request.
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SUPPLEMENTAL DECLARATION OF STEPHEN W. MANNING, EXECUTIVE
DIRECTOR, INNOVATION LAW LAB

I, Stephen W. Manning, declare as follows:
1.
I am an attorney licensed to practice in the State of Oregon and am a member in
good standing of the bars of the United States District Court for the District of Oregon, the
United States Court of Appeals for the Ninth Circuit, and the Supreme Court of the United
States. I am a member of the American Immigration Lawyers Association (“AILA”), a former
member of the Board of Governors of AILA, and a former Chair of the Oregon Chapter of
AILA. I am over 18 and have personal knowledge of the facts described herein.
2.
I am the Executive Director of the Innovation Law Lab (“the Law Lab”), a
nonprofit in Oregon that I founded to improve the legal rights of immigrants and refugees in the
United States.
3.
I write this declaration to supplement my prior declaration filed in East Bay
Sanctuary Covenant v. Trump and to provide an update on the effect the DHS-DOJ regulation
and Presidential Proclamation have had on our organization’s work.
4.
The Rule and Proclamation are frustrating Law Lab’s core mission, which is to
improve the legal rights of immigrants and refugees in the United States by providing
representation to asylum seekers in the United States. We work towards this mission by creating
and supporting systems of Massive Collaborative Representation at strategic sites throughout the
country where the rule of law is under threat. Massive Collaborative Representation uses data
analytics to pinpoint how effective lawyers win cases, and then converts those findings into
replicable processes that can be delegated across multiple lawyers and legal workers.
5.
In service of our mission, Law Lab runs four fully operational Centers of
Excellence—in Atlanta, Georgia; Charlotte, North Carolina; Kansas City, Missouri; and Portland
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Oregon—where lawyers work collaboratively to revitalize judicial ecosystems and win every
meritorious asylum claim. Our BorderX program seeks to apply the Massive Collaborative
Representation model to detention-based advocacy, and creates and implements a collaborative
system that allows advocates from across the country to work together on effective and strategic
requests for the release of asylum seekers from detention on parole and bond.
6.
Because of the confusion that the regulation and Proclamation have wrought on
the border, many asylum seekers are now unable to enter the United States, as they must do in
order to seek asylum. If the regulation is permitted to take effect, any asylum seeker who
entered between ports of entry would be unable to access asylum. Because our mission is to
provide representation to asylum seekers in the United States, the regulation and Proclamation
have frustrated our mission.
7.
As a result, and as we had anticipated, our organizational resources have been
significantly diverted to remedy the frustration caused by the regulation’s implementation.
Based on our organizational expertise in building and supporting legal representation projects,
we have had to become a collaborative partner in the development of a new project being built to
meet the legal needs of asylum seekers at the border who are affected by the new rule. Our
participation in this project, and our role as a consulting expert to other responding organizations,
has been very time consuming, and has forced us to divert resources away from key
organizational services.
8.
First, Law Lab’s technological resources have been diverted. At the heart of
Innovation Law Lab is LawLab, our proprietary data analytics and case management software.
LawLab enables attorneys and nonprofit organizations to map out best practices to efficiently
represent clients and obtain the best possible outcome in all cases. To that end, we employ three
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software engineers—two fulltime and one halftime—to maintain our software and also develop
new technologies that improve both our organization’s work and the practice of immigration law.
9.
The issuance of the Proclamation and the regulation forced us to develop an
entirely new technology, as we had to effectively move much of our work with asylum seekers
across the border. Our programs and supporting software are built around the coordination and
provision of legal services to asylum seekers within the United States—either to clients in
detention centers, or to clients who have been released on parole or bond. Though the provision
of legal services and information is time-sensitive in these contexts, before the Proclamation and
regulation, we could safely provide information and representation once asylum seekers were
across the border because their manner of entry did not substantively affect asylum eligibility.
After the issuance of the Proclamation and regulation, our usual point of contact and service
provision became too late, as individuals who had crossed the border between ports of entry
would no longer be eligible for asylum.
10.
This frustrated our mission and created new urgency in the timeline of our
provision of services and information, as we knew we had to divert our resources away from
other program areas to reach our potential clients before they crossed the border in order to
preserve their eligibility for asylum. Our existing software is best suited for use on a computer,
which does not pose a problem in office settings and other sites that are remotely connected to
the detention centers where we work. Computers and office space are much less available at the
border, however, as much of the client intake and information sharing occurs in crowded group
spaces like shelters, parks, and at migrant gatherings near the border. Thus, we concluded that
we needed to develop a new technological tool that would allow legal workers to use mobile
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phones to collect confidential case information and upload it to a secure database. The resulting
technology has been deployed and is being utilized by our partners and volunteers at the border.
11.
Development and implementation of this technology has taken one of our fulltime
software engineers, Chris Kuttruff, away from other project needs, however, as he has had to
turn to the project almost full-time. Usually, Chris is tasked with providing infrastructure
support for our servers, which support the case databases of our software clients. His role
includes managing server security, implementing automation and monitoring for system
reliability, and performing various tests and auditing. The urgent need for development of the
cross-border technological tool has taken Chris away from planned improvements to our case
management software and from his monitoring role. This negatively affects the work of our
existing projects, as our programs rely heavily on maintenance and improvement of our case
management technology to function effectively. Eventually, it may also affect our revenue
streams, as subscriptions to the LawLab software provide a meaningful percentage of our
organizational funding. We have been unable to roll out planned improvements to the software,
which limits our ability to effectively market our product and obtain new subscriptions to the
LawLab software. If the disruption continues, this diversion could eventually affect the product
satisfaction of our existing customer base and cause us to lose subscribers.
12.
Second, Law Lab’s legal and program staff have been forced to turn significant
time and attention to our response to the regulation. Given the complex legal landscape facing
asylum seekers at the border, we have had to devote significant energy to developing the most
accurate guidance and effective legal services model we can provide under the circumstances.
This has required revisiting and redrafting the existing resources, templates, and guides that we
and other partner organizations have developed over years of binational collaboration to support
Case 3:18-cv-06810-JST Document 71-11 Filed 12/04/18 Page 4 of 8

asylum seekers. The result is a comprehensive set of materials that are being utilized by our
partner organizations and volunteer legal workers along the border. Development of these new
materials has taken significant time on the part of our program team, who has had to turn away
from their existing work on behalf of immigrants at program sites throughout the United States,
and requires time of our web developer, who created and is maintaining a secure page to host
these materials. Our legal and program staff is also devoting time to developing training
materials, related to both the new technology tool and the complex in-flux state of asylum law,
for our partner organizations to use with volunteer legal workers.
13.
The development, and continued refining, of these materials continues to be a
priority for us because of the misinformation that has spread at the border. Even with the TRO
in place, the announcement of the Proclamation and the regulation has created significant
confusion and misreporting on the ground regarding asylum eligibility and immigration options.
This makes accurate, and constantly updated, materials on asylum eligibility crucial so that
asylum seekers are able to make informed decisions about their legal options and the
corresponding consequences of their choices.
14.
Our staff has also been intimately involved in implementing use of these new
materials and resources on the ground. Our Program Director, Ian Philabaum, has spent several
days a week, on a weekly basis, in a consulting and support role across the border. This involves
coordinating and conducting workshops with asylum seekers, developing and adapting materials
on-site, and training partners and volunteers who are providing legal and humanitarian assistance
in the border regions. Other program staff have traveled to the border and will continue to do so
over the coming weeks. This in-person travel—which would not have been required absent the
complex situation on the ground at the border fueled by the new policy—is not only expensive
Case 3:18-cv-06810-JST Document 71-11 Filed 12/04/18 Page 5 of 8

for our small organization, but also takes staff away from existing responsibilities and
obligations at their program sites. For example, Ian runs our BorderX program at several
detention centers throughout the United States, and, before implementation of the Proclamation
and rule, he was preparing to increase capacity of BorderX’s existing sites and expand the
program’s presence to several new detention centers. Since he has been forced to turn his
attention to the effects of the Proclamation and regulation at the border, the programmatic
expansion is on hold; volunteer recruitment and training has slowed; and BorderX has had to
lessen its caseload. In our Centers of Excellence sites, program staff have had to delay the
rollout of a pro se workshop series, cancel and reshuffle client appointments, and postpone
trainings of pro bono attorneys and volunteers in our Court Watch programs. All of these delays
and postponements negatively affect our existing asylum-seeking clients within the United
States, as they are prevented from accessing information and legal services that help them fight,
and win, their removal defense cases.
15.
Finally, the Proclamation and rule have, and would, frustrate Law Lab’s ability to
represent non-detained asylum seekers at our program sites throughout the country. Law Lab has
recently taken a leading role in launching the Equity Corps, which is Oregon’s first government-
funded program providing representation for immigrants in removal proceedings. As the
program’s “Clearinghouse,” we coordinate the screening and placement of eligible cases with
participating legal service providers, and provide technical assistance and case expertise in
complex removal defense cases. The vast majority of Equity Corps cases to date are defensive
asylum claims, and most of the defensive asylum claims involve asylum seekers who did not
cross at a port of entry.
Case 3:18-cv-06810-JST Document 71-11 Filed 12/04/18 Page 6 of 8

16.
The Proclamation and regulation frustrate our ability to serve individuals who
crossed between ports because, under the policy, they are no longer eligible for asylum. As a
result, under the Proclamation and regulation, we would be forced to provide additional
particularized guidance and support to both the intake workers and the legal service providers
who work with these clients. Developing this guidance and delivering it will take time away
from our other programs. We also would have to devote significant time and resources to
defending what would otherwise be more straightforward asylum claims. For example, our staff
attorney has already had to devote additional time to screening eligible cases, and to developing
training materials that articulate the various eligibility scenarios for Equity Corps clients. In
particular, if these clients are unable to access asylum, they will instead have to apply for
withholding and Convention Against Torture relief, which are far more time consuming to
pursue because of the higher standard for these forms of relief and the corresponding additional
legal research and fact-gathering. Additionally, a significant percentage of Equity Corps clients
are asylum-seeking families. Because asylum allows family members derivatives, we are usually
able to present a single asylum application for a family unit; in a withholding-only world, we
would have to prepare separate applications for each family member. The increased time
required per case will prevent Equity Corps from serving as many clients as it would have been
able to absent the Proclamation and regulation.
17.
We also cannot shift to providing representation only to people who enter at ports
of entry. This would be inconsistent not only with our mission, which is to serve all asylum
seekers, but also with our contracts, as Equity Corps is a universal representation program that
does not allow us to pick and choose our clients.
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18.
In sum, as anticipated, Law Lab’s work has been significantly affected by the
implementation of the regulation.
I hereby declare under the penalty of perjury pursuant to the laws of the United States
that the above is true and correct to the best of my knowledge.
EXECUTED this 4th day of December, 2018.

Stephen W. Manning, OSB #013373

Case 3:18-cv-06810-JST Document 71-11 Filed 12/04/18 Page 8 of 8

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Plaintiffs' Motion for Preliminary Injunction — East Bay Sanctuary v. Trump

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