Court filing
Amicus Brief of 12 States and D.C. — East Bay Sanctuary v. Trump (Dkt. 82-1)
Record facts
| Court | U.S. District Court for the Northern District of California |
|---|---|
| Filed | 2018-12-05 |
U.S. District Court for the Northern District of California · No. 3:18-cv-06810-JST · Doc. 82-1 · 2018-12-05 · Docket on CourtListener
Summary
An amicus curiae brief filed December 5, 2018 as Document 82-1 in East Bay Sanctuary Covenant v. Trump, Case No. 3:18-cv-06810-JST, in the U.S. District Court for the Northern District of California. The brief is submitted by the States of California, Washington, Massachusetts, New York, Connecticut, Hawaii, Illinois, Maryland, Minnesota, New Jersey, Oregon, Vermont, and the District of Columbia in support of the plaintiffs' motion for a preliminary injunction against the Interim Final Rule at 83 Fed. Reg. 55934. Its table of contents lists argument sections on border conditions, harm to the States, and whether the Rule is arbitrary and capricious under the APA and was promulgated without notice and comment. The caption sets a hearing for December 19, 2018 before Hon. Jon S. Tigar and gives the action filing date as November 9, 2018. The brief runs 27 pages.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
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States’ Amicus Curiae Brief
Case No. 18-cv-06810-JST
XAVIER BECERRA
Attorney General of California
MICHAEL L. NEWMAN
Senior Assistant Attorney General
CHRISTINE CHUANG
Supervising Deputy Attorney General
JAMES F. ZAHRADKA II (SBN 196822)
VILMA PALMA-SOLANA
SHUBHRA SHIVPURI
Deputy Attorneys General
1515 Clay Street, 20th Floor
Oakland, CA 94612-0550
Telephone: (510) 879-1247
E-mail: James.Zahradka@doj.ca.gov
Attorneys for the State of California
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
East Bay Sanctuary Covenant; Al Otro Lado;
Innovation Law Lab; and Central American
Resource Center in Los Angeles,
Plaintiffs,
v.
Donald J. Trump, President of the United
States, in his official capacity; Matthew G.
Whitaker, Acting Attorney General, in his
official capacity; U.S. Department of Justice;
James McHenry, Director of the Executive
Office for Immigration Review, in his official
capacity; the Executive Office for Immigration
Review; Kirstjen M. Nielsen, Secretary of
Homeland Security, in her official capacity;
U.S. Department of Homeland Security; Lee
Francis Cissna, Director of the U.S. Citizenship
and Immigration Services, in his official
capacity; U.S. Citizenship and Immigration
Services; Kevin K. McAleenan, Commissioner
of U.S. Customs and Border Protection, in his
official capacity; U.S. Customs and Border
Protection; Ronald D. Vitiello, Acting Director
of Immigration and Customs Enforcement, in
his official capacity; Immigration and Customs
Enforcement,
Defendants.
Case No. 3:18-cv-06810-JST
AMICUS CURIAE BRIEF OF THE
STATES OF CALIFORNIA,
WASHINGTON, MASSACHUSETTS,
NEW YORK, CONNECTICUT, HAWAII,
ILLINOIS, MARYLAND, MINNESOTA,
NEW JERSEY, OREGON, VERMONT,
AND THE DISTRICT OF COLUMBIA IN
SUPPORT OF PLAINTIFFS
Date:
December 19, 2018
Time:
9:30 a.m.
Dept:
9
Judge:
Hon. Jon S. Tigar
Trial Date:
None
Action Filed: November 9, 2018
Case 3:18-cv-06810-JST Document 82-1 Filed 12/05/18 Page 1 of 27
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TABLE OF CONTENTS
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States’ Amicus Curiae Brief
Case No. 18-cv-06810-JST
INTRODUCTION AND STATEMENT OF INTEREST .............................................................. 1
ARGUMENT .................................................................................................................................. 2
A.
Defendants’ Policies Trap Asylum Seekers at the Border While
Effectively Refusing to Accept Their Applications. ................................... 2
B.
The Rule Will Exacerbate Inhumane Border Conditions and Cause
Additional Trauma to Already Vulnerable Migrants. ................................. 4
C.
The States will be harmed by the effects of the Rule. ................................. 7
D.
A Preliminary Injunction is in the Public Interest Because the Rule
Violates the Law. ...................................................................................... 10
1.
The Rule Is Arbitrary and Capricious Under the APA. ................ 10
2.
The Rule Was Improperly Promulgated Without Notice and
Comment. ...................................................................................... 14
CONCLUSION ............................................................................................................................. 17
Case 3:18-cv-06810-JST Document 82-1 Filed 12/05/18 Page 2 of 27
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TABLE OF AUTHORITIES
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CASES
Action on Smoking and Health v. Civil Aeronautics Bd.
713 F.2d 795 (D.C. Cir. 1983) ..................................................................................................15
Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife
273 F.3d 1229 (9th Cir. 2001) ...................................................................................................12
Buschmann v. Schweiker
676 F.2d 352 (9th Cir. 1982) .....................................................................................................15
Cal-Almond, Inc. v. U.S. Dep’t of Agric.
14 F.3d 429 (9th Cir. 1993) .......................................................................................................15
California v. Health & Human Servs.
281 F. Supp. 3d 806 (N.D. Cal. 2017) ......................................................................................17
Casa de Maryland, Inc. v. Trump
2018 WL 6192367 (D. Md. Nov. 28, 2018)..............................................................................13
Centro Presente v. United States Dep’t of Homeland Sec.
2018 WL 3543535 (D. Mass. July 23, 2018) ......................................................................13, 14
Citizens to Preserve Overton Park, Inc. v. Volpe
401 U.S. 402 (1971) ..................................................................................................................12
East Bay Santuary Covenant v. Trump
2018 WL 6053140 (N.D. Cal. Nov. 19, 2018) .................................................................. passim
Golden Gate Rest. Ass’n v. City & Cty. of S.F.
512 F.3d 1112 (9th Cir. 2008) .....................................................................................................2
Hernandez v. Sessions
872 F.3d 976 (9th Cir. 2017) .......................................................................................................2
Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin.
407 F.3d 1250 (D.C. Cir. 2005) ..........................................................................................15, 17
Latino Issues Forum v. U.S. EPA
558 F.3d 936 (9th Cir. 2009) .....................................................................................................12
Marsh v. Oregon Nat. Res. Council
490 U.S. 360 (1989) ..................................................................................................................12
Michigan Citizens for an Indep. Press v. Thornburgh
1988 WL 90388 (D.D.C. 1988) ................................................................................................10
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TABLE OF AUTHORITIES
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Michigan v. EPA
135 S.Ct. 2699 (2015) ...............................................................................................................10
Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Automobile Ins. Co.
463 U.S. 29 (1983) ..............................................................................................................10, 11
Ms. L. v. U.S. Immig. & Customs Enf’t
302 F. Supp. 3d 1149 (S.D. Cal. 2018) .....................................................................................13
Ms. L. v. U.S. Immig. & Customs Enf’t
310 F. Supp. 3d 1133 (S.D. Cal. 2018) .......................................................................................2
Paulsen v. Daniels
413 F.3d 999 (9th Cir. 2005) ...............................................................................................14, 15
R.I.L-R v. Johnson
80 F. Supp. 3d 164 (D.D.C. 2015) ............................................................................................13
Ramos v. Nielsen
2018 WL 4778285 (N.D. Cal. Oct. 3, 2018) .......................................................................13, 14
Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec.
279 F. Supp. 3d 1011 (N.D. Cal. 2018) ....................................................................................10
Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec.
298 F. Supp. 3d 1304 (N.D. Cal. 2018) ....................................................................................13
Riverbend Farms, Inc. v. Madigan
958 F.2d 1479 (9th Cir. 1992) .............................................................................................14, 15
Serv. Emps. Int’l Union, Local 102 v. County of San Diego
60 F.3d 1346 (9th Cir. 1994) .....................................................................................................15
Stormans, Inc. v. Selecky
586 F.3d 1109 (9th Cir. 2009) .....................................................................................................2
Texas Children’s Hosp. v. Burwell
76 F. Supp. 3d 224 (D.D.C. 2014) ............................................................................................10
United States v. Valverde
628 F.3d 1159 (9th Cir. 2010) .............................................................................................15, 16
Winter v. Nat. Res. Def. Council, Inc.
555 U.S. 7 (2008) ........................................................................................................................2
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TABLE OF AUTHORITIES
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Yassini v. Crosland
618 F.2d 1356 (9th Cir. 1980) ...................................................................................................16
STATUTES
5 United States Code
§ 553(a)(1) .................................................................................................................................16
§ 553(b)(B) ................................................................................................................................15
§ 553(c) .....................................................................................................................................17
§ 553(d) .....................................................................................................................................15
§ 706(2)(A)..........................................................................................................................11, 12
§ 706(2)(B) ................................................................................................................................12
CONSTITUTIONAL PROVISIONS
Fifth Amendment ............................................................................................................................13
OTHER AUTHORITIES
83 Fed. Reg. 45486 ...........................................................................................................................7
83 Fed. Reg. 45519 ...........................................................................................................................7
83 Fed. Reg. 55934 .....................................................................................................................1, 11
83 Fed. Reg. 55935 ...................................................................................................................11, 13
83 Fed. Reg. 55936 .........................................................................................................................11
83 Fed. Reg. 55944 .........................................................................................................................11
83 Fed. Reg. 55945 .........................................................................................................................11
83 Fed. Reg. 55946 .........................................................................................................................11
83 Fed. Reg. 55947 ...................................................................................................................11, 13
83 Fed. Reg. 55948 ...................................................................................................................11, 12
83 Fed. Reg. 55949 .........................................................................................................................11
83 Fed. Reg. 55950 .............................................................................................................13, 15, 16
83 Fed. Reg. 55951 ...................................................................................................................13, 16
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Allen Keller, et al., Pre-Migration Trauma Exposure and Mental Health
Functioning among Central American Migrants Arriving at the US Border .........................4, 5
Amnesty International, USA: “You Don’t Have Any Rights Here” (Oct. 2018) ..............................3
Anna Gorman, Medical Clinics that Treat Refugees Help Determine the Case for
Asylum, NPR (July 10, 2018) ......................................................................................................9
Beth Fertig, Unaccompanied Minors Have Tougher Time Winning Asylum,
WNYC (June 6, 2018).................................................................................................................7
Camila Domonoske, Fact Check: What’s Happening on the U.S.-Mexico Border?
NPR (Nov. 27, 2018) ..................................................................................................................4
Catherine E. Shoichet and Leyla Santiago, The Tear Gas is Gone. But in This
Shelter at the Border, the Situation Is Getting Worse, CNN (Nov. 29, 2018) ............................5
Customs and Border Protection (CBP), Southwest Border Migration FY 2017 ...............................3
CBP, Southwest Border Migration FY 2019 .....................................................................................3
California Department of Public Health, Office of Refugee Health ..................................................9
California Department of Social Services (CDSS), Immigration Branch
Immigration Services Funding Tentative Award Announcement (Oct. 31, 2017) ......................1
CDSS, Immigration Services Contractors ....................................................................................1, 8
CDSS, Immigration Services Program Update (Mar. 2018) ........................................................1, 2
CDSS, Refugees, Asylees, and Trafficking Victims...........................................................................8
CDSS, Unaccompanied Undocumented Minors Legal Services Funding
Contractor Referral List ..............................................................................................................1
Center for Constitutional Rights, Al Otro Lado v. Kelly ...................................................................4
Christine Murray, Ailing Central American Migrants in Dire Conditions Dig in at
U.S. Border, Reuters (Nov. 28, 2018) .........................................................................................5
Christopher Ingraham, There’s No Immigration Crisis, and These Charts Prove It,
Wash. Post (June 21, 2018) .......................................................................................................11
County of L.A., Dep’t of Soc. Services, Refugee Employment Program .........................................8
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Cristina Rendon, Salvadorian Woman Nervously Awaits Contact from Son Seeking
Asylum at US-Mexico Border, Fox KTVU (Nov. 26, 2018) .......................................................6
Dara Lind, Even Before the Caravan, Trump Took Steps to Use Travel Bans to
Limit Asylum, Vox (Nov. 6, 2018) ............................................................................................14
Department of Homeland Security (DHS) Office of Inspector General, DHS
Implementation of Executive Order #13769 “Protecting the Nation From
Foreign Terrorist Entry Into the United States” (Jan. 18, 2018) .............................................14
DHS Office of Inspector General, Special Review – Initial Observations
Regarding Family Separation Issues Under the Zero Tolerance Policy (Sept.
27, 2018) .....................................................................................................................................3
DHS, Individuals Granted Asylum Affirmatively Or Defensively: Fiscal Years
1990 To 2016 (Jan. 8, 2018)........................................................................................................7
DHS, Myth vs. Fact: Asylum Proclamation and Rule (Nov. 9, 2018) ............................................12
Donald J. Trump (@realDonaldTrump), Twitter (Nov. 18, 2018, 10:42 AM) .................................3
Donald J. Trump (@realDonaldTrump), Twitter (Oct. 22, 2018, 5:37 AM) ..................................14
Elliot Spagat, More Caravan Migrants Arrive in Tijuana, Brace for Long Stay,
Fox News (Nov. 15, 2018) ..........................................................................................................6
Fox News, Secretary Nielsen Talks Immigration, Relationship with Trump (May
15, 2018) .....................................................................................................................................3
Int’l Rescue Comm., The IRC in Los Angeles, CA. ..........................................................................9
Josiah Heyman and Jeremy Slack, Blockading Asylum Seekers at Ports of Entry at
the US-Mexico Border Puts Them at Increased Risk of Exploitation, Violence,
and Death, Ctr. for Migration Studies (June 25, 2018) ..............................................................6
Kate Linthicum, Rain Turns Migrant Camp in Tijuana into a Miserable, Muddy
Pit, L.A. Times (Nov. 29, 2018) .................................................................................................5
Leah McDonald, Mayor of Tijuana Said the $30,000-a-Day Funding to Assist with
Caravan of 6,000 Central American migrants Is About to Run Out, Daily Mail
(Nov. 28, 2018) ...........................................................................................................................6
Lisa Desjardins, How Trump Talks About Race, PBS News Hour (Aug. 22, 2017) ......................14
Medicins Sans Frontieres, Forced to Flee Central American’s Northern Triangle:
A Neglected Humanitarian Crisis (May 2017) ...........................................................................4
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Molly Hennessy-Fiske, Why and How Are Asylum Seekers Entering the U.S.?,
L.A. Times (Nov. 22, 2018) ........................................................................................................6
Nadwa Mossad and Ryan Baugh, Refugees and Asylees: 2016, DHS Off. of
Immig. Statistics (Jan. 2018) .......................................................................................................7
Off. of Refugee Resettlement, Unaccompanied Alien Children Released to
Sponsors by State (last updated Nov. 29, 2018)..........................................................................7
Opening Doors, Refugee Programs ..................................................................................................9
Overview of Ready California (2018)...............................................................................................1
Ready California, One California: Immigration Services Funding (July 28, 2017) ........................1
Sarah Kinosian and Joshua Partlow, LGBT Asylum Seekers Are First to Reach the
U.S. Border from the Caravan. Now They Wait., Wash. Post (Nov. 13, 2018) ..........................6
Sarah Kinosian et al., Mexico Begins Moving Caravan Migrants to New Shelter
but Faces Mistrust, Wash. Post (Nov. 30, 2018) ........................................................................5
Sarah Kinosian, Migrants at Mexico Border Face an Uncertain Future on Their
Own, The Guardian (Dec. 1, 2018) .............................................................................................2
Scott Pelley, The Chaos Behind Donald Trump’s Policy of Family Separation at
the Border, CBS (Nov. 26, 2018) .............................................................................................13
SF-CAIRS, Social Services and Mental Health ................................................................................9
SF-CAIRS, Refugee & Asylee Benefits .............................................................................................8
Syracuse U. Transactional Records Access Clearinghouse, Individuals in
Immigration Court by Their Address ..........................................................................................7
Ted Hesson, Trump Has Whipped up a Frenzy on the Migrant Caravan, Politico
(Oct. 23, 2018) ..........................................................................................................................14
U. of Cal. Hastings Coll. of the L., Gender and Refugee Studies .....................................................8
U. of Cal., Irvine Sch. of L., Immigrants’ Rights Clinic ...................................................................8
U. of Cal.-Davis Sch. of L. Immigration Law Clinic ........................................................................8
UNICEF, Statement on Situation of Migrant Children at Mexico-U.S. Border
(Nov. 28, 2018) ...........................................................................................................................5
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Vivian Salama, Trump Claims Women ‘Are Raped at Levels Never Seen Before’
During Immigrant Caravan, NBC News (Apr. 5, 2018) ..........................................................14
White House, Framework on Immigration Reform & Border Security (Jan. 25,
2018) .........................................................................................................................................12
White House, Presidential Proclamation Addressing Mass Migration Through the
Southern Border of the United States (Nov. 9, 2018) ...............................................................12
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States’ Amicus Curiae Brief
Case No. 18-cv-06810-JST
INTRODUCTION AND STATEMENT OF INTEREST
The States of California, Washington, Massachusetts, New York, Connecticut, Hawaii,
Illinois, Maryland, Minnesota, New Jersey, Oregon, Vermont, and the District of Columbia (the
States) respectfully submit this brief as amici curiae in support of plaintiffs’ motion for a
preliminary injunction suspending the Interim Final Rule: Aliens Subject to a Bar on Entry under
Certain Presidential Proclamations; Procedures for Protection Claims (the Rule), 83 Fed. Reg.
55934. The States have strong interests in the issues raised by plaintiffs’ motion. The States invest
significant resources to provide education, health care, and other services to immigrants residing
within their borders, including asylum-seekers and asylees, in order to appropriately transition
them into life in our States. Further, the States have a strong interest in ensuring that their interests
and the interests of their residents are considered when important proposed agency actions are
proposed, and in ensuring that federal agencies refrain from rulemaking that violates the law and
Constitution.
The State of California has a particular interest in this matter. California’s Department of
Social Services (CDSS) funds three of the plaintiff organizations (East Bay Sanctuary Covenant
[EBSC], Al Otro Lado, and Central American Resource Center in Los Angeles [CARECEN-LA])
to provide services to asylum-seekers, among other immigrants.1 The California Legislature first
included funds for immigration services in its 2015 budget, as part of its “One California”
Immigration Services Funding program, and has since expanded the scope of this program to
include removal defense services and broader forms of affirmative relief.2 These funds are aimed
at increasing “access to immigration legal services and information about constitutional rights so
that immigrants in our state can protect themselves and their families.”3 CDSS also provides
1 CDSS, Immigration Services Contractors, https://tinyurl.com/Cal-DSS-ISC. For fiscal
year 2017-18, CDSS provided over $41 million, including $697,350 to EBSC and $2,387,500 to
CARECEN-LA. CDSS, Immigration Branch Immigration Services Funding Tentative Award
Announcement (Oct. 31, 2017), https://tinyurl.com/Cal-DSS-ISawards. Al Otro Lado is a
subcontractor of grantee International Institute of LA, which received $752,900 in the last fiscal
year. Al Otro Lado’s portion of this funding is not immediately available.
2 CDSS, Immigration Services Program Update (Mar. 2018); Ready California, One
California: Immigration Services Funding, (July 28, 2017), https://tinyurl.com/OneCal-funding.
3 Overview of Ready California (2018), https://tinyurl.com/ReadyCal.
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Case No. 18-cv-06810-JST
funding for organizations—including EBSC and CARECEN-LA4—to assist undocumented
unaccompanied minors, many of whom have asylum claims.5
As detailed below, the States support the issuance of a preliminary injunction to preserve the
status quo and prevent widespread harm while the validity of the Rule is adjudicated.
ARGUMENT
One of the preliminary injunction factors is whether the “injunction is in the public
interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); EBSC v. Trump, 2018 WL
6053140, at *19–20 (N.D. Cal. Nov. 19, 2018).6 The public interest strongly favors plaintiffs as
evidenced, in part, by the significant harm that the States will suffer if the preliminary injunction
is not issued and because the Rule violates the APA and the Constitution.
A.
Defendants’ Policies Trap Asylum Seekers at the Border While Effectively
Refusing to Accept Their Applications.
Defendants’ Rule forcing asylum seekers to apply at ports of entry comes on top of existing
policies that have choked off the flow of migrants through these channels, creating a massive
backlog of people waiting to avail themselves of their right to claim asylum. The interplay of
these unsustainable, cruel, and ineffective policies has created an inhumane situation for those
affected.
Currently, over 6,000 Central American immigrants, including over 1,000 children, are
stranded outside ports of entry waiting for an opportunity to present their asylum claims to federal
immigration officials.7 These migrants represent a fraction of U.S. Customs and Border
4 CDSS, Unaccompanied Undocumented Minors Legal Services Funding Contractor
Referral List (FY2017-18), https://tinyurl.com/ILS-contractors.
5 CDSS, Immigration Services, supra note 2 (noting that CDSS provided almost $3
million for these services in FY 2018-19).
6 The public interest is particularly relevant in cases where the impact of an injunction
reaches beyond the parties and carries a potential for public consequences. Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009). Further, in cases like this, which affect many non-
parties (including the States), courts consider the hardship to third parties as part of the public
interest analysis. See Golden Gate Rest. Ass’n v. City & Cty. of S.F., 512 F.3d 1112, 1126 (9th
Cir. 2008); see also Ms. L. v. U.S. Immig. & Customs Enf’t, 310 F. Supp. 3d 1133, 1148 (S.D.
Cal. 2018) (considering hardship to third parties in case involving separation of minor immigrant
children from parents) (citing Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017)).
7 Sarah Kinosian, Migrants at Mexico Border Face an Uncertain Future on Their Own,
The Guardian (Dec. 1, 2018), https://tinyurl.com/Kinosian.
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Protection’s (CBP) monthly southwest border apprehensions; CBP reported 60,745 apprehensions
at the southwest border in October 2018—50,975 between ports of entry and 9,770 at ports of
entry.8 Even if all the individuals currently waiting to be processed entered at once, this would
constitute less than 10 percent of monthly apprehensions. CBP has dealt with far larger changes
in migrant flows in the past; for example, in the 2017 fiscal year, apprehensions and inadmissible
entries fluctuated between approximately 16,000 and 67,000 monthly.9 Thus, their arrival hardly
presents an overwhelming “invasion” as the Administration has claimed.10
More broadly, defendants’ claims that an unprecedented flood of migrants is causing a
crisis are not supported by the facts. As CBP’s statistics show, apprehensions at the border in
recent months are squarely within the historic range, and indeed considerably lower than they
have been in prior years (especially 2014).11 While October 2018 has been at the higher end of
the range, it is not even among the top three months.12
As the federal government pushes asylum-seekers to ports of entry, it is simultaneously
making it difficult or impossible for them to actually apply for asylum. The Department of
Homeland Security (DHS) publicly acknowledges that it has been using a “metering” or “queue
management” policy, which amounts to a de facto denial of the ability to apply for asylum.13 A
September 2018 report from the DHS Office of Inspector General (OIG) confirmed that “CBP
was regulating the flow of asylum-seekers at ports of entry through ‘metering’” since at least
2016.14 OIG described the process: “When metering, CBP officers stand at the international line
out in the middle of the footbridges” and turn asylum-seekers away before they can cross onto
8 See Administrative Record (“AR”) at 447–48; CBP, Southwest Border Migration
FY2019, https://tinyurl.com/CBP-app-2019.
9 AR at 350; CBP, Southwest Border Migration FY2017, https://tinyurl.com/CBP-
FY2017.
10 See Donald J. Trump (@realDonaldTrump), Twitter (Nov. 18, 2018, 10:42 AM),
https://tinyurl.com/invasion-tweet (“the U.S. is ill-prepared for this invasion, and will not stand
for it”).
11 AR at 301, 347, 373.
12 Apprehensions FY 2019, supra note 8.
13 Amnesty International, USA: “You Don’t Have Any Rights Here” (Oct. 2018),
https://tinyurl.com/Amnesy-rights; Fox News, Secretary Nielsen Talks Immigration, Relationship
with Trump (May 15, 2018), https://tinyurl.com/Fox-Nielsen.
14 OIG, Special Review – Initial Observations Regarding Family Separation Issues Under
the Zero Tolerance Policy (Sept. 27, 2018), https://tinyurl.com/OIG-separation.
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U.S. soil, claiming that there is no space available. Id. at 6. CBP instructs officers to “inform
individuals that the port is currently at capacity and that they will be permitted to enter once there
is sufficient space and resources to process them.” Id. Legal representatives who accompanied
asylum-seekers to ports of entry from 2017 to present have witnessed dozens of people being
turned away repeatedly. A lawsuit filed in July 2017 alleges a number of illegal practices at the
San Ysidro port of entry, including “falsely representing to individuals that asylum is no longer
available in the United States, that asylum seekers need permission from the Mexican government
to seek asylum, or that asylum seekers must apply at other locations.”15 Some asylum-seekers
were even “threatened and falsely told that if they did not abandon their effort to obtain asylum,
they would lose custody of their children.” Id. As a result of these actions, even before the most
recent group of migrants reached the border, the unofficial waiting list administered by asylum-
seekers contained 3,000 names, with a month-long projected wait time.16 Knowing that the Rule
would substantially increase the number of asylum-seekers at the ports of entry, the federal
government continues these policies, and has made no apparent effort to increase the pace,
processing only 40-100 individuals a day at the San Ysidro port of entry.17
B.
The Rule Will Exacerbate Inhumane Border Conditions and Cause
Additional Trauma to Already Vulnerable Migrants.
As the Administrative Record demonstrates, the Northern Triangle is one of the most
violent regions in the world, with conditions “akin to the conditions found in the deadliest armed
conflicts in the world today.”18 Asylum-seekers from this region flee from extremely dangerous
circumstances, most commonly murders of family members, threats to life or limb, extortion, and
15 Center for Constitutional Rights, Al Otro Lado v. Kelly, https://tinyurl.com/AOL-Kelly
(discussing Al Otro Lado, Inc. v. Nielsen, No. 3:17cv2366 (S.D. Cal., filed July 12, 2017)).
16 Kinosian, supra note 7.
17 Camila Domonoske, Fact Check: What’s Happening on the U.S.-Mexico Border?, NPR
(Nov. 27, 2018), https://tinyurl.com/Domonoske.
18 AR at 156–58, 162–63 (Medicins Sans Frontieres, Forced to Flee Central American’s
Northern Triangle: A Neglected Humanitarian Crisis (May 2017) [documenting the reasons for
leaving home countries and noting that the violence suffered by people in Northern Triangle is
comparable to those in war zones]); id. at 161 (noting that homicidal violence in this region has
led to significantly more civilian casualties than in any other countries, including countries with
armed conflicts or war).
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domestic violence.19 Immigrants who flee this violence face additional threats during their
journey north, as the Administrative Record also makes clear. Along the route through Mexico
and to the United States, immigrants are injured and traumatized from physical violence,
abduction, theft, extortion, torture, and rape, perpetrated by gangs and other criminal
organizations, or even by Mexican security forces. AR at 156–57, 163–64. Unsurprisingly, these
experiences have caused high rates of serious mental health issues, including anxiety, post-
traumatic stress disorder and major depressive disorder.20
This trauma is only exacerbated by defendants’ policies, which force migrants to remain
at the border while they await entry. Media reports have extensively documented the inhumane
conditions outside our ports of entry. The images and stories are grim, as thousands of
immigrants, many with young children, are forced to stay in a makeshift camp at a sports
complex, a shelter at an abandoned concert venue in one of the most dangerous parts of Tijuana,
and on plastic tarps in the streets waiting to be processed by CBP.21 After multiple instances of
rain, the camp at the sports complex became a muddy pit where people lost their limited
belongings.22 The unsanitary conditions “have raised concerns among aid workers and
humanitarian organizations that the migrants, packed into a space intended for half their number,
are susceptible to outbreaks of disease.”23 Many have developed respiratory infections due to the
wet and cold weather, and health officials also reported multiple cases of lice and chicken pox.24
Children languishing at the border are becoming ill and not attending school, and families are not
receiving basic health and social services that the States would otherwise provide, including
19 Allen Keller, et al., Pre-Migration Trauma Exposure and Mental Health Functioning
among Central American Migrants Arriving at the US Border, 12 PloS one e0168692 (Jan. 10,
2017), https://tinyurl.com/Keller-Trauma.
20 Id. at 168–69; Keller, supra note 19.
21 Catherine E. Shoichet and Leyla Santiago, The Tear Gas is Gone. But in This Shelter at
the Border, the Situation Is Getting Worse, CNN (Nov. 29, 2018), https://tinyurl.com/Shoichet;
Kinosian, supra note 7.
22 Kate Linthicum, Rain Turns Migrant Camp in Tijuana into a Miserable, Muddy Pit,
L.A. Times (Nov. 29, 2018), https://tinyurl.com/Linthicum-LAT.
23 Sarah Kinosian et al., Mexico Begins Moving Caravan Migrants to New Shelter but
Faces Mistrust, Wash. Post (Nov. 30, 2018), https://tinyurl.com/Kinosian-shelter.
24 Christine Murray, Ailing Central American Migrants in Dire Conditions Dig in at U.S.
Border, Reuters (Nov. 28, 2018), https://tinyurl.com/Murray-Reuters.
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mental health treatment.25 Local authorities lack sufficient resources to help immigrants for
prolonged periods and have called on humanitarian organizations for assistance.26
In addition to adverse physical conditions, vulnerable adults and children are exposed to
greatly increased risks of crime and exploitation as they wait at the border.27 And some LGBTQ
immigrants face threats of harassment and violence.28 See EBSC, 2018 WL 6053140, at *19
(discussing “the extensive record evidence of the danger experienced by asylum seekers waiting
to cross in compliance with the Rule” in context of public interest factor). The delay in processing
asylum applications, expected to take months, will only exacerbate the harms these individuals
face and increase the amount and intensity of social services the States will be required to provide
to them, as discussed below.
Finally, the harm from the Rule extends to residents of the States who suffer the anguish of
uncertainty as their asylum-seeking relatives are in limbo at the border. Many Central American
asylum-seekers have relatives across the country, including Los Angeles, Miami, New York, and
Washington.29 These include the Los Angeles family members of a Honduran family with young
children30 and a San Francisco mother, anxiously awaiting the fate of her 15-year-old son, who
was detained by Mexican authorities with other minors as they attempted to apply for asylum.31
25 Statement on Situation of Migrant Children at Mexico-U.S. Border, UNICEF (Nov. 28,
2018), https://tinyurl.com/UNICEF-border (noting “limited access to many of the essential
services [children] need for their wellbeing, including nutrition, education, psychosocial support
and healthcare”).
26 Leah McDonald, Mayor of Tijuana Said the $30,000-a-Day Funding to Assist with
Caravan of 6,000 Central American migrants Is About to Run Out, Daily Mail (Nov. 28, 2018),
https://tinyurl.com/McDonald-DailyMail.
27 Josiah Heyman and Jeremy Slack, Blockading Asylum Seekers at Ports of Entry at the
US-Mexico Border Puts Them at Increased Risk of Exploitation, Violence, and Death, Ctr. for
Migration Studies (June 25, 2018), https://tinyurl.com/Heyman-Slack.
28 Sarah Kinosian and Joshua Partlow, LGBT Asylum Seekers Are First to Reach the U.S.
Border from the Caravan. Now They Wait., Wash. Post (Nov. 13, 2018),
https://tinyurl.com/Kinosian-Partlow.
29 See, e.g., Molly Hennessy-Fiske, Why and How Are Asylum Seekers Entering the U.S.?,
L.A. Times (Nov. 22, 2018), https://tinyurl.com/Hennessy-Fiske.
30 Elliot Spagat, More Caravan Migrants Arrive in Tijuana, Brace for Long Stay, Fox
News (Nov. 15, 2018), https://tinyurl.com/Spagat-Fox.
31 Cristina Rendon, Salvadorian Woman Nervously Awaits Contact from Son Seeking
Asylum at US-Mexico Border, Fox KTVU (Nov. 26, 2018), https://tinyurl.com/Rendon-KTVU.
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These residents of the States are being harmed by the federal government’s actions, and the States
have a significant interest in preventing this harm from continuing as this litigation proceeds.
C.
The States will be harmed by the effects of the Rule.
The States welcome thousands of potential asylees into their communities who have
suffered the trauma discussed above every year, providing or funding a number of social services
to help them realize their potential in their new country. The additional mental and physical
health harms caused by defendants’ policies will make asylees’ needs for these services even
more intense and challenging to meet, requiring the States to divert resources from other critically
needed services.
The States signatory to this brief constitute seven of the top ten states of residence of
asylees, and have welcomed over 68 percent of the total asylees entering the United States.32
Since 1990, an average of over 22,000 individuals have been granted asylum annually.33
California in particular, as the border state that receives by far the most asylees, with almost 44
percent of the total, has much at stake in these proceedings. Id.34 For example, almost 8,000
individuals with positive “credible fear” determinations, including children, initially resettled in
California in 2016.35 In the 2017 fiscal year, almost 15,000 accompanied children (those arriving
with their families) received positive credible fear determinations and were released from federal
custody, many in California.36 And in FY 2018, 4,655 unaccompanied immigrant children were
released from federal custody to adult sponsors in California, more than any other state.37
Historically, a high percentage of these children have had viable claims for asylum, although that
32 Nadwa Mossad and Ryan Baugh, Refugees and Asylees: 2016, DHS Off. of Immig.
Statistics (Jan. 2018), https://tinyurl.com/Mossad-Baugh.
33 DHS, Individuals Granted Asylum Affirmatively Or Defensively: Fiscal Years 1990 To
2016 (Jan. 8, 2018), https://tinyurl.com/DHS-Asy-2016.
34 Also, more cases are pending in immigration courts in California than in any other state.
See Syracuse U. Transactional Records Access Clearinghouse (TRAC), Individuals in
Immigration Court by Their Address, https://tinyurl.com/TRAC-Syr.
35 Mossad, supra note 32.
36 See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied
Alien Children, 83 Fed. Reg. 45486, 45519 (proposed Sept. 7, 2018).
37Off. of Refugee Resettlement, Unaccompanied Alien Children Released to Sponsors by
State (last updated Nov. 29, 2018), https://tinyurl.com/UAC-state.
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percentage has dropped in the past two years.38
The States, their local jurisdictions, and non-governmental organizations based in the
States, will be in the position of assisting the victims of the unnecessary trauma that defendants’
policies cause, utilizing resources that will need to be diverted from other purposes. Among other
services, the States’ public schools will need to educate students who have been traumatized and
needlessly missed months or years of schooling while they wait at the border. And the States’
public health care systems will have to address the increased health needs of immigrants who
have not had access to preventative care, vaccinations, and necessary medical care as they waited
at the border.
Further, the States have invested in specialized services to meet asylees’ needs. For
example, in California, the Immigration Branch of CDSS has various forms of assistance for
certain eligible asylees and refugees including programs that provide cash assistance and
employment services, as well as services for unaccompanied minors and victims of human
trafficking.39 Program benefits and services are typically administered at the local level by county
social services departments, or through county contracts with local service providers to deliver
direct services, including services for older refugees, integration and language assistance for
refugee students, and assistance to unaccompanied minors.40
Recognizing the importance of proper legal guidance during immigration proceedings,
California funds a number of non-profit legal service organizations, including plaintiffs EBSC, Al
Otro Lado and CARECEN-LA, to provide free or low-cost legal services for refugees.41 See
Compl. ¶¶ 79, 88, 96, ECF 1. These providers use a combination of funds from CDSS and private
38 Beth Fertig, Unaccompanied Minors Have Tougher Time Winning Asylum, WNYC
(June 6, 2018), https://tinyurl.com/Fertig-WNYC.
39 See CDSS, Services for Refugees, Asylees, and Trafficking Victims,
https://www.cdss.ca.gov/Refugee-Services.
40 Id.; see also SF-CAIRS (the SF Refugee Forum), Refugee & Asylee Benefits, http://sf-
cairs.org/refugee-asylee-benefits; County of L.A., Dep’t of Soc. Services, Refugee Employment
Program, https://tinyurl.com/LA-refugee.
41 See Immigration Services Contractors, supra note 1. California’s public universities
also fund programs that provide legal assistance to refugees and migrants seeking asylum. See,
e.g., U. of Cal.-Davis Sch. of L., Immigration Law Clinic, https://tinyurl.com/Davis-immig; U. of
Cal. Hastings Coll. of the L., Center for Gender and Refugee Studies, https://cgrs.uchastings.edu;
U. of Cal., Irvine Sch. of L., Immigrants’ Rights Clinic, https://tinyurl.com/Irvine-immig.
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donors to ensure these cases are filed properly and adjudicated fairly.42 Such funding is based, in
part, on the number of cases handled per year, and the number of clients legal providers anticipate
serving. See id. ¶¶ 82, 90–91, 97. By categorically barring asylum for every individual who enters
without inspection at the southern border, the Rule will seriously restrict access to legal counsel,
frustrate these organizations’ missions and imperil their funding streams. See id. ¶¶ 80, 86, 89, 90,
97. It will also cause them to divert considerable resources to re-strategizing their approaches to
representation of clients and eligibility issues, revising their training, and re-allocating staff time.
See id. ¶¶ 83–86, 89, 98–99. Harms to these organizations redound to their funders, including the
States, whose priorities and funding decisions are impacted as well.
CDSS also funds qualified nonprofit organizations to provide other immigration-related
assistance to individuals who have been granted asylum and reside in California. These
organizations provide asylees crucial access to services such as mental health care, education, and
resettlement assistance.43 For example, the International Rescue Committee for the City of Los
Angeles provides programs that assist recent refugees and asylum grantees with health care,
resettlement, economic opportunities, and community integration and development, and Opening
Doors in Sacramento offers a literacy program for refugee women, as well as resettlement
assistance and family trauma counseling.44
The California Department of Public Health (CDPH), Office of Refugee Health works
with impacted local health agencies, providers, and resettlement agencies to provide assessments
and other health services to newly arrived refugees, asylees, victims of severe forms of human
trafficking, and other eligible entrants.45 For example, the Highland Human Rights Clinic in
Oakland (operated by the Alameda County Health System) conducts approximately 80 to 120
health assessments of asylees in California annually.46 According to the Clinic’s medical director,
42 Indeed, 97 percent of the almost 5,000 affirmative asylum petitions filed by plaintiff
East Bay Sanctuary Covenant have been granted. See id. ¶ 80.
43 See, e.g., SF-CAIRS, Social Services and Mental Health, http://sf-cairs.org/mental-
health/.
44 Int’l Rescue Comm., The IRC in Los Angeles, CA, https://tinyurl.com/IRC-refugee;
Opening Doors, Refugee Programs, https://tinyurl.com/OD-refugee.
45 CDPH, Office of Refugee Health, https://tinyurl.com/CDPH-refugee.
46 Anna Gorman, Medical Clinics that Treat Refugees Help Determine the Case for
Asylum, NPR (July 10, 2018), https://tinyurl.com/Gorman-NPR.
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the vast majority of the patients he evaluates need mental health referrals, due to years of abuse
and trauma. Id. These needs will only be increased by the additional trauma that migrants will
endure while languishing in dangerous, unhealthy conditions at the border due to the Rule.
All of these state-provided resources will be further impacted due to the increased harms
that the Rule causes to individuals who are eventually able to present their asylum claims and
enter the country. California specifically will have to meet this additional need at a time that the
State is dealing with multiple challenges, including one of the most destructive wildfires in
United States history.
D.
A Preliminary Injunction is in the Public Interest Because the Rule
Violates the Law.
In addition to the serious harms the Rule will inflict on the States and our current and
future residents, the Rule is fatally flawed from a legal perspective. Plaintiffs have ably set forth a
number of ways in which the Rule violates the APA’s substantive and procedural requirements.
Mot. for Prelim. Inj. at 2–7 (PI Mot.), ECF 71. The Rule has additional legal infirmities that
further demonstrate that a preliminary injunction is in the public interest. See, e.g., Texas
Children’s Hosp. v. Burwell, 76 F. Supp. 3d 224, 246 (D.D.C. 2014) (“the Secretary’s compliance
with applicable law constitutes a . . . compelling public interest”) (quotation omitted); Michigan
Citizens for an Indep. Press v. Thornburgh, 1988 WL 90388, at *7 (D.D.C. 1988) (“The general
public has an interest in seeing that laws are administered reasonably, in accordance with law and
not arbitrarily”).
1. The Rule Is Arbitrary and Capricious Under the APA.
The Rule is arbitrary and capricious in violation of the APA for several reasons. First,
defendants failed to address, or gave only passing attention to, a number of relevant factors.
Under the APA, federal agencies must consider “the advantages and the disadvantages of agency
decision” before taking action. Regents of Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 279 F.
Supp. 3d 1011, 1046 (N.D. Cal. 2018) (Regents I) (quoting Michigan v. EPA, 135 S.Ct. 2699,
2707 (2015)). As the Supreme Court has held, “agency action is lawful only if it rests on a
consideration of the relevant factors,” and an agency may not “entirely fail to consider an
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important aspect of the problem” when deciding whether regulation is appropriate. Michigan, 135
S. Ct. at 2706–07 (quoting Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Automobile
Ins. Co., 463 U.S. 29, 43 (1983)) (brackets and quotation marks omitted). If an agency action is
not “based on a consideration of the relevant factors,” that action is arbitrary and capricious under
the APA. State Farm, 463 U.S. at 40–43 (citing 5 U.S.C. § 706(2)(A)).
The discussion in the Rule is one-sided, focused on the “crisis” at the border and the
Rule’s projected positive effects. While briefly discussing the Rule’s effect on 70,000 asylum
applicants annually, 83 Fed. Reg. 55948, the Rule does not discuss the likely harm to would-be
asylees, their families in the United States, and the States that this change could create. In fact,
there is nothing in Administrative Record that indicates defendants even considered these points.
And given the current situation at ports of entry discussed above, defendants’ repeated references
to how the Rule will allow “orderly processing” of asylum-seekers, see, e.g., 83 Fed. Reg. 55934,
-49, demonstrates how little consideration they gave to the foreseeable consequences of the Rule.
Second, defendants failed to adequately justify their actions in implementing the Rule.
The Rule contains voluminous discussion of the ostensible “crisis” at the southern border, 83 Fed.
Reg. 55934–36, 55944–49, focusing on the increasing number of asylum claims and credible fear
findings (an odd “problem” for defendants to highlight, as it actually supports the legitimacy of
many asylum-seekers’ claims); the large backlog of asylum cases; the allegedly large percentage
of asylum seekers who do not appear for their hearings; and the supposedly low ultimate rate of
asylum grants compared with applications. A number of these claims are questionable at best. As
plaintiffs point out, and as third-party analyses and documents in the Administrative Record
confirm, migration at the southern border is generally lower (despite a slight uptick in 2018), and
Border Patrol budget and staffing higher, than in recent years. See Compl. ¶¶ 71–76; see also AR
at 301, 347, 373, 447.47 Defendants’ suggestion that many putative asylees fail to appear in court
is also contrary to the evidence; as plaintiffs state in the complaint, 89 percent of asylum seekers
appear at their hearings. Compl. ¶ 77. Further, asylum seekers who are assisted by counsel in
47 See also Christopher Ingraham, There’s No Immigration Crisis, and These Charts
Prove It, Wash. Post (June 21, 2018), https://tinyurl.com/Ingraham-WaPo.
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navigating the complex process actually have a very high rate of asylum grants, as evidenced by
plaintiff EBSC’s 97 percent rate of approvals. See Compl. ¶ 80. Moreover, the Administrative
Record provides ample evidence of the reasons why North Triangle migrants are fleeing violence
in their home countries (and may therefore have meritorious asylum claims). See AR at 156–63.
Yet the Rule severely restricts their ability to seek asylum, and ignores the consequences to the
individuals and families if they are unable to present legitimate claims and forced to return to
their countries of origin.48 Because they failed to conduct a “reasoned evaluation of the relevant
factors,” Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 378 (1989) (quoting Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)) (quotation marks omitted), and
to draw a “rational connection between the facts found and the choice made,” Latino Issues
Forum v. U.S. EPA, 558 F.3d 936, 941 (9th Cir. 2009) (quoting Ariz. Cattle Growers’ Ass’n v.
U.S. Fish & Wildlife, 273 F.3d 1229, 1236 (9th Cir. 2001)) (quotation marks omitted),
defendants’ actions are arbitrary and capricious under the APA. 5 U.S.C. § 706(2)(A).
Finally, the Rule violates the APA because it is “not in accordance with law,” and
“contrary to constitutional right.” 5 U.S.C. § 706(2)(A)-(B). First, despite defendants’ claims that
the Rule is “not intended to deter legitimate asylum seekers from seeking protection,”49 one of the
primary purposes of the Rule is in fact to deter people from asserting asylum claims.50 This focus
48 See also AR at 331 (listing El Salvador, Honduras, and Guatemala as second, third, and
fourth, respectively, on list of countries whose nationals received asylum in FY2017).
49 DHS, Myth vs. Fact: Asylum Proclamation and Rule (Nov. 9, 2018),
https://tinyurl.com/DHS-myth-fact.
50 See 83 Fed. Reg. 55948 (discussing how Rule “could . . . affect the decision calculus”
of putative asylees), 55950 (discussing “urgent need to deter foreign nationals from undertaking
dangerous border crossings” and desire to “[c]hannel[] [putative asylees from Northern Triangle
counties] to ports of entry [which] would encourage these aliens to first avail themselves of offers
of asylum from Mexico,” presumably due to their discouragement at extensive wait times at ports
of entry). See also White House, Presidential Proclamation Addressing Mass Migration Through
the Southern Border of the United States (Nov. 9, 2018), https://tinyurl.com/Pres-Proc
(“[v]irtually all members of family units . . . that are found to have a credible fear of persecution,
are . . . released into the United States. Against this backdrop of near-assurance of release, the
number of such aliens traveling as family units who enter through the southern border and claim a
credible fear of persecution has greatly increased. . . . Failing to take immediate action to stem the
mass migration the United States is currently experiencing and anticipating would only encourage
additional mass unlawful migration”); see also EBSC, 2018 WL 6053140, at *19 (questioning
“[t]he executive’s interest in deterring asylum seekers—whether or not their claims are
meritorious—on a basis that Congress did not authorize”).
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on deterrence is consistent with the federal government’s stated goal of deterring migration
through harsh policies.51 Courts have held that similar policies treating asylum-seekers harshly in
order to deter others from attempting to enter the United States to claim asylum are
unconstitutional. See R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 188–90 (D.D.C. 2015) (granting
preliminary injunction against policy of detaining asylum seekers to send “a message of
deterrence to other Central American individuals who may be considering immigration”).52
Second, the Rule discriminates against individuals based on their race, ethnicity, and
national origin in violation of the Equal Protection Clause of the Fifth Amendment. Courts have
recognized similar infirmities relating to the federal government’s immigration policies that
primarily impact non-European, non-white migrants. See, e.g., Regents of Univ. of Cal. v. U.S.
Dep’t of Homeland Sec., 298 F. Supp. 3d 1304, 1315 (N.D. Cal. 2018) (denying motion to
dismiss Equal Protection claims, holding that allegations raised “a plausible inference that racial
animus towards Mexicans and Latinos was a motivating factor in the decision to end DACA”)
(Regents II), aff’d, 908 F.3d 476 (9th Cir. 2018) (Regents III); see also Ramos v. Nielsen, 2018
WL 4778285, at *16–21 (N.D. Cal. Oct. 3, 2018) (Ramos II); Centro Presente v. United States
Dep’t of Homeland Sec., 2018 WL 3543535, at *14–15 (D. Mass. July 23, 2018); Casa de
Maryland, Inc. v. Trump, 2018 WL 6192367, at *12 (D. Md. Nov. 28, 2018). The Rule bears
many of the hallmarks of these earlier actions, including weighing more heavily on some
51 See White House, Framework on Immigration Reform & Border Security (Jan. 25,
2018), https://tinyurl.com/WH-framework (providing that “[t]he Department of Homeland
Security must have tools to deter illegal immigration”; pledging to “[d]eter illegal entry” by
ending “catch-and release and by closing legal loopholes that have eroded our ability to secure the
immigration system and protect public safety”); see also Scott Pelley, The Chaos Behind Donald
Trump’s Policy of Family Separation at the Border, CBS (Nov. 26, 2018),
https://tinyurl.com/Pelley-CBS (discussing “family separation” campaign, which included policy
to arrest and detain all adults who crossed the border between ports of entry, and reporting that
DHS memorandum “explains a reason for the policy—deterrence—as it ‘will have the greatest
impact on current flows’ [of immigrants]”).
52 See also Ms. L. v. U.S. Immig. & Customs Enf’t, 302 F. Supp. 3d 1149, 1166–67 (S.D.
Cal. 2018) (denying motion to dismiss substantive due process claim, holding that alleged
“government practice. . . to separate parents from their minor children in an effort to deter others
from coming to the United States . . . is emblematic of the exercise of power without any
reasonable justification . . . . Such conduct . . . is brutal, offensive, and fails to comport with
traditional notions of fair play and decency”).
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racial/ethnic groups than others53 and being promulgated in a manner that significantly departs
from the normal decision-making process, a sign that the policy was enacted for illegitimate
reasons.54 In addition, President Trump has a history of statements and actions indicating racial
animus towards non-white immigrants and Latinos, Latino asylum-seekers, and migrants from
Central America.55 The President strongly implied that members of a similar caravan earlier this
year were rapists56 and also claimed that the current caravan contains members of the MS-13
gang and criminals, as well as “unknown Middle Easterners,” with no evidence.57 The strong
probability that the Rule (and Proclamation) were driven by animus in violation of the
Constitution and the APA shows that the public interest favors a preliminary injunction.
2. The Rule Was Improperly Promulgated Without Notice and
Comment.
In addition to being arbitrary and capricious and contrary to substantive law, the Rule was
improperly promulgated without complying with the APA’s notice and comment and waiting
period requirements. “The notice and comment requirements are designed to ensure public
53 Both the Rule and Southern Border Proclamation are applicable solely to entrance
through the southern border and discuss asylum applicants from Central America on their face.
See, e.g., 83 Fed. Reg. 55935, -947, -950, -951; see Ramos II, 2018 WL 4778285, at *18 (“the
impact of the TPS terminations clearly bears more heavily on non-white, non-European
individuals; indeed, it affects those populations exclusively”).
54 See Dara Lind, Exclusive: Even Before the Caravan, Trump Took Steps to Use Travel
Bans to Limit Asylum, Vox (Nov. 6, 2018), https://tinyurl.com/Lind-vox (reporting that officials
“hastily . . . scramble[d]” to develop Rule). Cf. OIG, DHS Implementation of Executive Order
#13769 “Protecting the Nation From Foreign Terrorist Entry Into the United States” (Jan. 18,
2018), https://tinyurl.com/OIG-travel-ban (finding that DHS “was largely caught by surprise” by
the travel ban, and had “no opportunity to provide expert input in drafting” it); Regents III, 908
F.3d at 519 (citing “unusual history behind the rescission” of DACA, which “suggests that the
normal care and consideration within the agency was bypassed”) (internal quotation marks
omitted); Ramos II, 2018 WL 4778285, at *21 (N.D. Cal. Oct. 3, 2018) (noting “departures from
the normal procedural sequence during the TPS decision-making process” as evidence that
animus drove decision); Pelley, supra note 6 (former DHS official stating that the family
separation order “was so abrupt it bypassed the usual review”).
55 Ramos II, 2018 WL 4778285, at *17–18; Centro Presente, 2018 WL 3543535, at *4–5;
see also, e.g., Lisa Desjardins, How Trump Talks About Race, PBS News Hour (Aug. 22, 2017)
(updated Aug. 23, 2018), https://tinyurl.com/Desjardins-PBS.
56 Vivian Salama, Trump Claims Women ‘Are Raped at Levels Never Seen Before’ During
Immigrant Caravan, NBC News (Apr. 5, 2018), https://tinyurl.com/Salama-NBC.
57 See Donald J. Trump (@realDonaldTrump), Twitter (Oct. 22, 2018, 5:37 AM),
https://tinyurl.com/mid-easterners-tweet; Ted Hesson, Trump Has Whipped up a Frenzy on the
Migrant Caravan, Politico (Oct. 23, 2018), https://tinyurl.com/Hesson-Politico.
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participation in rulemaking.” Paulsen v. Daniels, 413 F.3d 999, 1004 (9th Cir. 2005) (quoting
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992)) (ellipses and brackets
omitted). Public participation ensures that “agency regulations are tested via exposure to diverse
public comment”; that the process is “fair[] to affected parties”; and that affected parties have “an
opportunity to develop evidence in the record to support their objections to the rule and thereby
enhance the quality of judicial review.” Int’l Union, United Mine Workers of Am. v. Mine Safety
& Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005). As this Court stated, “[t]hese purposes
apply with particular force in important cases.” EBSC, 2018 WL 6053140, at *14. “It is
antithetical to the structure and purpose of the APA for an agency to implement a rule first, then
seek comment later.” United States v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010) (quoting
Paulsen, 413 F.3d at 1004); see EBSC, 2018 WL 6053140, at *14 (same, citing Valverde).
Defendants insist that this unilateral action is supported by “good cause,” and that giving
the States and the public an opportunity to comment on drastic changes to federal immigration
policy would be “impracticable” and “contrary to the public interest.” 83 Fed. Reg. 55950 (citing
5 U.S.C. § 553(b)(B)). They also purport to make the rule effective immediately, dispensing with
the 30-day waiting period required by 5 U.S.C. 553(d), arguing that “immediate implementation
of this rule is essential to avoid creating an incentive for aliens to seek to cross the border.” 83
Fed. Reg. 55950.
“The 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)). Failing to follow
notice and comment procedures may be excused “only in those narrow circumstances” in which
taking the time to comply with the APA’s procedural requirements “would do real harm.” Id. at
1164–65. “[T]he good cause exception . . . authorizes departure from the APA’s requirements
only when compliance would interfere with the agency’s ability to carry out its mission.” Cal-
Almond, Inc. v. U.S. Dep’t of Agric., 14 F.3d 429, 441 (9th Cir. 1993) (quoting Riverbend Farms,
958 F.2d at 1485). It is to be “sparingly used in order to promote public input into agency
rulemaking,” Serv. Emps. Int’l Union, Local 102 v. County of San Diego, 60 F.3d 1346, 1353 (9th
Cir. 1994), lest it “carve the heart out of the statute,” Action on Smoking and Health v. Civil
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Aeronautics Bd., 713 F.2d 795, 800 (D.C. Cir. 1983); see also EBSC, 2018 WL 6053140, at *17
(“The good cause exception should be interpreted narrowly, so that the exception will not
swallow the rule”) (quoting Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982) (internal
quotation marks and brackets omitted). The Rule was issued without notice, in the absence of any
emergency such as an imminent threat of a terrorist attack, an accident or natural disaster that
imperils human life, or even a fiscal emergency. See Pls. Mem. in Supp. of TRO 7–8, ECF No. 8-
1. Thus, the government fails to overcome the “high bar” to the good cause exception. Valverde,
628 F.3d at 1164.
The federal government also invokes the “foreign affairs” exception to the APA’s
procedural requirements, 5 U.S.C. § 553(a)(1). 83 Fed. Reg. 55950. However, the Ninth Circuit
has rejected this exception’s application to the kind of regulation at issue here, holding that: “The
foreign affairs exception would become distended if applied to [DHS] actions generally, even
though immigration matters typically implicate foreign affairs. For the exception to apply, the
public rulemaking provisions should provoke definitely undesirable international consequences.”
Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980) (internal citations omitted); see also
EBSC, 2018 WL 6053140, at *16 (citing Yassini, noting lack of “apparent logical connection
between dispensing with notice and comment and achieving a foreign affairs goal” here).
Although foreign relations are briefly discussed in the Rule, see 83 Fed. Reg. 55950–51, the
government’s focus is on the United States’ internal interests, not international relations. See also
PI Mot. at 5–6 (discussing lack of support in Rule and AR for foreign policy rationale).
Defendants’ failure to engage in pre-Rule notice and comment as required by the law
deprived the States of their right to participate in the rulemaking process. The opportunity to
comment on proposed federal regulations is vital to States’ interests in governmental
transparency. As sovereigns responsible for the health, safety, and welfare of millions of people
within their respective borders, the States have unique interests and perspectives to contribute on
issues of national importance and widespread impact, particularly when such policies will cause
prospective residents of our States unnecessary, substantial, and enduring harm. If the States had
been provided with an opportunity to comment on the Rule before it was promulgated, they
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would have raised the myriad harmful impacts and illegal aspects of the Rule discussed above
before it took effect.58 The agencies would have been required to consider those comments in
crafting the final regulation, see 5 U.S.C. § 553(c), and may have made changes to the proposed
rule in response, as agencies often do. The record developed through the notice and comment
process in turn would have aided the Court in its review of the action. See United Mine Workers,
407 F.3d at 1259; see also EBSC, 2018 WL 6053140, at *19 (noting irreparable harm from
deprivation of ability to offer “advance input” on Rule) (quoting California v. Health & Human
Servs., 281 F. Supp. 3d 806, 830 (N.D. Cal. 2017)) (internal quotation marks omitted).
CONCLUSION
For the reasons set forth above, the States support plaintiffs’ motion for a preliminary
injunction against the Rule to maintain the status quo during the pendency of this action.
Dated: December 5, 2018
Respectfully submitted,
XAVIER BECERRA
Attorney General of California
MICHAEL L. NEWMAN
Senior Assistant Attorney General
CHRISTINE CHUANG
Supervising Deputy Attorney General
s/ James F. Zahradka II
JAMES F. ZAHRADKA II
VILMA PALMA-SOLANA
SHUBHRA SHIVPURI
Deputy Attorneys General
Attorneys for the State of California
58 For example, California has submitted 59 comment letters on anticipated or proposed
actions by the federal government to delay, repeal or adopt federal regulations since February
2017. Washington State has offered more than 45 since March 2016, Massachusetts has submitted
dozens, and New York has sent 45.
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ROBERT W. FERGUSON
Attorney General
State of Washington
P.O. Box 40100
Olympia, WA 98504
BARBARA D. UNDERWOOD
Attorney General
State of New York
28 Liberty Street
New York, NY 10005
MAURA HEALEY
Attorney General
Commonwealth of Massachusetts
One Ashburton Place
Boston, MA 02108
GEORGE JEPSEN
Attorney General
State of Connecticut
55 Elm Street
Hartford, CT 06106
KARL A. RACINE
Attorney General
District of Columbia
441 4th Street, N.W.
Washington, D.C. 20001
LISA MADIGAN
Attorney General
State of Illinois
100 W. Randolph St, 12th Fl.
Chicago, IL 60601
LORI SWANSON
Attorney General
State of Minnesota
75 Rev. Dr. Martin Luther King Jr. Blvd.
St. Paul, MN 55155
ELLEN F. ROSENBLUM
Attorney General
State of Oregon
1162 Court Street NE
Salem, OR 97301
RUSSELL A. SUZUKI
Attorney General
State of Hawaii
425 Queen Street
Honolulu, HI 96813
BRIAN E. FROSH
Attorney General
State of Maryland
200 St. Paul Place
Baltimore, MD 21202
GURBIR S. GREWAL
Attorney General
State of New Jersey
25 Market Street, Box 080
Trenton, NJ 08625
THOMAS J. DONOVAN, JR.
Attorney General
State of Vermont
109 State Street
Montpelier, VT 05609
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