Ninth Circuit Opinion — East Bay Sanctuary v. Trump

Record facts

U.S. Court of Appeals for the Ninth Circuit (on appeal from N.D. Cal.) · No. 4:18-cv-06810-JST · Doc. 126 · 2020-02-28 · Docket on CourtListener

Full text

FOR PUBLICATION 
 
UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 
 
 
EAST BAY SANCTUARY COVENANT; 
AL OTRO LADO; INNOVATION LAW 
LAB; CENTRAL AMERICAN 
RESOURCE CENTER, 
Plaintiffs-Appellees, 
 
v. 
 
DONALD J. TRUMP, President of the 
United States; WILLIAM P. BARR, 
Attorney General; JAMES MCHENRY, 
Director, Executive Office for 
Immigration Review (EOIR); CHAD 
WOLF, Acting Secretary, U.S. 
Department of Homeland Security; 
KENNETH T. CUCCINELLI, Acting 
Director, U.S. Citizenship and 
Immigration Services; MARK A. 
MORGAN, Acting Commissioner, 
U.S. Customs and Border Protection; 
MATTHEW T. ALBENCE, Acting 
Director, U.S. Immigration and 
Customs Enforcement, 
Defendants-Appellants. 
 
No. 18-17274 
 
18-17436 
 
D.C. No. 
4:18-cv-06810-
JST 
 
 
OPINION 
 
Appeal from the United States District Court 
for the Northern District of California 
Jon S. Tigar, District Judge, Presiding 
 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
 
Argued and Submitted October 1, 2019 
San Francisco, California 
 
Filed February 28, 2020 
 
Before:  Ferdinand F. Fernandez, William A. Fletcher, 
and Richard A. Paez, Circuit Judges. 
 
Opinion by Judge Paez; 
Concurrence by Judge Fernandez 
 
 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
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SUMMARY* 
 
 
Immigration / Preliminary Injunctions 
The panel affirmed the district court’s grant of a 
temporary restraining order and a subsequent grant of a 
preliminary injunction enjoining enforcement of a rule and 
presidential proclamation that, together, strip asylum 
eligibility from every migrant who crosses into the United 
States along the southern border of Mexico between 
designated ports of entry. 
In November 2018, the Department of Justice and 
Department of Homeland Security adopted an interim final 
rule (“the Rule”) that makes migrants who enter the United 
States in violation of a “a presidential proclamation or other 
presidential order suspending or limiting the entry of aliens 
along the southern border with Mexico” categorically 
ineligible for asylum.  The same day, President Trump 
issued a presidential proclamation (“the Proclamation”) that 
suspends the entry of all migrants along the southern border 
of the United States for ninety days, except for any migrant 
who enters at a port of entry and properly presents for 
inspection. 
Legal services organizations that represent asylum-
seekers (“the Organizations”) sued to prevent enforcement 
of the Rule.  The district court entered a temporary 
restraining order enjoining the Rule, concluding that it 
irreconcilably conflicted with the Immigration and 
Nationality Act (“INA”).  The government appealed and 
 
* This summary constitutes no part of the opinion of the court.  It 
has been prepared by court staff for the convenience of the reader. 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
 
sought an immediate stay in this court of the district court’s 
order pending appeal.  In a published order, a motions panel 
of this court denied the government’s request for a stay, and 
the government’s application for a stay from the Supreme 
Court was also denied.  The district court issued an 
injunction barring enforcement of the Rule, the government 
appealed, and this court consolidated the two appeals. 
First, the panel held that—given the preliminary stage of 
the appellate process at which the motions panel issued its 
order—the motions panel’s decision did not bind the present 
panel.  The panel explained that, under the law-of-the-case 
doctrine, courts—at their own discretion—will generally 
refuse to reconsider an issue that has already been decided 
by the same court or a higher court in the same case.  The 
panel noted, however, that the court sometimes exercises its 
discretion to reconsider issues within the same case and that 
merits panels tend not to extend the doctrine to a prior 
motions panel’s decision in the same case.  Further, the panel 
explained that a decision by a motions panel is a probabilistic 
endeavor, doctrinally distinct from the question considered 
by the later merits panel and issued without oral argument 
on limited briefing.  Addressing the court’s recent statement, 
in Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015), that “a 
motions panel’s published opinion binds future panels the 
same as does a merits panel’s published opinion,” the panel 
concluded that the language was dicta. 
The panel also noted that its holding was consistent with 
the court’s general rules governing law of the circuit, which 
provide that the first panel to consider an issue sets the law 
for all inferior courts and future panels of the court.  
Specifically, the panel explained that tentative conclusions 
that are not law of the case do not bind later panels in the 
same case as law of the circuit, and that any other rule would 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
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paradoxically provide that a merits panel would be bound by 
a motions panel’s opinion—because it is law of the circuit—
and not bound by the same opinion—because it is not law of 
the case. 
Next, the panel re-evaluated the government’s challenge 
to the court’s jurisdiction.  First, the panel held that the 
Organizations had established organizational standing by 
showing that their ability to perform services had been 
impaired by the Rule.  Second, the panel rejected the 
government’s argument that the court should avoid 
interfering with the Rule on the ground that the power to 
expel or exclude aliens is a fundamental sovereign attribute 
exercised by the government’s political departments largely 
immune from judicial control.  The panel explained it was 
responsible for reviewing whether the government has 
overstepped its delegated authority under the INA and 
encroached upon Congress’s legislative prerogative.  Third, 
the panel rejected the government’s argument that three 
statutory provisions, 8 U.S.C. §§ 1252(e)(3), 1252(a)(5), and 
1252(b)(9), divested this court of jurisdiction.  The panel 
explained that none of these provisions have any bearing on 
the Rule because they govern judicial review of removal 
orders or challenges inextricably linked with actions taken 
to remove migrants from the country.  The panel also 
concluded that the Organizations continued to fall within the 
zones of interests of the INA. 
The panel next addressed the Organizations’ likelihood 
of success on the merits of their claims, under the 
Administrative Procedure Act (“APA”).  Applying the 
framework established in Chevron, U.S.A., Inc. v. Nat. Res. 
Def. Council, Inc., 467 U.S. 837 (1984), the panel held that 
the Rule conflicts with the INA’s section on asylum, which 
begins by stating that an undocumented migrant may apply 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
 
for asylum when she is “physically present in the United 
States” or “arrives in the United States (whether or not at a 
designated port of arrival . . . )[.]”  8 U.S.C. § 1158(a)(1).  
The panel explained that, because the Rule requires migrants 
to enter the United States at ports of entry to preserve their 
eligibility for asylum, it is effectively a categorical ban on 
migrants who use a method of entry explicitly authorized by 
Congress in § 1158(a). 
The panel further concluded that, even if the text of 
section 1158(a) were ambiguous, the Rule fails at the second 
step of Chevron because it is an arbitrary and capricious 
interpretation of that statutory provision.  The panel 
explained that the BIA and this court have long recognized 
that a refugee’s method of entering the country is a 
discretionary factor in determining whether the migrant 
should be granted humanitarian relief, but that the method of 
entry should be carefully evaluated in light of the harsh 
consequences that may befall an alien.  Thus, the panel 
concluded that, given the Rule’s effect of conditioning 
asylum eligibility on a factor that has long been understood 
as worth little if any weight in adjudicating whether a 
migrant should be granted asylum, it is an arbitrary and 
capricious interpretation of § 1158(a). 
The panel also concluded that the Rule is unreasonable 
in light of the United States’s treaty obligations under the 
1951 United Nations Convention Relating to the Status of 
Refugees (“1951 Convention”) and the 1967 United Nations 
Protocol Relating to the Status of Refugees.  Specifically, the 
panel concluded that the Rule runs afoul of three codified 
rules: 1) the right to seek asylum; 2) the prohibition against 
penalties for irregular entry; and 3) principles of non-
refoulement, which prohibit signatories to the 1951 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
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Convention from returning a refugee to the frontiers of 
territories where his life or freedom would be threatened. 
The panel briefly addressed the procedural arguments 
raised by the parties regarding whether the Rule was invalid 
because it was issued without public notice and comment or 
complying with the thirty-day grace period required by the 
APA.  The panel concluded that the Rule likely does not 
properly fall under the good-cause exception or the foreign-
affairs exception to these procedural requirements. 
Next, the panel concluded that the Organizations had 
demonstrated a sufficient likelihood of irreparable injury to 
warrant injunctive relief, explaining that the Organizations 
had shown that they will suffer a significant change in their 
programs and a concomitant loss of funding absent a 
preliminary injunction. 
The panel next concluded that the public interest weights 
sharply in the Organizations’ favor, noting that: 1) the public 
interest is served by compliance with the APA; 2) the public 
has an interest in ensuring that this country does not deliver 
aliens into the hands of their persecutors; 3) the public has 
an interest in ensuring that the statutes enacted by their 
representatives are not imperiled by executive fiat; and 4) 
while the government and the public have an interest in the 
efficient administration of the immigration laws at the 
border, this factor was not entitled to much weight because 
the Organizations had established that the Rule is invalid. 
Finally, addressing the scope of the remedy, the panel 
concluded that the district court did not abuse its discretion 
in issuing an injunction preventing any action to implement 
the Rule.  The panel noted that the Organizations do not limit 
their potential clients to refugees who enter only at the 
Mexican border with California and Arizona, and that the 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
 
government had not proposed an alternative form of the 
injunction that accounts for the scope of the Organizations’ 
harms, but applies only within the Ninth Circuit.  The panel 
also noted that two other factors supported the scope of the 
district court’s injunction: 1) when a regulation is found 
unlawful, the typical result is to vacate and remand, not to 
attempt to fashion a valid regulation from the remnants of 
the old rule; and 2) there is an important need for uniformity 
in immigration policy—which supports the authority of 
district courts to enjoin unlawful policies on a universal 
basis. 
Concurring, Judge Fernandez wrote that he concurred in 
the majority opinion because, and for the most part only 
because, he believes that this panel is bound by the motions 
panel’s published decision in this case.  Judge Fernandez 
wrote that the panel is bound by the law of the circuit, which 
binds all courts within a particular circuit, including the court 
of appeals itself, and remains binding unless overruled by 
the court sitting en banc, or by the Supreme Court.  Further, 
Judge Fernandez wrote that, insofar as factual differences 
might allow precedent to be distinguished on a principled 
basis, in this case, the situation before this panel was in every 
material way the same as that before the motions panel.  
Judge Fernandez also stated that, in Lair v. Bullock, this 
court held that a motions panel’s published opinion binds 
future panels the same as does a merits panel’s published 
opinion, disagreeing with the majority’s characterization of 
this language as dicta.  Judge Fernandez also concluded that 
the law of the case doctrine binds this panel, noting that he 
did not perceive any of the exceptions to the doctrine to be 
involved here. 
Applying those doctrines, Judge Fernandez concluded 
that: 1) the Organizations have standing; 2) the 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
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Organizations are likely to succeed on the substantive 
merits; 3) the motions panel’s decisions on harm and balance 
of hardship are also binding; and 4) the scope of the 
injunction is not overly broad. 
 
 
COUNSEL 
 
Scott Grant Stewart (argued), Deputy Assistant Attorney 
General; Francesca Genova and T. Benton York, Trial 
Attorneys; Erez Reuveni, Assistant Director; William C. 
Peachey, Director; August E. Flentje, Special Counsel; 
Joseph H. Hunt, Assistant Attorney General; Office of 
Immigration Litigation, United States Department of Justice, 
Washington, D.C.; for Defendants-Appellants. 
 
Lee P. Gelernt (argued), Judy Rabinovitz, Omar C. Jadwat, 
Anand Balakrishnan, Daniel Galindo, and Celso Perez, 
American Civil Liberties Union Foundation, Immigrants’ 
Rights Project, New York, New York; Jennifer Chang 
Newell, Cody Wofsy, Spencer Amdur, and Julie Veroff, 
American Civil Liberties Union Foundation, Immigrants’ 
Rights Project, San Francisco, California; Melissa Crow, 
Southern Poverty Law Center, Washington, D.C.; Mary 
Bauer, Southern Poverty Law Center, Charlottesville, 
Virginia; Gracie Willis, Southern Poverty Law Center, 
Decatur, Georgia; Baher Azmy, Angelo Guisado, and Ghita 
Schwarz, Center for Constitutional Rights, New York, New 
York; Christine P. Sun and Vasudha Talla, American Civil 
Liberties Union Foundation of Northern California Inc., San 
Francisco, California; for Plaintiffs-Appellees. 
 
Lawrence J. Joseph, Washington, D.C.; Christopher J. 
Hajec, Director of Litigation, Immigration Reform Law 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
 
Institute, Washington, D.C.; for Amicus Curiae Immigration 
Reform Law Institute. 
 
Patrick W. Pearsall, Karthik P. Reddy, and Vaishalee V. 
Yeldandi, Jenner & Block LLP, Washington, D.C.; Alice 
Farmer, Office of the United Nations High Commissioner 
for Refugees, Washington, D.C.; for Amicus Curiae Office 
of the United Nations High Commissioner for Refugees. 
 
Richard D. Bernstein, Washington, D.C.; Richard Mancino, 
Willkie Farr & Gallagher LLP, New York, New York; for 
Amici Curiae Peter Keisler, Stuart Gerson, Carter Phillips, 
John Bellinger III, Samuel Witten, Ray Lahood, Brackett 
Denniston, Stanley Twardy, and Richard Bernstein. 
 
Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr 
LLP, New York, New York; Alex Gazikas, Wilmer Cutler 
Pickering Hale and Dorr LLP, Washington, D.C.; Peter S. 
Margulies, Bristol, Rhode Island; Shoba Sivaprasad Wadhia, 
University Park, Pennsylvania; for Amici Curiae Professors 
of Immigration Law. 
 
Margaret L. Carter, Dmitiri D. Portnoi, and Daniel R. Suvor, 
O’Melveny & Myers LLP, Los Angeles, California; Barbara 
J. Parker, City Attorney; Maria Bee, Erin Bernstein, Malia 
McPherson, Zarah Rahman, and Suzanne Dershowitz; 
Office of the City Attorney Oakland, California; Edward N. 
Siskel, Corporation Counsel, City of Chicago Department of 
Law, Chicago, Illinois; Zachary W. Carter, Corporation 
Counsel, New York City Law Department, New York, New 
York; for Amici Curiae 21 Counties, Cities, and Local 
Officials. 
 
Xavier Becerra, Attorney General; Michael L. Newman, 
Senior Assistant Attorney General; Christine Chuang, 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
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Supervising Deputy Attorney General; Shubhra Shivpuri 
and James F. Zahradka II, Deputy Attorneys General; Office 
of the Attorney General, Oakland, California; Philip J. 
Weiser, Attorney General, Denver, Colorado; William 
Tong, Attorney General, Hartford, Connecticut; Kathleen 
Jennings, Attorney General, Wilmington, Delaware; Karl A. 
Racine, Attorney General, Washington, D.C.; Clare E. 
Connors, Attorney General, Honolulu, Hawaii; Kwame 
Raoul, Attorney General, Chicago, Illinois; Tom Miller, 
Attorney General, Des Moines, Iowa; Brian E. Frosh, 
Attorney General, Baltimore, Maryland; Maura Healey, 
Attorney General, Boston, Massachusetts; Dana Nessel, 
Attorney General, Lansing, Michigan; Keith Ellison, 
Attorney General, St. Paul, Minnesota; Aaron D. Ford, 
Attorney General, Carson City, Nevada; Gurbir S. Grewal, 
Attorney General, Trenton, New Jersey; Hector Balderas, 
Attorney General, Santa Fe, New Mexico; Letitia James, 
Attorney General, New York, New York; Ellen F. 
Rosenblum, Attorney General, Salem, Oregon; Josh 
Shapiro, Attorney General, Harrisburg, Pennsylvania; 
Peter F. Neronha, Attorney General, Providence, Rhode 
Island; Thomas J. Donovan, Jr., Attorney General, 
Montpelier, Vermont; Mark R. Herring, Attorney General, 
Richmond, Virginia; Robert W. Ferguson, Attorney 
General, 
Olympia, 
Washington; 
for 
Amici 
Curiae 
California, Colorado, Connecticut, Delaware, District of 
Columbia, Hawaii, Illinois, Iowa, Maryland, Massachusetts, 
Michigan, Minnesota, Nevada, New Jersey, New Mexico, 
New York, Oregon, Pennsylvania, Rhode Island, Vermont, 
Virginia, and Washington. 
 
 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
 
OPINION 
PAEZ, Circuit Judge: 
Forty years ago, Congress recognized that refugees 
fleeing imminent persecution do not have the luxury of 
choosing their escape route into the United States.  It 
mandated equity in its treatment of all refugees, however 
they arrived.1 
This principle is embedded in the Refugee Act of 1980, 
which established an asylum procedure available to any 
migrant, “irrespective of such alien’s status,” and 
irrespective of whether the migrant arrived “at a land border 
or port of entry.”  Pub. L. No. 96-212, § 208(a), 94 Stat. 102, 
105 (1980).  Today’s Immigration and Nationality Act 
(“INA”) preserves that principle.  It states that a migrant who 
arrives in the United States—“whether or not at a designated 
port of arrival”—may apply for asylum.  See 8 U.S.C. 
§ 1158(a). 
In November 2018, the Departments of Justice and 
Homeland Security jointly adopted an interim final rule (“the 
Rule”) which, coupled with a presidential proclamation 
issued the same day (“the Proclamation”), strips asylum 
eligibility from every migrant who crosses into the United 
States between designated ports of entry.  In this appeal, we 
consider whether, among other matters, the Rule unlawfully 
conflicts with the text and congressional purpose of the INA.  
We conclude that it does. 
 
1 See 125 Cong. Rec. 35,813–14 (1979) (statement of Rep. 
Holtzman). 
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I. 
The Rule announces a new bar to asylum eligibility.  It 
makes migrants who enter the United States in violation of 
“a presidential proclamation or other presidential order 
suspending or limiting the entry of aliens along the southern 
border with Mexico” categorically ineligible for asylum.  
See Aliens Subject to a Bar on Entry Under Certain 
Presidential Proclamations; Procedures for Protection 
Claims, 83 Fed. Reg. 55,934, 55,952 (Nov. 9, 2018) 
(codified at 8 C.F.R. §§ 208.13, 208.30).  Migrants who are 
ineligible for asylum under the Rule will also automatically 
receive negative credible-fear determinations in expedited-
removal proceedings.  See id. at 55,935, 55,952.  Typically, 
a 
migrant 
in 
expedited-removal 
proceedings 
who 
demonstrates a “credible fear” of persecution must be 
allowed to present her asylum claim before an immigration 
judge.  See 8 U.S.C. § 1225(b)(1)(A)(ii), (B)(v).  A migrant 
who enters the United States in contravention of a 
proclamation will instead need to demonstrate a “reasonable 
fear” of persecution or torture—which is more difficult than 
establishing a credible fear of persecution—to obtain other 
forms of relief.  See 83 Fed. Reg. at 55,936, 55,952; see also 
8 C.F.R. § 208.31(c); 8 U.S.C. § 1225(b)(1)(B)(v). 
The same day the Departments of Justice (“DHS”) and 
Homeland Security (“DHS”) adopted the Rule, President 
Trump issued the Proclamation.  The Proclamation suspends 
the entry of all migrants along the southern border of the 
United States for ninety days, except for any migrant who 
“enters the United States at a port of entry and properly 
presents for inspection.”  See Presidential Proclamation No. 
9,822, Addressing Mass Migration Through the Southern 
Border of the United States, 83 Fed. Reg. 57,661, 57,663 
(Nov. 9, 2018). 
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Individually, the Rule and Proclamation have little 
effect.  The Proclamation does not have the force of law, and 
the Rule only effectuates proclamations.  But together, the 
Rule and Proclamation make asylum entirely unavailable to 
migrants who enter the country between ports of entry.  The 
magnitude of the Rule’s effect is staggering: its most direct 
consequence falls on “the more than approximately 70,000 
aliens a year (as of FY 2018) estimated to enter between the 
ports of entry [who] then assert a credible fear in expedited-
removal proceedings.”  83 Fed. Reg. at 55,948.  These 
migrants would typically proceed to an asylum hearing 
before an immigration judge but will now be unable to do so 
because they have entered the country at a place other than a 
port of entry. 
The day the Proclamation and Rule issued, four legal 
services organizations that represent current and future 
asylum-seekers sued to prevent enforcement of the Rule.  
East Bay Sanctuary Covenant, Al Otro Lado, Innovation 
Law Lab, and Central American Resource Center of Los 
Angeles (collectively, “the Organizations”) argued that the 
Rule was likely unlawful because it was issued without 
public notice and comment or complying with the thirty-day 
grace period required by the Administrative Procedure Act 
(“APA”), see 5 U.S.C. § 553(b)–(d).  The Organizations also 
argued that the Rule conflicts with the plain text of the INA 
and is arbitrary and capricious because it constitutes a severe 
departure from the Board of Immigration Appeals’s and the 
Ninth Circuit’s interpretation of asylum practices in the 
United States. 
The district court agreed that the Rule “irreconcilably 
conflicts with the INA and the expressed intent of Congress” 
and entered a temporary restraining order enjoining the 
Rule’s enforcement and ordering the government “to return 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
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to 
the 
pre-Rule 
practices 
for 
processing 
asylum 
applications.”  See E. Bay Sanctuary Covenant v. Trump 
(EBSC I), 349 F. Supp. 3d 838, 844, 868–69 (N.D. Cal. 
2018).  Eight days after the court’s order, the government 
filed an appeal and an emergency motion in the district court 
to stay the temporary restraining order pending appeal.  The 
court denied the stay motion three days later. 
The following day, the government sought an immediate 
stay in our court of the district court’s order pending appeal.  
In a lengthy published order, a motions panel of this court 
denied the government’s request to stay enforcement of the 
court’s order.  See E. Bay Sanctuary Covenant v. Trump 
(EBSC II), 932 F.3d 742, 755, 762 (9th Cir. 2018).  Although 
temporary restraining orders are typically not appealable, the 
panel concluded that appellate jurisdiction existed under 
28 U.S.C. § 1292(a)(1) because the temporary restraining 
order was effective for thirty days, well beyond the fourteen-
day limit imposed by Federal Rule of Civil Procedure 65(b).  
Id. at 762–63.  The government’s application for a stay from 
the Supreme Court was also denied.  See Trump v. E. Bay 
Sanctuary Covenant, 139 S. Ct. 782 (2018). 
While the government’s stay application was pending 
before the Supreme Court, the Organizations filed a motion 
for a preliminary injunction in the district court.  The 
arguments presented during the second round of litigation 
were “nearly identical” to those made during the first.  See 
E. Bay Sanctuary Covenant v. Trump (EBSC III), 354 F. 
Supp. 3d 1094, 1102 (N.D. Cal. 2018).  Relying heavily on 
the motions panel’s published order, the district court again 
issued an injunction barring enforcement of the Rule.  See 
id. at 1121. 
The government again appeals, arguing that the district 
court erred when it entered the injunction or that the 
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injunction should at least be narrowed.  We consolidated the 
government’s appeal from the temporary restraining order 
with the appeal from the preliminary injunction.2  For the 
reasons explained below, we agree with the district court that 
the Rule is inconsistent with the INA, and we affirm the 
district court’s orders granting preliminary injunctive relief. 
II. 
We first consider the effect of the motions panel’s order 
on the present panel’s decision.  How strictly the order binds 
this court depends on whether it is law of the case, law of the 
circuit, or both. 
Law of the circuit is stare decisis, by another name.  The 
doctrine requires that we “stand by yesterday’s decisions”—
even when doing so “means sticking to some wrong 
decisions.”  Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 
2409 (2015).  Published decisions of this court become law 
of the circuit, which is binding authority that we and district 
courts must follow until overruled.  Gonzalez v. Arizona, 
677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc).  
Controlling, overruling authority includes only intervening 
statutes or Supreme Court opinions that create “clearly 
 
2 Although the Proclamation expired by its terms in February 2019, 
the President issued a new Proclamation, which did not substantially 
change the terms of the original Proclamation and extended its effect for 
an additional ninety days.  When that Proclamation expired in May, the 
President again re-issued it and extended the effect of the initial 
Proclamation “for an additional 90 days beyond the date when the United 
States obtains relief from the preliminary injunction of the interim final 
rule[.]”  See Presidential Proclamation No. 9,880, Addressing Mass 
Migration Through the Southern Border of the United States, 84 Fed. 
Reg. 21,229, 21,229 (May 8, 2019). 
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irreconcilable” conflicts with our caselaw.  Miller v. 
Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) (en banc). 
Under the law-of-the-case doctrine, instead, courts—at 
their own discretion—“will generally refuse to reconsider an 
issue that has already been decided by the same court or a 
higher court in the same case.”  Gonzalez, 677 F.3d at 389 
n.4; see also United States v. Houser, 804 F.2d 565, 567 (9th 
Cir. 1986).  The doctrine encourages the conservation of 
limited judicial resources and promotes consistency by 
allowing court decisions to govern the same issues in 
subsequent stages of the same case.  See Am. Civil Liberties 
Union v. F.C.C., 523 F.2d 1344, 1346 (9th Cir. 1975). 
We do sometimes exercise our discretion to reconsider 
issues within the same case.  Most often, we recognize 
exceptions to the law-of-the-case doctrine where the prior 
decision is “clearly erroneous” and enforcing it would create 
“manifest injustice”; intervening, controlling authority 
encourages reconsideration; or substantially different 
evidence is produced at a later merits trial.  See In Re 
Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir. 1996).  
This list is narrow but nonexhaustive.  The legal context of 
the prior decision also affects whether and to what extent it 
may be treated as law of the case.  We generally do not, for 
example, apply the doctrine to administrative proceedings 
because agencies are sometimes vested with explicit 
authority to reconsider their own decisions.  See, e.g., Silva-
Pereira v. Lynch, 827 F.3d 1176, 1190 (9th Cir. 2016).  Our 
review of district court orders denying or granting 
preliminary-injunction requests also does not typically 
become law of the case; the record before a later panel may 
materially differ from the record before the first panel, such 
that the first panel’s decision eventually provides “little 
guidance as to the appropriate disposition on the merits.”  
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Sports Form, Inc. v. United Press Intern., Inc., 686 F.2d 750, 
753 (9th Cir. 1982). 
Merits panels also tend not to extend the doctrine to a 
prior motions panel’s decision in the same case.  See, e.g., 
United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th 
Cir. 2005) (explaining that a prior motions panel’s denial of 
a motion to dismiss did not “preclude [the panel] from 
reaching a contrary decision”); In re Castro, 919 F.2d 107, 
108 (9th Cir. 1990) (per curiam) (holding that a motions 
panel’s denial of a dispositive motion without an opinion 
was not binding on a later merits panel); Stifel, Nicolaus & 
Co., Inc. v. Woolsey & Co., Inc., 81 F.3d 1540, 1543–44 
(10th Cir. 1996) (concluding that the law-of-the-case 
doctrine did not prevent the panel from reconsidering a 
motions panel’s application of res judicata to a relevant 
state-court decision).  A later merits panel should not “lightly 
overturn a decision made by a motions panel,” but “we do 
not apply the law of the case doctrine as strictly in that 
instance as we do when a second merits panel is asked to 
reconsider a decision reached by the first merits panel on an 
earlier appeal.”  Houser, 804 F.2d at 568. 
Our caselaw interpreting the relationship between 
motions and merits panels’ opinions has not always been 
clear.  Citing to Miller v. Gammie, 335 F.3d 889 (9th Cir. 
2003), we recently stated that “a motions panel’s published 
opinion binds future panels the same as does a merits panel’s 
published opinion.”  Lair v. Bullock, 798 F.3d 736, 747 (9th 
Cir. 2015).  But this observation was not germane to the 
eventual resolution of Lair; the panel noted that the effect of 
the motions panel’s decision was not necessary to its 
holding, see id., and it was not reached after “reasoned 
consideration,” so its law-of-the-case discussion is dicta and 
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not binding on subsequent cases.  See United States v. 
McAdory, 935 F.3d 838, 843 (9th Cir. 2019). 
Gammie encouraged a “pragmatic” approach to “an 
evolving body of common law.”  335 F.3d at 899–900.  Our 
own practice has frequently indicated that we have not, and 
do not, follow the summary language in Lair: merits panels 
of this court frequently depart from published decisions 
issued by motions panels in the same case.  See, e.g., Nat. 
Res. Def. Council, Inc. v. Winter, 508 F.3d 885, 886–87 (9th 
Cir. 2007) (vacating a stay of a preliminary injunction issued 
in an opinion by a motions panel); Golden Gate Rest. Ass’n 
v. City and Cty. of San Francisco, 546 F.3d 639, 643–61 (9th 
Cir. 2008) (reaching the merits of an appeal without reliance 
on a previous motions panel’s order entering a stay of a 
district court judgment pending appeal); see also Nelson v. 
Nat’l Aeronautics & Space Admin., 530 F.3d 865, 873 (9th 
Cir. 2008), rev’d on other grounds by 562 U.S. 134 (re-
reviewing the merits of the case and generally treating a 
motions panel’s opinion as nonbinding); Innovation Law 
Lab v. McAleenan, 924 F.3d 503, 518 (9th Cir. 2019) 
(Fletcher, J., concurring in the judgment) (stating that a later 
merits panel may, “with the benefit of full briefing and 
regularly scheduled oral argument,” depart from the legal 
conclusions reached by the motions panel).  At least four 
other circuits have agreed that later panels may review the 
merits of a case “uninhibited” by a motions panel’s earlier 
decision in the same case.  Stifel, Nicolaus & Co., Inc., 
81 F.3d at 1544 (10th Cir. 1996); see also Rezzonico v. H&R 
Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999); Cimino v. 
Raymark Indus., Inc., 151 F.3d 297, 311 n.26 (5th Cir. 
1998); Vann v. Citicorp Sav. of Illinois, 891 F.2d 1507, 1509 
n.2 (11th Cir. 1990).  Two others have held that 
jurisdictional determinations by motions panels do not bind 
later merits panels.  See Council Tree Commc’ns, Inc. v. 
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F.C.C., 503 F.3d 284, 291–92 (3d Cir. 2007); United States 
v. Henderson, 536 F.3d 776, 778 (7th Cir. 2008). 
There are good policy and practical reasons for departing 
from Lair’s dicta.  Motions panels’ orders are generally 
issued without oral argument, on limited timelines, and in 
reliance on limited briefing.  See Fed. R. App. P. 27(e) 
(motions are decided without oral argument unless the court 
orders otherwise); compare also Rule 27(a)(3)–(4) 
(responses to motions and replies to responses must be filed 
within ten days of service of the motion) and 27(d)(2) 
(motions or responses to motions are limited to 5,200 words; 
replies are limited to 2,600 words) with Ninth Circuit Rule 3-
3 (in preliminary injunction appeal, opening brief must be 
filed within 28 days of notice of appeal; response must be 
filed 28 days thereafter; reply may be filed 21 days 
thereafter) and Ninth Circuit Rule 32-1 (opening and 
response briefs limited to 14,000 words). The record before 
a motions panel, much like the record before a district court 
deciding a preliminary injunction, is often incomplete.  Cf. 
Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“In 
light of these considerations, it is generally inappropriate for 
a federal court at the preliminary-injunction stage to give a 
final judgment on the merits.”).  Constrained by timing 
demands, motions panels’ decisions are often issued without 
opinions and explanations.  See, e.g., Haggard v. Curry, 
631 F.3d 931, 933 n.1 (9th Cir. 2010) (per curiam).  A panel 
operating with the benefit of a complete record and 
additional time to consider the merits of the case may 
“conclude that the motions decision was improvident and 
should be reconsidered.”  Houser, 804 F.2d at 568 (citing 
E.E.O.C. v. Neches Butane Prod. Co., 704 F.2d 144, 147 (5th 
Cir. 1983)). 
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Reconsideration of a motions panel’s decision by a 
merits panel also “differs in a significant way” from 
reconsideration of a merits panel’s decision.  Id.  A party that 
receives an unfavorable decision by a merits panel will have 
the opportunity to file a petition for panel rehearing, 
rehearing en banc, or petition for certiorari.  Motions for 
reconsideration or modification of a motions panel’s order 
are “discouraged,” “disfavored by the court[,] and rarely 
granted.”  Ninth Circuit Rule 27-1 advisory committee note.  
For this reason, motions panel decisions are “rarely 
subjected” to a thorough reconsideration process; “[f]ull 
review of a motions panel decision will more likely occur 
only after the merits panel has acted.”  Houser, 804 F.2d at 
568.  Unilaterally binding later merits panels to the 
preliminary decisions made by motions panels prevents 
litigants from fully vindicating their appellate rights.3 
These concerns are particularly heightened here, where 
the motions panel considered whether to grant the 
government’s request for a stay of the district court’s 
preliminary injunction.  The decision whether to grant a 
 
3 Our holding is consistent with our general rules governing law of 
the circuit.  “[T]he first panel to consider an issue sets the law . . . for all 
the inferior courts in the circuit” and “future panels of the court of 
appeals,” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001), but 
motions panels’ conclusions do not “set the law” for later merits panels 
in the same case, see, e.g., Askins v. U.S. Dep’t of Homeland Sec., 
899 F.3d 1035, 1042 (9th Cir. 2018) (“The law of the case doctrine does 
not preclude a court from reassessing its own legal rulings in the same 
case.”).  Tentative conclusions that are not law of the case do not bind 
later panels in the same case as law of the circuit.  Any other rule would 
paradoxically require that a merits panel treat a motions panel’s 
published decision that does not constitute law of the case as binding.  A 
merits panel cannot be simultaneously bound by the motions panel’s 
opinion—because it is law of the circuit—and not bound by the 
opinion—because it is not law of the case. 
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stay—much like the decision whether to grant a preliminary 
injunction—is a “probabilistic” endeavor.  Sierra Club v. 
Trump, 929 F.3d 670, 688 (9th Cir. 2019).  We discuss the 
merits of a stay request in “likelihood terms,” and exercise a 
“restrained approach to assessing the merits.”  Id. 
(quotations omitted).  Such a predictive analysis should not, 
and does not, forever bind the merits of the parties’ claims.  
This sort of “pre-adjudication adjudication would defeat the 
purpose of a stay, which is to give the reviewing court the 
time to ‘act responsibly,’ rather than doling out ‘justice on 
the fly.’”  Leiva-Perez v. Holder, 640 F.3d 962, 967 (9th Cir. 
2011) (quoting Nken v. Holder, 556 U.S. 418, 427 (2009)). 
Notably, when acting on the government’s stay motion 
in this case, the motions panel acknowledged the preliminary 
nature of the stay proceedings.  The panel issued a lengthy 
opinion with detailed analysis, but repeatedly “stress[ed]” 
that the case was still “at a very preliminary stage of the 
proceedings,” and expected that “[f]urther development of 
the record as the case progresses may alter [their] 
conclusions.”  EBSC II, 932 F.3d at 780.  The panel also left 
open various mixed questions of law and fact for a later 
court—pointing out, for example, that if “facts develop in 
the district court that cast doubt on the Organizations’ 
standing, the district court is, of course, free to revisit this 
question,” id. at 763 n.6, and reiterating that its conclusions 
were reached “at [the current] stage of the proceedings,” see 
id. at 763, 767, 778, 779. 
The question before us now is also doctrinally distinct 
from the question considered by the motions panel.  A stay 
does have “some functional overlap with an injunction, 
particularly a preliminary one”; both “can have the practical 
effect of preventing some action before the legality of that 
action has been conclusively determined.”  Nken, 556 U.S. 
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at 428.  But, as we have noted, “there are important 
differences between a preliminary injunction and a stay 
pending review.”  Leiva-Perez, 640 F.3d at 966 (citing Nken, 
556 U.S. at 425–30).  A stay “operates upon the judicial 
proceeding itself,” while a preliminary injunction “direct[s] 
an actor’s conduct.”  Nken, 556 U.S. at 428, 429.  In the 
government’s appeal, we are charged with determining 
whether the district court abused its discretion in granting the 
preliminary injunction, see All. for the Wild Rockies v. 
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011); the motions 
panel, instead, considered whether the government raised 
serious questions relating to the propriety of the district 
court’s preliminary injunction and whether the government 
would likely prevail on appeal, see Leiva-Perez, 640 F.3d 
at 965–66.  The question presented to the motions panel is 
an additional step removed from the underlying merits of the 
district court’s preliminary injunction.  We exercise restraint 
in assessing the merits of either question, see Sierra Club, 
929 F.3d at 688, but particularly so when considering the 
“extraordinary request” to stay a preliminary injunction 
granted by a district court.  Barr v. E. Bay Sanctuary 
Covenant, No. 19A230, 2019 WL 4292781, at *1 (Sept. 11, 
2019) (Sotomayor, J., dissenting from grant of a stay). 
Given the preliminary stage of the appellate process at 
which the motions panel issued the order denying the 
government’s stay motion and the panel’s stated 
reservations, we treat the motions panel’s decision as 
persuasive, but not binding. 
III. 
We next re-evaluate the government’s challenge to our 
jurisdiction.  The government argues, as it did previously 
before the district court and before the motions panel, that 
the Organizations lack Article III standing because they have 
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not suffered a cognizable injury and are outside the zone of 
interests protected by the INA.  The government also renews 
three arguments before this court: (1) the Organizations lack 
a “legally protected interest in maintaining their current 
organizational structure or in the [R]ule’s application to third 
parties,” Op. Br. of Gov’t at 29,4 (2) the “immigration 
context” of the Rule counsels against judicial intrusion, and 
(3) various portions of the INA divest this court of 
jurisdiction to entertain this appeal.  We address each 
argument in turn. 
A. 
The Article III standing inquiry serves a single purpose: 
to maintain the limited role of courts by ensuring they protect 
against only concrete, non-speculative injuries.  See Lujan v. 
Defenders of Wildlife, 504 U.S. 555, 583 (1992).  Parties 
must have a “personal stake in the outcome” sufficient to 
ensure the court that, absent judicial review, they will suffer 
or have suffered some direct injury.  See id. 
Organizations can assert standing on behalf of their own 
members, see Friends of the Earth, Inc. v. Laidlaw Envtl. 
Servs. (TOC), Inc., 528 U.S. 167, 181 (2000), or in their own 
right, Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–
79 (1982).  To determine whether organizational standing 
requirements have been satisfied, we “conduct the same 
inquiry as in the case of an individual: Has the plaintiff 
‘alleged such a personal stake in the outcome of the 
controversy as to warrant his invocation of federal-court 
jurisdiction?’”  Havens, 455 U.S. at 378–79.  The 
Organizations therefore have the burden of demonstrating 
 
4 We refer to the government’s opening brief as “Op. Br. of Gov’t,” 
and to the government’s reply brief as “Reply Br. of Gov’t.” 
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that (1) they have suffered an injury-in-fact, meaning an 
injury that is “concrete and particularized” and “actual and 
imminent,” (2) the alleged injury is “fairly traceable” to the 
defendants’ conduct, and (3) it is “more than speculative” 
that the injury is judicially redressable.  Lujan, 504 U.S. 
at 560–61. 
In Havens, the Supreme Court held that a fair housing 
organization had standing under the Fair Housing Act where 
the defendants’ allegedly racial steering practices had 
frustrated the organization’s ability to assist equal access to 
housing, and it had to devote “significant resources” to 
identify and counteract those practices.  455 U.S. at 379.  
Because the defendants’ practices had “perceptibly 
impaired” the organization’s ability to provide its services, 
the Court explained, “there can be no question that the 
organization has suffered injury in fact.”  Id. 
We have read Havens to hold that an organization has 
direct standing to sue where it establishes that the 
defendant’s behavior has frustrated its mission and caused it 
to divert resources in response to that frustration of purpose.  
See Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th 
Cir. 2002).  Of course, organizations cannot “manufacture 
the injury by incurring litigation costs or simply choosing to 
spend money fixing a problem that otherwise would not 
affect the organization at all,” but they can show they “would 
have suffered some other injury” had they “not diverted 
resources to counteracting the problem.”  La Asociacion de 
Trabajadores de Lake Forest v. Lake Forest, 624 F.3d 1083, 
1088 (9th Cir. 2010); see also, e.g., El Rescate Legal Servs., 
Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 
745, 748 (9th Cir. 1991). 
We agree with the motions panel and the district court 
that the Organizations have established that the Rule has 
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“perceptibly impaired” their ability to perform the services 
they were formed to provide.  EBSC II, 932 F.3d at 765.  This 
is sufficient for organizational standing.  See Combs, 
285 F.3d at 904–05. 
The Organizations share the same mission of assisting 
migrants seeking asylum.  “[B]ecause the Rule significantly 
discourages a large number of [asylum-seekers] from 
seeking asylum given their ineligibility,” the Rule frustrates 
their mission.  EBSC II, 932 F.3d at 766.  The Rule has also 
caused the Organizations to divert their already limited 
resources in response to the collateral obstacles it introduces 
for asylum-seekers.  East Bay Sanctuary Covenant 
(“EBSC”) and Innovation Law Lab (“ILL”), for example, 
are located near Berkeley, California, and in Oregon, 
respectively, and because most asylum-seekers who enter at 
a designated port of entry will “remain detained in detention 
facilities near the border hundreds of miles away,” EBSC III, 
354 F. Supp. 3d at 1109 (internal quotation marks omitted), 
those organizations “cannot represent asylum seekers.”  
Decl. of Michael Smith at ¶ 6.  Unaccompanied minors are 
now often unable to seek asylum alone, and “[s]ince the new 
rule was announced, Al Otro Lado [(“AOL”)] has been 
overwhelmed with children who traveled to the southern 
border of the United States to apply for asylum but now 
cannot do so.”  Supp. Decl. of Erika Pinheiro at ¶¶ 4, 15.  
Caring for the often nonlegal needs of these unaccompanied 
children is not part of AOL’s core mission and is “causing a 
near complete diversion of [AOL’s] resources.”  Id. ¶ 16.  It 
has “expended significant resources to send staff to the 
border as it attempts to shift its programs.”  EBSC III, 354 F. 
Supp. 3d at 1109. 
The funding on which the Organizations critically 
depend is also jeopardized by the Rule.  EBSC only “rarely” 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
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represents people in removal proceedings.  Decl. of Michael 
Smith at ¶ 8.  Because 80 percent of its clients have entered 
without stopping at a port of entry in the past, EBSC stands 
to “lose a significant amount of business and suffer a 
concomitant loss of funding” if these individuals are deemed 
categorically ineligible for asylum.  EBSC III, 354 F. Supp. 
3d at 1109 (citing EBSC II, 932 F.3d at 767).  AOL and 
CARECEN explain that the Rule decreases the funding they 
stand to receive from the California Department of Social 
Services.  AOL often represents detained immigrants in their 
bond proceedings, and “[s]ince the [R]ule went into effect,” 
AOL has “not received a single referral for a bond case, as 
persons who enter without inspection are ostensibly being 
put into ‘Withholding-only’ proceedings and no longer 
initially eligible for bond.”  Supp. Decl. of Erika Pinheiro 
at ¶ 22.  CARECEN receives from the Department a flat 
amount of funding per client it assists, and because more of 
its clients are being put into more time- and resource-
intensive withholding proceedings, it will assist less clients 
and receive less funding.  Decl. of Daniel Sharp at ¶ 7. 
Each organization would have lost clients seeking refuge 
in the United States had it not diverted resources toward 
counteracting the effect of the Rule.  La Asociacion de 
Trabajadores de Lake Forest, 624 F.3d at 1088.  The 
Organizations are not required to demonstrate some 
threshold magnitude of their injuries;5 one less client that 
 
5 The government notes that “East Bay Sanctuary Covenant has only 
‘around 35 clients who have entered without inspection and [who] expect 
to file for affirmative asylum in the upcoming months,’” while, “[b]y 
comparison, the ‘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 will create).”  Op. Br. of Gov’t at 27 n.4. 
 
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they may have had but-for the Rule’s issuance is enough.  In 
other words, plaintiffs who suffer concrete, redressable 
harms that amount to pennies are still entitled to relief. 
The government advances three additional justiciability 
arguments.  First, the government argues that the 
Organizations have “no legally protected interest in 
maintaining their current organizational structure or in the 
Rule’s application to third parties, which the motions panel 
did not consider in its analysis.”  Op. Br. of Gov’t at 28.  This 
position misunderstands the injury-in-fact inquiry and 
conflates organizational standing with third-party standing, 
which the Organizations have conceded is not at issue.6  An 
injury-in-fact is “an invasion of a legally protected interest,” 
see Lujan, 504 U.S. at 560, but this means an interest that is 
only concrete and particularized and actual or imminent—
 
The comparative magnitude of the harms alleged by the parties, 
however, is not relevant for standing purposes; “a loss of even a small 
amount of money is ordinarily an ‘injury.’”  Czyzewski v. Jevic Holding 
Corp., 137 S. Ct. 973, 983 (2017); see also Wallace v. ConAgra Foods, 
Inc., 747 F.3d 1025, 1029 (8th Cir. 2014) (“The consumers’ alleged 
economic harm—even if only a few pennies each—is a concrete, non-
speculative injury.”); Carpenters Indus. Council v. Zinke, 854 F.3d 1, 5 
(D.C. Cir. 2017) (“A dollar of economic harm is still an injury-in-fact for 
standing purposes.”). 
6 Many of the cases cited by the government in support of this 
proposition do not concern organizational standing under Article III. In 
O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), the 
Court addressed whether nursing home residents have a right to an 
administrative hearing before a state or federal agency hearing before the 
agency revokes the home’s authority to provide them with nursing care 
at government expense.  Linda R.S. v. Richard D., 410 U.S. 614 (1973), 
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), Arpaio v. Obama, 
797 F.3d 11 (D.C. Cir. 2015), and Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 
883 (1984) all describe limitations on third-party, not organizational, 
standing. 
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not an interest protected by statute.  This distinction prevents 
Article III standing requirements from collapsing into the 
merits of a plaintiff’s claim; “a petitioner’s ‘legally protected 
interest’ need not be a statutorily created interest,” Ass’n of 
Pub. Agency Customers v. Bonneville Power Admin., 
733 F.3d 939, 950 (9th Cir. 2013), and a plaintiff can have 
standing despite losing on the merits.  See also In re Special 
Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir. 2006) 
(citing Warth v. Seldin, 422 U.S. 490, 500 (1975) 
(“[S]tanding in no way depends on the merits of the 
plaintiff’s contention that particular conduct is illegal 
. . . .”)). 
More recent Supreme Court opinions have described 
injury-in-fact as “a judicially cognizable interest”—
implying that “an interest can support standing even if it is 
not protected by law . . . so long as it is the sort of interest 
that courts think to be of sufficient moment to justify judicial 
intervention.”  In re Special Grand Jury 89-2, 450 F.3d 
at  1172 (citing Bennett v. Spear, 520 U.S. 154, 167 (1997)); 
see also, e.g., Hollingsworth v. Perry, 570 U.S. 693, 707 
(2013).  Whether the Organizations have a sufficient 
statutory or otherwise legal basis for their claims is irrelevant 
at this threshold stage. 
The government next argues that we should avoid 
interfering with DOJ’s and DHS’s decision to adopt the Rule 
because “[t]he Supreme Court has ‘long recognized the 
power to expel or exclude aliens as a fundamental sovereign 
attribute 
exercised 
by 
the 
Government’s 
political 
departments largely immune from judicial control.’”  See 
Op. Br. of Gov’t at 30 (quoting Fiallo v. Bell, 430 U.S. 787, 
792 (1977)). 
We do not conduct independent policy analyses of 
executive decisions.  But we do “police the separation of 
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powers in litigation involving the executive[.]”  In re 
Cheney, 334 F.3d 1096, 1106 (D.C. Cir. 2003), vacated and 
remanded on other grounds, 542 U.S. 367 (2004).  For this 
reason, there is a strong presumption favoring judicial 
review of administrative action, see Bowen v. Mich. Acad. of 
Family Phys., 476 U.S. 667, 670 (1986); non-reviewability 
is an exception that must be clearly evidenced in the statute, 
see Barlow v. Collins, 397 U.S. 159, 166–67 (1970).  
Without such review, “statutes would in effect be blank 
checks drawn to the credit of some administrative officer or 
board.”  Bowen, 476 U.S. at 671 (citing S. Rep. No. 752, 
79th Cong., 1st Sess., 26 (1945)).  Efficient agency 
administration always requires some authority and 
responsibility to resolve questions left unanswered by 
Congress.  It does not include the “power to revise clear 
statutory terms.”7  Utility Air Reg. Grp. v. E.P.A., 573 U.S. 
302, 327 (2014). 
We are therefore responsible for reviewing whether the 
government has overstepped its delegated authority under 
the INA and encroached upon Congress’s legislative 
prerogative.  See 5 U.S.C. § 706(2)(A). 
Finally, the government argues that three provisions of 
the 
Illegal 
Immigration 
Reform 
and 
Immigration 
Responsibility Act (“IIRIRA”), 8 U.S.C. §§ 1252(e)(3), 
 
7 
The 
irony 
of 
the 
government’s 
position 
is 
that 
section 1158(b)(2)(C)—the INA rule-making delegation upon which it 
relies—is based on a congressional mandate that was intended, at least 
in part, to curtail “unfettered executive discretion” and assure Congress’s 
“proper and substantial role in refugee admissions, given [its] plenary 
power over immigration.”  125 Cong. Rec. 35,814–15 (1979) (statement 
of Rep. Holtzman) (emphasis added).  “[I]f there is a separation-of-
powers concern here, it is between the President and Congress.”  
EBSC II, 932 F.3d at 774. 
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1252(a)(5), and 1252(b)(9), divest this court of jurisdiction 
to entertain this appeal.  These statutes, in the government’s 
view, require the Organizations to bring their claims in 
individual-removal proceedings or in the District Court for 
the District of Columbia. 
Section 1252(e)(3) authorizes a limited court review of 
expedited-removal proceedings.  The statute requires that 
judicial review of such administrative decisions be initiated 
in the District Court for the District of Columbia, and limits 
review to “determinations of (i) whether such section, or any 
regulation 
issued 
to 
implement 
such 
section, 
is 
constitutional; or (ii) whether such a regulation . . . is not 
consistent with applicable provisions of this subchapter or is 
otherwise in violation of law.”8  Section 1252(e)(3), in short, 
limits 
jurisdiction 
over 
challenges 
to 
regulations 
implementing expedited-removal orders.  See Barajas-
Alvarado, 655 F.3d at 1086 n.10. 
Section 1252(a)(5) operates in conjunction with section 
1252(e).  It limits review of expedited-removal orders to 
habeas review under 1252(e) and further restricts any 
appellate habeas review to considering only whether the 
migrant is lawfully in the country.  See id. at 1082; 8 U.S.C. 
§ 1252(e)(2).  Section 1252(b)(9) also applies only to 
removal orders, but instead channels “[j]udicial review of all 
questions of law and fact . . . arising from any action taken 
or proceeding brought to remove an alien from the United 
 
8 Migrants can be placed in expedited removal proceedings when 
they arrive at ports of entry without documents, misrepresent their 
identities, or present fraudulent documents.  See United States v. 
Barajas-Alvarado, 655 F.3d 1077, 1081 (9th Cir. 2011).  Undocumented 
migrants who receive removal orders but indicate an intention to apply 
for asylum or a fear of persecution may still be considered for asylum.  
See id. (citing 8 U.S.C. § 1225(b)(1)(A)(i)). 
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States[,]” to the courts of appeals.  8 U.S.C. § 1252(b)(9); 
see also I.N.S. v. St. Cyr, 533 U.S. 289, 313 (2001). 
In the APA context, these provisions prohibit “a claim 
by an alien, however it is framed, [that] challenges the 
procedure and substance of an agency determination that is 
‘inextricably linked’ to the order of removal[.]”  Martinez v. 
Napolitano, 704 F.3d 620, 623 (9th Cir. 2012).  “[C]laims 
that are independent of or collateral to the removal process” 
are not actions taken to “remove an alien from the United 
States.”  J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 
2016); 8 U.S.C. § 1252(b)(9).  The purpose of these claim-
channeling provisions is to “limit all aliens to one bite of the 
apple with regard to challenging an order of removal.”  
Martinez, 704 F.3d at 622. 
None of these provisions have any bearing on the Rule.  
Sections 1252(a)(5), (b)(9), and (e)(3) govern judicial 
review of removal orders or challenges inextricably linked 
with actions taken to remove migrants from the country.  The 
Rule “governs eligibility for asylum and screening 
procedures for aliens subject to a presidential proclamation 
or order restricting entry[.]”  83 Fed. Reg. at 55,934 
(emphasis added).  Bars to asylum eligibility may eventually 
be relevant to removal proceedings, but they are not 
“regulation[s] . . . to implement [removal orders]” or 
otherwise entirely linked with removal orders.9  8 U.S.C. 
 
9 In another, strikingly similar context, the government appears to 
agree with this interpretation of section 1252(e)(3).  Before the District 
Court for the District of Columbia, the government argued that section 
1252(e)(3) divested the court of jurisdiction to hear an APA challenge to 
an immigration decision issued by the Attorney General.  See Grace v. 
Whitaker, 344 F. Supp. 3d 96, 105 (D.D.C. 2018). The Attorney 
General’s decision, and a policy memorandum that adopted the standards 
in the decision, invoked the expedited-removal statute and required that 
 
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§ 1252(e)(3);  see also Martinez, 704 F.3d at 623; O.A. v. 
Trump, 404 F. Supp. 3d 109, 141 (D.D.C. 2019) 
(Ҥ 1252(e)(3) is about challenges to expedited removal 
orders and the implementation of the expedited removal 
provisions that Congress enacted in IIRIRA.”).  This is 
consistent with the purposes of these jurisdictional 
limitations: allowing collateral APA challenges to an 
asylum-eligibility rule does not undermine Congress’s 
desire to “limit all aliens to one bite of the apple with regard 
to challenging” their removal orders.  See Martinez, 704 F.3d 
at 622. 
At best, the law governing asylum is collateral to the 
process of removal.  Migrants in the country who file 
affirmatively for asylum, or who are otherwise lawfully in 
the country—such as those who have a valid visa, maintain 
Temporary Protected Status, or are given parole, for 
example—can apply and be eligible for asylum and never 
encounter any of the statutory provisions governing 
removal.  See 8 C.F.R. § 208.4(a)(5)(iv).  Other subsections 
of the INA explicitly grant this court jurisdiction to review 
denials of individual asylum applications, further reinforcing 
that the jurisdiction-stripping provisions cited by the 
government were not intended to apply at all to challenges 
to 
asylum 
eligibility 
rules. 
 
See 
8 
U.S.C. 
§§ 1252(a)(2)(B)(ii), (a)(2)(D); see also Morales v. 
Gonzales, 478 F.3d 972, 978–79 (9th Cir. 2007). 
 
“claims based on membership in a putative particular social group 
defined by the members’ vulnerability to harm . . . will not establish the 
basis for asylum, refugee status, or a credible or reasonable fear of 
persecution.”  Id. at 110. The government there argued that the policy 
memorandum and the Attorney General’s decision did not “implement” 
section 1225(b) because it “was a decision about petitions for asylum 
under section 1158.”  Id. at 115–16 (emphasis added). 
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We again hold that the Organizations’ claims are 
justiciable and they have otherwise satisfied the Article III 
standing requirements. 
B. 
We generally also require that plaintiffs fall within the 
“zone of interests” protected by the statute in question to 
bring their claims in federal court.  Lexmark Int’l, Inc., v. 
Static Control Components, Inc., 572 U.S. 118, 129 (2014).  
The breadth of the zone-of-interests test varies, depending 
on the provisions of law at issue.  Id.  Under the APA, the 
test is not “especially demanding.”  Id. at 130 (quotations 
and citations omitted).  The zone-of-interests analysis 
forecloses suit “only when a plaintiff’s interests are so 
marginally related to or inconsistent with the purposes 
implicit in the statute that it cannot reasonably be assumed 
that Congress authorized that plaintiff to sue.”  Id. 
(quotations and citations omitted). 
The Organizations bring their claims under the APA, but 
because the APA provides a cause of action only to those 
“suffering legal wrong because of agency action . . . within 
the meaning of a relevant statute,” 5 U.S.C. § 702, the 
relevant zone of interest is that of the INA.  EBSC II, 
932 F.3d at 767–68.  And the relevant purpose is not that of 
the entire INA; it is “by reference to the particular provision 
of law upon on which the plaintiff relies.”  Bennett, 520 U.S. 
at 175–76. 
In our review, we are “not limited to considering the 
[specific] statute under which [plaintiffs] sued, but may 
consider any provision that helps us to understand Congress’ 
overall purposes” in enacting the statute.  Clarke v. Sec. 
Indus. Ass’n, 479 U.S. 388, 401 (1987); see also EBSC II, 
932 F.3d at 768.  This inquiry is intended only to help clarify 
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the act’s scope—not determine whether Congress intended a 
cause of action to arise for the plaintiff in question.  See 
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians 
v. Patchak, 567 U.S. 209, 225 (2012) (“We do not require 
any indication of congressional purpose to benefit the 
would-be plaintiff.”) (internal quotation marks omitted). 
The Organizations’ claims continue to fall within the 
zone of interests of the INA and of the regulatory 
amendments implemented by the Rule.  The Rule, much like 
the scope of section 1158(b) of the INA, shapes asylum 
eligibility requirements for migrants.  The Organizations’ 
purpose is to help individuals apply for and obtain asylum, 
provide low-cost immigration services, and carry out 
community education programs with respect to those 
services.  EBSC III, 354 F. Supp. 3d at 1108–10.  This is 
sufficient for the Court’s lenient APA test: at the very least, 
the Organizations’ interests are “marginally related to” and 
“arguably within” the scope of the statute.  See Patchak, 
567 U.S. at 224, 225. 
IV. 
We turn to the merits of the preliminary injunction10 
entered by the district court.  A plaintiff seeking a 
preliminary injunction must establish that (1) he is likely to 
succeed on the merits, (2) he is likely to suffer irreparable 
harm in the absence of preliminary relief, (3) the balance of 
equities tips in his favor, and (4) an injunction is in the public 
interest.  All. for the Wild Rockies, 632 F.3d at 1131 (citing 
 
10 The terms of the temporary restraining order entered by the district 
court in EBSC I technically differ from the terms of the preliminary 
injunction entered by the court in EBSC III, but the difference has no 
practical effect: both injunctions prevent enforcement of the Rule and are 
identical in scope.  Therefore, we review them together. 
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Winter v. National Res. Def. Council, 555 U.S. 7, 20 (2008)).  
When the government is a party, the last two factors (equities 
and public interest) merge.  Nken, 556 U.S. at 435.  These 
factors are evaluated on a sliding scale.  All. for the Wild 
Rockies, 632 F.3d. at 1131–34. 
We review for abuse of discretion the district court’s 
grant of a preliminary injunction.  Arc of Cal. v. Douglas, 
757 F.3d 975, 983 (9th Cir. 2014).  District courts abuse their 
discretion when they rely on an erroneous legal standard or 
clearly erroneous finding of fact.  Id. (internal quotations 
omitted). 
A. 
The likelihood of the Organizations’ success on the 
merits depends on the substantive and procedural validity of 
the Rule.  See EBSC III, 354 F. Supp. 3d at 1111–12.  They 
must establish a likelihood that the Rule is either 
substantively or procedurally invalid.  See EBSC II, 932 F.3d 
at 770.  Because the record on appeal is now “fully 
developed,” and the substantive validity of the Rule “rest[s] 
primarily on interpretations of law, not the resolution of 
factual issues, we may consider the merits of the case and 
enter a final judgment to the extent appropriate.”  Beno v. 
Shalala, 30 F.3d 1057, 1063 (9th Cir. 1994) (internal 
quotation marks omitted). 
1. 
The APA requires that we “hold unlawful and set aside 
agency action, findings, and conclusions found to be . . . an 
abuse of discretion, or otherwise not in accordance with 
law.”  5 U.S.C. § 706(2)(A).  Presidential action is not 
ordinarily “agency action,” and is typically unreviewable 
under the APA.  Franklin v. Massachusetts, 505 U.S. 788, 
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796 (1992).  But the Proclamation and Rule together create 
an “operative rule of decision” for asylum eligibility that is 
reviewable by this court.  EBSC II, 932 F.3d at 770; see also 
City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 
1142, 1166 (9th Cir. 1997) (holding that executive orders 
with “specific statutory foundation[s]” that do not expressly 
preclude judicial review are treated as agency action and 
reviewed under the APA); Public Citizen v. U.S. Trade Rep., 
5 F.3d 549, 552 (D.C. Cir. 1993) (“Franklin is limited to 
those cases in which the President has final constitutional or 
statutory responsibility for the final step necessary for the 
agency action directly to affect the parties.”). 
To determine whether the Rule is “not in accordance 
with law,” we apply the framework established in Chevron, 
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842 
(1984).  Under Chevron, we first consider “whether 
Congress has directly spoken to the precise question at issue.  
If the intent of Congress is clear, that is the end of the 
matter.”  Campos-Hernandez v. Sessions, 889 F.3d 564, 568 
(9th Cir. 2018) (quoting Chevron, 467 U.S. at 842).  Federal 
courts are “the final authority on issues of statutory 
construction and must reject administrative constructions 
which are contrary to clear congressional intent.”  Chevron, 
467 U.S. at 843 n.9. 
a. 
We consider, then, whether the Rule conflicts with 
Congress’s intent.  The only section of the INA implicated 
by the Rule is section 1158 (“Asylum”).  That section begins 
by stating that an undocumented migrant may apply for 
asylum when she is “physically present in the United States” 
or “arrives in the United States (whether or not at a 
designated port of arrival . . . )[.]”  8 U.S.C. § 1158(a)(1).  
DOJ 
and 
DHS 
adopted the 
Rule 
under 
section 
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1158(b)(2)(C)’s grant of authority to the Attorney General 
to “establish additional limitations and conditions, consistent 
with this section, under which an alien shall be ineligible for 
asylum[.]”11 
We agree with the district court that the Rule is “not in 
accordance with law.”  5 U.S.C. § 706(2)(A).  Section 
1158(a) provides that migrants arriving anywhere along the 
United States’s borders may apply for asylum.  The Rule 
requires migrants to enter the United States at ports of entry 
to preserve their eligibility for asylum.  It is effectively a 
categorical ban on migrants who use a method of entry 
explicitly authorized by Congress in section 1158(a).  As the 
district court stated, “[i]t would be hard to imagine a more 
direct conflict” than the one presented here.  EBSC III, 
354 F. Supp. 3d at 1112. 
The government argues that the structure of section 1158 
mandates a different result.  Critical to the government’s 
argument is that section 1158 splits asylum applications 
(§ 1158(a)) and eligibility (§ 1158(b)) into two different 
subsections; therefore, the government explains, Congress 
intended to allow DOJ to promulgate limitations on asylum 
eligibility 
without 
regard 
to 
the 
procedures 
and 
authorizations governing asylum applications.  The text in 
section 1158(a) requires only that migrants arriving between 
 
11 A separate subsection of section 1158, 1158(d)(5)(B), grants the 
Attorney General authority to impose “conditions or limitations on the 
consideration of an application for asylum not inconsistent with this 
chapter.”  As the motions panel observed, had the Rule explicitly 
conditioned applications for asylum (instead of eligibility for asylum) on 
arriving at a designated point of entry, the Rule would be “quite 
obviously, ‘not in accordance with law,’” EBSC II, 932 F.3d at 770 
(quoting 5 U.S.C. § 706(2)(A)), because 1158(a) directs migrants to 
“apply for asylum” in accordance with section 1158. 
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ports of entry be permitted to “apply for asylum,” and the 
Rule does not prevent migrants from submitting futile 
asylum applications. (emphasis added). 
This argument is unconvincing.  We avoid absurd results 
when interpreting statutes.  Rowland v. Cal. Men’s Colony, 
Unit II Men’s Adv. Council, 506 U.S. 194, 200–01 (1993).  
Explicitly authorizing a refugee to file an asylum application 
because he arrived between ports of entry and then 
summarily denying the application for the same reason 
borders on absurdity.  The consequences of denial at the 
application or eligibility stage are, to a refugee, the same.  
See EBSC II, 932 F.3d at 771.  Had Congress intended to 
allow DOJ and DHS to override this provision, it could have 
said so in its delegation of authority to the Attorney General 
or in the statutory provisions governing asylum applications.  
And Congress signaled its desire that any eligibility 
limitations be consistent with application requirements; 
limitations promulgated under the eligibility subsection of 
the statute must be “consistent with this section”—meaning 
the entirety of section 1158—not just consistent with this 
subsection. 
The other categorical bars to asylum in section 1158(b) 
of the INA do not meaningfully inform our reading of the 
statute and the Rule.  See EBSC II, 932 F.3d at 771 n.12.  The 
INA contains various provisions making ineligible asylum 
applicants who committed a serious, nonpolitical crime 
outside the United States prior to arrival (8 U.S.C. 
§ 1158(b)(2)(A)(iii)), assisted or otherwise participated in 
the 
persecution 
of 
another 
person 
(8 
U.S.C. 
§ 1158(b)(2)(A(i)), or were firmly resettled in another 
country prior to arriving in the United States (8 U.S.C. 
§ 1158(b)(2)(A)(vi)), among other things.  The government 
again suggests that the existence of these eligibility bars in 
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the INA demonstrates that Congress intended certain 
categories of migrants to be permitted to apply for asylum 
even though they are categorically ineligible.  A migrant 
who was firmly resettled in another country, for example, is 
still free to complete an asylum application, even though she 
will be barred from seeking asylum under section 
1158(b)(2)(A)(vi). 
But—unlike the eligibility bar effected by the Rule—the 
statutory asylum bars in the INA do not separately conflict 
with explicit text in section 1158(a).  There is no provision 
in section 1158(a), for example, that affirmatively requires 
that migrants who were firmly resettled in another country 
be permitted to apply for asylum.  The Rule creates the only 
bar to eligibility under section 1158(b) that directly conflicts 
with language in section 1158(a).  The statutory eligibility 
bars noted above do not suggest Congress intended that 
migrants who are subject to them be permitted to apply for 
asylum.  See also EBSC II, 932 F.3d at 772 (“‘[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.’”) (quoting EBSC 
I, 349 F. Supp. 3d at 857).  The district court correctly 
concluded that the Rule is substantively invalid because it 
conflicts with the plain congressional intent instilled in 
8 U.S.C. § 1158(a), and is therefore “not in accordance with 
law,” 5 U.S.C. § 706(2)(A). 
b. 
But even if the text of section 1158(a) were ambiguous, 
the Rule fails at the second step of Chevron because it is an 
arbitrary and capricious interpretation of that statutory 
provision.  If the statute is “silent or ambiguous with respect 
to the specific issue, the question for the court is whether the 
agency’s answer is based on a permissible construction of 
the statute.”  Campos-Hernandez, 889 F.3d at 568 (quoting 
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Chevron, 467 U.S. at 843).  Under this standard, we must 
give effect to an agency’s reasonable interpretation of a 
statute, unless the interpretation is inconsistent with clearly 
expressed congressional intent.  See United States v. Fulton, 
475 U.S. 657, 666–67 (1986). 
The Board of Immigration Appeals (“BIA”) and this 
court have long recognized that a refugee’s method of 
entering the country is a discretionary factor in determining 
whether the migrant should be granted humanitarian relief.  
EBSC II, 932 F.3d at 772.  More than thirty years ago, the 
BIA stated that “an alien’s manner of entry or attempted 
entry is a proper and relevant discretionary factor” to 
adjudicating asylum applications under section 1158(a), but 
“it should not be considered in such a way that the practical 
effect is to deny relief in virtually all cases.”12  Matter of 
Pula, 19 I. & N. Dec. 467, 473 (B.I.A. 1987), superseded in 
part by statute on other grounds as stated in Andriasian v. 
I.N.S., 180 F.3d 1033, 1043–44 (9th Cir. 1999); see also 
EBSC II, 932 F.3d at 772.  The court explained that it would 
instead evaluate “the totality of the circumstances and 
actions of an alien in his flight from the country where he 
fears persecution,” rather than deny asylum outright because 
of a single procedural flaw in the migrant’s application.  
Matter of Pula, 19 I. & N. Dec. at 473–74. 
Especially where a migrant may be eligible only for 
asylum and cannot establish the more stringent criteria for 
 
12 The BIA in Pula interpreted section 1158(a) before it was 
amended to include the particular phrase at issue (“whether or not at a 
designated port of arrival”).  At the time, the relevant sentence stated 
“The Attorney General shall establish a procedure for an alien physically 
present in the United States or at a land border or port of entry, 
irrespective of such alien’s status, to apply for asylum[.]”  8 U.S.C. 
§ 1158(a) (1980). 
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withholding-of-removal, 
the 
discretionary 
factors—
including method of entry—should be “carefully evaluated 
in light of the unusually harsh consequences which may 
befall an alien[.]”  Id. at 474.  Indeed, “the danger of 
persecution should generally outweigh all but the most 
egregious of adverse factors.”  Id. 
We have supported the BIA’s understanding of section 
1158(a).  The most vulnerable refugees are perhaps those 
fleeing across the border through the point physically closest 
to them.  That a refugee crosses a land border instead of a 
port-of-entry says little about the ultimate merits of her 
asylum application; “if illegal manner of flight and entry 
were enough independently to support a denial of asylum, 
. . . virtually no persecuted refugee would obtain asylum.”  
EBSC II, 932 F.3d at 773 (quoting Huang v. I.N.S., 436 F.3d 
89, 100 (2d Cir. 2006)).  Given the Rule’s effect of 
conditioning asylum eligibility on a factor that has long been 
understood as “worth little if any weight,” see Mamouzian v. 
Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004), in 
adjudicating whether a migrant should be granted asylum, it 
is an arbitrary and capricious interpretation of section 
1158(a). 
The Attorney General’s interpretation of section 1158(a) 
is also unreasonable, as the motions panel and district court 
discussed, in light of the United States’s treaty obligations.  
See EBSC II, 932 F.3d at 772–73; EBSC III, 354 F. Supp. 3d 
at 1112–13.  The United States agreed to comply with 
Articles 2 through 34 of the 1951 United Nations 
Convention Relating to the Status of Refugees (“1951 
Convention”) and the 1967 United Nations Protocol 
Relating to the Status of Refugees (“1967 Protocol”) in 
1968.  H.R. Rep. 96-781 (Conf. Rep.), at 19–20 (1980), as 
reprinted in 1980 U.S.C.C.A.N. 160, 160–62; see also I.N.S. 
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v. Cardoza-Fonseca, 480 U.S. 421, 429, 436–37 (1987).  To 
streamline the United States’s refugee procedures and 
implement the country’s new treaty commitments, Congress 
passed the Refugee Act of 1980, which amended the INA 
and created the country’s first codified rules governing 
asylum.  S. Rep. No. 96-256, at 1 (1979), as reprinted in 
1980 U.S.C.C.A.N. 141, 141–42, 144; H.R. Doc. No. 96-
608, at 17–18 (1979); see also Negusie v. Holder, 555 U.S. 
511, 535–36 (2009). 
As the United Nations High Commissioner of Refugees 
(“UNHCR”) explains,13 the Rule runs afoul of three of these 
codified rules: the right to seek asylum, the prohibition 
against penalties for irregular entry, and the principle of non-
refoulement embodied in Article 31(1) of the 1951 
Convention.  Neither the 1967 Protocol nor the 1951 
Convention require countries to accept refugees, but they do 
ensure that refugees at each signatory’s borders have legal 
and political rights and protections.  See Cong. Research 
Serv. S522-10, Review of U.S. Refugee Resettlement 
Programs and Policies 15–16 (1980). 
The definition of “refugee” used in the 1951 Convention 
is “virtually identical” to the one adopted by Congress in the 
INA.  Cardoza-Fonseca, 480 U.S. at 437.  Under both the 
 
13 The arguments presented by the United Nations in its amicus brief 
on how the 1951 Convention and 1967 Protocol should be construed are 
not binding on this court.  See Cardoza-Fonseca, 480 U.S. at 439 n.22.  
But they do “provide[] significant guidance in construing the [1967] 
Protocol, to which Congress sought to conform[,]” and are “useful in 
giving content to the obligations that the Protocol establishes.”  Id; see 
also Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007) (“We 
view the UNHCR Handbook as persuasive authority in interpreting the 
scope of refugee status under domestic asylum law.”) (internal quotation 
marks and citation omitted). 
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INA and the 1951 Convention, refugees are all individuals 
who—because of a “well-founded fear of being persecuted 
for reasons of race, religion, nationality, membership in a 
particular social group or political opinion”—are “unable,” 
or, because of such fear, “unwilling to return” to their home 
countries.  See 8 U.S.C. § 1101(a)(42); 1951 Convention, 
Art. 1(A)(2).  Once individuals meet the statutory definition 
of a “refugee,” they may be granted asylum under the INA.  
See 8 U.S.C. § 1158(b)(1)(A). 
Both the INA and the 1951 Convention acknowledge 
that individuals may be stripped of their refugee status even 
when they meet the other eligibility criteria for asylum.  The 
refugee provisions of the 1951 Convention “shall not apply” 
to “any person with respect to whom there are serious 
reasons for considering” that such a person has committed a 
crime against peace, a war crime, a crime against humanity, 
a non-political crime outside of the country of refuge, prior 
to their admission as a refugee, or has been “guilty of acts 
contrary to the purposes and principles of the United 
Nations.”  1951 Convention, Art. 1(F)(a)–(c).  The statutory 
bars for eligibility in the INA are similarly severe.  
Individuals who are otherwise refugees may not apply for 
asylum if the Attorney General determines that they 
“ordered, incited, assisted, or otherwise participated” in the 
persecution of another, based on a trait protected by the INA; 
“constitute[] a danger to the community of the United 
States”; committed a “serious nonpolitical crime” outside 
the country; are a “danger to the security” of the country; 
have engaged in terrorist activities; or were “firmly resettled 
in another country prior to arriving in the United States.”  
8 U.S.C. § 1158(b)(2)(A)(i)–(vi). 
The exceptions listed in the 1951 Convention “require 
individualized assessments and ‘must be [interpreted] 
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restrictive[ly].”  Br. for UNHCR as Amicus Curiae at 14 n.6 
(quoting Office of the United Nations High Commissioner 
for Refugees, Handbook on Procedures and Criteria for 
Determining Refugee Status ¶ 149 (Geneva, 1979)).  So too 
the categorical bars on eligibility in the INA are interpreted 
with lenience toward migrants to avoid infringing on the 
commitments set forth in the 1951 Convention and 1967 
Protocol.  See, e.g., Ali v. Ashcroft, 394 F.3d 780, 790 (9th 
Cir. 2005) (A “narrow interpretation of the firm resettlement 
bar would limit asylum to refugees from nations contiguous 
to the United States or to those wealthy enough to afford to 
fly here in search of refuge. The international obligation our 
nation agreed to share when we enacted the Refugee 
Convention into law knows no such limits.”); Cardoza-
Fonseca, 480 U.S. at 449. 
The asylum bars in the INA and in the 1951 Convention 
appear to serve either the safety of those already in the 
United States or, in the case of the firm-resettlement bar, the 
safety of refugees.  The Rule ensures neither.  Even a broad 
interpretation of these eligibility bars does not naturally 
encompass a refugee’s method of entry.  Illegal entry is not 
ordinarily considered a “serious crime.”  See Pena-
Cabanillas v. United States, 394 F.2d 785, 788 (9th Cir. 
1968) (stating that the statute criminalizing entry into the 
United States “is not based on any common law crime, but 
is a regulatory statute enacted to assist in the control of 
unlawful immigration by aliens” and “is a typical mala 
prohibita offense”).  Nor does a migrant’s method of entry 
per se create a danger to the United States, serve as a useful 
proxy for terrorist activity, or suggest the persecution of 
another. 
And the Rule surely does not suggest that the migrant has 
received protection in a third country.  Many migrants enter 
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between ports of entry out of necessity: they “cannot satisfy 
regular exit and entry requirements and have no choice but 
to cross into a safe country irregularly prior to making an 
asylum claim.”  Br. for UNHCR as Amicus Curiae at 15 
(citing Memorandum by the Secretary-General, Ad Hoc 
Comm. on Statelessness, Status of Refugees & Stateless 
Persons, at Annex Art. 24, cmt. ¶ 2, U.N. Doc. E/AC.32/2 
(Jan. 3, 1950); UNHCR Executive Committee Conclusion 
No. 58 (XL) ¶ (i) (Oct. 13, 1989)).  This was well recognized 
when the Refugee Act of 1980 was drafted.  See Pub. L. No. 
96-212, § 208(a), 94 Stat. 102, 105 (1980).  Prior to the 
passage of the Act, migrants who arrived at a port of entry 
were “given an opportunity to have their [asylum] 
applications heard in a hearing before an immigration 
judge,” but refugees arriving “at a land border of the United 
States [we]re not given this right.”  Refugee Act of 1979: 
Hearing on H.R. 2816 before the Subcomm. on Immigration, 
Refugees, and Int’l Law of the Comm. on the Judiciary, 96th 
Cong. 190 (1979) (testimony of David Carliner, American 
Civil Liberties Union).  In its attempt to streamline the 
country’s refugee and asylum laws, Congress was urged to 
consider that “persons who seek any benefits under [the 
INA] should be entitled to a uniform procedure.”  Id.  
Congress heeded this consideration during the drafting of the 
Refugee Act, eventually describing it as “establish[ing] a 
more uniform basis for the provision of assistance to 
refugees, and [] other purposes.”  Refugee Act of 1980, Pub. 
L. No. 96-212, 94 Stat. 102 (1980).  The Rule defies this 
desire for uniformity and denies refuge to those crossing a 
land border.  The effects of the Rule contravene the United 
States’s commitments in the 1951 Convention. 
Article 31(1) of the 1951 Convention also explains that 
signatories “shall not impose penalties” on account of 
refugees’ “illegal entry or presence,” 1951 Convention 
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Art 31(1). 
 
Notwithstanding 
the 
government’s 
interpretations otherwise, “deportation is an integral part—
indeed, sometimes the most important part—of the penalty 
that may be imposed” on migrants who are found guilty of 
specified crimes, or for other reasons are barred from 
seeking asylum.14  See Padilla v. Kentucky, 559 U.S. 356, 
364 (2010) (footnote omitted).  The Rule imposes an 
additional penalty on refugees because of their “illegal 
entry” by risking the deportation of migrants who enter the 
country at a land border.  1951 Convention Art. 31(1). 
And by categorically denying refugees an opportunity to 
seek asylum only because of their method of entry, the Rule 
is also in tension with the United States’s commitment to 
avoid refouling individuals to countries where their lives are 
threatened.  Article 31(1) of the 1951 Convention prohibits 
signatories from “expel[ling] or return[ing] (‘refouler’) a 
refugee in any manner whatsoever to the frontiers of 
territories where his life or freedom would be threatened[.]”  
The INA’s withholding-of-removal, 8 U.S.C. § 1231(b)(1), 
and Convention Against Torture (“CAT”) protections, 
8 C.F.R. § 1208.16–18, are not as great as those conferred 
by the INA’s asylum provisions.  The evidentiary standard 
that applicants must meet for either withholding-of-removal 
or CAT relief is higher than the evidentiary standard for 
asylum.  See, e.g., Ling Huang v. Holder, 744 F.3d 1149, 
1152 (9th Cir. 2014).  Applicants for withholding-of-
removal and CAT relief must establish a “clear probability” 
that they would be persecuted or tortured, respectively, if 
they were removed to their home countries.  See Korablina 
v. I.N.S., 158 F.3d 1038, 1045–46 (9th Cir. 1998); Wakkary 
 
14 The UNHCR’s view is that “penalties” in Article 31(1) 
“encompasses civil or administrative penalties as well as criminal ones.”  
Br. for UNHCR as Amicus Curiae at 20. 
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v. Holder, 558 F.3d 1049, 1053 (9th Cir. 2009).  A “clear 
probability” of persecution or torture means that it is “more 
likely than not” that applicants will be persecuted upon their 
removal.  I.N.S. v. Stevic, 467 U.S. 407, 424, 429–30 (1984). 
Applicants for asylum instead must demonstrate only 
that they are “unable or unwilling” to return to their home 
countries “because of persecution or a well-founded fear of 
persecution[.]”  8 U.S.C. § 1101(a)(42)(A).  “One can 
certainly have a well-founded fear of an event happening 
when there is less than a 50%  chance of the occurrence 
taking place”; it would only be “too apparent,” for example, 
for a refugee to have a “well-founded fear of being 
persecuted” where “every tenth adult male person is either 
put to death or sent to some remote labor camp” in the 
applicant’s home country.  Cardoza-Fonseca, 480 U.S. 
at 431 (citing 1 A. Grahl-Madsen, The Status of Refugees in 
International Law 180 (1966)).  The Rule, then, risks the 
removal of individuals with meritorious asylum claims who 
cannot petition for withholding of removal or CAT relief.  
By doing so, it is inconsistent with our treaty commitment to 
non-refoulement. 
The Rule is “arbitrary, capricious, or manifestly contrary 
to the statute,” Chevron, 467 U.S. at 844, both because it is 
contrary to plain congressional intent, and because it is an 
arbitrary and capricious interpretation of section 1158(a).  
Even if we agreed that the text of section 1158(a) is 
ambiguous, the Rule flouts this court’s and the BIA’s 
discretionary, individualized treatment of refugees’ methods 
of entry, and infringes upon treaty commitments we have 
stood by for over fifty years. 
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2. 
Because we conclude that the Rule is substantively 
invalid, we only briefly address the procedural arguments 
raised by the parties.  The APA requires public notice and 
comment and a thirty-day grace period before a proposed 
rule takes effect.  5 U.S.C. § 553(b)–(d).  The notice-and-
comment requirements are exempted when “there is 
involved a military or foreign affairs function of the United 
States[,]” id. § 553(a), or when “the agency for good cause 
finds . . . that notice and public procedure thereon are 
impracticable, unnecessary or contrary to the public 
interest.”  Id. § 553(b)(B).  The thirty-day lag in publication 
can be waived where “good cause [is] found.”15  Id. 
§ 553(d)(3). 
The Rule was issued without notice and comment or the 
grace period.  The government argues that the Rule was 
properly issued because it falls under either the good-cause 
or the foreign-affairs exceptions to these procedural 
requirements. 
a. 
Proper invocation of the good-cause exception is 
“sensitive to the totality of the factors at play.”  United States 
v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010).  The 
 
15 “Different policies” underlie the good-cause exception for the 
thirty-day grace period and the good-cause exception for the notice-and-
comment requirement, and “they can be invoked for different reasons.”  
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992).  
Notice-and-comment requirements are intended to ensure public 
participation in rulemaking, and the thirty-day waiting period is 
“intended to give affected parties time to adjust their behavior before the 
final rule takes effect.” Id. 
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exception is a “high bar” because it is “essentially an 
emergency procedure.”  Id. at 1164, 1165.  The government 
must make a sufficient showing that “‘delay would do real 
harm’ to life, property, or public safety,” EBSC II, 932 F.3d 
at 777 (quoting Valverde, 628 F.3d at 1164–65), or that 
“some exigency” interferes with its ability to carry out its 
mission.  Nat. Res. Def. Council, Inc. v. Evans, 316 F.3d 904, 
911 (9th Cir. 2003). 
In support of its reliance on the exception, the 
government now cites a Washington Post article indicating 
that when the United States stopped its policy of separating 
migrant parents from their children, smugglers told asylum-
seekers that “the Americans do not jail parents who bring 
children—and to hurry up before they might start doing so 
again.”  See Nick Miroff and Carolyn Van Houten, The 
Border is Tougher to Cross Than Ever. But There’s Still One 
Way into America, Wash. Post (Oct. 24, 2018).  The district 
court concluded that the article “at least supports the 
inference” that the Rule might result in similar changes in 
immigration policy, and held that the government had 
“identified a ‘rational connection between the facts found 
and the choice made’ to promulgate the interim Rule on an 
emergency basis.”  EBSC III, 354 F. Supp. 3d at 1115 
(quoting Valverde, 628 F.3d at 1168). 
A citation to this single article is not sufficient to 
demonstrate that the delay caused by notice-and-comment or 
the grace period might do harm to life, property, or public 
safety.  See EBSC II, 932 F.3d at 777.  The government’s 
reasoning continues to be largely speculative, see id. at 778; 
no evidence has been offered to suggest that any of its 
predictions are rationally likely to be true.  The article does 
not directly relate to the Rule, the consequences of the Rule, 
or anything related to asylum eligibility. 
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Even if it did, that “the very announcement of [the] 
proposed rule itself can be expected to precipitate activity by 
affected parties that would harm the public welfare,” Reply 
Br. of Gov’t at 21, is likely often, or even always true.  The 
lag period before any regulation, statute, or proposed piece 
of legislation allows parties to change their behavior in 
response.  If we were to agree with the government’s 
assertion that notice-and-comment procedures increase the 
potential harm the Rule is intended to regulate, these 
procedures would often cede to the good-cause exception.  
Because the government has failed to demonstrate the 
existence of an exigency justifying good cause, we hold that 
the Rule likely does not properly fall under the good cause 
exception. 
b. 
For the foreign affairs exception to apply, “the public 
rulemaking 
provisions 
should 
provoke 
definitely 
undesirable international consequences.”  Yassini v. 
Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980).  
Otherwise, the exception “would become distended if 
applied to INS actions generally, even though immigration 
matters typically implicate foreign affairs.”  Id.  Use of the 
exception is generally permissible where the international 
consequences of the rule-making requirements are obvious 
or thoroughly explained.  We have rejected its use where the 
government has failed to substantiate its reliance on the 
exception or explain the detrimental effects of compliance 
with the APA’s requirements.  See EBSC II, 932 F.3d at 776–
77. 
The government cites to four documents in support of its 
renewed argument that the foreign-affairs exception is 
justified: a Memorandum of Understanding (“MOU”) 
between DHS and the Mexican government, the Washington 
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Post article, credible-fear origin data published by the 
Executive Office of Immigration Review (“EOIR”), and a 
speech by President Trump.  The four documents appear to 
demonstrate that the Rule and Proclamation are related to 
ongoing changes in the national immigration landscape, but 
still fail to establish that adhering to notice and comment and 
a thirty-day grace period will “provoke definitely 
undesirable international consequences.”  Yassini, 618 F.3d 
at 1360 n.4. 
We agree with the government that the cited MOU does 
broadly “show[] that [immigration] negotiations have 
happened in the past,” Op. Br. of Gov’t at 49, but this is 
insufficient to demonstrate that notice and comment will 
provoke undesirable international consequences.  Indeed, 
the MOU’s substance seems to undermine the “broader 
diplomatic program involving sensitive and ongoing 
negotiations with Mexico.”  Op. Br. of Gov’t at 47 (internal 
quotations omitted).  Article 3 of the MOU states that 
“[l]ocal repatriation agreements should conform to mutually 
established criteria and principles for the repatriation of 
Mexican nationals being repatriated from the United States 
to Mexico.”  The unilateral repatriation of Mexican nationals 
set forth by the Rule—without requesting public 
participation—undermines these terms. 
The cited Washington Post page discusses an increase in 
the proportion of families that seek asylum and the EOIR 
data lists the country of origin of credible-fear cases and 
summarizes the number of people that attempt to enter the 
United States with an asylum application, the number of 
cases completed in 2018, and the outcome of credible fear 
cases.  It is unclear how these data “reflect[] motivations for 
crossing the border illegally,” Op. Br. of Gov’t at 49, and 
even less clear how they demonstrate the consequences of 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
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requesting public notice-and-comment on foreign policy.  
And the speech by President Trump, as the district court 
noted, discusses the domestic consequences of foreign 
immigration, not the foreign policy consequences of 
immigration into the United States.  See EBSC III, 354 F. 
Supp. 3d at 1114.  The speech—like the MOU, the article, 
and the EOIR data—does not suggest that the APA’s 
rulemaking provisions might trigger or even shape 
immediate consequences in foreign affairs. 
The evidence relied on by the government here is largely 
the same as the evidence previously before the motions panel 
and the district court.  While we remain “sensitive to the fact 
that the President has access to information not available to 
the public, and . . . [are] cautious about demanding 
confidential 
information,” 
the 
connection 
between 
negotiations 
with 
Mexico 
and 
the 
immediate 
implementation of the Rule is still “not apparent.”  EBSC II, 
932 F.3d at 776.  Broadly citing to the Rule’s immigration 
context is insufficient to invoke the foreign-affairs 
exception.  See Yassini, 618 F.2d at 1360 n.4.  The 
government has not made a “sufficient showing” that “the 
public rulemaking provisions should provoke definitely 
undesirable international consequences.”  Id.; see also 
Evans, 316 F.3d at 912. 
In sum, we agree with the motions panel that the 
government has not established that DOJ and DHS properly 
invoked the foreign-affairs exception to the notice-and-
comment requirement and thirty-day grace period. 
B. 
We next consider whether the Organizations have 
established that, in the absence of a preliminary injunction, 
they are likely to suffer irreparable harm.  See Arizona 
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Dream Act Coalition v. Brewer, 757 F.3d 1053, 1068 (9th 
Cir. 2014).  Irreparable harm is “harm for which there is no 
adequate legal remedy, such as an award for damages.”  Id.  
For this reason, economic harm is not generally considered 
irreparable.  But where parties cannot typically recover 
monetary damages flowing from their injury—as is often the 
case in APA cases—economic harm can be considered 
irreparable.  See California v. Azar, 911 F.3d 558, 581 (9th 
Cir. 2018).  Intangible injuries may also qualify as 
irreparable harm, because such injuries “generally lack an 
adequate legal remedy.”  Brewer, 757 F.3d at 1068. 
We agree with the district court that the Organizations 
have established that they will suffer a significant change in 
their programs and a concomitant loss of funding absent a 
preliminary injunction enjoining enforcement of the Rule.  
EBSC II, 932 F.3d at 767.  Both constitute irreparable 
injuries: the first is an intangible injury, and the second is 
economic harm for which the Organizations have no vehicle 
for recovery. 
The Rule has already prompted the Organizations to 
change their core missions.  Since the Rule issued, ILL has 
placed programmatic expansions on hold and has “had to 
lessen its caseload[.]”  Supp. Decl. of Stephen W. Manning 
at ¶ 14.  CARECEN notes that it will “divert significant 
resources,” including “staff time and organizational 
resources” to respond to the Rule.  Decl. of Daniel Sharp at 
¶¶ 11–13.  EBSC has had to “divert resources away from its 
core programs to address the new policy.”  Decl. of Michael 
Smith at ¶ 15.  And, as discussed in Part III, supra, the 
Organizations each stand to lose funding because of their 
core changes in mission. 
Importantly, the Organizations also filed suit the same 
day that the Rule and the first proclamation issued; while not 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
55 
 
dispositive, this suggests urgency and impending irreparable 
harm.  See Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc., 
762 F.2d 1374, 1377 (9th Cir. 1985).  We agree with the 
district court that the Organizations have demonstrated a 
sufficient likelihood of irreparable injury to warrant 
injunctive relief.  EBSC III, 354 F. Supp. 3d at 1116. 
C. 
The government next argues that the harms it will suffer 
because of the preliminary injunction—namely, the harm 
caused by the injunction “undermin[ing] the Executive 
Branch’s constitutional and statutory authority to secure the 
Nation’s borders,” and the “entry of illegal aliens”—
outweigh the benefit to the public and the Organizations 
conferred by the injunction.  Op. Br. of Gov’t at 51–52.  
Relevant equitable factors include the value of complying 
with the APA, the public interest in preventing the deaths 
and wrongful removal of asylum-seekers, preserving 
congressional 
intent, 
and 
promoting 
the 
efficient 
administration of our immigration laws at the border. 
First, “[t]he public interest is served by compliance with 
the APA.”  Azar, 911 F.3d at 581.  Indeed, it “does not matter 
that notice and comment could have changed the substantive 
result; the public interest is served from the proper process 
itself.”  Id. at 581–82.  The Organizations and various Amici 
informed the district court that they would have submitted 
comments explaining why the Rule disrupts their 
organizational missions and fails to meet its intended 
purpose, had they had the opportunity.  The APA’s 
requirements reflect “a judgment by Congress that the public 
interest is served by a careful and open review of proposed 
administrative rules and regulations.”  Alcaraz v. Block, 
746 F.2d 593, 610 (9th Cir. 1984) (citing Phil. Citizens in 
Action v. Schweiker, 669 F.2d 877, 881 (9th Cir. 1982)).  The 
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government’s failure to comply with the APA—particularly 
given the strength of the Organizations’ procedural attack on 
the Rule—weighs in favor of granting injunctive relief. 
Second, the public has an interest in “ensuring that we 
do not deliver aliens into the hands of their persecutors,” 
Leiva-Perez, 640 F.3d at 971, and “preventing aliens from 
being wrongfully removed, particularly to countries where 
they are likely to face substantial harm,” Nken, 556 U.S. at 
436.  The Rule will likely result in some migrants being 
wrongfully denied refugee status in this country.  For 
migrants affected by the Rule, withholding of removal and 
CAT protection are the only forms of relief available.  As 
discussed, these forms of relief demand a higher burden of 
proof than an asylum claim.  At the initial screening 
interview with an asylum officer, an applicant seeking 
asylum need only present a “credible fear” of persecution, 
while an applicant seeking withholding of removal of CAT 
protection must demonstrate the higher “reasonable fear” of 
persecution or torture. 
The government’s opening brief notes that 17 percent of 
the 34,158 migrants whose cases were completed in 2018 
received asylum.  See Op. Br. of Gov’t at 52.  Assuming the 
number of migrants remains constant, if even just 25 percent 
of asylum-seekers with meritorious claims are denied 
asylum because of their method of entry, over 1,000 people 
will either be returned to home countries where they face 
“persecution 
based 
on 
‘race, 
religion, 
nationality, 
membership in a political social group, or political 
opinion,’” EBSC III, 354 F. Supp. 3d at 1117 n.15 (quoting 
8 U.S.C. §§ 1101(a)(42), 1158(b)(1)), or forced to proceed 
on limited-relief claims that demand more stringent 
showings.  If the rate of migration and the rate of migrants 
claiming fear during the expedited removal process 
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continues to increase, see 84 Fed. Reg. at 21,229, the scale 
of this wrongful removal will only worsen. 
Third, the public has an interest in ensuring that the 
“statutes enacted by [their] representatives are not imperiled 
by executive fiat.”  EBSC II, 932 F.3d at 779 (internal 
quotation marks omitted).  The INA, and the United States’s 
signatory status to the 1951 Convention, “reflect the balance 
Congress struck between the public interests in rendering 
aliens who enter illegally inadmissible and subject to 
criminal and civil penalties, and . . . preserving their ability 
to seek asylum.”  EBSC III, 354 F. Supp. 3d at 1117–18 
(citations omitted).  The Rule and Proclamation disrupt that 
balance by overriding plain congressional intent. 
Finally, the government and the public have an interest 
in the “efficient administration of the immigration laws at 
the border.”  EBSC II, 932 F.3d at 779 (internal quotation 
marks omitted).  This interest is “weighty.”  Landon v. 
Plasencia, 459 U.S. 21, 34 (1982).  “[C]ontrol over matters 
of immigration is a sovereign prerogative, largely within the 
control of the executive and the legislature.”  Id.  The 
government has a compelling interest in ensuring that 
injunctions—such as the one granted here—do not 
undermine separation of powers by blocking the Executive’s 
lawful ability to regulate immigration and rely on its 
rulemaking to aid diplomacy. 
The role of the judiciary in reviewing such policies is 
narrow. It is merely to ensure that executive procedures do 
not violate principles of due process or “displace 
congressional choices of policy.”  Id. at 35.  This executive 
deference, then, is closely linked with our determination on 
the substantive validity of the Rule.  Essentially, the weight 
we ascribe to this factor depends on the extent to which we 
agree that the Rule overrides plain congressional intent.  
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Because the Organizations have established that the Rule is 
invalid, we do not place much weight on this factor.  As the 
motions panel noted: “[t]here surely are enforcement 
measures that the President and the Attorney General can 
take to ameliorate the [immigration] crisis, but continued 
inaction by Congress is not a sufficient basis under our 
Constitution for the Executive to rewrite our immigration 
laws.”  EBSC II, 932 F.3d at 774. 
In sum, we agree with the district court that there is a 
significant basis for concluding that the public interest 
weighs “sharply” in the Organizations’ favor.  See EBSC III, 
354 F. Supp. 3d at 1111. 
V. 
Finally, we turn to the remedy entered by the district 
court: an injunction preventing enforcement of the Rule.  
The injunction enjoins the part of the Rule that removes 
asylum eligibility from migrants who fail to follow a 
presidential proclamation.  EBSC III, 354 F. Supp. 3d 
at 1121.  It does not enjoin the credible-fear amendments, 
but “they have no independent effect,” so they are effectively 
enjoined as well.  Id. at 1121 n.22.  We conclude that the 
district court did not abuse its discretion in enjoining 
enforcement of the Rule. 
Injunctive relief should be “no more burdensome to the 
defendant than necessary to provide complete relief to the 
plaintiffs before the court.”  Univ. of Cal. v. U.S. Dep’t of 
Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018) (internal 
quotations omitted).  “Where relief can be structured on an 
individual basis, it must be narrowly tailored to remedy the 
specific harm shown,” but there is “no general requirement 
that an injunction affect only the parties in the suit.”  Bresgal 
v. Brock, 843 F.2d 1163, 1169–1170 (9th Cir. 1987).  The 
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equitable relief granted by the district court is acceptable 
where it is “necessary to give prevailing parties the relief to 
which they are entitled.”  Id. at 1170–71.  District courts 
have “considerable discretion” in crafting suitable equitable 
relief; correspondingly, appellate review is “narrow.”  
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 
974 (9th Cir. 1991). 
As discussed, the harms caused to the Organizations as a 
result of the Rule include a (1) loss of funding and 
(2) disruption of organizational purpose.  Adequate 
equitable relief must remedy both harms.  Bresgal, 843 F.2d 
at 1170–71.  Both harms are due, in part, to the Rule’s likely 
consequence of preventing asylum-seekers with meritorious 
claims from entering the country along our southern border 
and successfully obtaining asylum.  The stymied flow of 
refugees will result in less funding for the Organizations, and 
a shift (sometimes wholesale) in their organizational 
missions. 
The Organizations do not limit their potential clients to 
refugees that enter the United States only at the California-
Mexico or Arizona-Mexico border; they represent “asylum 
seekers” broadly.  Unlike the plaintiffs in California v. 
Azar—individual states seeking affirmance of an injunction 
that applied past their borders—the Organizations here “do 
not operate in a fashion that permits neat geographic 
boundaries.”  EBSC III, 354 F. Supp. 3d at 1120–21; see also 
Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (The “scope 
of injunctive relief is dictated by the extent of the violation 
established, not by the geographical extent of the plaintiff 
class.”).  An injunction that, for example, limits the 
application of the Rule to California, would not address the 
harm that one of the Organizations suffers from losing 
clients entering through the Texas-Mexico border.  One 
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fewer asylum client, regardless of where the client entered 
the United States, results in a frustration of purpose (by 
preventing the organization from continuing to aid asylum 
applicants who seek relief), and a loss of funding (by 
decreasing the money it receives for completed cases). 
The government suggests that plaintiffs “identify actual 
aliens in the United States who would otherwise be subject 
to the Rule,” Op. Br. of Gov’t at 57, but this suggestion fails 
to redress the scope of the Organizations’ harms.  Part of the 
harm the Organizations have alleged is the difficulty posed 
by the Rule in helping them reach migrants who will cross 
the border; their missions are not limited to helping 
individuals currently present in the United States.  Even if 
their missions were so limited, asking the Organizations to 
seek and list every person in the country they might help in 
the coming months is infeasible and impracticable.  The 
“Government has not proposed a workable alternative form 
of the [injunction] that accounts” for the harm at issue but 
“nevertheless appl[ies] only within the [] borders” of the 
Ninth Circuit.  Washington v. Trump, 847 F.3d 1151, 1167 
(9th Cir. 2017); see also EBSC II, 932 F.3d at 779; EBSC III, 
354 F. Supp. 3d at 1121. 
Two other factors support the district court’s decision to 
enjoin Defendants from taking any action to implement the 
Rule.  First, “[w]hen a reviewing court determines that 
agency regulations are unlawful, the ordinary result is that 
the rules are vacated—not that their application to the 
individual petitioners is proscribed.”  Univ. of Cal., 908 F.3d 
at 511 (internal quotation marks omitted).  Singular 
equitable relief is “commonplace” in APA cases, and is often 
“necessary to provide the plaintiffs” with “complete 
redress.”  Id. at 512.  Our “typical response is to vacate the 
rule and remand to the agency”; we “ordinarily do not 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
61 
 
attempt, even with the assistance of agency counsel, to 
fashion a valid regulation from the remnants of the old rule.”  
Harmon v. Thornburgh, 878 F.2d 484, 494 (D.C. Cir. 1989).  
Because of the broad equitable relief available in APA 
challenges, a successful APA claim by a single individual 
can affect an “entire” regulatory program.  Lujan v. Nat’l 
Wildlife Fed’n, 497 U.S. 871, 890 n.2 (1990). 
Second, as the district court noted, there is an important 
“need for uniformity in immigration policy.”  Id. at 511; see 
also EBSC III, 354 F. Supp. 3d at 1120–21.  We previously 
have recognized that the “Constitution requires a uniform 
Rule of Naturalization; Congress has instructed that the 
immigration laws of the United States should be enforced 
vigorously and uniformly; and the Supreme Court has 
described immigration policy as a comprehensive and 
unified system.”  Univ. of Cal., 908 F.3d at 511 (quoting 
United States v. Texas, 809 F.3d 134, 187–88 (5th Cir. 2014) 
(emphases in original)).  The INA itself “was designed to 
implement a uniform federal policy, and the meaning of 
concepts important to its application are not to be determined 
according to the law of the forum, but rather require[] a 
uniform federal definition.”  Kahn v. I.N.S., 36 F.3d 1412, 
1414 (9th Cir. 1994) (internal quotation marks omitted).  
Different interpretations of executive policy across circuit or 
state lines will needlessly complicate agency and individual 
action in response to the United States’s changing 
immigration requirements.  For these reasons, in 
immigration cases, we “consistently recognize[] the 
authority of district courts to enjoin unlawful policies on a 
universal basis.”  EBSC II, 932 F.3d at 779 (citing Univ. of 
Cal., 908 F.3d at 511). 
The government again “raises no grounds on which to 
distinguish this case from our uncontroverted line of 
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precedent.”  Id.  Given the context of this case and the harm 
the district court sought to address, we find no error or abuse 
of discretion in the terms or scope of the preliminary 
injunction. 
VI. 
For the reasons discussed, the district court’s orders 
granting preliminary injunctions are AFFIRMED. 
 
FERNANDEZ, Circuit Judge, concurring in the result: 
I concur in the majority opinion because, and for the 
most part only because, I believe that we are bound by the 
published decision in East Bay Sanctuary Covenant v. 
Trump (East Bay I), 932 F.3d 742 (9th Cir. 2018). 
More specifically, we are bound by both the law of the 
circuit and the law of the case.  Of course, the rules that 
animate the former doctrine are not the same as those that 
animate the latter.  See Gonzalez v. Arizona, 677 F.3d 383, 
389 n.4 (9th Cir. 2012) (en banc). 
As we have said: “Circuit law . . . binds all courts within 
a particular circuit, including the court of appeals itself.  
Thus, the first panel to consider an issue sets the law not only 
for all the inferior courts in the circuit, but also future panels 
of the court of appeals.”  Hart v. Massanari, 266 F.3d 1155, 
1171 (9th Cir. 2001).  Moreover: “Once a panel resolves an 
issue in a precedential opinion, the matter is deemed 
resolved, unless overruled by the court itself sitting en banc, 
or by the Supreme Court.”  Id. (footnote omitted).  Published 
opinions are precedential.  See id. at 1177; see also 
Gonzalez, 667 F.3d at 389 n.4.  That remains true, even if 
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EAST BAY SANCTUARY COVENANT V. TRUMP 
63 
 
some later panel is satisfied that “arguments have been 
characterized differently or more persuasively by a new 
litigant,”1 or even if a later panel is convinced that the earlier 
decision 
was 
“incorrectly 
decided” 
and 
“needs 
reexamination.”2  And those rules are not mere formalities 
to be nodded to and avoided.  Rather, “[i]nsofar as there may 
be factual differences between the current case and the 
earlier one, the court must determine whether those 
differences are material to the application of the rule or allow 
the precedent to be distinguished on a principled basis.”  
Hart, 266 F.3d at 1172.  In this case, there are no material 
differences—in fact, the situation before this panel is in 
every material way the same as that before the motions 
panel.  Furthermore, there is no doubt that motions panels 
can publish their opinions,3 even though they do not 
generally do so.4  Once published, there is no difference 
between motions panel opinions and other opinions; all are 
entitled to be considered with the same principles of 
deference by ensuing panels.  Thus, any hesitation about 
whether they should be precedential must necessarily come 
before the panel decides to publish, not after.  As we held in 
Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015): 
Lair contended at oral argument that a 
motions panel’s decision cannot bind a merits 
panel, and as a result we are not bound by the 
motions panel’s analysis in this case.  Not so.  
 
1 United States v. Ramos-Medina, 706 F.3d 932, 939 (9th Cir. 2013). 
2 Naruto v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018). 
3 See 9th Cir. Gen. Order 6.3(g)(3)(ii); see also id. at 6.4(b). 
4 See Haggard v. Curry, 631 F.3d 931, 933 n.1 (9th Cir. 2010) (per 
curiam). 
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We have held that motions panels can issue 
published decisions.  . . . [W]e are bound by 
a 
prior 
three-judge 
panel’s 
published 
opinions, and a motions panel’s published 
opinion binds future panels the same as does 
a merits panel’s published opinion. 
Id. at 747 (citations omitted).5  Therefore, the legal 
determinations in East Bay I are the law of the circuit. 
We have explained the law of the case doctrine as “a 
jurisprudential doctrine under which an appellate court does 
not reconsider matters resolved on a prior appeal.”  Jeffries 
v. Wood, 114 F.3d 1484, 1488–89 (9th Cir. 1997) (en banc), 
overruled on other grounds by Gonzalez, 677 F.3d at 389 
n.4.  While we do have discretion to decline application of 
the doctrine, “[t]he prior decision should be followed unless: 
(1) the decision is clearly erroneous and its enforcement 
would work a manifest injustice, (2) intervening controlling 
authority 
makes 
reconsideration 
appropriate, 
or 
(3) substantially different evidence was adduced at a 
subsequent trial.”  Id. at 1489 (internal quotation marks and 
 
5 The majority opines that in this respect Lair’s holding is dicta.  Not 
so.  The court’s first basis for rejecting Lair’s contention was the basis 
just quoted.  Its second basis was then set forth.  Id.  It gave both of those 
alternatives weight and attention.  See Woods v. Interstate Realty Co., 
337 U.S. 535, 537, 69 S. Ct. 1235, 1237, 93 L. Ed. 1524 (1949) (holding 
“where a decision rests on two or more grounds, none can be relegated 
to the category of obiter dictum.”); see also United States v. Vidal-
Mendoza, 705 F.3d 1012, 1016 n.5 (9th Cir. 2013); Guadalupe-Cruz v. 
INS, 240 F.3d 1209, 1211 & n.5 (9th Cir.), corrected, 250 F.3d 1271 (9th 
Cir. 2001). 
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footnote omitted).6  We have also indicated that, in general, 
“our decisions at the preliminary injunction phase do not 
constitute the law of the case,”7 but that is principally 
because the matter is at the preliminary injunction stage and 
a further development of the factual record as the case 
progresses to its conclusion may well require a change in the 
result.8  Even so, decisions “on pure issues of law . . .  are 
binding.”  Ranchers Cattlemen, 499 F.3d at 1114.  Of course, 
the case at hand has not progressed beyond the preliminary 
injunction stage.  It is still at that stage, and the factual record 
has not significantly changed between the record at the time 
of the decision regarding the stay motion and the current 
record.  Therefore, as I see it, absent one of the listed 
exceptions, which I do not perceive to be involved here, the 
law of the case doctrine would also direct that we are bound 
by much of the motions panel’s decision in East Bay I. 
Applying those doctrines: 
 
6 The majority seems to add a fourth exception, that is, motions 
panel decisions never constitute the law of the case.  That would be 
strange if those decisions can constitute the law of the circuit, which they 
can.  Moreover, the case primarily cited for that proposition did not 
indicate it was dealing with a published motions panel decision or one 
that set forth its reasoning.  See United States v. Lopez-Armenta, 
400 F.3d 1173, 1175 (9th Cir. 2005).  It also dealt with the unique area 
of jurisdiction.  See id. 
7 Ranchers Cattlemen Action Legal Fund United Stockgrowers of 
Am. v. U.S. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007); see 
also Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1074, 1076 n.5 (9th Cir. 
2015); Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1090 (9th 
Cir. 2013). 
8 See Ctr. for Biological Diversity, 706 F.3d at 1090. 
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(1) The Organizations have standing.  East Bay I, 
932 F.3d at 765–69. 
(2) The Organizations are likely to succeed on the 
substantive merits.  See id. at 770–74.  As to procedural 
validity regarding adoption of the regulation, the motions 
panel decision that the foreign affairs exception to the notice 
and comment procedures does not apply is binding.  Id. 
at 775–77.  In addition, while the motions panel decision 
regarding the good cause exceptions is not fully binding, 
what it did determine was that the information then brought 
to the attention of the panel and the district court did not 
suffice.  Id. at 777–78.  In light of that, I agree with the 
majority that merely adding the twenty-five-word sentence 
from a Washington Post article was insufficient to justify 
changing the motions panel result. 
(3) The decisions made by the motions panel regarding 
harm to the Organizations and balance of hardships are also 
binding decisions regarding the propriety of the preliminary 
injunction.  Id. at 767, 778–79. 
(4) The scope of the injunction is not overly broad.  Id. 
at 779–80. 
Thus, I respectfully concur in the result of the majority 
opinion. 
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