Reply ISO Motion for Preliminary Injunction — East Bay Sanctuary v. Trump

Record facts

N.D. Cal. · No. 3:18-cv-06810-JST · Doc. 92 · 2018-12-14 · Docket on CourtListener

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Jennifer Chang Newell (SBN 233033)                    
Cody Wofsy (SBN 294179) 
Spencer Amdur (SBN 320069) 
Julie Veroff (SBN 310161) 
ACLU FOUNDATION  
IMMIGRANTS’ RIGHTS PROJECT 
39 Drumm Street 
San Francisco, CA 94111 
T: (415) 343-0770 
F: (415) 395-0950 
jnewell@aclu.org 
cwofsy@aclu.org 
samdur@aclu.org  
jveroff@aclu.org 
 
 
Lee Gelernt* 
Judy Rabinovitz*  
Omar C. Jadwat* 
Celso Perez (SBN 304924) 
ACLU FOUNDATION 
IMMIGRANTS’ RIGHTS PROJECT 
125 Broad Street, 18th Floor 
New York, NY 10004 
T: (212) 549-2660 
F: (212) 549-2654 
lgelernt@aclu.org 
jrabinovitz@aclu.org  
ojadwat@aclu.org 
cperez@aclu.org 
 
 
Attorneys for Plaintiffs (Additional counsel listed on following page) 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
 
East Bay Sanctuary Covenant, et al.,  
 
Plaintiffs, 
 
v. 
 
Donald J. Trump, President of the United States, et 
al., 
 
Defendants. 
 
  
Case No.: 18-cv-06810-JST 
 
 
REPLY IN SUPPORT OF MOTION 
FOR PRELIMINARY INJUNCTION 
   Hearing: December 19, 2018, 9:30 a.m. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Melissa Crow* 
SOUTHERN POVERTY LAW CENTER 
1666 Connecticut Avenue NW, Suite 100 
Washington, D.C. 20009 
T: (202) 355-4471 
F: (404) 221-5857 
melissa.crow@splcenter.org 
 
Mary Bauer* 
SOUTHERN POVERTY LAW CENTER 
1000 Preston Avenue 
Charlottesville, VA  22903 
T:  (470) 606-9307 
F:  (404) 221-5857 
mary.bauer@splcenter.org 
 
 
 
 
 
 
 
Attorneys for Plaintiffs 
 
*Admitted pro hac vice 
 
Baher Azmy* 
Angelo Guisado* 
Ghita Schwarz* 
CENTER FOR CONSTITUTIONAL RIGHTS 
666 Broadway, 7th Floor 
New York, NY 10012 
T: (212) 614-6464 
F: (212) 614-6499 
bazmy@ccrjustice.org 
aguisado@ccrjustice.org 
gshwartz@aclu.org 
 
Christine P. Sun (SBN 218701) 
Vasudha Talla (SBN 316219) 
AMERICAN CIVIL LIBERTIES UNION 
FOUNDATION OF NORTHERN 
CALIFORNIA, INC. 
39 Drumm Street 
San Francisco, CA 94111 
T: (415) 621-2493 
F: (415) 255-8437 
csun@aclunc.org 
vtalla@aclunc.org 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Reply ISO Motion for Preliminary Injunction 1 
Case No. 18-cv-06810 
 
INTRODUCTION 
 
Both this Court and the Ninth Circuit have already held that Plaintiffs have standing and are 
likely to succeed on the merits, and that the rule should be enjoined in full.  See East Bay Sanctuary 
Covenant v. Trump, 2018 WL 6428204 (9th Cir. Dec. 7, 2018) (hereinafter CA9 Op.); TRO Order.  
The administrative record offers nothing to disturb those conclusions, and the government has not 
submitted any additional evidence.  
 
Congress long ago determined that an individual’s manner of entry should not categorically 
bar her from asylum in the United States.  Unsatisfied with that determination, “the Executive has 
attempted an end-run around Congress,” CA9 Op. *17, and has done so in a way that causes 
irreparable harm to Plaintiffs and threatens the safety of thousands of individuals seeking refuge 
from persecution.  But, as the Ninth Circuit observed, just as judges “may not . . . ‘legislate from the 
bench,’ neither may the Executive legislate from the Oval Office.”  Id.1 
I. PLAINTIFFS’ CLAIMS ARE JUSTICIABLE 
 
This Court and the Ninth Circuit have held this case is justiciable, and the government has 
not adduced new evidence on that issue.  The government simply reiterates its legal arguments that 
Plaintiffs cannot establish standing under Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), or 
an economic-loss theory, see Opp. 5, but that position is foreclosed by the Ninth Circuit’s decision, 
see CA9 Op. *10-12.2   
 
First, as the Ninth Circuit and this Court recognized, the Rule plainly frustrates Plaintiffs’ 
mission.  See id. at *11 (recognizing frustration of certain Plaintiffs’ “mission of providing legal aid 
‘to affirmative asylum applicants who have entered’ the United States between ports of entry, 
                                          
1 Plaintiffs advise the Court that the government sought a stay in the Supreme Court on Tuesday December 11, 2018.  
That stay application remains pending. 
 
2 Plaintiffs respectfully disagree with the Ninth Circuit’s conclusion that they do not have third-party standing to sue, see 
CA9 Op. *10, and preserve the argument for appeal.  See Motion for Preliminary Injunction (“Mot.”) at 11-12. 
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because the Rule significantly discourages a large number of those individuals from seeking asylum 
given their ineligibility”); TRO Order 11 (holding Plaintiffs’ “mission has been frustrated in 
numerous cognizable ways”); see also Mot. 9 (citing Plaintiff declarations).  Plaintiffs “have also 
offered uncontradicted evidence that enforcement of the Rule has required, and will continue to 
require, a diversion of resources, independent of expenses for this litigation, from their other 
initiatives.”  CA9 Op. *11.  For example, Plaintiffs must develop new training materials, retrain 
staff, conduct detailed screenings for alternative forms of relief, “submit a greater number of 
applications for family-unit clients who would have otherwise been eligible for asylum,” and 
undertake new education and outreach initiatives, all of which require a diversion of resources away 
from core organizational services.  Id.; see also Mot. 10-11 (citing declarations).  The Ninth Circuit 
has repeatedly held that these types of impacts are sufficient to satisfy Article III.  See Mot. 11 
(collecting cases).  
 
Second, Plaintiffs have shown that “the Rule will cause them to lose a substantial amount of 
funding.”  CA9 Op. *12; Mot. 8 (citing declarations); ECF No. 82-1 (Amicus States) at 8-9.  
Contrary to the government’s claim, see Opp. 6, Plaintiff EBSC has submitted unrebutted evidence 
that they cannot maintain this funding by assisting asylum seekers who enter the country at ports of 
entry.  See ECF No. 71-10 (explaining why EBSC cannot represent asylum seekers who enter at 
ports); Mot. 9. 
 
Because of these injuries, the Ninth Circuit held that Plaintiffs also have Article III standing 
to challenge the absence of notice-and-comment procedures.  CA9 Op. *12 n.8; see also, e.g., ECF 
No. 35-10 ¶¶ 3-7; ECF No. 35-6 ¶¶ 2-4.  The government offers no basis to hold otherwise. 
 
The Ninth Circuit further held that Plaintiffs’ claims fall within the INA’s zone of interests.  
CA9 Op. *12-14.3  The government provides no basis to revisit that conclusion.  The law is clear 
                                          
3 For purposes of Plaintiffs’ APA notice-and-comment claim, the Ninth Circuit held that because Plaintiffs “are within 
the zone of interests protected by the INA,” they “may challenge the absence of notice-and-comment procedures . . . .”  
 
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Reply ISO Motion for Preliminary Injunction 3 
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that a statute need not create a benefit for a plaintiff, nor even that there be “any ‘indication of 
congressional purpose to benefit the would-be plaintiff.’”  Match-E-Be-Nash-She-Wish Band of 
Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 & n.7 (2012).  “[I]t is sufficient that the 
Organizations’ asserted interests are consistent with and more than marginally related to the 
purposes of the INA.”  CA9 Op. *13.  
II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS 
A. The Rule Violates the INA.  
 
As this Court and the Ninth Circuit have held, Plaintiffs are “likely to succeed on their claim 
that the Rule together with the Proclamation is inconsistent with 8 U.S.C. § 1158(a)(1).”  CA9 Op. 
*15.  Defendants’ recycled arguments, see Opp. 9-13, do nothing to undermine this conclusion.  
They continue to suggest that a categorical eligibility limitation established pursuant to 8 U.S.C. 
§ 1158(b)(2)(C) cannot violate § 1158(a)(1) because § 1158(a)(1) addresses only the right to apply 
for asylum, not eligibility for asylum.  But that reading of the statute was properly rejected by this 
Court and the Ninth Circuit.  As the Ninth Circuit explained: “It is the hollowest of rights that an 
alien must be allowed to apply for asylum regardless of whether she arrived through a port of entry if 
another rule makes her categorically ineligible for asylum based on precisely that fact. . . .  The 
technical differences between applying for and eligibility for asylum are of no consequence to a 
refugee when the bottom line—no possibility of asylum—is the same.”  CA9 Op. *15; see also TRO 
Order 21 (similar).   
 
Moreover, the government’s suggestion that a § 1158(b)(2)(C) limitation necessarily cannot 
be inconsistent with § 1158(a)(1) because the former governs eligibility and the latter governs 
applications is at odds with the plain text of the statute and is foreclosed by the Ninth Circuit, which 
affirmed this Court’s analysis.  See CA9 Op. * 15 (Section 1158(b)(2)(C) permits “‘additional 
                                                                                                                                             
CA9 Op. *14.  Plaintiffs preserve the argument that even parties who are not within a substantive statute’s zone of 
interests may still satisfy the zone of interests for an APA notice-and-comment claim.  See Mot. 15-16 & n.3; TRO 
Reply at 5 n.4.  
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limitations and conditions’ . . . only when ‘consistent’” with § 1158, but “the Attorney General’s rule 
of decision is inconsistent with § 1158(a)(1).”).4 
 
Defendants’ reliance on the Attorney General’s discretion and Lopez v. Davis, 531 U.S. 230 
(2001), see Opp. 12, is likewise foreclosed, as both this Court and the Ninth Circuit have rejected it.  
CA9 Op. *16 n.13; TRO Order 21. 
 
Finally, the government accuses the Court of “misread[ing]” Article 31(1), arguing without 
any citation that Article 31(1) does not protect individuals who transit through a third country before 
seeking asylum.  Opp. 13.  But the Ninth Circuit agreed with this Court’s analysis.  See CA9 Op. 
*16.  And as amicus curiae Office of the United Nations High Commissioner for Refugees explains, 
“Article 31(1)’s protections are available to refugees who have arrived in a State from their country 
of origin after transiting through a third state.”  ECF No. 81-1 at 13 n.4 (citing decisions from other 
nations’ courts). 
B. The Rule Violates the APA’s Procedural Requirements.  
 
This Court and the Ninth Circuit both rejected the invocation of the good cause and foreign 
affairs exceptions.  See CA9 Op. *19-20; TRO Order 25-29.  Both also invited the government to 
adduce evidence in support of those exceptions.  See CA9 Op. *19-20; TRO Order 27, 29.  The 
government submitted the administrative record, but no other evidence.  Therefore, the only open 
question with regard to these exceptions is whether they are justified in light of the administrative 
record.  Nothing in the administrative record remotely supports either exception. 
 
1.  Unlike in Yassini v. Crosland, 618 F.2d 1356 (9th Cir. 1980), where the government 
submitted affidavits from high-level officials in support of the foreign affairs exception, id. at 1361, 
here, the government points only to the Rule itself and two documents in the administrative record 
                                          
4 As this Court previously recognized, Plaintiffs “do not argue that the Attorney General cannot adopt any limits that 
render ineligible aliens who are authorized to apply for asylum.”  TRO Order 21 n.16.  Rather, they simply argue that the 
Attorney General cannot impose a categorical bar predicated on a factor that Congress singled out as one that does not 
affect the right to seek asylum.  Yet Defendants continue to invoke this strawman argument.  See Opp. 11.     
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Reply ISO Motion for Preliminary Injunction 5 
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that are of no help, see Opp. 15.   
 
First, the government points to the Rule’s assertion that the foreign affairs exception applies, 
83 Fed. Reg. at 55950-51, and a sentence in the Rule that states: “The United States has been 
engaged in sustained diplomatic negotiations with Mexico and the Northern Triangle countries . . . 
regarding the situation on the southern border, but those negotiations have, to date, proved unable to 
meaningfully improve the situation,” id. at 55935.  But both this Court and the Ninth Circuit already 
considered the preamble to the Rule, so the government’s argument that it justifies the exception is 
foreclosed.  See CA9 Op. *18-20; TRO Order 25-28.  Indeed, the Rule says nothing to support the 
claim that adhering to notice-and-comment procedures would undermine negotiations with Mexico 
or the Northern Triangle countries. 
 
Second, the government points to remarks made by President Trump just before 
announcement of the Proclamation and Rule.  See Opp. 15 (citing AR 484-91).  But those remarks 
include nothing about the impact of a new policy on negotiations with Mexico or the Northern 
Triangle countries, let alone the impact of complying with the APA requirements.5 
 
Third, the government points to a 2004 Memorandum of Understanding between the United 
States and Mexico regarding the repatriation of Mexican nationals, see Opp. 15 (citing AR 92-96), 
but offers no explanation as to its relevance, and none is apparent.  That the United States once 
successfully negotiated with Mexico regarding migration provides no evidence that immediate 
publication of the current Rule was necessary to avoid undesirable international consequences. 
 
Because the government still has not explained “how immediate publication of the Rule . . .  
is necessary for negotiations with Mexico,” CA9 Op. *19, the facts are as they were before the Ninth 
Circuit.  The result must therefore be the same.6 
                                          
5 In fact, President Trump’s remarks suggested that Mexico already was endeavoring to assist the United States with the 
influx of migrants.  See AR 485 (“The government of Mexico has generously offered asylum, jobs, education, and 
medical care for people within the caravan . . . .  Mexico has agreed to take them in and encouraged them to stay.”). 
6 The record before the Ninth Circuit did not include the Joint Declaration of Former Government Officials submitted in 
 
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Reply ISO Motion for Preliminary Injunction 6 
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2.  With regard to the good cause exception, the government urges the Court to limit its 
consideration to the reasons stated in the Rule, see Opp. 16, but doing so is of no benefit to 
Defendants.  The stated reasons were already held insufficient to show good cause when this 
question was previously before this Court and the Ninth Circuit.7 
 
The government points to two documents in the administrative record, see Opp. 16, but 
neither bolsters the asserted justification.  The first, a news article, states that smuggling guides in 
Central America “now tell potential customers the Americans do not jail parents who bring 
children—and to hurry up before they might start doing so again.”  AR 391.  But that statement does 
not demonstrate that migrants actually altered their behavior in response to the alleged change to the 
family separation policy.  In addition, the statement was about a very different policy, and so does 
not show that asylum seekers would know about or alter their behavior in response to an 
announcement regarding the availability of asylum to those who cross between ports.  The article 
also suggests that the decline in single adults claiming fear of persecution and the increase in parents 
coming with children is related to the fact that families are not detained long-term.  AR 393.  But, 
again, the new Rule has nothing to do with detention, so whatever effect a change in detention policy 
may have had on the evolving demographics of asylum seekers—a change that unfolded over many 
years, not overnight, see AR 97—it is not evidence that migrants will learn of and be able and likely 
to respond within a short window of time to the announcement of an upcoming change to the 
availability of asylum based on manner of entry.   
 
As to the second document, a set of credible fear origin data from November 2018, see AR 
                                                                                                                                             
support of Plaintiffs, ECF No. 71-4.  As Plaintiffs will explain in their Opposition to Defendants’ Motion to Strike Extra-
Record Evidence, ECF No. 88, the Court can consider this evidence.  Yet, as argued above, Defendants’ invocation of 
the foreign affairs exception fails even if the Court looks only to the Rule and/or the administrative record.  
 
7 The government’s continued reference to prior interim final rules issued under the good-cause exception is misguided. 
As the Ninth Circuit recently underscored: “Because good cause is determined on a case-by-case basis, based on the 
totality of the factors at play, prior invocations of good cause to justify different IFRs—the legality of which are not 
challenged here—have no relevance.”  California v. Azar, No. 18-15144 (9th Cir. Dec. 13, 2018), slip op. at 26 (internal 
quotation marks and citations omitted).  
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505-508, it contains nothing that would bear on the impact of a pre-implementation announcement 
or comment period.  See also TRO Order 29 (noting that some migrants cross between ports because 
of “lack of awareness of entry requirements or . . . imminent necessity”).  
 
As the Ninth Circuit explained, “the Government’s contention that the ‘very announcement 
of the Rule itself would give aliens a reason to ‘surge’ across the southern border in numbers greater 
than is currently the case” is an “inference too difficult to credit.”  CA9 Op. *20.  Because the 
government still cannot provide any “plausible support” for its asserted justification, United States v. 
Valverde, 628 F.3d 1159, 1166 (9th Cir. 2010), and continues to offer nothing more than 
“conclusory speculative harms,” id. at 1167, the Ninth Circuit’s opinion requires the rejection of the 
government’s arguments.  
III. THE BALANCE OF THE EQUITIES SHARPLY FAVORS PLAINTIFFS 
 
This Court and the Ninth Circuit concluded, based on the TRO record, that Plaintiffs are 
likely to suffer irreparable harm absent injunctive relief.  TRO Order 31-32; CA9 Op. *21.  The 
government has offered no evidence to rebut Plaintiffs’ initial showing at the TRO stage, much less 
evidence to rebut the additional declarations submitted by Plaintiffs with their preliminary injunction 
motion, which further demonstrate that the Rule has caused and likely will continue to cause them to 
suffer economic loss, frustration of mission, and diversion of resources—harms that are not able to 
be remedied after the fact.  Mot. 16-17.  Thus, the prior decisions control this issue as well.8    
                                          
8 Defendants’ efforts to distinguish the cases Plaintiffs cite are inapt.  See Opp. 20 n.10.  Just like the plaintiffs in Open 
Comms. Alliance v. Carson, 286 F. Supp. 3d 148, 177-78 (D.D.C. 2017), Plaintiffs have submitted declarations 
explaining the ways in which the Rule frustrates their ability to carry out their mission, perceptibly impairs their 
programs, and requires them to divert resources away from other services to address the Rule’s impact.  Valle del Sol, 
Exodus Refugee Immigration, and Doe were all previously briefed to either this Court or Ninth Circuit.  They do not help 
the government.  Valle del Sol concluded that the organizational plaintiffs showed “ongoing harms to their organizational 
missions as a result of the statute.”  732 F.3d at 1029.  And the district court in Exodus Refugee Immigration explained 
that “Exodus still could demonstrate irreparable harm based on temporary loss of funds.”  165 F. Supp. 3d at 739 
(“Although the funding denied to Exodus could ultimately be reimbursed, Exodus has presented evidence that, in the 
interim, its organizational objectives would be irreparably damaged by its inability to provide adequate social services to 
its clients.  This . . . provides another basis to conclude that Exodus has made the necessary showing on [irreparable 
harm].”).  Finally, in Doe v. Trump, the district court found irreparable harm to the organizational plaintiffs based on 
their “claim that they will need to lay-off employees, reduce services, cancel established programs, lose institutional 
 
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Nor have Defendants offered evidence indicating that this Court, and the Ninth Circuit, were 
wrong to conclude they will not be irreparably injured by a preliminary injunction, see CA9 Op. *21; 
TRO Order 32-33, which would maintain the carefully reticulated asylum scheme Congress erected 
nearly 40 years ago, and is clearly in the public interest.  Defendants again invoke the FY18 
apprehension numbers discussed in the Rule, see Opp. 17; 83 Fed. Reg. at 55944, but those figures 
previously failed to persuade this Court and the Ninth Circuit.9  Perhaps that is why the government 
ultimately admits that the total apprehension numbers are “irrelevant.”  Opp. 17.  The government’s 
true purpose, it now seemingly concedes, is to deter Central American asylum seekers specifically.  
Id. at 18.  But the fact that the number of individuals from the Northern Triangle asserting a credible 
fear of persecution has gone up in recent years merely reflects the basic premise of the refugee 
system: when more people are subject to persecution in their home countries, more people will flee 
in search of safety.  See ECF No. 35-9 ¶ 8. 
 
As the administrative record makes clear, the Northern Triangle is “one of the most violent 
regions in the world today.”  AR 156.  “For millions of people” in those countries, “trauma, fear and 
horrific violence are dominant facets of daily life.”  Id.; see also ECF No. 35-7; ECF No. 71-4 ¶ 5b.  
It therefore makes eminent sense that the Northern Triangle countries gave rise to the second, third, 
and fourth most asylum grants in FY16 and FY17.  AR 331.10  Until now, individuals who crossed 
                                                                                                                                             
knowledge, and ultimately lose goodwill with volunteers and community partners.”  288 F. Supp. 3d 1045, 1082 (W.D. 
Wash. 2017) (emphasis added).  Plaintiffs have adduced similar evidence, see Mot. 16, and it likewise should be 
credited. 
 
9 Indeed, the number of apprehensions between ports was higher in FY2016, FY2014, FY2013, and every year from 
FY2010 through FY1973.  See AR 301; see also ECF No. 8-2 ¶¶ 3-5.  At the same time, U.S. Customs and Border 
Protection’s budget and staffing have doubled.  ECF No. 8-2 ¶¶ 6-7.  See also ECF No. 78-2 (Amicus 23 Organizations) 
at 3-5. 
 
10 Furthermore, the government’s claim that only 17% of CFI-origin cases end in grants of asylum is inaccurate—and 
almost certainly a substantial underestimate—because most CFI-origin cases, even including all cases begun over the last 
10 years, are still pending. Compare AR 442 (354,356 CFI-origin cases initiated in FY 2008-2018) with 83 Fed. Reg. 
55945 (203,569 remained pending as of November 2, 2018).  The cases that have already been decided—the ones the 
government is relying on—are disproportionately removals because the immigration courts are able to issue removal 
orders quickly but often take years to grant relief.  That, in turn, is because removal orders can be issued without 
 
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between ports were never categorically denied asylum based only on their manner of entry, even 
during previous years with high numbers of Central American asylum seekers.  See AR 97.  The 
government provides no reason why a preliminary injunction maintaining Congress’s longstanding 
asylum scheme will cause them irreparable injury.11      
 
As to the government’s invocation of the separation of powers, the Ninth Circuit already held 
that that claim does not alone constitute an irreparable injury.  See CA9 Op *21.  Moreover, “if there 
is a separation-of-powers concern here, it is between the President and Congress, a boundary that 
[courts] are sometimes called upon to enforce.”  Id. at *17; see also TRO Order 32; Mot. 19. 
 
As this Court already determined, without an injunction, the public interest will be harmed 
because there is a serious risk that individuals with legitimate asylum claims who cannot satisfy the 
higher standards for withholding and CAT relief will be removed to countries where they are likely 
to face serious harm.  See Nken v. Holder, 556 U.S. 418, 436 (2009).  Even those who are granted 
withholding or CAT relief will have lost the ability to receive asylum, a benefit Congress determined 
to be of value.  See TRO Order 31.  Departing from Congress’s determination that it is in the public 
                                                                                                                                             
individual hearings, and also because detained cases move more quickly than nondetained cases and are 
disproportionately more likely to result in removal.   See also ECF No. 35-2 (discussing flaws with in absentia data).  
 
11 Defendants note the Rule’s reference to noncitizens who die each year crossing the border, see Opp. 17, but, as this 
Court already explained, the only reference to the danger presented by crossings in the Rule itself is in the context of 
quoting a 2004 rule.  See TRO Order 33; PI Mo. 19.  The Ninth Circuit, too, rejected the government’s assertions about 
deterring border crossings as implausible and vague.  See CA9 Op. *21 ((“The Rule has no direct bearing on the ability 
of an alien to cross the border outside of designated ports of entry: That conduct is already illegal. . . .  [V]ague 
assertions that the Rule may ‘deter’ this conduct are insufficient” for irreparable harm.  Moreover, there is evidence in 
the record suggesting that the Government itself is undermining its own goal of channeling asylum-seekers to lawful 
entry by turning them away upon their arrival at our ports of entry.”).  The government now cites additional sources in its 
brief, see Opp. 17 n.8, but that data shows that border deaths have remained relatively constant between 1998 and 2018 
(ranging from 249 to 471), see id., even though, during the same period, the number of apprehensions at the southern 
border has declined dramatically and the number of asylum seekers has increased, thus undermining any notion that there 
is a particularly acute crisis in border deaths now at hand. 
 
Nor should the Rule’s invocation of the migrant caravan, see 83 Fed. Reg. 55935, 55947, affect the balance of 
the equities.  The U.S. military expected only “about 20 percent” of the caravan to reach the United States.  See Nick 
Miroff & Missy Ryan, “Army assessment of migrant caravans undermines Trump’s rhetoric,” Washington Post (Nov. 2, 
2018), https://wapo.st/2JC2m4p.  Many of the caravan’s members are expected seek asylum at a port of entry.  See ECF 
No. 8-2 ¶ 10; ECF No. 35-5 ¶ 9; Vanessa Romo, “LGBT Splinter Group from Migrant Caravan is the 1st to Arrive in 
Tijuana,” NPR (Nov. 13, 2018), https://www.npr.org/2018/11/13/667622622/lgbt-caravan-splinter-group-is-the-first-to-
arrive-in-tijuana.   
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Reply ISO Motion for Preliminary Injunction 10 
Case No. 18-cv-06810 
interest to give noncitizens a chance to obtain asylum irrespective of their manner of entry, see Mot. 
20, is particularly acute when applied to individuals who are forced to cross between ports due to 
lack of knowledge, threats of violence, or other reasons of imminent necessity.12  Furthermore, the 
Rule will force potential asylum seekers who are able to route to ports to risk exposure to serious 
harms while waiting to present their claims at ports of entry, including obstacles erected by the 
government itself.13 Finally, bipartisan former foreign policy and security officials advise that the 
Rule is likely to undermine U.S. foreign policy objectives.  See ECF No. 71-4 ¶ 10.   
 
And, of course, the public interest is served by compliance with the laws Congress wrote.  
See Mot. 20; Alcaraz v. Block, 746 F.2d 593, 610 (9th Cir. 1984) (discussing public interest served 
by notice-and-comment rulemaking); CA9 Op. *21 (“[T]he public . . . has an interest in ensuring that 
‘statutes enacted by [their] representatives’ are not imperiled by executive fiat.”) (quoting Maryland 
v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers)).   
IV.   NATIONWIDE RELIEF IS APPROPRIATE 
 
The Ninth Circuit upheld the nationwide scope of this Court’s Order, CA9 Op. *22, and the 
government simply recycles the same arguments the Ninth Circuit already rejected.  See Mot. 20-
21.14   
CONCLUSION 
 
The Court should grant the preliminary injunction. 
 
                                          
12 See ECF No. 8-4 ¶¶ 26-28; ECF No. 8-6 ¶ 14; ECF No. 35-4 ¶ 12; ECF No. 71-2 ¶¶ 4-14, 19; ECF No. 71-5 ¶¶ 19-20; 
CA9 Op. *16-17. 
 
13 See, e.g., ECF No. 8-4 ¶¶ 29-41; ECF No. 35-1 ¶ 12; ECF No. 35-3 ¶¶ 3-9; ECF No. 35-4 ¶¶ 5-11; ECF No. 35-5 ¶¶ 5, 
7; ECF No. 71-2 ¶¶ 15, 21; ECF No. 71-5 ¶¶ 8-21; ECF No. 71-6 ¶¶ 5-6; ECF No. 71-7 ¶¶ 11-35; ECF No. 71-9 ¶¶ 12-
14; ECF No. 84-1 ¶¶ 14-18; ECF No. 82-1 (Amicus States) at 3-10; ECF No. 75-1 (Amici National Center for Lesbian 
Rights et al.) at 1-2, 5-9.  
  
14 The only new argument offered by the government is that this Court cannot enjoin the Rule to the extent it amends the 
expedited removal procedures, because a challenge to expedited removal procedures must be brought in the District of 
Columbia under 8 U.S.C. § 1252(e)(3).  Opp. 21-22.  But at both the TRO hearing and in their PI brief, the government 
did not even concede that Plaintiffs could bring a challenge under § 1252(e)(3).     
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Dated: December 14, 2018 
 
 
Jennifer Chang Newell (SBN 233033)                    
Cody Wofsy (SBN 294179) 
Spencer Amdur (SBN 320069) 
Julie Veroff (SBN 310161) 
ACLU FOUNDATION  
IMMIGRANTS’ RIGHTS PROJECT 
39 Drumm Street 
San Francisco, CA 94111 
T: (415) 343-0770 
F: (415) 395-0950 
jnewell@aclu.org 
cwofsy@aclu.org 
samdur@aclu.org  
jveroff@aclu.org 
 
Melissa Crow* 
SOUTHERN POVERTY LAW CENTER 
1666 Connecticut Avenue NW, Suite 100 
Washington, D.C. 20009 
T: (202) 355-4471 
F: (404) 221-5857 
melissa.crow@splcenter.org 
 
Mary Bauer* 
SOUTHERN POVERTY LAW CENTER 
1000 Preston Avenue 
Charlottesville, VA  22903 
T:  (470) 606-9307 
F:  (404) 221-5857 
mary.bauer@splcenter.org 
 
Attorneys for Plaintiffs 
 
*Admitted pro hac vice 
 
 
Respectfully submitted,  
 
/s/Lee Gelernt 
Lee Gelernt* 
Judy Rabinovitz*  
Omar C. Jadwat* 
Celso Perez (SBN 304924) 
ACLU FOUNDATION 
IMMIGRANTS’ RIGHTS PROJECT 
125 Broad Street, 18th Floor 
New York, NY 10004 
T: (212) 549-2660 
F: (212) 549-2654 
lgelernt@aclu.org 
jrabinovitz@aclu.org  
ojadwat@aclu.org 
cperez@aclu.org 
 
Christine P. Sun (SBN 218701) 
Vasudha Talla (SBN 316219) 
AMERICAN CIVIL LIBERTIES UNION OF 
NORTHERN CALIFORNIA, INC.  
39 Drumm Street 
San Francisco, CA 94111 
T: (415) 621-2493 
F: (415) 255-8437 
csun@aclu.org 
vtalla@aclu.org 
 
Baher Azmy* 
Angelo Guisado* 
Gita Schwarz* 
CENTER FOR CONSTITUTIONAL RIGHTS 
666 Broadway, 7th Floor 
New York, NY 10012 
T: (212) 614-6464 
F: (212) 614-6499 
bazmy@ccrjustice.org 
aguisado@ccrjustice.org 
gschwartz@ccrjustice.org 
 
 
 
Case 3:18-cv-06810-JST   Document 92   Filed 12/14/18   Page 13 of 13

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