Court filing

Opposition Brief — East Bay Sanctuary v. Trump

Filed December 12, 2018 in East Bay Sanctuary v. Trump; one of 67 filings from this case.

Record facts

Court	U.S. District Court for the Northern District of California
Filed	2018-12-12

U.S. District Court for the Northern District of California · No. 3:18-cv-06810-JST · Doc. 87 · 2018-12-12 · Docket on CourtListener

Full text

DEFENDANTS’ OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

Case No. 3:18-cv-06810-JST

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JOSEPH H. HUNT
Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
AUGUST E. FLENTJE
Special Counsel
WILLIAM C. PEACHEY
Director
EREZ REUVENI
Assistant Director
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 307-4293
Email: Erez.R.Reuveni@usdoj.gov
PATRICK GLEN
Senior Litigation Counsel
JOSEPH DARROW
FRANCESCA GENOVA
CHRISTINA P. GREER
KATHRYNE GRAY
BENTON YORK
Trial Attorneys

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

)
East Bay Sanctuary Covenant, et al.,
)
)

Plaintiffs,

) OPPOSITION TO MOTION FOR

)
PRELIMINARY INJUNCTION
)
v.
)
Civil Action No. 3:18-cv-06810-JST
)
Donald J. Trump, President of the United )
States, et al.,
)

)

Defendants.

)

Case 3:18-cv-06810-JST Document 87 Filed 12/12/18 Page 1 of 36

DEFENDANTS’ OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

Case No. 3:18-cv-06810-JST

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TABLE OF CONTENTS

INTRODUCTION..........................................................................................................................1

BACKGROUND ............................................................................................................................1

STANDARD ...................................................................................................................................4

ARGUMENT ..................................................................................................................................5

I.
Plaintiffs’ Claims Are Still Not Justiciable ......................................................................5

A.
Plaintiffs Have Not Suffered an Injury in Fact and thus Lack Article III
Standing. ..................................................................................................................5

B.
Plaintiffs’ Claims Fall Outside the Statutory Zone of Interests. ..............................7

II.
The Rule and Proclamation Are Consistent with the INA. ............................................9

III.
The Rule Satisfies the APA’s Procedural Requirements .............................................13

IV.
The Balance of Harm Factors Foreclose Issuing a Preliminary Injunction ...............16

V.
Any Interim Relief Must Be Sharply Limited ...............................................................20

A.
The Court May Not Issue Any Injunctive Relief Impacting Expedited Removal .20

B.
The Court Cannot Enjoin Operation of the Rule under the APA ..........................23

C.
The Court May Not Issue a Nationwide Injunction ...............................................24

CONCLUSION ............................................................................................................................25

CERTIFICATE OF SERVICE ..................................................................................................27

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FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

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TABLE OF AUTHORITIES

CASE LAW

Am. Ass’n for Homecare v. Leavitt,
No. 08-cv-0992, 2008 WL 2580217 (D.D.C. June 30, 2008).................................................... 19

Am. Ass’n of Exporters v. United States,
751 F.2d 1239 (Fed. Cir. 1985).................................................................................................. 13

Am. Immigration Lawyers Ass’n v. Reno,
199 F.3d 1352 (D.C. Cir. 2000) ........................................................................................... 21, 22

Amoco Prod. Co. v. Vill. of Gambell,
480 U.S. 531 (1987) ................................................................................................................... 19

Associated Gen. Contractors of California, Inc. v. Coal. for Econ. Equity,
950 F.2d 1401 (9th Cir. 1991) ............................................................................................. 19, 20

Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ............................................................................................................... 6, 20

Clarke v. Sec. Indus. Ass’n,
479 U.S. 388 (1987) ..................................................................................................................... 7

Davis v. Michigan Dep’t of Treasury,
489 U.S. 803 (1989) ................................................................................................................... 23

Doe v. Trump,
288 F. Supp. 3d 1045 (W.D. Wash. 2017) ................................................................................. 20

Earth Island Inst. v. Ruthenbeck,
490 F.3d 687 (9th Cir. 2007) ..................................................................................................... 24

Elk Associates Funding Corp. v. U.S. Small Bus. Admin.,
858 F. Supp. 2d 1 (D.D.C. 2012) ............................................................................................... 19

Exodus Refugee Immigration, Inc. v. Pence,
165 F. Supp. 3d 739 (S.D. Ind. 2016), aff'd, 838 F.3d 902 (7th Cir. 2016) ............................... 20

Florida Power & Light Co. v. Lorion,
470 U.S. 729 (1985) ..................................................................................................................... 4

Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc.,
528 U.S. 167 (2000) ..................................................................................................................... 5
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DEFENDANTS’ OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

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Gill v. Whitford,
138 S. Ct. 1916 (2018) ................................................................................................... 20, 24, 25

Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) ................................................................................................................. 5, 6

Hawaii Helicopter Operators Ass’n v. FAA,
51 F.3d 212 (9th Cir. 1995) ....................................................................................................... 15

Hawaii v. Trump,
878 F.3d 662 (9th Cir. 2017) ..................................................................................................... 24

Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ....................................................................................................................... 16

Immigrant Assistance Project of Los Angeles Cty. v. INS,
306 F.3d 842 (9th Cir. 2002) ....................................................................................................... 8

Initiative & Referendum Inst. v. Walker,
450 F.3d 1082 (10th Cir. 2006) ................................................................................................. 25

INS v. Aguirre-Aguirre,
526 U.S. 415 (1999) ................................................................................................................... 12

INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ................................................................................................................... 12

INS v. Legalization Assistance Project of L.A. Cty.,
510 U.S. 1301 (1993) ................................................................................................................... 8

INS v. Pangilinan,
486 U.S. 875 (1988) ................................................................................................................... 22

J.E.F.M. v. Lynch,
837 F.3d 1026 (9th Cir. 2016) ................................................................................................... 21

Jadeja v. Redflex Traffic Sys., Inc.,
764 F. Supp. 2d 1192 (N.D. Cal. 2011) ..................................................................................... 25

Kiobel v. Royal Dutch Petroleum,
569 U.S. 108 (2013) ................................................................................................................... 18

Komarenko v. INS,
35 F.3d 432 (9th Cir. 1994) ....................................................................................................... 11

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DEFENDANTS’ OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

Case No. 3:18-cv-06810-JST

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La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest,
624 F.3d 1083 (9th Cir. 2010) ..................................................................................................... 5

League of Women Voters v. Newby,
838 F.3d 1 (D.C. Cir. 2016) ....................................................................................................... 20

Lopez v. Davis,
531 U.S. 230 (2001) ................................................................................................................... 12

M.M.M. ex rel. J.M.A. v. Sessions,
319 F. Supp. 3d 290 (D.D.C. 2018) ........................................................................................... 22

Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) ................................................................................................................... 24

Mejia v. Sessions,
866 F.3d 573 (4th Cir. 2017) ..................................................................................................... 12

Mobil Oil Corp. v. DOE,
728 F.2d 1477 (TECA 1983) ..................................................................................................... 15

Motor Vehicle Manufacturers v. State Farm,
463 U.S. 29, (1983) ...................................................................................................................... 4

Mountain States Legal Found. v. Glickman,
92 F.3d 1228 (D.C. Cir. 1996) ..................................................................................................... 7

Munaf v. Geren,
553 U.S. 674 (2008) ..................................................................................................................... 4

Nat’l Mining Assoc. v. U.S. Army Corps of Eng’rs,
145 F.3d 1399 (D.C. Cir.1998) .................................................................................................. 24

Nat’l Taxpayers Union, Inc. v. United States,
68 F.3d 1428 (D.C. Cir. 1995) ............................................................................................... 7, 20

Nijjar v. Holder,
689 F.3d 1077 (9th Cir. 2012) ................................................................................................... 10

NWIRP v. USCIS,
325 F.R.D. 671 (W.D. Wash. 2016) ............................................................................................ 8

Open Comms. Alliance v. Carson,
286 F. Supp. 3d 148 (D.D.C. 2017) ........................................................................................... 20

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DEFENDANTS’ OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

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R-S-C v. Sessions,
869 F.3d 1176 (10th Cir. 2017) ................................................................................................. 11

Regents of the Univ. of California v. DHS,
908 F.3d 476 (9th Cir. 2018) ..................................................................................................... 24

Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471, (1999) .................................................................................................................. 14

Sampson v. Murray,
415 U.S. 61 (1974) ............................................................................................................... 19, 24

Valle del Sol Inc. v. Whiting,
732 F.3d 1018 (9th Cir 2013) .................................................................................................... 20

Trump v. Hawaii,
138 S. Ct. 2392 (2018) ........................................................................................................... 1, 25

United States v. Mendoza,
464 U.S. 154 (1984) ................................................................................................................... 25

United States v. Valverde,
628 F.3d 1159 (9th Cir. 2010) ................................................................................................... 16

Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ................................................................................................... 24

Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ......................................................................................................................... 4

Yang v. INS,
79 F.3d 932 (9th Cir. 1996) ....................................................................................................... 12

Yassini v. Crosland,
618 F.2d 1360 (9th Cir. 1980) ................................................................................................... 14

Zepeda v. INS,
753 F.2d 719 (9th Cir. 1983) ............................................................................................... 21, 24

ADMINISTRATIVE DECISIONS
Matter of Pula,
19 I. & N. Dec. 467 (BIA 1987) .................................................................................................. 9

Matter of Salim,
18 I. & N. Dec. 311 (BIA 1982) .............................................................................................. 11
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DEFENDANTS’ OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

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STATUTES

5 U.S.C. § 553 ............................................................................................................................... 14

5 U.S.C. § 553(a)(1) ........................................................................................................................ 2

5 U.S.C. § 553(b) ............................................................................................................................ 2

5 U.S.C. § 553(b)(B) ..................................................................................................................... 15

5 U.S.C. § 553(c) ............................................................................................................................ 2

5 U.S.C. § 553(d) ............................................................................................................................ 2

5 U.S.C. § 553(d)(3) ..................................................................................................................... 15

5 U.S.C. § 702 ................................................................................................................................. 7

5 U.S.C. § 705 ............................................................................................................................... 24

5 U.S.C. § 706 ....................................................................................................................... 2, 5, 15

8 U.S.C. § 1158(a)(1) ............................................................................................................ 2, 3, 10

8 U.S.C. § 1158(a)(2)(B) .............................................................................................................. 10

8 U.S.C. § 1158(a)(2)(B)(ii) ........................................................................................................... 8

8 U.S.C. § 1158(a)(5) ...................................................................................................................... 8

8 U.S.C. § 1158(b)(2)(A) ................................................................................................................ 9

8 U.S.C. § 1158(b)(2)(C) .......................................................................................................... 9, 12

8 U.S.C. § 1158(b)(9) ..................................................................................................................... 8

8 U.S.C. § 1158(d)(4) ..................................................................................................................... 8

8 U.S.C. § 1158(e)(3) ...................................................................................................................... 8

8 U.S.C. § 1182(f) ........................................................................................................................... 1

8 U.S.C. § 1185(a)(1) ...................................................................................................................... 1

8 U.S.C. § 1225(b) .......................................................................................................................... 2

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FOR PRELIMINARY INJUNCTION
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8 U.S.C. § 1231(b)(3)(A) .............................................................................................................. 12

8 U.S.C. § 1252(a)(5) .................................................................................................................... 21

8 U.S.C. § 1252(b)(9) ................................................................................................................... 21

8 U.S.C. § 1252(e) ........................................................................................................................ 21

8 U.S.C. § 1252(e)(1) .................................................................................................................... 22

8 U.S.C. § 1252(e)(1)(A) ........................................................................................................ 21, 23

8 U.S.C. § 1252(e)(3) .................................................................................................................... 21

8 U.S.C. § 1252(e)(3)(A) ........................................................................................................ 21, 23

8 U.S.C. § 1252(e)(3)(A)(ii) ......................................................................................................... 22

8 U.S.C. § 1252(e)(3)(C) .............................................................................................................. 22

8 U.S.C. § 1252(e)(3)(D) .............................................................................................................. 23

8 U.S.C. § 1252(e)(3)(E)............................................................................................................... 22

8 U.S.C. § 1252(f)(1) .................................................................................................................... 23

28 U.S.C. § 1331 ........................................................................................................................... 21

REGULATIONS

8 C.F.R. § 208.13 .......................................................................................................................... 21

8 C.F.R. § 208.16(c)...................................................................................................................... 12

8 C.F.R. § 208.30(e)(5) ................................................................................................................. 21

8 C.F.R. § 1208.13 ........................................................................................................................ 21

8 C.F.R. § 1208.16(c).................................................................................................................... 12

8 C.F.R. § 1208.30(e)(5) ............................................................................................................... 21

FEDERAL RULES OF CIVIL PROCEDURE

Fed. R. Civ. P. 23 .......................................................................................................................... 22
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DEFENDANTS’ OPPOSITION TO MOTION
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FEDERAL REGISTER

69 Fed. Reg. 48877 ....................................................................................................................... 16

82 Fed. Reg. 4770 ......................................................................................................................... 16

83 Fed. Reg. 55934 ......................................................................................................................... 1

83 Fed. Reg. 55935 ....................................................................................................................... 15

83 Fed. Reg. 55944-45 .................................................................................................................. 17

83 Fed. Reg. 55946 ....................................................................................................................... 20

83 Fed. Reg. 55948 ....................................................................................................................... 16

83 Fed. Reg. 55949-50 .................................................................................................................. 15

83 Fed. Reg. 55950 ................................................................................................................. 13, 18

83 Fed. Reg. 55950-51 .................................................................................................................. 15

LEGISLATIVE HISTORY

H.R. Rep. No. 104-469 ................................................................................................................ 23

MISCELLANEOUS

CBP, Southwest Border Migration FY 2019, (Last visited Dec. 12, 2018), CBP, Southwest
Border Migration FY 2019 ........................................................................................................ 17

U.S. Border Patrol Fiscal Year Southwest Border Sector Deaths (FY 1998 - FY 2017), (Last
visited Dec. 12, 2018), https://www.cbp.gov/sites/default/files/assets/documents/2017-
Dec/BP%20Southwest% 20Border%20Sector%20Deaths%20FY1998%20-%20FY2017.pdf 17

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DEFENDANTS’ OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

Case No. 3:18-cv-06810-JST

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INTRODUCTION

Plaintiffs, relying on this court’s interim order temporarily enjoining the government from
implementing the Departments of Justice’s and Homeland Security’s rule, Aliens Subject to a Bar
on Entry Under Certain Presidential Proclamations, 83 Fed. Reg. 55934 (Nov. 9, 2018), move this
Court for a preliminary injunction. That request should be denied. At the least, because the Ninth
Circuit has rejected the primary basis for this Court’s nationwide injunction—injury to non-parties
and Plaintiffs’ would-be clients—any injunction should be limited to Plaintiffs’ bona fide clients.
BACKGROUND
The Court is familiar with the legal and factual background of this case, which the
government set out in its prior briefing (see TRO Opp. 1-7) and incorporates here by reference.
The United States has experienced a surge in the number of aliens entering the country
unlawfully from Mexico and, if caught, claiming asylum and remaining in the country while the
claim is adjudicated, frequently with little prospect of actually being granted that discretionary
relief. The President, relying on his “broad discretion to suspend the entry of aliens into the United
States,” Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018), and concerned that the status quo
encourages dangerous and illegal border crossings and undermines the integrity of the nation’s
borders, determined that a temporary suspension of entry by aliens who fail to present themselves
for inspection at a port of entry along the southern border is in the nation’s interest. See 8 U.S.C.
§§ 1182(f), 1185(a)(1). In conjunction with that action, the Attorney General and Secretary of
Homeland Security, exercising their statutory authority to establish “additional limitations . . .
under which an alien shall be ineligible for asylum,” id. § 1158(b)(2)(C), and their general
authority and discretion over asylum, id. § 1158(b), issued an interim final rule rendering ineligible
for asylum any alien who enters the country in violation of a proclamation limiting or suspending
entry at the southern border. See 83 Fed. Reg. 55934. The rule provides a process for aliens
covered by the new asylum-eligibility bar who have a reasonable fear of persecution or torture to
seek other forms of protection from removal. Taken together, the rule and proclamation will:
channel asylum seekers to ports of entry, where their claims can be processed in an orderly manner;
deter unlawful and dangerous border crossings; reduce the backlog of meritless asylum claims;
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and assist the President in ongoing diplomatic negotiations with Mexico and other countries
regarding mass migration.
On November 9, 2018, before the suspension of entry became operative or had been
applied to anyone, Plaintiffs—four organizations that provide legal and social services to
immigrants and refugees—filed this suit against the President and Executive Branch agencies and
officials. Plaintiffs allege that the rule and proclamation together unlawfully “bar people from
obtaining asylum if they enter the United States somewhere along the southern border other than
a designated port of arrival.” Compl. ¶ 3. Plaintiffs allege that they must “divert organizational
resources to, among other things, understand[] the new policy” and “train . . . staff,” id. ¶ 84, and
that the rule and proclamation could mean fewer cases and fewer “funding streams” (id. ¶¶ 87, 97)
or more cases and fewer “funding streams” (id. ¶¶ 90-91).
Plaintiffs bring two claims. First, they claim that the rule conflicts with the asylum
statute—in particular, its provision that “[a]ny alien who is physically present in the United States
or who arrives in the United States (whether or not at a designated port of arrival . . . ), irrespective
of such alien’s status, may apply for asylum in accordance with this section or, where applicable,
[8 U.S.C. § 1225(b)],” 8 U.S.C. § 1158(a)(1)—and so is “contrary to law” under the
Administrative Procedure Act (APA). Compl. ¶¶ 101-06; see 5 U.S.C. § 706. Second, they claim
that the rule violates the APA because it was improperly issued without notice and an opportunity
to comment and was published less than 30 days before its effective date. Compl. ¶¶ 108-10; see
5 U.S.C. § 553(b), (c), (d).
The same day they filed suit, Plaintiffs moved for a temporary restraining order preventing
the rule and proclamation from taking effect. On November 19 this Court issued an injunction,
styled as a temporary restraining order, that prohibits Defendants from implementing the rule.
Order, ECF 43. The Court concluded that Plaintiffs had Article III standing to raise their claims
in their own right because they might lose funding streams and that they could raise the claims of
third party aliens not before the Court because they were their clients and could not raise the claims
themselves. Order 8-15. The Court also concluded Plaintiffs satisfied the zone of interests test,
because they were raising their clients’ rights, and aliens abroad seeking asylum were within the
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asylum statute’s zone of interests. Order 16-17. Next, the Court concluded that Plaintiffs were
likely to succeed on the merits of their statutory claim because 8 U.S.C. § 1158(a)(1) prohibited
relying on manner of entry as a basis to find a class of aliens categorically ineligible for asylum.
Order 19-23. The Court also found that Plaintiffs showed serious questions going to the merits of
their notice-and-comment claim. Order 25-29. The Court concluded that Plaintiffs demonstrated
irreparable harm because their putative clients faced harm in Mexico in the form of delays in
processing at ports of entry if they complied with the rule, rather than breaking U.S. law and
crossing the border, because Mexico is dangerous and because aliens were entitled to consideration
of their asylum claims and the rights that attached to such applications. Order 23-32. The Court
held that the organizations themselves suffered irreparable harm because they could not comment
on the rule before it was implemented. Id. And the Court held that the balance of harms favored
Plaintiffs, based on its view that the predictive harms the government sought to avoid were not
sufficiently supported by the rule to outweigh the putative harms Plaintiffs’ clients faced in Mexico
if not allowed to cross the border illegally and apply for asylum on U.S. soil. Order 32-33.
The government filed an emergency appeal and moved to stay the Court’s order. This
Court denied that request on November 30. ECF No. 61. The Ninth Circuit, in a 2-1 decision,
denied a stay on December 7. All three judges rejected this Court’s holding that Plaintiffs have
third-party standing to assert the legal rights of their hypothetical clients or other aliens, Op. 27-
28, and also noted that Plaintiffs’ “clients, of course, would not have standing to assert a right to
cross the border illegally, to seek asylum or otherwise.” Id. 28. But the panel concluded that the
government had not shown that it was likely to succeed in its appeal from the injunction. In the
panel’s view (which included Judge Leavy on this point), Plaintiffs had organizational standing
based on their allegations that the “challenged practices have perceptibly impaired their ability to
provide the services they were formed to provide,” Op. 29, and “will cause them to lose a
substantial amount of funding.” Op. 33. The panel held that Plaintiffs were likely within the
asylum statute’s zone-of-interests because “Congress took steps to ensure that pro bono legal
services of the type that the Organizations provide are available to asylum seekers,” Op. 38 (citing
8 U.S.C. § 1158(d)(4)(A)-(B)), and because “other provisions in the INA give institutions like”
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Plaintiffs “a role in helping immigrants navigate the immigration process.” Id. And because
Plaintiffs satisfied the asylum statute’s zone of interests, they could also raise their “notice-and-
comment” claims. Id. 39-40.
On the merits, the panel agreed with this Court that the rule likely conflicts with
§ 1158(a)(1) because “[t]o say that one may apply for something that one has no right to receive
is to render the right to apply a dead letter.” Op. 45. Although Plaintiffs did not plead an arbitrary-
and-capricious claim, the panel also suggested that the rule “is [also] likely arbitrary and
capricious” because “it conditions an alien’s eligibility for asylum on a criterion that has nothing
to do with asylum itself.” Op. 46; see Op. 46-49. The panel ruled that, based on the record before
it, the government had not satisfied the good-cause or foreign-affairs exceptions to notice-and-
comment rulemaking. Op. 54-60. Finally, the panel concluded that the government failed to show
a likelihood of harm to itself or its goal of preventing “dangerous and illegal border crossing[s]”
sufficient to warrant a stay, Op. 61, observed that the “public interest” factor “favor[s] both sides,”
Op. 62, and agreed with this Court that a “universal” injunction was appropriate. Op. 64.
Plaintiffs now move for a preliminary injunction on the same grounds as their prior motion,
asserting that the rule conflicts with § 1158(a)(1), PI Br. 2-4, and was improperly issued without
notice-and-comment or a 30-day grace period, id. at 4-7; that the rule harms “Plaintiffs, their
clients, and other asylum seekers,” id. at 16; see id. at 16-18; that the balance of harms favors an
injunction, id. at 18-20; and that the Court should enter a universal injunction. Id. at 20-21.
STANDARDS

A preliminary injunction is “an extraordinary and drastic remedy.” Munaf v. Geren, 553
U.S. 674, 689 (2008). A party seeking such relief “must establish that [it] is likely to succeed on
the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Where Plaintiffs raise only APA claims, and
a record has been submitted to the court, the Court’s review of merits issues must be “based on the
record the agency presents to the reviewing court.” Florida Power & Light Co. v. Lorion, 470
U.S. 729, 743-44 (1985). The Court’s function is to assess the lawfulness of the agency’s action
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based on the reasons offered by the agency. Motor Vehicle Manufacturers v. State Farm, 463 U.S.
29, 50, (1983). Thus, the Court may not create a new record for purposes of review of the merits
of the agencies’ decision to promulgate the rule without notice and comment. 5 U.S.C. § 706.1
ARGUMENT
I.
Plaintiffs’ Claims Are Still Not Justiciable.
A. Plaintiffs Have Not Suffered an Injury in Fact and thus Lack Article III Standing.
Plaintiffs cannot show that they have (1) it suffered an “injury in fact” (2) traceable to the
rule; and that (3) it is likely, as opposed to merely speculative that the injury will be redressed by
a favorable decision. See Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S.
167, 180-81 (2000). At the outset, although Plaintiffs and this Court previously relied extensively
on third-party standing, the Ninth Circuit has rejected that basis for standing: “the Organizations
have not identified any cognizable right that they are asserting on behalf of their clients, they do
not have third-party standing to sue.” Op. 27-28. Plaintiffs’ claims thus must rise and fall on their
alleged direct injuries alone.
Plaintiffs allege that they will be injured by the rule either because they will need to divert
resources to assist the asylum seekers they represent, or because their funding will be reduced. See
PI Br. 7-11; Compl. ¶¶ 78-99. Organizations may have standing in some situations where the
organization’s core activities are impaired. See Havens Realty Corp. v. Coleman, 455 U.S. 363,
379 (1982). But, as Defendants have explained, Havens Realty and its progeny do not apply here.
See TRO Opp. 9. Havens Realty standing is limited to situations, unlike that presented here, where
an organization is forced to divert resources to avoid some other cognizable injury to itself. Thus,
in La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083 (9th Cir.
2010), the court held that an organization seeking to allege standing under Havens Realty must
establish, at a minimum, “that it would have suffered some other injury if it had not diverted
resources to counteracting the problem.” Id. at 1088 (emphasis added); see also id. at 1088 n.4
(“an organization may sue only if it was forced to choose between suffering an injury and diverting

1 Simultaneous to this filing, the government is moving to strike various extra-record materials
Plaintiffs purport to rely on to challenge the rule under the APA.
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resources to counteracting the injury”). This understanding accords with the fact that Havens
Realty involved a challenge to conduct that “perceptibly impaired” the plaintiff organization’s own
ability to provide services. Havens Realty, 455 U.S. at 379.
Here, there is no harm to the Plaintiffs’ mission that could confer standing, even if Plaintiffs
will divert resources in response to the rule. Although the Court previously concluded that
Plaintiffs’ mission had been frustrated by the rule and proclamation, Order 11-12, Defendants
respectfully submit that the record does not support that conclusion. Neither the rule nor the
proclamation prevents Plaintiffs from “provid[ing] assistance to asylum seekers,” which is
Plaintiffs’ stated mission. Compl. ¶ 78. In finding standing for the limited purpose of the prior
injunction, the Court pointed to practices of border officials and policies that may make it more
difficult for individuals to seek asylum. Order 11-12. As the Ninth Circuit concluded, however,
those actions are not part of the rule or proclamation that Plaintiffs challenge, and cannot support
organizational standing. Op. 28. And Plaintiffs do not allege, and this Court did not find, that
they cannot maintain funding by assisting asylum seekers who enter the country at a port of entry,
who, as this Court acknowledged, are present at ports of entry in significant numbers. See Order
11. And Plaintiffs remain free to represent any aliens who enter the country illegally. The rule
does not preclude such aliens from applying for withholding of removal or CAT protection, or,
indeed, asylum, not does it prevent Plaintiffs from representing such aliens. In any event,
respondents have no legally protected interest in preventing the federal government from taking
actions that might affect their funding from other sources or not redirecting their efforts or devoting
their own resources to advocating for their client. Thus, any alleged “injury” to Plaintiffs on this
basis derives from their own decisions about what cases they take on. Cf. Clapper v. Amnesty Int’l
USA, 568 U.S. 398, 415-18 (2013). Because Plaintiffs can continue to fulfill their missions of
aiding asylum seekers, they have not identified any cognizable injury in fact based on the
frustration of Plaintiffs’ mission that could satisfy Article III.
Plaintiffs also point to the fact that they must adapt to the new requirements by, for
example, taking the time to understand changes in the law, see, e.g., PI Br. 10-11 (citing
Declaration of Camilla Alvarez ¶¶ 6-7), “revamp[ing] representation strateg[ies]” in legal cases,
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Compl. ¶ 89, and devoting “more hours per case to pursue complex non-asylum relief,” TRO Br.
19-20. But if these sorts of “injuries” were sufficient to confer standing, any legal services or
advocacy organization could proceed in federal court whenever there is a change in the law, simply
because that organization must change its legal strategy and get up to speed on the impact of that
change. Yet courts have repeatedly held that these types of impacts on legal representation are
insufficient to satisfy Article III. See, e.g., Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d
1428, 1434 (D.C. Cir. 1995) (“The mere fact that an organization redirects some of its resources
to litigation and legal counseling in response to actions or inactions of another party is insufficient
to impart standing upon the organization.”).
As Defendants have explained, if Plaintiffs’ allegations were sufficient to establish
standing, then virtually any advocacy organization would have standing to challenge any
government policy or practice with which it disagrees so long as it has spent time or money on
advocacy efforts in response. TRO Opp. 8. Article III requires more, however, and therefore
Plaintiffs lack standing to press their claims.
B. Plaintiffs’ Claims Fall Outside the Statutory Zone of Interests.
Plaintiffs also cannot bring suit because their claims are outside the zone of interests of any
relevant statute. The APA provides a cause of action only to a plaintiff “adversely affected or
aggrieved by agency action within the meaning of a relevant statute.” 5 U.S.C. § 702; see TRO
Br. 9-11. To be “aggrieved,” “the interest sought to be protected by the complainant [must] be
arguably within the zone of interests to be protected or regulated by the statute . . . in question.”
Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 396 (1987) (modifications omitted).
Neither the INA nor the asylum statutes reflect an intent to benefit third-party organizations
like Plaintiffs here, i.e., “nonprofit organizations that provide assistance to asylum seekers.”
Compl. ¶ 78. “[O]n any given claim the injury that supplies constitutional standing must be the
same as the injury within the requisite ‘zone of interests.’” Mountain States Legal Found. v.
Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996). Yet this Court’s prior zone-of-interest analysis
rested on the rights of Plaintiffs’ asylum-seeker clients under the INA. Order 16 (pointing to
“rights of [Plaintiffs’] clients as potential asylum seekers”). This Court did not conclude that
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Plaintiffs’ own alleged injuries fall within the zone of interests of the INA, and it is well-
established that such injuries cannot satisfy that test. See INS v. Legalization Assistance Project
of L.A. Cty., 510 U.S. 1301, 1305 (1993) (O’Connor, J., in chambers); Immigrant Assistance
Project of Los Angeles Cty. v. INS, 306 F.3d 842, 867 (9th Cir. 2002); NWIRP v. USCIS, 325
F.R.D. 671, 688 (W.D. Wash. 2016).
The asylum statutes do not regulate Plaintiffs’ conduct in any way, nor do they create any
benefits for which the Plaintiff organizations themselves might be eligible. TRO Opp. 9-10. And
the INA does not allow Plaintiffs to challenge the denial of asylum to any individual alien or class
of aliens. See 8 U.S.C. § 1252(a)(2)(B)(ii), (a)(5), (b)(9), (e)(3); see infra. At a minimum, then,
the statute reflects Congress’s intent not to allow claims from third-party domestic organizations
like Plaintiffs.2 Indeed, the Plaintiff organizations are not themselves applying for asylum, but
only helping others do so. Nothing in the “text of the relevant provisions [can] be fairly read to
implicate Organizational Plaintiffs’ interest in the efficient use of resources.” NWIRP, 325 F.R.D.
at 688. And, as Plaintiffs acknowledge, asylum is intended to “afford[] protection to individuals
who have a well-founded fear of persecution,” TRO Br. 3; asylum was not created for the benefit
of domestic legal or social services organizations. Because the Plaintiff organizations are
bystanders to the statutory scheme, the (alleged) effects on their resources are outside the statutory
zone of interests. See Legalization Assistance Project, 510 U.S. at 1305.
Although the asylum statute does mention legal representation in 8 U.S.C. § 1158(d)(4),
that subsection is clearly for the benefit of the alien—requiring notice to the alien “of the privilege
of being represented by counsel” in the asylum proceeding—and for the government’s benefit.
See id. § 1158(d)(6) (providing that if the alien has received notice but nonetheless knowingly
makes a frivolous application for asylum, “the alien shall be permanently ineligible for any benefits
under this chapter”). Also, notably, the legal organizations had an even greater statutorily codified

2 The Ninth Circuit considering Defendants’ stay motion concluded otherwise in its preliminary
analysis, Op. 38-40, but Defendants respectfully disagree with that conclusion. TRO Opp. 10.
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role in Legalization Assistance Project, but that did not prevent Justice O’Connor from concluding
that the organizations remained outside the zone of interests. See 510 U.S. at 1305.3
II.
The Rule and Proclamation Are Consistent with the INA.
Plaintiffs argue that the rule violates the INA by denying eligibility for asylum to certain
unlawful entrants.4 PI Br. 4-7. But the rule falls within the Executive’s authority to issue asylum
eligibility requirements and to grant or deny asylum.
The rule—which renders any alien who contravenes a proclamation suspending entry long
the southern border ineligible for asylum—comports with the INA. Section 1158(b)(1) makes a
grant of asylum a matter of the Executive’s discretion, and § 1158(b)(2)(C) authorizes the agency
heads to “establish additional limitations and conditions . . . under which an alien shall be
ineligible for asylum” on top of the six statutory bars on asylum eligibility set forth in
§ 1158(b)(2)(A). 8 U.S.C § 1158(b)(2)(C) (emphasis added). To be sure, that broad delegation of
authority requires that regulatory asylum-eligibility bars be “consistent with” § 1158. Id.
§ 1158(b)(2)(C). But that describes the rule here: Nothing in § 1158 confers a right to asylum
eligibility for aliens who enter in violation of a specific Presidential proclamation governing a
specific border for a specific time in response to a specific crisis, and thus the rule is “consistent
with” the broad discretion conferred by that section to impose an asylum-eligibility bar tailored to
these circumstances.
Against this straightforward analysis, Plaintiffs assert that the agencies may not rely “on
the Attorney General’s discretion, and such a reliance would be a departure from prior practice. PI
Br. 3. But the Board of Immigration Appeals has long taken account of an alien’s manner of entry

3 Despite the Court’s initial finding, nothing about the above analysis changes based on Plaintiffs’
procedural APA claims. See Order 16-17. A plaintiff asserting a violation of the APA’s notice-
and-comment requirements must demonstrate that he comes within the zone of interests protected
by the underlying substantive statute the challenged rule implements. See TRO Opp. 11. Here,
that means Plaintiffs must come within the INA’s zone of interests to bring their claims, premised
on alleged organizational injury only, which they do not for the reasons discussed.
4 As the Court previously noted, Plaintiffs do not actually challenge the President’s authority under
§ 1182(f) or § 1185(a).
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in determining whether to grant asylum in individual cases.5 See Matter of Pula, 19 I. & N. Dec.
467, 473 (BIA 1987) (holding that “manner of entry or attempted entry is a proper and relevant
discretionary factor in adjudicating asylum applications”).
Plaintiffs also suggest that the distinction between applying for and being able to receive
asylum is of no consequence, PI Br. 2-4, but the statute draws a careful distinction between the
two. Indeed, while the Refugee Act of 1980 dealt with the two in a single sub-section, IIRIRA
broke the two into separate sub-sections. Section 1158(a) governs who may apply for asylum,
includes several categorical bars (e.g., an alien present in the country for more than one year may
not apply), 8 U.S.C. § 1158(a)(1), (2)(B), and authorizes the Attorney General to “provide other
conditions or limitations on the consideration of an application for asylum not inconsistent with
this chapter,” id. § 1158(d)(5)(B). Section 1158(b)(1)(A), in turn, authorizes the Attorney General
or the Secretary to “grant asylum to an alien who has applied.” And § 1158(b)(2) specifies six
categories of aliens to whom “[p]aragraph (1)” (i.e., the discretionary authority to grant asylum to
an applicant) “shall not apply.” Any alien falling within one of those categories may apply for
asylum under § 1158(a)(1) but is ineligible to receive asylum under § 1158(b), even though that
would “render the right to apply a dead letter.” See also Nijjar v. Holder, 689 F.3d 1077, 1082
(9th Cir. 2012) (“[f]raud in the application is not mentioned explicitly, but is one of the ‘additional
limitations under which an alien shall be ineligible for asylum’ that the Attorney General is
authorized to establish by regulation”). It therefore is not the case that distinguishing between

5 As the Board has explained, “[a] careful reading of the language of [§ 1158(a)(1)] reveals that
the phrase ‘irrespective of such alien’s status’ modifies only the word ‘alien’ in the first clause of
the sentence.” Matter of Pula, 19 I. & N. Dec. at 473. “The function of that phrase is to ensure
that the procedure established by the Attorney General for asylum applications includes provisions
for adjudicating applications from any alien present in the United States or at a land or port of
entry, ‘irrespective of such alien’s status.’” Id. (collecting cases). Thus, Congress made clear that
aliens like stowaways, who, at the time the Refugee Act was passed, could not avail themselves of
our immigration laws, would be eligible at least to apply for asylum “irrespective of [their] status.”
See id. “The phrase does not apply to the second clause of the sentence, which is independent and
separate from the first clause,” and “contains authorization for the Attorney General to grant
asylum applications at his discretion.” Id. “Thus, while [§ 1158](a) provides that an asylum
application be accepted from an alien ‘irrespective of such alien’s status,’ no language in that
section precludes the consideration of the alien’s status in granting or denying the application in
the exercise of discretion.” Id. at 467.
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applications for asylum, and the exercise of discretion granting asylum, as § 1158(a)(1) itself does,
“render[s] the right to apply a dead letter.” PI Br. 3. Section 1158(a)(1) by its terms requires only
that an alien be permitted to “apply” for asylum, regardless of the alien’s manner of entry. It does
not require that an alien be eligible to receive asylum, regardless of the alien’s manner of entry.
Holding that “the Attorney General could not impose any limitations on asylum eligibility because
any regulation that ‘limits’ eligibility necessarily undermines the statutory guarantee that ‘any
alien . . . irrespective of such alien’s status’ may apply for asylum” would render § 1158(b)(2)(C)’s
delegation “meaningless, disabling the Attorney General from adopting further limitations while
the statute clearly empowers him to do so.” R-S-C v. Sessions, 869 F.3d 1176, 1187 n.9 (10th Cir.
2017).
Plaintiffs’ position thus reduces to the theory that while an alien could be denied asylum
on a case-by-case discretionary basis due to his manner of entry or attempted entry, the government
cannot categorically deny eligibility for asylum simply because an applicant entered between ports.
PI Br. 3 (citing Pula, 19 I. & N. Dec. at 474). But that theory does not withstand scrutiny. First,
Pula merely set forth parameters for deciding whether an alien otherwise eligible for asylum
should receive it as a discretionary matter, and decided that such discretion should be exercised
based on a multifactor totality-of-the-circumstances approach, not a per se rule treating the manner
of entry as disqualifying. 19 I. & N. Dec. at 473. Indeed, as noted above, the BIA concluded that
§ 1158(a) did not bar the categorical exercise of discretion to deny an alien asylum based on his
manner of entry, which was the rule in the years prior to Pula. See Matter of Salim, 18 I. & N.
Dec. 311, 315-16 (BIA 1982). Rather, the BIA in Pula just chose, as a policy matter, to weigh a
broader set of factors when exercising discretion to grant or deny asylum claims. Pula in no way
held that a categorical bar rendering an alien ineligible for asylum based on his manner of entry
would violate the INA, and indeed pre-dated the enactment of § 1158(b)(2)(C), which expressly
authorized the Attorney General to establish additional eligibility bars “by regulation”—i.e., not
on a case-by-case basis. The relevance of Pula is that the BIA has properly treated illegal entry as
a discretionary factor to consider in the context of individualized asylum adjudications for many
years. But nothing in § 1158 forbids the Executive from adopting a categorical eligibility bar—
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particularly given the public-safety and foreign-policy problems posed by this specific subset of
illegal entrants. See Komarenko v. INS, 35 F.3d 432, 436 (9th Cir. 1994). In fact, under Pula,
consideration of illegal entry will at least sometimes tip the scales against asylum—yet Plaintiffs
can provide no explanation how that result is “consistent” with § 1158(a) but the rule here is not.
If § 1158(a) does not prohibit the agency from considering manner of entry on a case-by-case basis
when determining whether to grant asylum under § 1158(b), there is no textual basis to conclude
that it prohibits the agency from considering manner of entry categorically under the express
authority to create categorical bars. See, e.g., Lopez v. Davis, 531 U.S. 230, 243-44 (2001)
(rejecting the argument that the Bureau of Prisons was required to make “case-by-case
assessments” of eligibility for sentence reductions and explaining that an agency “is not required
continually to revisit ‘issues that may be established fairly and efficiently in a single rulemaking’”).
The simple fact is that the ultimate “decision whether asylum should be granted to an eligible alien
is committed to the Attorney General’s [and the Secretary’s] discretion,” INS v. Aguirre-Aguirre,
526 U.S. 415, 420 (1999), and “[u]nder the INA, the term ‘discretion’ does not supplant [the]
general grant of permission for rulemaking,” and “‘discretion’ under section 1158(a) may be
exercised by rules giving fixed weight to a particular factor.” Yang v. INS, 79 F.3d 932, 936-37
(9th Cir. 1996). Indeed, Congress, in enacting 8 U.S.C. § 1158(b)(2)(C), clearly contemplated that
the Attorney General would adopt categorical limitations on asylum eligibility, by authorizing the
imposition of such restrictions “by regulation” and not only case by case. (Emphasis added.)6
Finally, the Court’s prior reliance on international law is misplaced. Order 20-21. The
United States has implemented its “non-refoulement” obligation under the relevant international
agreements by providing for withholding of removal, 8 U.S.C. § 1231(b)(3)(A), see INS v.
Cardoza-Fonseca, 480 U.S. 421, 429 (1987), and protection under the CAT. 8 C.F.R.
§§ 208.16(c), 1208.16(c). Asylum is a discretionary benefit that is not required by any treaty
commitment.7 See, e.g., Mejia v. Sessions, 866 F.3d 573, 588 (4th Cir. 2017) (ineligibility for

6 In Pula, the Board addressed the weight to be given to manner of entry on a case-by-case basis,
in the absence of a regulation governing the subject, and prior to § 1158(b)(2)(C)’s existence.
7 The Ninth Circuit suggested that the Rule may be “arbitrary and capricious” because “it
conditions an alien’s eligibility for asylum on a criterion that has nothing to do with asylum itself.”
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asylum not a “penalty” under Article 31(1)). Moreover, the Court misread the relevant agreements,
which pertain only to penalties imposed on refugees “coming directly from a territory where” they
face persecution, Article 31(1)—and not, for example, the many aliens from the Northern Triangle
countries entering the United States directly from Mexico that the rule seeks to incentivize to stop
breaking the law and seek asylum at ports of entry.
III.
The Rule Satisfies the APA’s Procedural Requirements.

This Court did not resolve the merits of Defendants’ good-cause and foreign-affairs
arguments for issuing the rule without advanced notice-and-comment procedures, Order 24; Stay
Order 6, but concluded that both parties demonstrated serious questions going to the merits, Order
28, 29; Stay Order 6. An injunction cannot be maintained on this basis—the rule was properly
issued as an interim final rule.
First, Defendants properly invoked the foreign-affairs exception, which exempts from
notice-and-comment rulemaking agency actions “linked intimately with the Government’s overall
political agenda concerning relations with another country.” Am. Ass’n of Exporters v. United
States, 751 F.2d 1239, 1249 (Fed. Cir. 1985). As the Departments explained, “[t]he flow of aliens
across the southern border, unlawfully or without appropriate travel documents, directly implicates
the foreign policy interests of the United States.” 83 Fed. Reg. at 55950. The rule and
proclamation directly relate to “ongoing negotiations with Mexico about how to manage our shared
border,” and how to consider asylum claims from nationals of Northern Triangle countries, and
with the Northern Triangle countries to control the flow of their nationals. Id. Importantly, “the
United States and Mexico have been engaged in ongoing discussions of a safe-third-country
agreement”—whereby aliens normally must seek asylum in the first country they enter, rather than
transiting one country to seek asylum in another. Id. By discouraging illegal entry during this
crisis and requiring orderly processing, the rule and proclamation will help “develop a process to
provide this influx with the opportunity to seek protection at the safest and earliest point of transit
possible” and “establish compliance and enforcement mechanisms for those who seek to enter the

Op. 46. But Plaintiffs have not raised that claim, and so this Court cannot premise any injunction
on that ground, which must be viewed as dicta.
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United States illegally, including for those who do not avail themselves of earlier offers of
protection.” Id. These interlocking goals are all “linked intimately with the Government’s overall
political agenda concerning relations with another country.” Am. Ass’n of Exporters, 751 F.2d at
1249. This Court and Plaintiffs err in suggesting that these foreign-affairs consequences are
insufficient and second-guessing them. Order 26-27. Indeed, review under this exception is
particularly deferential. Unlike the good-cause exception under 5 U.S.C. § 553, which includes a
requirement that the agency “incorporate[] the finding [of good cause] and a brief statement of
reasons therefor in the rules issued,” id. § 553(b)(B), there is no requirement of a written record or
any other language that contemplates anything but deferential judicial review: “This section
applies, according to the provisions thereof, except to the extent that there is involved . . . a military
or foreign affairs function of the United States.” Id. § 553(a)(1). Given that Congress was surely
aware of the intrusions that would be required for judicial review over “military or foreign affairs
function[s],” and given that Congress clearly knew how to enable judicial review with respect to
other types of exemptions to the APA’s procedural requirements, it is reasonable to assume that,
at a minimum, Congress did not intend for expansive or searching judicial review into an agency’s
invocation of the “foreign affairs function” exception. That makes eminent sense: here, for
example, notice-and-comment rulemaking would slow and limit the President’s ability to negotiate
with Mexico and Northern Triangle governments, and a “prompt response” is needed to address
the crisis at the southern border. Yassini, 618 F.2d at 1360. The Executive Branch’s choice here—
to require aliens seeking asylum to undergo orderly processing at ports of entry while safely in
Mexico where they could also request asylum—is a “[d]ecision[] involving the relationships
between the United States and its alien visitors” that “implicate[s] our relations with foreign
powers” and “implement[s] the President’s foreign policy.” Id. at 1361. The Court and Plaintiffs
are not positioned to second-guess the Executive Branch’s determination that the rule would
facilitate negotiations and support the President’s foreign policy, and the Attorney General and the
Secretary cannot reasonably be expected to spell out its negotiating strategy in detail in the
administrative record. Cf. Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491,
(1999) (“The Executive should not have to disclose its ‘real’ reasons for deeming nationals of a
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FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

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particular country a special threat—or indeed for simply wishing to antagonize a particular foreign
country by focusing on that country’s nationals—and even if it did disclose them a court would be
ill equipped to determine their authenticity and utterly unable to assess their adequacy”).
Although the Court was wrong to require an evidentiary showing that “undesirable
international consequences would result from following rulemaking procedures,” Order 26, the
record in fact makes that showing. The channeling of aliens to ports of entry itself encourages
Mexico to take account of those aliens and to cooperate with the United States in addressing
unlawful mass migration, a core plank of the President’s foreign-policy agenda that would be
undermined by notice-and-comment rulemaking, given that prior “sustained diplomatic
negotiations . . . regarding the situation on the southern border” have “to date, proved unable to
meaningfully improve the situation.” 83 Fed. Reg. at 55935, 55950-51; see AR 484-91 (President
Trump announcing an upcoming initiative to address the large numbers of people traveling to the
United States through Mexico); AR092-96 (Memorandum of Understanding between the United
States and Mexico). Plaintiffs’ reliance on the opinions of former government officials is not
properly before the Court in an APA case, see 5 U.S.C. § 706, and in any event those opinions are
irrelevant, as the agency heads in the current Administration are entitled to make decisions based
on current information available to them.
Second, this Court’s prior good-cause analysis was flawed. The good-cause exception
applies when “the very announcement of a proposed rule itself can be expected to precipitate
activity by affected parties that would harm the public welfare.” Mobil Oil Corp. v. DOE, 728
F.2d 1477, 1492 (TECA 1983). Significant “threat[s] to public safety” provide good cause to make
rules without pre-promulgation notice and comment. Hawaii Helicopter Operators Ass’n v. FAA,
51 F.3d 212, 214 (9th Cir. 1995). The Departments recognized that pre-promulgation notice and
comment or a delayed effective date “would result in serious damage to important interests” by
encouraging a surge of aliens to enter between ports of entry before the rule took effect and that
such crossings risk the safety of aliens and Border Patrol agents. 83 Fed. Reg. at 55949-50.

This Court (and the Ninth Circuit) accepted that the rule’s purpose of encouraging aliens
to present at ports of entry “makes some intuitive sense.” Order 28; see Op. 56. Yet this Court
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East Bay Sanctuary v. Trump,

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concluded that it must “assess[] the reasonableness of the Rule’s linchpin assumption” through
further proceedings. Order 29. But under the good-cause exception, the government need only
state its reasons for invoking the exception. See 5 U.S.C. § 553(b)(B), (d)(3). That is because this
exception often involves predicting future actions and risks, where courts are ill-equipped to
second-guess the Executive Branch’s prospective judgment. See Holder v. Humanitarian Law
Project, 561 U.S. 1, 34-35 (2010) (“The Government, when seeking to prevent imminent harms in
the context of international affairs and national security, is not required to conclusively link all the
pieces in the puzzle before we grant weight to its empirical conclusion.”). The Court thus does
not conduct an evidentiary hearing to assess the government’s stated reasons ex post; rather, it
evaluates the reasons set forth to determine whether they are arbitrary and capricious. See United
States v. Valverde, 628 F.3d 1159, 1165 (9th Cir. 2010) (stating rule need did not provide a
“rational justification” for good cause). Those reasons are plainly not arbitrary and capricious
given this Court’s acknowledgement that the government’s concern “makes . . . intuitive sense”
and given that rules governing border crossing are often issued under this exception to avoid the
same harms. See 82 Fed. Reg. at 4770; 69 Fed. Reg. 48877.

And even if the Court and Plaintiffs were correct that the government must affirmatively
show through a record that the undesired consequences were likely to occur, the record amply
demonstrates that the behaviors of intending migrants change as policy changes—including
making quick decisions based on perceptions of future policies. See AR 391 (recounting how
smugglers “now tell potential customers the Americans do not jail parents who bring children—
and to hurry up before they might start doing so again”); see also AR 393 (discussing the
correlation between the decline in single adults claiming a fear of persecution and the increase in
parents entering with children claiming a fear of persecution and suggesting this is related to the
fact that single adults are detained during their proceedings while families are not); AR 505-08
(discussing data reflecting motivations for crossing the border illegally and asserting credible fear).
IV.
The Balance of Harm Factors Foreclose Issuing a Preliminary Injunction
An injunction would undermine the Executive Branch’s constitutional and statutory
authority to secure the Nation’s borders, and it invites the very harms to the public that the
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Executive Branch sought to address in the rule and proclamation. The Departments explained that
the rule is urgently needed to discourage aliens from crossing the border illegally, raising meritless
asylum claims, and securing release into the country. In FY2018, 396,579 aliens were
apprehended entering unlawfully between ports of entry along the southern border. 83 Fed. Reg.
at 55948. That is over 1,000 aliens every day—many with families and children—who are making
a dangerous and illegal border crossing rather than properly presenting at a port of entry. And the
rate of aliens asserting a “credible fear” has gone up by 2000% since 2008, from “5,000 a year in
[FY] 2008 to about 97,000 in FY 2018,” while a large majority of these asylum claims are not
meritorious. Id. at 55935, 55946 (of 34,158 case completions in FY2018 that began with a
credible-fear claim, 71% resulted in a removal order, and asylum was granted in only 17%). The
Departments acted to address the “urgent need to deter foreign nationals from undertaking
dangerous border crossings,” especially the “thousands of aliens traveling in groups . . . expected
to attempt entry at the southern border in the coming weeks.” Id. at 55950. The rule explained
that immediate action was warranted for the swift protection of the United States’ southern border,
immigration officers, and the many aliens who die each year crossing the border, see id.,
numbering in the hundreds.8
Plaintiffs dismiss these risks as “vague platitudes,” but these facts are real and indisputable.
See note 8. Plaintiffs also suggest that the number of aliens apprehended entering between ports
of entry “is far lower than in recent years.” PI Br. 18. But the total number of individuals
apprehended has in fact increased since last year,9 and individuals apprehended specifically from
Northern Triangle countries—the very problem the rule seeks to combat—has dramatically
increased. 83 Fed. Reg. at 55944-45; AR 509 (of the 20,784 cases completed in 2018 that
originated from positive credible fear determinations for aliens from El Salvador, Guatemala, and
Honduras, only 1,989 were granted relief—approximately 9.6%). And it is also irrelevant: a

8 U.S. Border Patrol Fiscal Year Southwest Border Sector Deaths (FY 1998 - FY 2017),
https://www.cbp.gov/sites/default/files/assets/documents/2017-Dec/BP%20Southwest%
20Border%20Sector%20Deaths%20FY1998%20-%20FY2017.pdf (294 deaths in FY2017); see
also https://missingmigrants.iom.int/region/americas?region=1422 (368 deaths thus far in 2018).
9 CBP, Southwest Border Migration FY 2019, https://www.cbp.gov/newsroom/stats/sw-border-
migration.
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FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

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central problem that the rule addresses is not just apprehensions overall, but aliens, primarily from
Northern Triangle countries, breaking our laws and then, if caught, filing meritless asylum claims
in order to secure release into the interior. See id. Enjoining the rule thus exacerbates these real
and undeniable harms.
The injunction also constitutes a major and “unwarranted judicial interference in the
conduct of foreign policy.” Kiobel v. Royal Dutch Petroleum, 569 U.S. 108, 116 (2013). The
Executive Branch—tasked with foreign relations—decided to “encourage . . . aliens to first avail
themselves of offers of asylum from Mexico” and is engaging in international negotiations
accordingly. 83 Fed. Reg. at 55950. This Court second-guessed that decision based on conclusory
declarations submitted by Plaintiffs that “asylum seekers experience 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.” Order 30. The Court lacked authority to engage in such second-guessing
premised on risks that any alien whether or not subject to the rule risks by migrating through
Mexico. Indeed, the rule seeks to prevent “needless deaths and crimes associated with human
trafficking and alien smuggling operations” (83 Fed. Reg. 55950) and ensures that aliens in the
United States who are ineligible for asylum will not be returned to countries where they face a
likelihood of persecution or torture. The injunction undermines the separation of powers by
blocking the Executive Branch’s lawful use of its authority to serve these goals and prevents the
Executive from relying on the rule to aid diplomatic negotiations for at least 30 days, a significant
portion of the time the President determined that exigent measures at the southern border were
needed.
In contrast, Plaintiffs have not shown that they themselves face irreparable harm cognizable
under the INA and tied to the rule. They assert that they, “their clients, and other asylum seekers”
will be irreparably harmed if the rule goes back into effect. PI Br. 16. They are mistaken.
First, Plaintiffs may not rely on alleged harms to “their clients” or “other asylum seekers.”
Plaintiffs rely on this Court’s observation that “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
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FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

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from which they have escaped,” requiring them to “choose between violence at the border,
violence at home, or giving up a pathway to refugee status.” PI Br. 17 (quoting Order 30, 32). But
as the Ninth Circuit held in rejecting Plaintiffs’ third-party standing claims, “these harm[s] . . .
[are] not traceable to the challenged Rule, which has no effect on the ability of aliens to apply for
asylum at ports of entry.” Op. 27. And Plaintiffs’ “clients, of course, would not have standing to
assert a right to cross the border illegally, to seek asylum or otherwise.” Op. 28 (“although the
Organizations describe significant hindrances their clients have experienced in applying for
asylum at ports of entry, as well as significant risks their clients may face in towns lining the
country’s southern border, neither of those concerns is at issue in this lawsuit”). And because
Plaintiffs may not demonstrate Article III standing based on alleged harms to their clients or other
asylum seekers, they cannot rely on those allegations to demonstrate irreparable harm. See
Associated Gen. Contractors of California, Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1410
(9th Cir. 1991). Thus, this Court’s reliance on harms to third parties because “Defendants have
not shown serious questions on third-party standing,” Stay Order 7, cannot stand.
Second, the alleged “loss of an opportunity to comment,” PI Br. 17, on a rule is not
sufficient to demonstrate irreparable harm. See Amoco Prod. Co. v. Vill. of Gambell, 480 U.S.
531, 545 (1987) (there could be no presumption of irreparable harm based on violation of a
statutory procedural requirement). A putative procedural violation generally does not produce
irreparable injury because the violation has already occurred and can “be remedied by a decision
on the merits” (such as by requiring the agency to re-do the decision using the proper procedures).
See Elk Associates Funding Corp. v. U.S. Small Bus. Admin., 858 F. Supp. 2d 1, 31 (D.D.C. 2012).
Thus, “irreparable injury cannot stand on procedural violation alone without showing another
actual injury not compensable in money damages.” Am. Ass’n for Homecare v. Leavitt, No. 08-
cv-0992, 2008 WL 2580217, at *5 (D.D.C. June 30, 2008) (collecting cases).
That leaves Plaintiffs’ claim that the rule causes “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.” PI Br. 16. But while such injuries may be sufficient to establish
standing under the Ninth Circuit’s analysis, they fail to demonstrate immediate and irremediable
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East Bay Sanctuary v. Trump,

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harm for purposes of an injunction. See Sampson v. Murray, 415 U.S. 61, 90 (1974) (injuries “in
terms of money, time and energy” insufficient). Plaintiffs’ declarants merely speculate that
recoverable monetary losses will come too late, but such speculation is insufficient. Indeed, even
asylum-ineligible aliens may still apply for withholding of removal and CAT protection, and do
so through the same asylum application process, so it is entirely speculative that this state of affairs
will somehow cause Plaintiffs imminent and irremediable losses. See 83 Fed. Reg. at 55946
(“current backlog of asylum cases exceeds 200,000” and more than 200,000 inadmissible aliens
present themselves for inspection at ports of entry annually (even without the additional incentive
to do so that the rule would create)). Given the large universe of potential clients, any adverse
effect on Plaintiffs’ funding or mission is merely conjuncture at this point.10
Nor can Plaintiffs manufacture injury by spending additional resources in response to the
rule. Plaintiffs have no “legally protected interest,” Gill, 138 S. Ct. at 1929, in not devoting their
own resources to advocating for their clients. See, e.g., Nat’l Taxpayers Union, 68 F.3d at 1434.
And so they cannot demonstrate irreparable harm based on the same alleged injury. Associated
Gen. Contractors, 950 F.2d at 1410. And even if Plaintiffs had a legally protected interest in not
reallocating their resources, any injury to that interest would not be caused by the rule but rather
by Plaintiffs’ own choices in response to the rule; such “self-inflicted injuries” would not be fairly
traceable to the rule, and thus not a harm, let alone an irreparable one, caused by it. See Clapper,
568 U.S. at 416.
V.
Any Interim Relief Must Be Sharply Limited.
Even if Plaintiffs were entitled to any relief, it would have to be strictly limited.

10 The cases Plaintiffs rely on are inapt. PI Br. 16-17. League of Women Voters v. Newby, 838
F.3d 1, 9 (D.C. Cir. 2016), and Open Comms. Alliance v. Carson, 286 F. Supp. 3d 148, 178 (D.D.C.
2017), requires an actual showing that the agencies programs have been “perceptibly impaired.”
Valle del Sol, 732 F.3d at 1018-19, 1029 (9th Cir 2013) and Exodus Refugee Immigration, 165 F.
Supp. 3d at 739 did not address irreparable harm tied to funding at all, but rather addressed whether
constitutional violations may support irreparable harm. Doe v. Trump, 288 F. Supp. 3d 1045, 1082
(W.D. Wash. 2017), involved actual evidence, rather than speculation, that the organizations
would “need to lay-off employees, reduce services, cancel established programs, lose institutional
knowledge, and ultimately lose goodwill with volunteers and community partner.” None of these
cases suggest that bare speculation, absent an actual showing of harm, is sufficient.
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FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

Case No. 3:18-cv-06810-JST

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A. The Court May Not Issue Any Injunctive Relief Impacting Expedited Removal
First, as the Ninth Circuit held, Plaintiffs may not invoke the rights of individual aliens.
Op. 27-28. An injunction premised on such injuries would therefore be inappropriate. See Zepeda
v. INS, 753 F.2d 719, 728 n.1 (9th Cir. 1983). Such aliens may pursue their own claims, but only
in the correct venue—either before the District Court for the District of Columbia in a challenge
to expedited removal or credible-fear procedures or in full removal proceedings before the
immigration courts. See 8 U.S.C. § 1252(a)(5), (b)(9), (e)(3). Indeed, organizations like Plaintiffs
may not pursue such claims with respect to expedited removal procedures, see Am. Immigration
Lawyers Ass’n v. Reno (AILA), 199 F.3d 1352, 1359 (D.C. Cir. 2000), or full removal proceedings,
see J.E.F.M. v. Lynch, 837 F.3d 1026, 1035 (9th Cir. 2016), and the INA carefully circumscribes
the forms of relief available in such proceedings. So it would be especially inappropriate to enter
an injunction that reaches third-party aliens.
Plaintiffs have no answer to this argument and the Ninth Circuit did not address it, given
its other rulings. And although this Court suggested that § 1252(e)(3) did not limit its authority,
that was wrong. First, the Court’s suggestion that it “could simply enjoin the Rule as it amends
asylum eligibility in 8 C.F.R. §§ 208.13, 1208.13,” Order 35, is misplaced, because that Court went
beyond that provision, and also enjoined the rule’s amendment of 8 C.F.R. §§ 208.30(e)(5) and
1208.30(e)(5), which apply exclusively in expedited removal proceedings. Second, it is “clear that
this provision applies to” organizational Plaintiffs’ APA claims. Order 35. Section 1252(e)(3) is
by its terms the sole basis for jurisdiction for any challenge to expedited removal or credible fear
procedures. See 8 U.S.C. §§ 1252(e)(1)(A) (limiting remedies to those authorized by subsequent
provision of § 1252(e)), 1252(e)(3)(A) (providing the exclusive means for judicial review of
determinations under § 1225(b)). Thus, no one, let alone an organizational plaintiff, can invoke 28
U.S.C. § 1331 as grounds for jurisdiction.
And even as to situations where jurisdiction does lie—again, only in the District of
Columbia—relief can extend only to the individual seeking relief that is subject to an expedited
removal order. Congress provided for “judicial review of determinations under section 1225(b)
and its implementation.” 8 U.S.C. § 1252(e)(3)(A). A “determination under section 1225(b) and
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its implementation” is an individual “determin[ation] than an alien . . . is inadmissible” and
“order[ed] . . . removed” or subject to expedited credible-fear screening and the implementation
of those statutory provisions. Id. § 1225(b)(1)(A)(i) & (ii). In other words, the District of
Columbia—and only that court—reviews—and can issue relief that extends only so far as—the
expedited removal determinations of the individuals before that court. AILA, 199 F.3d at 1359
(claim may be brought “by, and only by, aliens against whom the new procedures ha[ve] been
applied”). It is in the context of those “determinations under section 1225(b) and its
implementation” that the court “determin[es] . . .whether . . . a regulation, or a written policy . . .
issued . . . to implement such section . . . is . . . in violation of law.” 8 U.S.C. § 1252(e)(3)(A)(ii).
Thus, if the Court finds that a regulation or policy violates the law, the appropriate relief is to
vacate the expedited removal determination that was issued based on that erroneous policy. Such
an order is then subject to expedited appeal. Id. § 1252(e)(3)(C) & (E). As the D.C. Circuit has
explained, Congress imposed these limits “to cabin judicial review,” and “Congress, having barred
class actions,” did not “intend[] to permit actions on behalf of a still wider group of aliens, actions
in which no class representative appears as a party and the plaintiffs are unconstrained by the
requirements of Federal Rule of Civil Procedure 23.” AILA, 199 F.3d at 1359, 1364.11
Second, the statute precludes injunctive relief. Section 1252(e)(1), which limits the scope
of relief that the Court can provide under § 1252(e)(2) and (3), provides that “[w]ithout regard to
the nature of the action or claim and without regard to the identity of the party or parties bringing
the action, no court may . . . enter declaratory, injunctive, or other equitable relief in any action
pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except
as specifically authorized in a subsequent paragraph of this subsection.” 8 U.S.C. § 1252(e)(1). No
other “subsequent paragraph” of § 1252(e) authorizes courts to enter a preliminary injunction.
Section 1252(e)(3) is silent on this point, so it cannot be read to affirmatively authorize what
§ 1252(e)(1) explicitly forbids. See INS v. Pangilinan, 486 U.S. 875, 883 (1988) (“courts of equity
can no more disregard statutory and constitutional requirements and provisions than can courts of

11 The Court’s prior reliance on M.M.M. ex rel. J.M.A. v. Sessions, 319 F. Supp. 3d 290, 293, 296
(D.D.C. 2018), is thus misplaced, as M.M.M. involved individual plaintiffs and the claims
transferred did not arise from the expedited removal determinations
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East Bay Sanctuary v. Trump,

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law”). Instead, the sole specifically authorized remedy that § 1252(e)(3) affords is a
“determination[]” on the merits—not preliminary equitable relief—regarding the validity of the
policies before it in the context of an individual expedited removal order, 8 U.S.C. § 1252(e)(3)(A),
and an “order” to that effect, id. § 1252(e)(3)(C). That provision, which authorizes a
“determination,” does not “specifically authorize[]” equitable relief. Id. § 1252(e)(1)(A); compare
id. § 1252(e)(4)(B) (specifically authorizing delimited equitable relief in habeas). Importantly, the
number of expedited removals in a year are in the hundreds of thousands, and there is no right
under the Constitution to obtain court consideration of a request to enter the country. In this
context, Congress did not intend for preliminary relief, based on equitable factors, to be obtained
by individual persons subject to expedited removal or for relief to extend beyond that individual
case. Instead, challenges would go forward without interfering with expedited removal until—if
the Supreme Court determines that the issue warrants its attention—there is a final binding
determination that the policy is not lawful. See id. § 1252(e)(3)(D); id. § 1252(f)(1) (only Supreme
Court may “enjoin or restrain the operation of the provisions” implementing removal).12
B. The Court Cannot Enjoin Operation of the Rule under the APA
If this Court were to ultimately hold that the government exceeded its authority or needs to
engage in notice-and-comment rulemaking, the remedy—after a determination on the merits—
would be to remand to the agencies for a rulemaking consistent with the Court’s order. At this

12 Even were § 1252(e)(3) not clear, it “must be read in [its] context and with a view to [its] place
in the overall statutory scheme.” Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989).
The legislative history of IIRIRA, which added § 1252 and established expedited removal, shows
that Congress generally intended that only “the Supreme Court [has the authority] to enjoin the
operation” of the expedited removal scheme and its implementation. H.R. Rep. No. 104-469(I),
“Immigration in the National Interest Act of 1995” (Mar. 4, 1996). The limitations on relief “do
not preclude challenges to . . . new procedures, but the procedures will remain in force while such
lawsuits are pending.” Id. “[S]ingle district courts or courts of appeal do not have authority to
enjoin” such procedures but may only “issue injunctive relief pertaining to the case of an individual
alien.” Id.; see also 8 U.S.C. § 1252(f)(1). It would make no sense for Congress to have precluded
injunctive relief in this way in the general scheme, to reiterate that restriction on equitable relief in
(e)(3), and to also expressly bar class actions, only to then nonetheless permit, with no clear
statement, broad injunctive remedies that extended beyond the individual seeking relief in the
expedited removal scheme under § 1252(e)(3), where Congress sought to limit court involvement
the most given the need for border operations to be unimpeded.
Case 3:18-cv-06810-JST Document 87 Filed 12/12/18 Page 32 of 36

DEFENDANTS’ OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

Case No. 3:18-cv-06810-JST

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intermediate stage, the APA itself provides that the Court may, “to the extent necessary to prevent
irreparable injury,” only “preserve [the] status or rights [of plaintiffs] pending conclusion of the
review proceedings.” 5 U.S.C. § 705. That provision does not “confer authority to grant relief”
beyond the narrow confines of permitting appellate courts “to issue appropriate writs in aid of
[their] jurisdiction.” Sampson, 415 U.S. at 69, 73, & n.15; cf. Nat’l Mining Assoc. v. U.S. Army
Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir.1998) (allowing permanent injunction but only after
decision on the merits). In allowing preliminary injunctions only “to the extent necessary to
prevent irreparable injury,” the APA thus codifies the principle that preliminary injunctions are
not designed to “enjoin all possible breaches of the law,” but rather to “remedy the specific harms”
allegedly suffered by plaintiffs. Zepeda, 753 F.2d at 728 n.1.
Plaintiffs’ contrary arguments are misplaced. Regents of the Univ. of California v. DHS,
908 F.3d 476, 511 (9th Cir. 2018), involved a claim that government action was arbitrary and
capricious; no such claim is presented here, and Regents is the subject of a pending petition for
certiorari. Nat’l Mining Ass’n, 145 F.3d at 1409, addresses a permanent injunction after decision
on the merits on an APA claim. Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir.
2007), was reversed on other grounds after the Supreme Court granted certiorari on the scope-of-
relief question. And Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), and Washington v.
Trump, 847 F.3d 1151, 1167 (9th Cir. 2017), did not involve APA claims and where either reversed
on other grounds (Hawaii) or mooted by a subsequent executive order (Washington).
C. The Court May Not Issue a Nationwide Injunction
Finally, even if some sort of preliminary relief were appropriate, the Court lacks authority
to enjoin the rule’s application nationwide as Plaintiffs request. PI Br. 20-21. Article III and
equitable principles require that relief be no broader than necessary to redress the Plaintiffs’
injuries. Under Article III, “[a] plaintiff’s remedy must be tailored to redress the plaintiff’s
particular injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). And the rule in equity is that
injunctions “be no more burdensome to the defendant than necessary to provide complete relief to
the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). Indeed,
nationwide injunctions “did not emerge until a century and a half after the founding,” and they
Case 3:18-cv-06810-JST Document 87 Filed 12/12/18 Page 33 of 36

DEFENDANTS’ OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

Case No. 3:18-cv-06810-JST

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“take a toll on the federal court system—preventing legal questions from percolating through the
federal courts, encouraging forum shopping, and making every case a national emergency for the
courts and for the Executive Branch.” Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring). And
such injunctions mean a plaintiff need only win once to stop a national law or policy—but the
government needs to win every case. Cf. United States v. Mendoza, 464 U.S. 154, 158-64 (1984).
Plaintiffs insist that a nationwide injunction is appropriate because to hold otherwise would
give their “clients special rights” in the form of their injunction. PI Br. 21. But that is how any
injunctive relief works—the parties to the case are bound, and thus have rights different from the
public at large. But more to the point, given the Ninth Circuit’s decision, Plaintiffs cannot rely on
any injuries to third parties, since they lack standing to assert claims based on them, Op. 27-28,
and so, contrary to this Court’s prior order, any remedy may not be premised on “the rights of their
asylum seeker clients.” Order 34. There is thus no concern of “undermin[ing] the uniformity of
the immigration laws,” as any injunction must “be tailored to redress” Plaintiffs’ particular alleged
resource-allocation harms, the only injuries they have standing to seek a remedy for. See Gill, 138
S. Ct. at 1934.13 Accordingly, any injunction must be limited to Plaintiffs actual, bona fide clients,
which to date they have failed to identify. Op. 28 (“the Organizations do not assert third-party
standing on behalf of any client who entered the country” affected by the rule). And to the extent
that Plaintiffs assert funding harms premised on applications they might file in the future on behalf
of illegal entrants, they would not have “standing to assert a right to cross the border illegally, to
seek asylum or otherwise” on behalf of aliens any more than the aliens themselves would, Op. 29,
and may not assert a right to the entry of a third-party alien premised on the fact that their business-
model depends on those aliens breaking the law. See, e.g., Initiative & Referendum Inst. v. Walker,
450 F.3d 1082, 1093 (10th Cir. 2006); Jadeja v. Redflex Traffic Sys., Inc., 764 F. Supp. 2d 1192,
1196 (N.D. Cal. 2011). So any injunctive relief cannot remedy such a non-cognizable “harm.”
CONCLUSION
For these reasons, the Court should deny the motion for a preliminary injunction.

13 Even if there was a concern of uniformity, it is unfounded: the petition for review procedure
countenances dis-uniformity writ large, as 11 different circuit courts address immigration issues
on a case-by-case basis, such that the law is inconsistent by design.
Case 3:18-cv-06810-JST Document 87 Filed 12/12/18 Page 34 of 36

DEFENDANTS’ OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

Case No. 3:18-cv-06810-JST

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Respectfully submitted,

JOSEPH H. HUNT
Assistant Attorney General

SCOTT G. STEWART
Deputy Assistant Attorney General

AUGUST E. FLENTJE
Special Counsel

WILLIAM C. PEACHEY
Director

By: /s/ Erez Reuveni
EREZ REUVENI
Assistant Director
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 307-4293
Email: Erez.R.Reuveni@usdoj.gov

PATRICK GLEN
Senior Litigation Counsel

JOSEPH DARROW
FRANCESCA GENOVA
KATHRYNE GRAY
CHRISTINA P. GREER
BENTON YORK
Trial Attorneys

Dated: December 12, 2018

Attorneys for Defendants

Case 3:18-cv-06810-JST Document 87 Filed 12/12/18 Page 35 of 36

DEFENDANTS’ OPPOSITION TO MOTION
FOR PRELIMINARY INJUNCTION
East Bay Sanctuary v. Trump,

Case No. 3:18-cv-06810-JST

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CERTIFICATE OF SERVICE

I hereby certify that on December 12, 2018, I electronically filed the foregoing document
with the Clerk of the Court for the United States Court of for the Northern District of California
by using the CM/ECF system. Counsel in the case are registered CM/ECF users and service will
be accomplished by the CM/ECF system.

By: /s/ Erez Reuveni

EREZ REUVENI

Assistant Director

United States Department of Justice

Civil Division

Case 3:18-cv-06810-JST Document 87 Filed 12/12/18 Page 36 of 36

[PROPOSED] ORDER
East Bay Sanctuary v. Trump,

Case No. 1:18-cv-06810-JST

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Case 3:18-cv-06810-JST Document 87-1 Filed 12/12/18 Page 1 of 2

[PROPOSED] ORDER
East Bay Sanctuary v. Trump,

Case No. 1:18-cv-06810-JST

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Before the Court is the
motion for a preliminary injunction. Having reviewed
the motion,
IT IS HEREBY ORDERED that the
motion is DENIED.
Issued this ____ day of ________________________, 2018.

________________________
United States District Judge
Case 3:18-cv-06810-JST Document 87-1 Filed 12/12/18 Page 2 of 2

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Opposition Brief — East Bay Sanctuary v. Trump

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