Ninth Circuit Order and Amended 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. 132 · 2021-03-24 · 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. 
 
JOSEPH R. BIDEN, President of the 
United States; MERRICK B. 
GARLAND, Attorney General; JEAN 
KING, Acting Director, Executive 
Office for Immigration Review 
(EOIR); ALEJANDRO MAYORKAS, 
Secretary, U.S. Department of 
Homeland Security; TRACY RENAUD, 
Senior Official Performing the 
Duties of the Director, U.S. 
Citizenship and Immigration 
Services; TROY MILLER, Senior 
Official Performing the Duties of the 
Commissioner, U.S. Customs and 
Border Protection; TAE D. JOHNSON, 
Acting Director, U.S. Immigration 
and Customs Enforcement, 
Defendants-Appellants. 
 Nos. 18-17274 
 
18-17436 
 
D.C. No. 
4:18-cv-06810-
JST 
 
 
ORDER AND 
AMENDED 
OPINION 
 
 
 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
 
 
Appeal from the United States District Court 
for the Northern District of California 
Jon S. Tigar, District Judge, Presiding 
 
Argued and Submitted October 1, 2019 
San Francisco, California 
 
Filed February 28, 2020 
Amended March 24, 2021 
 
Before:  Ferdinand F. Fernandez, William A. Fletcher, 
and Richard A. Paez, Circuit Judges. 
 
Order; 
Opinion by Judge Paez; 
Concurrence by Judge Fernandez; 
Concurrence in Denial of Rehearing En Banc by 
Judge Paez; 
Dissent from Denial of Rehearing En Banc by 
Judge Bumatay; 
Dissent from Denial of Rehearing En Banc by 
Judge VanDyke 
 
 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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SUMMARY* 
 
 
Immigration / Preliminary Injunctions 
The panel filed: 1) an order denying on behalf of the 
court a petition for rehearing en banc; 2) an amended opinion 
affirming 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; and 3) an amended concurrence. 
Addressing briefing on the President’s revocation of the 
proclamation at issue, the panel agreed with the parties that 
this appeal was not moot, but declined to hold the case in 
abeyance while the government reviews the interim final 
rule at issue.  The panel noted that the parties may address 
further developments and whether any such developments 
render the case moot on remand. 
In the amended opinion, the panel explained that the 
Department of Justice and Department of Homeland 
Security adopted an interim final rule in November 2018 
(“the Rule”) that 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.  The same day, President Trump 
issued a presidential proclamation (“the Proclamation”) that 
 
* 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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suspended 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 representing asylum-
seekers (“the Organizations”) sued to prevent enforcement 
of the Rule.  The district court entered a temporary 
restraining order enjoining the Rule, and the government 
appealed, seeking a stay in this court of the district court’s 
order pending appeal.  In a published order, a motions panel 
denied the stay, and the Supreme Court denied a stay as well.  
The district court issued an injunction barring enforcement 
of the Rule, the government appealed, and this court 
consolidated the two appeals. 
First, addressing the effect of the motions panel’s order 
on the present panel’s decision, the panel concluded that a 
published motions panel order may be binding as precedent 
for other panels deciding the same issue, but it is not binding 
here.  The panel explained that this is because the issues are 
different: in deciding whether to stay a preliminary 
injunction pending appeal, the motions panel was predicting 
the likelihood of success of the appeal, meaning it was 
predicting rather than deciding what the merits panel will 
decide; however, in resolving the merits of a preliminary 
injunction appeal, the merits panel was deciding the 
likelihood of success of the actual litigation.  The panel 
explained that such a predictive analysis should not, and 
does not, forever decide the merits. 
The panel noted that there may be circumstances where 
a motions panel does answer the same legal question that is 
presented to the merits panel, observing that this court 
addressed such a circumstance in Lair v. Bullock, 697 F.3d 
1200 (9th Cir. 2012), in which the merits panel held that it 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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was bound by the motions panel’s published decision on a 
particular issue, where the motions panel answered precisely 
the same question that was before the merits panel.  
Accordingly, the panel noted that, to the extent the issues 
share predictive similarity here, the motions panel may be 
persuasive but not binding. 
Next, the panel considered the government’s challenge 
to the court’s jurisdiction.  First, the panel concluded that the 
Organizations had established organizational standing by 
showing that the Rule perceptibly impaired their ability to 
perform their services.  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 Immigration 
and Nationality Act (“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.  Finally, the panel concluded that the 
Organizations fell 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 
Chevron framework, the panel held that the Rule conflicts 
with the INA’s section on asylum, which states that a 
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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).  Because the Rule requires migrants 
to enter at ports of entry to preserve their eligibility for 
asylum, the panel explained that 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 
§ 1158(a) were ambiguous, the Rule fails at the second step 
of Chevron because it is an arbitrary and capricious 
interpretation of the statute.  The panel explained that the 
BIA and this court have long recognized that a refugee’s 
method of entry is a discretionary factor in determining 
whether the migrant should be granted relief, but that the 
method of entry should be carefully evaluated in light of the 
harsh consequences that may result.  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 asylum 
applications, 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. 
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 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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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 also concluded that the 
public interest weighs sharply in the Organizations’ favor. 
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 
government had not proposed an alternative form of the 
injunction that accounts for the scope of the harms, but 
applies only within the Ninth Circuit. 
Concurring in the result, 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 as well as the law of the case doctrine.  Judge 
Fernandez noted that the majority had now taken steps, in its 
amended opinion, to obscure its attacks on the doctrines of 
law of the case and law of the circuit, which were set forth 
in its original opinion.  Writing that his concurrence 
nevertheless remained the same and was based on the same 
reasoning, Judge Fernandez stated that the majority’s 
attempt to pull an invisibility cloak over the mainspring of 
its attacks cannot hide damage wrought by them. 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
 
 
Concurring in the denial of rehearing en banc, Judge 
Paez, joined by Judge W.Fletcher, wrote to respond to 
several of the arguments in Judge Bumatay’s and Judge 
VanDyke’s dissents.  Responding to Judge Bumatay’s 
contention that the amended majority opinion’s application 
of precedent relating to organizational standing deviated 
from John Marshall’s and James Madison’s respective 
visions of Article III, Judge Paez wrote that the majority 
opinion’s organizational standing holding was consistent 
with Supreme Court precedent, Article III, and decisions of 
this and other courts. 
Judge Paez also responded to Judge VanDyke’s attacks 
on the integrity of the majority opinion.  First, Judge Paez 
wrote that Judge VanDyke accused the majority of 
impropriety in addressing the effect of the motions panel’s 
published opinion on the merits panel’s subsequent 
consideration of the appeal.  Noting that this potentially 
dispositive issue was expressly raised by the parties’ briefs, 
Judge Paez concluded that it was clearly appropriate for the 
majority to address the issue.  Second, Judge Paez wrote that 
Judge VanDyke complained that the majority engaged in 
“mischief” by amending its opinion during the en banc 
process.  Judge Paez described the court’s en banc process.  
Judge Paez wrote that, consistent with this process, the panel 
majority here considered the debate about law-of-the-case 
where a motions panel has published an order, the panel 
majority was persuaded to revise its opinion by the 
discussions in the memorandum exchange, and the revisions, 
which were proposed to the court during the memorandum 
exchange period, were reflected in the amended majority 
opinion. 
Dissenting from the denial of rehearing en banc, Judge 
Bumatay, joined by Judges Ikuta, Bennet, R. Nelson, Lee, 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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and VanDyke, wrote that judges are not “Platonic 
Guardians” of the nation’s public policies; judges have no 
business standing athwart the choices of the political 
branches no matter how misguided the judges believe them 
to be.  That fundamental limitation, Judge Bumatay wrote, is 
even more pronounced in the immigration context. 
Judge Bumatay concluded that the majority opinion 
ignored constitutional limits on jurisdiction by stretching 
organizational standing doctrine beyond Article III’s reach, 
inaugurating a new standard of organizational standing—
one that allows an organization to challenge a disfavored 
government policy by merely asserting that the change could 
result in “one less client” or cause it to shift resources to 
better support its mission. 
Judge Bumatay also wrote that the majority re-wrote the 
asylum statute to add a prohibition on the Executive’s 
authority not found anywhere in the legislative text.  Judge 
Bumatay concluded that the Rule easily fit within the asylum 
scheme enacted by Congress, explaining that the Rule does 
nothing to limit the ability of aliens to apply for asylum, as 
it only restricts the parameters for a successful asylum 
petition.  Judge Bumatay wrote that the panel’s reading 
essentially conflates applying for and receiving asylum, and 
the result is that the court has substituted its version of the 
asylum law for the one actually passed by Congress. 
Dissenting from the denial of rehearing en banc, Judge 
VanDyke wrote separately to emphasize it was never 
necessary in this case for the panel majority to wade into the 
issue of the binding effect of motions panels’ published 
opinions and purport to overrule Lair v. Bullock.  The panel 
majority only did so because of Innovation Law Lab v. Wolf, 
the other case it decided the same day it decided this 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
 
 
case.  That was the panel majority’s “mischief”—not the 
panel amending its opinion during the en banc process. 
Further, Judge VanDyke wrote that while it is true that 
the amended rationale in the East Bay majority’s opinion 
does not represent the ham-fisted upheaval its original 
opinion did, it merely trades one evil for another.  Instead of 
rudely casting aside precedent, it distinguishes—rather than 
overrules—Lair, creating a new standardless standard that 
will allow any merits panel to disregard a motions panel’s 
published decision resolving virtually identical claims. 
 
 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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COUNSEL 
 
Scott Grant Stewart (argued) and Sarah Harrington, Deputy 
Assistant Attorneys 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; Katrine Eiland, 
Jennifer Chang Newell, Cody Wofsy, and Spencer Amdur, 
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 
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 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
 
 
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, 
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. 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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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. BIDEN 
 
 
ORDER 
1. The full court was advised of the petition for 
rehearing en banc. A judge of the court called for rehearing 
en banc. The matter failed to receive a majority of the votes 
of the non-recused active judges in favor of en banc 
consideration. Fed. R. App. P. 35. Rehearing en banc is 
DENIED. 
2. Attached are Judge Paez’s concurrence to and Judge 
Bumatay’s and Judge VanDyke’s dissents from the denial of 
rehearing en banc. 
3. The opinion filed on February 28, 2020 is amended 
as follows: 
On page 7, strike the sentence starting, “How strictly the 
order binds this court,” up and through the sentence on 
page 13 starting, “We discuss the merits of a stay request[.]” 
Replace it with: 
The Organizations contend we must 
affirm the preliminary injunction because the 
published motions panel order denying a stay 
of the injunction pending appeal controls our 
decision on the merits of the preliminary 
injunction appeal. They argue that reversal of 
the injunction would amount to overruling 
the motions panel order, which we cannot do. 
See Miller v. Gammie, 335 F.3d 889, 900 (9th 
Cir. 2003) (holding that a published opinion 
may only be overruled when it is clearly 
irreconcilable with an intervening higher 
authority). The published motions panel 
order may be binding as precedent for other 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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panels deciding the same issue, but it is not 
binding here. This is because the issues are 
different. In deciding whether the court 
should stay the grant or denial of a 
preliminary injunction pending appeal, the 
motions panel is predicting the likelihood of 
success of the appeal.  That is, the motions 
panel is predicting rather than deciding what 
our merits panel will decide.  In resolving the 
merits of a preliminary injunction appeal, our 
merits panel is deciding the likelihood of 
success of the actual litigation. 
The Supreme Court has recognized this 
distinction and made clear that it leads to 
different analyses of the equities. See Trump 
v. Int’l Refugee Assistance Project, 137 S. Ct. 
2080, 2087 (2017). There is more judicial 
discretion with respect to a stay. See id.; see 
also Doe #1 v. Trump, 957 F.3d 1050, 1058 
(9th Cir. 2020) (“A request for a stay pending 
appeal is committed to the exercise of judicial 
discretion.”); 11 WRIGHT & MILLER, 
FEDERAL PRACTICE & PROCEDURE 
§ 2904, at 702–03 (3d ed. 2012). 
In Nken v. Holder the Supreme Court 
emphasized that “[a]n injunction and a stay 
have typically been understood to serve 
different purposes” and a stay halting “the 
conduct or progress of litigation before the 
court, ordinarily is not considered an 
injunction.” 556 U.S. 418, 428, 430 (2009) 
(internal quotations omitted).  Indeed, our 
court has relied on Nken for the proposition 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
 
 
that “there are important differences between 
a preliminary injunction and a stay pending 
review…” Leiva-Perez v. Holder, 640 F.3d 
962, 966 (9th Cir. 2011) (citing Nken, 
129 S. Ct. at 1756–59). 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 discuss the 
merits in “likelihood terms” and 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).” 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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On page 14, insert the following footnote after the 
citation to Leiva-Perez v. Holder, 640 F.3d 962, 967 (9th Cir. 
2011): 
There may be circumstances where a 
motions panel does answer the same legal 
question that is presented to the merits panel. 
See Lair v. Bullock, 798 F.3d 736, 747 (9th 
Cir. 2015) (“Lair II”). In Lair I, the motions 
panel, while conducting a probabilistic and 
discretionary analysis of the Nken factors, 
addressed a pure question of law—whether 
the Supreme Court had abrogated a relevant 
circuit precedent. Lair v. Bullock, 697 F.3d 
1200, 1206 (9th Cir. 2012) (“Lair I”).  The 
motions panel held that the very question at 
issue 
had 
already 
been 
dispositively 
answered in prior circuit precedent. Id. The 
motions panel’s specific holding on this pure 
question of law was neither based on an 
assessment of probability nor an exercise of 
discretion—it was necessarily compelled by 
preexisting binding precedent. 
Therefore, the merits panel in Lair II held 
that it was bound by the motions panel’s 
published decision in Lair I on this particular 
issue where the motions panel answered 
precisely the same question that was before 
the merits panel. 798 F.3d at 747 (“The 
motions panel in Lair I explicitly held that 
Randall did not contain a majority opinion 
capable of abrogating Eddleman.”) (internal 
citations omitted). Lair II’s statement in this 
context that “a motions panel’s published 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
 
 
opinion binds future panels the same as does 
a merits panel’s published opinion,” id., 
simply confirms our circuit’s stare decisis 
principle that a question already answered in 
binding precedent will be controlled by that 
answer when the same question is presented 
in the future. See also Miller v. Gammie, 
335 F.3d 889, 893 (9th Cir. 2003) (en banc). 
But here, unlike in Lair II, none of the 
questions answered by the motions panel 
were pure questions of law for which 
preexisting binding authority necessarily 
compelled the answer. 
On page 14, strike the sentence starting, “The question 
before us now,” up and through the sentence on page 15 
starting with, “Given the preliminary stage of the appellate 
process[.]” 
Replace it with: 
 
The inquiry with respect to the stay 
differs from the inquiry as to the preliminary 
injunction. To the extent the issues share 
predictive similarity, the motions panel may 
be persuasive but not binding. 
On page 15, strike “re-evaluate,” and replace it with 
“consider.” 
On page 16, strike “, as it did previously before the 
district court and before the motions panel.” 
On page 16, strike “renews,” and replace it with 
“makes.” 
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On page 16, strike “before this court.” 
On page 18, strike “We agree with the motions panel and 
the district court,” and replace it with “We conclude.” 
On page 27, strike “again” in the sentence before the 
beginning of subsection B. 
On page 28, strike “continue to” from the last full 
sentence of the page. 
On page 34, strike “again” from the sentence starting 
with, “The government again suggests that the existence of 
these eligibility bars[.]” 
On page 37, strike “the motions panel” from the sentence 
starting with, “The Attorney General’s interpretation,” and 
the citation to EBSC II, 932 F.3d at 772–773, that appears 
after the sentence. 
On page 50, strike “we agree with the motions panel 
that.” 
4. An amended opinion is filed concurrently with this 
order. An amended opinion concurring in the result, which 
adds a new footnote 1 on page 1 and renumbers the ensuing 
footnotes, is also filed concurrently with this order. No 
further petitions for rehearing or rehearing en banc may be 
filed. 
5. In light of Appellants’ February 16, 2021 letter 
informing the court that the President signed Executive 
Order 14010 revoking “Proclamation 9880 of May 9, 2019,” 
Dkt. No. 87, the panel directed the parties to simultaneously 
file letter briefs addressing whether all or any aspect of this 
appeal has been rendered moot. We have considered the 
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20 
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parties’ responses and agree with them that this appeal is not 
moot. We decline to accept the parties’ suggestion to hold 
the case in abeyance while Appellants review the interim 
final rule at issue. The parties may address future 
developments related to Appellants’ review of the interim 
final rule and whether any such developments render the 
case moot in the district court on remand. 
 
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). 
 
1 See 125 Cong. Rec. 35,813–14 (1979) (statement of Rep. 
Holtzman). 
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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. 
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). 
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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). 
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 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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(“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 
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 
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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 
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 motion panel’s order 
on the present panel’s decision.  The Organizations contend 
we must affirm the preliminary injunction because the 
published motions panel order denying a stay of the 
injunction pending appeal controls our decision on the merits 
 
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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of the preliminary injunction appeal. They argue that 
reversal of the injunction would amount to overruling the 
motions panel order, which we cannot do. See Miller v. 
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (holding that a 
published opinion may only be overruled when it is clearly 
irreconcilable with an intervening higher authority). 
The published motions panel order may be binding as 
precedent for other panels deciding the same issue, but it is 
not binding here. This is because the issues are different. In 
deciding whether the court should stay the grant or denial of 
a preliminary injunction pending appeal, the motions panel 
is predicting the likelihood of success of the appeal.  That is, 
the motions panel is predicting rather than deciding what our 
merits panel will decide. In resolving the merits of a 
preliminary injunction appeal, our merits panel is deciding 
the likelihood of success of the actual litigation. 
The Supreme Court has recognized this distinction and 
made clear that it leads to different analyses of the equities. 
See Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 
2080, 2087 (2017). There is more judicial discretion with 
respect to a stay. See id.; see also Doe #1 v. Trump, 957 F.3d 
1050, 1058 (9th Cir. 2020) (“A request for a stay pending 
appeal is committed to the exercise of judicial discretion.”); 
11 WRIGHT & MILLER, FEDERAL PRACTICE & 
PROCEDURE § 2904, at 702–03 (3d ed. 2012). 
In Nken v. Holder the Supreme Court emphasized that 
“[a]n injunction and a stay have typically been understood to 
serve different purposes” and a stay halting “the conduct or 
progress of litigation before the court, ordinarily is not 
considered an injunction.” 556 U.S. 418, 428, 430 (2009) 
(internal quotations omitted).  Indeed, our court has relied on 
Nken for the proposition that “there are important differences 
between a preliminary injunction and a stay pending 
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review…” Leiva-Perez v. Holder, 640 F.3d 962, 966 (9th 
Cir. 2011) (citing Nken, 129 S. Ct. at 1756–59). 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 
discuss the merits in “likelihood terms” and 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).  Such 
a predictive analysis should not, and does not, forever decide 
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)).3 
 
3 There may be circumstances where a motions panel does answer 
the same legal question that is presented to the merits panel. See Lair v. 
 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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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’ 
 
Bullock, 798 F.3d 736, 747 (9th Cir. 2015) (“Lair II”). In Lair I, the 
motions panel, while conducting a probabilistic and discretionary 
analysis of the Nken factors, addressed a pure question of law—whether 
the Supreme Court had abrogated a relevant circuit precedent. Lair v. 
Bullock, 697 F.3d 1200, 1206 (9th Cir. 2012) (“Lair I”).  The motions 
panel held that the very question at issue had already been dispositively 
answered in prior circuit precedent. Id. The motions panel’s specific 
holding on this pure question of law was neither based on an assessment 
of probability nor an exercise of discretion—it was necessarily 
compelled by preexisting binding precedent. 
Therefore, the merits panel in Lair II held that it was bound by the 
motions panel’s published decision in Lair I on this particular issue 
where the motions panel answered precisely the same question that was 
before the merits panel. 798 F.3d at 747 (“The motions panel in Lair I 
explicitly held that Randall did not contain a majority opinion capable 
of abrogating Eddleman.”) (internal citations omitted). Lair II’s 
statement in this context that “a motions panel’s published opinion binds 
future panels the same as does a merits panel’s published opinion,” id., 
simply confirms our circuit’s stare decisis principle that a question 
already answered in binding precedent will be controlled by that answer 
when the same question is presented in the future. See also Miller v. 
Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc). 
But here, unlike in Lair II, none of the questions answered by the 
motions panel were pure questions of law for which preexisting binding 
authority necessarily compelled the answer. 
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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 inquiry with respect to the stay differs from the 
inquiry as to the preliminary injunction. To the extent the 
issues share predictive similarity, the motions panel may be 
persuasive but not binding. 
III. 
We next consider the government’s challenge to our 
jurisdiction.  The government argues that the Organizations 
lack Article III standing because they have not suffered a 
cognizable injury and are outside the zone of interests 
protected by the INA.  The government also makes 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 
 
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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EAST BAY SANCTUARY COVENANT V. BIDEN 
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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 
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 
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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 conclude that the Organizations have established that 
the Rule has “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 
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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” 
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. 
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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 
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, 
 
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. 
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.”). 
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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—
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)); 
 
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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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 
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 
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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), 
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 
 
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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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 
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 
 
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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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. 
§ 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 
 
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 
“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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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). 
We 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 
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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 
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 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, 
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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 
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). 
 
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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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, 
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.”). 
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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 
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 
 
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 
 
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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 
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 
 
(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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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 
suggests that the existence of these eligibility bars in 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 
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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 
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 
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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 
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 
 
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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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 district court discussed, in light 
of the United States’s treaty obligations.  See 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. 
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). 
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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 
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). 
 
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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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] 
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 
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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 
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. 
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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 
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, 
 
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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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 
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 
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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. 
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 
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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 
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-
 
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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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. 
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 
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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 
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 
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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 
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 
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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, 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 
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. 
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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 
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 
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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 
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 
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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 
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 
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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.  
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 
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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 
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 
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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 
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 
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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 
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 
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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 
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. 
 
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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.1  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 
some later panel is satisfied that “arguments have been 
characterized differently or more persuasively by a new 
 
1 The majority has now taken steps to obscure its attacks on our 
doctrines of law of the case and law of the circuit, which were set forth 
in its original opinion, East Bay Sanctuary Covenant v. Trump, 950 F.3d 
1242, 1261–65 (9th Cir. 2020).  Nevertheless, my concurrence remains 
the same and is based upon the same reasoning.  See id. at 1284–86 
(Fernandez, J., concurring in the result).  In short, the majority’s attempt 
to pull an invisibility cloak over the mainspring of its attacks cannot hide 
damage wrought by them. 
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litigant,”2 or even if a later panel is convinced that the earlier 
decision 
was 
“incorrectly 
decided” 
and 
“needs 
reexamination.”3  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,4 even though they do not 
generally do so.5  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.  
We have held that motions panels can issue 
published decisions.…[W]e are bound by a 
 
2 United States v. Ramos-Medina, 706 F.3d 932, 939 (9th Cir. 2013). 
3 Naruto v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018). 
4 See 9th Cir. Gen. Order 6.3(g)(3)(ii); see also id. at 6.4(b). 
5 See Haggard v. Curry, 631 F.3d 931, 933 n.1 (9th Cir. 2010) (per 
curiam). 
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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).6  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 
footnote omitted).7  We have also indicated that, in general, 
 
6 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). 
7 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 
 
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“our decisions at the preliminary injunction phase do not 
constitute the law of the case,”8 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.9  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: 
(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 
 
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. 
8 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). 
9 See Ctr. for Biological Diversity, 706 F.3d at 1090. 
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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. 
 
PAEZ, Circuit Judge, concurring in the denial of rehearing 
en banc, joined by FLETCHER, Circuit Judge. 
We concur fully in the court’s denial of rehearing en 
banc. We respond to several of the arguments in Judge 
Bumatay’s and Judge VanDyke’s dissents. 
I. 
In his dissent from denial of rehearing en banc, Judge 
Bumatay takes issue with the entire doctrinal category of 
“organizational standing.” He contends that the amended 
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majority opinion’s1 application of Supreme Court and circuit 
precedent, concluding that the plaintiff Organizations 
established standing, deviates from John Marshall’s and 
James Madison’s respective visions of Article III. PJB 
Dissent 83–84, 91. The majority opinion, however, does not 
revise or deviate from organizational standing doctrine. 
Instead, it applies well-settled, binding authority. Its 
organizational standing holding fits squarely within the 
Supreme Court’s analysis in Havens Realty Corp. v. 
Coleman, 455 U.S. 363 (1982) and related cases in our court. 
Although the majority opinion thoroughly addresses the 
Organizations’ standing, we respond briefly to several of the 
points raised by Judge Bumatay. 
The majority opinion makes clear that an organization 
suffers a cognizable Havens injury only if the challenged 
action “perceptibly impaired,” id. at 379, the organization by 
frustrating its mission and causing a diversion of resources 
in response to that frustration, Fair Hous. of Marin v. Combs, 
285 F.3d 899, 905 (9th Cir. 2002). The majority opinion 
summarizes the record evidence demonstrating the various 
ways that the Rule’s extensive restrictions on asylum 
frustrated the missions of the Organizations and caused them 
to divert significant resources away from their mission in 
response. Amend. Op. 28–38. 
Judge Bumatay’s dissent ignores the record evidence 
indicating the injuries suffered by the Organizations and 
substitutes his own conclusion that the Organizations simply 
refuse to see the Rule as a new opportunity to pursue their 
missions. PJB Dissent 89. Judge Bumatay quizzically asks, 
“But how does spending money assisting migrants seeking 
 
1 For simplicity, hereinafter we refer to the amended majority 
opinion as the “majority opinion.” 
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asylum ‘frustrate’ the organizations’ mission to help 
migrants seeking asylum?” Id. The record evidence, as set 
forth in the Supplemental Excerpts of Record (“SER”), 
thoroughly documents how the Rule harmed the 
Organizations:2 
• “Since the new rule was announced, Al Otro Lado 
has been overwhelmed with children who traveled to 
the southern border of the United States to apply for 
asylum but now cannot do so. These children are 
very vulnerable, as they are unaccompanied and so 
have no one to look out for them in Tijuana, a city 
currently seeing record levels of violence…Caring 
for these children is incredibly time consuming and 
causing a near complete diversion of Al Otro Lado’s 
resources away from its core mission, which is 
providing legal services. In addition to providing 
these children with legal advice, attending to the 
many 
nonlegal 
needs 
of 
Al 
Otro 
Lado’s 
unaccompanied children clients is forcing Al Otro 
Lado to divert resources away from advising the 
many other clients who need the organization’s legal 
help, thus undermining our ability to achieve our 
core mission. For example, staff members are going 
with the children to try to get them on the list to cross 
at the port of entry. Staff have also had to negotiate 
with Mexican officials so that they will not take these 
children into custody and instead allow them to stay 
at a local youth shelter while Al Otro Lado 
determines the best way to ensure that the children 
have access to a legal means to seek asylum in the 
 
2 Instead, Judge Bumatay answers with his own evidence-free 
musing. PJB Dissent 89 (“This sounds more like fulfilling their mission, 
rather than ‘frustrating’ it.”). 
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United States.” SER 4 (Declaration of Erika 
Pinheiro). 
• “Immediately after the interim final rule was 
announced, up to 15 children at a time were waiting 
in our office around the clock while we arranged 
their accommodations. [Al Otro Lado’s] office often 
felt more like a daycare center than a legal services 
organization. Because our office was being used to 
shelter our unaccompanied minor clients, we could 
not spend as much time with our other clients.” SER 
22 (Declaration of Nicole Ramos). 
• “[East Bay Sanctuary Covenant]’s mission is to serve 
poor individuals who have few resources and cannot 
afford attorneys…EBSC is neither staffed nor 
funded to provide representation for asylum 
applicants in removal proceedings. To do so would 
involve a fundamental change in our program and 
mission…[I]f the new policy remains in effect, 
EBSC stands to lose nearly all of our funding for our 
affirmative asylum program, because 80% of our 
clients in that program entered without inspection. 
But under the new policy, if they enter without 
inspection, they will no longer be able to access 
asylum at all.” SER 26–27 (Declaration of Michael 
Smith). 
• “The new Proclamation would also put a financial 
strain on this organization…[F]or much of its work 
in 
removal 
proceedings, 
[Central 
American 
Resource Center] received a flat fee regardless of the 
time spent on a particular case. Because withholding 
and CAT cases are more resource-intensive than 
asylum cases, precluding certain CARECEN clients 
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from applying for asylum would create a greater 
financial loss in these cases. In other words, we 
would likely receive the same funding, but have to 
devote more hours per case.” SER 58 (Declaration of 
Daniel Sharp). 
Judge Bumatay’s dissent ignores the record evidence, 
glosses over the majority opinion’s analysis of the evidence, 
and fails to cite a single case holding that the injuries which 
the Organizations suffered fall outside the Supreme Court’s 
decision in Havens.3 His dissent also overlooks circuit 
precedent that addresses a variety of analogous situations in 
which organizations demonstrated they were “perceptibly 
impaired” by being forced to divert “significant resources” 
to establish standing under Havens. See 455 U.S. at 379; 
Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 
2002); La Asociacion de Trabajadores de Lake Forest v. 
Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010); El Rescate 
Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 
F.2d 742, 745, 748 (9th Cir. 1991). Finally, his dissent 
ignores the fact that the opinion is consistent with the 
interpretation of organizational standing by other circuits.4 
 
3 Judge Bumatay’s attempt to reduce the majority’s analysis to, 
“Any loss of clients caused by the Rule, no matter how minimal, was 
sufficient to confer Article III standing,” PJB Dissent 90, is misguided 
and similarly ignores the record evidence. 
4 See e.g., Centro de la Comunidad Hispana de Locust Valley v. 
Town of Oyster Bay, 868 F.3d 104, 109–111 (2d Cir. 2017) (holding that 
plaintiff organization dedicated to ending discrimination against 
immigrant workers had standing to challenge enforcement of ordinance 
that prohibited persons from stopping a vehicle to solicit employment 
because the organization had committed attention, time, money and 
personnel to prepare a response to the ordinance and because 
enforcement of the ordinance might deter the organization from 
 
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In short, the majority opinion’s organizational standing 
holding is consistent with Supreme Court precedent, Article 
III, the decisions of our court and the decisions of other 
courts. 
II. 
We respond briefly to Judge VanDyke’s attacks on the 
integrity of the majority opinion. 
First, Judge VanDyke accuses the majority of 
impropriety in addressing the effect of the motions panel’s 
published opinion on the merits panel’s subsequent 
consideration of the appeal. This issue was expressly raised 
in the parties’ briefs, and the majority opinion does nothing 
more than address it. The government’s opening brief argued 
that the merits panel was not bound by the motions panel’s 
published opinion.  The Organizations answered by arguing 
that we were bound.  The government replied to bolster their 
position that we were not bound. 
Under the circumstances here, where the parties 
presented and fully briefed a potentially dispositive issue, it 
 
counseling clients at a worksite where they congregated); OCA–Greater 
Houston v. Texas, 867 F.3d 604, 610–612 (5th Cir. 2017) (holding that a 
plaintiff organization that promoted voting among Asian-Americans had 
standing to challenge voting laws that restricted reliance on assistants to 
translate for voters with limited English-language abilities because the 
organization had redirected resources towards educating members and 
the public on how to comply with the law); Arcia v. Florida Secretary of 
State, 772 F.3d 1335, 1341–1342 (11th Cir. 2014) (holding that plaintiff 
organizations engaged in voter registration efforts had standing to 
challenge a program designed to remove individuals from voting rolls 
because the organizations diverted resources to address the program); see 
also 13A Charles Alan Wright et al., Federal Practice & Procedure 
§ 3531.9.5 n.15 (3d ed.) (collecting cases). 
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was clearly appropriate for the majority to address the issue. 
This is how the process of adjudication is designed to 
function. The majority opinion abides by the Supreme 
Court’s unambiguous explanation that “in our adversarial 
system of adjudication, we follow the principle of party 
presentation…[I]n both civil and criminal cases, in the first 
instance and on appeal, we rely on the parties to frame the 
issues for decision and assign to courts the role of neutral 
arbiter of matters the parties present.” United States v. 
Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (internal 
citations and quotation marks omitted). There is nothing 
remarkable about the majority opinion addressing an issue 
presented and framed by the parties. 
Second, Judge VanDyke complains that the majority 
engages in “mischief,” LVD Dissent 104, by amending its 
opinion during the en banc process. The majority did, 
indeed, revise its opinion as a result of the en banc process. 
There was, however, no “mischief” in that decision. A brief 
explanation of our court’s en banc process provides the 
backdrop for the amended opinion. 
After a judge of our court calls for a vote to determine 
whether a case should be reheard en banc under Fed. R. App. 
P. 35(f), our General Orders require the calling judge to 
“forward a memorandum” to all members of the court 
“setting forth reasons” for the call. G.O. 5.4.c.1. Thereafter, 
“any judge may circulate memoranda in response to [the] en 
banc call,” to facilitate robust discussion about the issues. 
G.O. 5.5.a. The opportunity to exchange views about the 
arguments in the en banc call includes the judges who 
authored the majority opinion. Id. The panel majority may 
propose revisions to address concerns raised by off-panel 
judges. Id. If, after the close of the memorandum exchange 
period the en banc call fails to obtain the votes of a majority, 
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the panel resumes control of the case and may amend its 
opinion. G.O. 5.5.c. 
Consistent with this process, the panel majority here 
considered the debate about law-of-the-case where a 
motions panel has published an order. The panel majority 
was persuaded to revise its opinion by the discussions in the 
memorandum exchange. The revisions, which were 
proposed to the court during the memorandum exchange 
period, are reflected in the amended majority opinion. The 
process by which the panel majority reached this conclusion 
is nothing new. The role this process plays to collaboratively 
strengthen the opinions of our court is acknowledged in 
several opinions. See e.g., Carver v. Lehman, 558 F.3d 869, 
878–79 (9th Cir. 2009) (Smith, J.) (“Until the mandate has 
issued, opinions can be, and regularly are, amended or 
withdrawn, by the merits panel at the request of the parties 
pursuant to a petition for panel rehearing, in response to an 
internal memorandum from another member of the court 
who believes that some part of the published opinion is in 
error, or sua sponte by the panel itself…[This] collaborative 
process strengthens, not weakens, the final quality of those 
opinions, thereby better enabling them to stand the test of 
time, and engender the respect of thoughtful citizens for both 
the opinion, and the court that produced it.”); Perez v. City 
of Roseville, 926 F.3d 511, 526 (9th Cir. 2019) (Ikuta, J.) 
(“Like all three-judge panels, we must resolve the case 
before us to the best of our abilities, which may include 
reconsidering and revising an opinion that has not yet 
mandated.”). 
In sum, there was nothing improper in the majority’s 
revision of its opinion to accommodate the views of our 
colleagues. 
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*     *     * 
For all the above reasons, in addition to those in the 
amended opinion, we concur in the court’s denial of 
rehearing en banc. 
 
BUMATAY, Circuit Judge, joined by IKUTA, BENNETT, 
R. NELSON, LEE, and VANDYKE, Circuit Judges, 
dissenting from the denial of rehearing en banc: 
We are not “Platonic Guardians” of our nation’s public 
policies.  See L. Hand, The Bill of Rights 73 (1958).  As 
judges, we have no business standing athwart the choices of 
the political branches no matter how misguided we believe 
them to be.  That fundamental limitation on our role is even 
more pronounced in the immigration context, where it is 
long settled that “the admission and exclusion of foreign 
nationals is a fundamental sovereign attribute exercised by 
the Government’s political departments largely immune 
from judicial control.”  See Trump v. Hawaii, 138 S. Ct. 
2392, 2418 (2018) (simplified).  The Supreme Court has 
repeatedly warned us we overstepped our bounds when we 
tried to curtail immigration policies in the recent past.  See, 
e.g., id.; Dep’t of Homeland Sec. v. Thuraissigiam, 140 
S. Ct. 1959 (2020); Nielsen v. Preap, 139 S. Ct. 954 (2019); 
Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019); 
Jennings 
v. 
Rodriguez, 
138 
S. 
Ct. 
830 
(2018).  
Unfortunately, we have not learned from our mistakes.  
Today, we once again second-guess the Executive’s 
immigration policies. 
This time, we enjoin an immigration regulation 
temporarily limiting asylum eligibility to those who enter the 
country at a port of entry, deeming the policy “absurd.”  E. 
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Bay Sanctuary Covenant v. Trump (“East Bay”), 950 F.3d 
1242, 1272 (9th Cir. 2020).  To get there, we disregard two 
central precepts of the judicial role.  First, we ignore 
constitutional limits on our jurisdiction by stretching 
organizational standing doctrine beyond Article III’s reach.  
Second, we re-write the asylum statute to add a prohibition 
on the Executive’s authority not found anywhere in the 
legislative text. 
Whatever we may think of the prior administration’s 
immigration policies, we are not “free-wheeling enforcers of 
the Constitution and laws.”  Initiative & Referendum Inst. v. 
Walker, 450 F.3d 1082, 1087 (10th Cir. 2006) (en banc).  We 
lack any constitutional power to offer meaningful relief in 
the absence of an injured party.  With no injured party here, 
we had no role to play in this dispute.  And even if a proper 
party were before the court, our role would be a limited 
one—to determine the law as written by Congress.  We have 
no authority to look beyond the plain text of a statute to 
manufacture a legislative prohibition against disfavored 
policies. 
The proper forum for policy disputes is the ballot box, 
not the courthouse.  Yet, by failing to revisit our decision 
here, we again ordain ourselves a super-legislature—
presiding over our nation’s immigration policies.  Because 
we donned the cloaks of Platonic Guardians rather than the 
robes of impartial judges in this case, I respectfully dissent 
from the denial of rehearing en banc. 
I. 
In late 2018, the Department of Justice and the 
Department of Homeland Security jointly adopted an interim 
final rule restricting eligibility for asylum.  See Aliens 
Subject to a Bar on Entry Under Certain Presidential 
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Proclamations; Procedures for Protection Claims, 83 Fed. 
Reg. 55,934 (Nov. 9, 2018) (“Rule”).  The Rule didn’t curb 
who may apply for asylum; rather, it would have made aliens 
who enter the United States “contrary to the terms of the 
proclamation or order” ineligible for asylum.  Id. at 55,952.  
That same day, former President Trump issued a 
proclamation suspending the entry of non-permanent-
resident aliens crossing from Mexico outside of a designated 
port of entry.  See Proclamation No. 9822, Addressing Mass 
Migration Through the Southern Border of the United States, 
83 
Fed. 
Reg. 
57,661 
§§ 1, 
2 
(Nov. 
9, 
2018) 
(“Proclamation”).  The suspension on entry was set to expire 
after 90 days.  Id.  at 57,663.  Together, the Rule and 
Proclamation would have had the effect of barring asylum 
for any alien who illegally enters the United States between 
ports of entry on the southern border during the 90-day 
period. 
The Rule never went into effect.  We enjoined it 
immediately.  East Bay Sanctuary Covenant v. Trump (“East 
Bay II”), 932 F.3d 742, 755 (9th Cir. 2018).  Yet, the Rule 
was not challenged by any alien subject to the new asylum 
bar.  Instead, the Rule was challenged by four lawyers’ 
organizations that represent current and future asylum-
seekers.  Id.  On review of the merits, we concluded that the 
organizations had standing to bring suit and held that the 
Rule was “unlawful[]” because it conflicted with “the text 
and congressional purpose” of the asylum statute, 8 U.S.C. 
§ 1158.  East Bay, 950 F.3d at 1259.  Both conclusions are 
wrong and should have been reviewed en banc. 
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II. 
A. 
The Constitution limits our jurisdiction to “Cases” and 
“Controversies.”  U.S. Const. art. III, § 2.  This limitation is 
grounded in the Framers’ “concern about the proper—and 
properly limited—role of the courts in a democratic society.”  
Warth v. Seldin, 422 U.S. 490, 498 (1975).  Outside of our 
jurisdiction, we lack the “power to declare the law.”  Steel 
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).  
To appreciate the jurisdictional bounds of the judicial power, 
“we must refer directly to the traditional, fundamental 
limitations upon the powers of common-law courts.”  
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1550–51 (2016) 
(Thomas, J., concurring) (simplified). 
At the time of the Founding, “the requirements of public 
control over public rights and private control over private 
rights predominated in American law.”  Ann Woolhandler & 
Caleb Nelson, Does History Defeat Standing Doctrine?, 102 
Mich. L. Rev. 689, 695 (2004).1  Indeed, when it came to 
standing, “eighteenth- and nineteenth-century courts were 
well aware of the need for proper parties, and they linked 
 
1 “Private rights” are those “belonging to individuals, considered as 
individuals.”  3 W. Blackstone, Commentaries on the Laws of England 
*2 (1768).  These rights traditionally included the rights of personal 
security, property rights, and contract rights.  Spokeo, 136 S. Ct. at 1550 
(Thomas, J., concurring).  By contrast, “only the government had the 
authority to vindicate a harm borne by the public at large[.]”  Id. at 1551; 
see Lujan v. Defs. of Wildlife, 504 U.S. 555, 576 (1992) (“Vindicating 
the public interest (including the public interest in Government 
observance of the Constitution and laws) is the function of Congress and 
the Chief Executive.”). 
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that issue to the distinction between public and private 
rights.”  Id. at 691.2 
From the earliest days of our Republic, “federal courts 
did not…entertain mandamus actions initiated by private 
relators who lacked private injury.”  Id. at 707.  When asked 
to command the Secretary of State to deliver Mr. Marbury’s 
judicial commission, the Supreme Court in Marbury v. 
Madison commented on the limits of the judicial power: 
“The province of the court is, solely, to decide on the rights 
of individuals, not to enquire how the executive, or executive 
officers, perform duties in which they have…discretion.”  
5 U.S. (1 Cranch) 137, 170 (1803) (emphasis added).  Chief 
Justice Marshall was careful to identify that the Court was 
adjudicating an individual right—that of Mr. Marbury to his 
commission—and not a “political” subject.  Marbury, 5 U.S. 
at 166.  Political subjects, by contrast, “respect the nation, 
not individual rights, and being entrusted to the executive, 
the decision of the executive is conclusive.”  Id.3 
 
2 See, e.g., In re Wellington, 33 Mass. 87, 105 (1834) 
(“Undoubtedly,…a private individual can apply for a writ of mandamus 
only in a case where he has some private or particular interest to be 
subserved, or some particular right to be pursued or protected by the aid 
of this process, independent of that which he holds in common with the 
public at large; and it is for the public officers exclusively to apply, where 
public rights are to be subserved.”). 
3 Chief Justice Marshall would later caution that “[i]f the judicial 
power extended to every question under the laws of the United States[,] 
[t]he division of power [among the branches of government] could exist 
no longer, and the other departments would be swallowed up by the 
judiciary.”  Jonathan Adler, God, Gaia, the Taxpayer, and the Lorax: 
Standing, Justiciability, and Separation of Powers After Massachusetts 
and Hein, 20 Regent U. L. Rev. 175, 180–81 (2008) (quoting Chief 
Justice Marshall’s papers). 
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That view of jurisdiction remained constant.  Nearly a 
century and half later, the Supreme Court similarly observed 
that Article III authorizes federal courts to supervise the 
proper functioning of the political bodies “only to the extent 
necessary to protect justiciable individual rights against 
administrative action fairly beyond the granted powers.”  
Stark v. Wickard, 321 U.S. 288, 310 (1944). 
But in the latter half of the 20th Century, a “sea 
change…occurred in the judicial attitude towards the 
doctrine of standing—particularly as it affects judicial 
intrusion into the operations of the other two branches.”  See 
Antonin Scalia, The Doctrine of Standing as an Essential 
Element of the Separation of Powers, 17 Suffolk U. L. Rev. 
881, 882–83 (1983); see, e.g., Flast v. Cohen, 392 U.S. 83 
(1968) (holding federal taxpayers had standing to challenge 
federal expenditures that would assist religious schools 
under the Establishment Clause).  Courts began venturing 
beyond protecting individual rights to serve the growing 
belief that the judicial branch should adjudicate the public 
law claims of public interest organizations.  See, e.g., Scenic 
Hudson Pres. Conference v. FPC, 354 F.2d 608, 616 (2d Cir. 
1965) (“In order to insure that the Federal Power 
Commission will adequately protect the public interest in the 
aesthetic, conservational, and recreational aspects of power 
development, those who by their activities and conduct have 
exhibited a special interest in such areas, must be held to be 
included in the class of ‘aggrieved’ parties[.]”). 
In the last three decades, however, the Supreme Court 
has deliberately reined in Article III’s standing analysis.  
See, e.g., Lujan, 504 U.S. at 562–67 (holding that 
environmental organizations did not have standing to 
challenge environmental regulations when they suffered no 
direct injury); Spokeo, 136 S. Ct. at 1549 (holding that a 
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violation of a statutorily granted right does not automatically 
confer standing); Lexmark Int’l, Inc. v. Static Control 
Components, Inc., 572 U.S. 118, 129 n.3 (2014) (calling into 
question prudential standing doctrine). 
Nonetheless, lower courts still at times exhibit a flippant 
attitude towards Article III’s injury-in-fact requirements.  
Nowhere is this more evident today than in the muddled 
doctrine of organizational standing.  See, e.g., People for the 
Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 
F.3d 1087 (D.C. Cir. 2015) (granting standing to public 
interest groups that voluntarily expended resources to 
counteract 
government 
inaction 
with 
respect 
to 
environmental regulation); see id. at 1099 (Millett, J., 
dubitante) (declaring that this “ruling is in grave tension with 
Article III precedent and principles”). 
But the era of judicial adventurism has passed.  It is time 
we returned to our proper province—which “is, solely, to 
decide on the rights of individuals.”  Marbury, 5 U.S. at 170. 
B. 
Against this backdrop, it is difficult to see how the legal 
services groups here could bring their suit under the 
traditional notions of Article III.  Arguably the most 
important of Article III’s jurisdictional requirements is that 
plaintiffs have standing to bring their case to federal court.  
For either an individual or an organization to establish 
Article III standing, the party must show (1) an injury in fact 
that is concrete, particularized, and actual or imminent (not 
conjectural or hypothetical); (2) that the injury is fairly 
traceable to the challenged conduct; and (3) that the injury 
will be redressed by a favorable decision.  Lujan, 504 U.S. 
at 561. 
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Here, the plaintiff organizations cannot assert a proper 
injury-in-fact.  The four organizations “share the same 
mission of assisting migrants seeking asylum.”  East Bay, 
950 F.3d at 1266.  But the organizations didn’t bring the suit 
on behalf of client asylum-seekers harmed by the new 
Rule—as one might expect.  Rather, they sued in their own 
right on behalf of their own interests.  Id.  As laudable as the 
organizations’ work may be, the Rule didn’t regulate their 
attorneys’ ability to provide legal services in any way; it only 
conditioned a successful asylum application on an alien’s 
manner of entry.  The Rule therefore didn’t represent a direct 
harm to the organizations themselves.  As the historical 
record shows, it is “substantially more difficult” to establish 
standing when a plaintiff asserts an injury arising from the 
government’s regulation of “someone else.”  Lujan, 504 U.S. 
at 562. 
So how, then, were the organizations able to meet Article 
III standing?  First, the panel majority overcame the injury-
in-fact hurdle by holding that the organizations were injured 
because the Rule amorphously “frustrate[d] their mission” 
by causing them to redirect resources to assist asylum-
seekers in different ways.  East Bay, 950 F.3d at 1266.  
Second, the panel majority proclaimed that the lawyers’ 
organizations were injured because the Rule would diminish 
their client base—announcing a shockingly broad rule that 
standing is conferred if a policy change would result in even 
“one less client” for an organization.  Id. at 1267. 
East Bay inaugurates a new standard of organizational 
standing—one that allows an organization to challenge a 
disfavored government policy by merely asserting that the 
change could result in “one less client” or cause it to shift 
resources to better support its mission.  Id. at 1266–67.  Such 
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a broad and malleable standard is an end-run around Article 
III. 
1. 
Under traditional standing principles, the organizations 
could not have established an injury-in-fact.  As a general 
rule, a plaintiff “must allege facts showing that he is himself 
adversely affected” in order to establish standing.  Sierra 
Club v. Morton, 405 U.S. 727, 740 (1972) (emphasis added).  
A plaintiff does not suffer injury by voluntarily expending 
resources to counteract a governmental action that only 
indirectly affects the plaintiff.  Clapper v. Amnesty Int’l 
USA, 133 S. Ct. 1138, 1148–51 (2013); see Linda R.S. v. 
Richard D., 410 U.S. 614, 619 (1973) (stating that a party’s 
interest in having the law properly enforced against others is 
not a cognizable injury under Article III).  While vindicating 
one’s rights is central to our American legal tradition, it must 
be the party’s rights being vindicated.  In this case, none of 
the organizations had a right that was violated by the Rule.  
As such, we had no right to interfere with the political 
branches. 
The Rule imposed no new restriction or obligation on 
attorneys of asylum seekers.  It only sought to add a 
condition for the successful grant of asylum.  While it is easy 
to see how the Rule would have cut against the 
organizations’ goal to “assist[] migrants seeking asylum” as 
a policy matter, East Bay, 950 F.3d  at 1266, “a setback to 
the organization’s abstract social interests” is not a concrete 
injury, Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 
(1982) (holding that injury occurs when a policy 
“perceptibly impair[s] [the organization’s] ability to 
provide…services for [its clients]”).  “[A] mere interest in a 
problem, no matter how longstanding the interest and no 
matter how qualified the organization is in evaluating the 
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problem, is not sufficient by itself to” confer standing.  
Sierra Club, 405 U.S. at 739 (simplified).  Praiseworthy as 
the organizations’ mission may be, “Article III requires more 
than a desire to vindicate value interests.”  Diamond v. 
Charles, 476 U.S. 54, 66 (1986).  This principle is meant, in 
part, to ensure that courts do not wade into “political or 
ideological disputes about the performance of government.”  
United States v. Richardson, 418 U.S. 166, 192 (1974) 
(Powell, J., concurring). 
To be sure, under our existing precedent, an organization 
can sue “on its own behalf…when it suffered both a 
diversion of its resources and a frustration of its mission.”  
La Asociacion de Trabajadores de Lake Forest v. City of 
Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010) 
(simplified) (emphasis added).  But that’s not enough.  It 
must also “show that it would have suffered some other 
injury if it had not diverted resources to counteracting the 
problem.”  Sierra Club v. Trump, 963 F.3d 874, 884 (9th Cir. 
2020) (simplified).  An organization is not injured by 
choosing, of its own volition, to spend more money or to 
shift resources from one mission goal to another.  To be 
injured, the organization must expend resources outside of 
its mission.  See Havens Realty Corp., 455 U.S. at 378–79 
(recognizing injury when the organization devoted resources 
to identifying and counteracting racially discriminatory 
steering practices when its mission was to provide 
counseling and referral services to low- and moderate-
income home-seekers).  As recently as 2019, we found that 
Second Amendment rights groups had no standing to 
challenge the enforcement of a gun-confiscation law because 
implementation of the law did not “impede[] their ability to 
carry out their mission or require[] them to divert substantial 
resources away from the organizations’ preferred uses.”  
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Rodriguez v. City of San Jose, 930 F.3d 1123, 1135 (9th Cir. 
2019). 
But we lifted these restrictions on organizational 
expenditures in East Bay.  Instead, we held that any change 
in resources—even if consistent with its mission—is enough 
to confer organizational injury.  See East Bay, 950 F.3d at 
1266 (holding the organizations were injured because the 
Rule “caused the Organizations to divert their already 
limited resources in response to the collateral obstacles it 
introduces for asylum-seekers”).  For example, we noted 
how one organization had shifted resources to send staff to 
the border to be closer to migrant detention facilities.  Id.  
But how does spending money assisting migrants seeking 
asylum “frustrate” the organizations’ mission to help 
migrants seeking asylum?  This sounds more like fulfilling 
their mission than “frustrating” it.4  See Fair Hous. Council 
of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 
1216, 1224 (9th Cir. 2012) (Ikuta, J., concurring in part and 
dissenting in part) (“How can an organization have a legally 
protected interest in not spending money to advance its core 
mission?”).  Given that the Rule did not directly “impair[] 
[the organizations’] ability to” assist asylum-seekers, 
Havens Realty Corp., 455 U.S. at 379, we should have 
declined to find jurisdiction here. 
2.  
East Bay’s second ground of injury is even more 
problematic than the first.  In addition to the diversion of 
 
4 The panel seemingly concedes the deficiency of its opinion by 
relying now on extra facts from the supplemental record to support its 
analysis.  See Concurrence in Order at 73.  But future litigants should not 
have to pore through the supplemental record in order to reconstruct what 
the panel actually meant. 
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resources, we recognized an injury to the organizations 
simply because the Rule would have reduced their client 
base.  See 950 F.3d at 1266 (“Because the Rule significantly 
discourages a large number of asylum-seekers from seeking 
asylum given their ineligibility, the Rule frustrates [the 
organizations’] mission.”) (simplified).  Any “los[s of] 
clients” caused by the Rule, no matter how minimal, was 
sufficient to confer Article III standing.  Id.  We even went 
so far as to announce that “one less client that [the 
organizations] may have had but-for the Rule’s issuance is 
enough” for constitutional injury.  Id. at 1267. 
As a result of our ruling, the distinction between injuries 
to an organization and the injuries to third parties served by 
the organization becomes meaningless.  Under East Bay, a 
group has standing to petition our court simply by asserting 
that a government policy impacts third parties assisted by the 
organization.  Such a low threshold, I predict, will lead to 
significant unintended consequences. 
Under the “one less client” theory of injury, any group 
could challenge any governmental policy in its own right if 
the policy would have any de minimis effect on its client 
base.  Law firms, for example, could directly challenge 
statutes and regulations without bothering to obtain an 
injured client.  Public interest groups could seek to enjoin 
any regulation that targets its area of interest.  We have 
moved well beyond requiring particularized and concrete 
injury and have embraced a “general grievance” theory of 
jurisdiction by construing organizational standing so 
broadly. 
Jurisdiction is not like the Big Bang Theory, with an 
ever-expanding universe.  Yet, East Bay’s sweeping 
pronouncement marks a new outer bound in our inflation of 
organizational standing. 
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C. 
While the expansion of organizational standing doctrine 
ostensibly redounds to the benefit of public-interest groups, 
the real issue here is the aggrandizement of our own 
authority.  Article III’s “limitations preserve separation of 
powers by preventing the judiciary’s entanglement in 
disputes that are primarily political in nature.”  Spokeo, 136 
S. Ct. at 1551 (Thomas, J., concurring).  By ignoring these 
fundamental principles, we risk our courts becoming 
“publicly funded forums for the ventilation of public 
grievances.”  Valley Forge Christian Coll. v. Ams. United 
for Separation of Church & State, Inc., 454 U.S. 464, 473 
(1982). 
By loosening organizational standing requirements, we 
only increase our own authority to adjudicate policy 
disputes.  We no longer need to wait for a rule or regulation 
to actually injure a party.  Now, we can skip ahead and 
immediately superintend any policy disagreement from the 
get-go by entertaining the bevy of public interest 
organizations willing to challenge the disfavored policy du 
jour.  That makes us a super-legislature, not a court.  Cf. The 
Federalist No. 47 (James Madison) (quoting 1 Montesquieu, 
Spirit of the Laws 181 (1750)) (“Were the power of judging 
joined with the legislative, the life and liberty of the subject 
would be exposed to arbitrary control, for the judge would 
then be the legislator.”).  We should have fixed this problem 
by reviewing this case en banc and articulating a clear 
organizational standing doctrine grounded in Article III and 
the standing principles respected by our courts since the 
Founding. 
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III. 
Compounding the error of improperly expanding 
organizational standing, our court also substantially 
misreads the asylum law’s text.  The prior administration 
promulgated the Rule under the grant of authority Congress 
conferred on the Executive Branch to adopt limitations on 
asylum eligibility.  See 8 U.S.C. § 1158(b)(2)(C).  But 
instead of acceding to the express will of Congress and the 
Executive, we enjoin the Rule by manufacturing 
prohibitions in the text to avoid what we believe would be 
an “absurd” policy. 
We start, as always, with the text of the statute.  United 
States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010).  The 
asylum statute is divided into two relevant parts: 
• Section 1158(a) – “Authority to apply for asylum” 
– provides that “any alien” who arrives in the United 
States may apply for asylum “whether or not [the 
alien arrives] at a designated port of arrival.”  8 
U.S.C. § 1158(a)(1). 
• Section 1158(b) – “Conditions for granting 
asylum” – permits the grant of asylum to an alien 
who meets the definition of a “refugee” and 
authorizes the Attorney General to “establish” by 
regulation “additional limitations and conditions, 
consistent with this section, under which an alien 
shall be ineligible for asylum.”  Id. § 1158(b)(2)(C). 
By these provisions, Congress endowed the Executive 
with broad discretion to regulate eligibility for asylum.  The 
plain text and structure of the asylum statute indicate that 
Congress sought to separate the requirements and 
procedures for applying for asylum from granting asylum.  
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In subsection (a), Congress tells us who can apply for 
asylum.  Subject to some exception, “any alien” has 
authority to do so, regardless of the alien’s manner of entry 
into the country.  See id. § 1158(a)(1)–(2).  In subsection (b), 
Congress tells us who is eligible to be granted asylum.  See 
id. § 1158(b)(1)–(2).  On that front, § 1158(b) broadly 
authorizes the Attorney General to promulgate regulations 
establishing conditions on eligibility for asylum.  Id. 
§ 1158(b)(2)(C).  Accordingly, while allowing “any alien” 
to apply for asylum with little limitation, Congress also 
affords the Executive extensive authority to regulate who 
receives asylum.  Importantly, the sole textual limitation on 
Congress’s grant of authority is that any regulation be 
“consistent with” the rest of § 1158. 
The Rule easily fits within the asylum scheme enacted 
by Congress.  The Rule does nothing to limit the ability of 
aliens to apply for asylum and only restricts the parameters 
for a successful asylum petition.  Under a straightforward 
reading of § 1158, the Executive was permitted to do so.  
Contrary to the panel majority’s decision here, the Rule does 
not conflict with any provision of § 1158.  The bifurcation 
of the statute indicates that the two authorities—applying for 
asylum and receiving asylum—are purposefully distinct.  
The Executive cannot interfere with the former but can 
expressly alter the latter.  And it is perfectly “consistent” to 
allow an alien to apply for asylum generally and to restrict 
asylum eligibility to only a subset of those who apply.  This 
is especially so where, as here, the restriction is of limited 
time and scope.5  See 83 Fed. Reg. 57,661 §§ 1, 2 (confining 
 
5 Contrary to the panel’s opinion here—and fatal to its analysis—
the Rule doesn’t serve as a complete or categorical ban on eligibility for 
all aliens arriving outside of a port of entry.  See East Bay, 950 F.3d at 
1272 (describing the Rule as a “categorical ban”). 
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the Rule to a 90-day period along the southern border).  And 
the temporary restriction was promulgated to respond to a 
specific crisis at the border.  See East Bay II, 932 F.3d at 754 
(describing the asylum system as “overburdened” and 
acknowledging that courts were receiving a “staggering 
increase in asylum applications,” with a backlog 
“exceed[ing] 200,000,” resulting in “thousands of [asylum] 
applicants who had been detained by immigration authorities 
[being] released into the United States”).  Accordingly, 
nothing in the plain language or structure of § 1158 
precludes temporarily conditioning eligibility for asylum on 
the alien’s manner of entry—especially given the 
Executive’s concern for the situation at the border. 
Despite the clear grant of discretionary authority to the 
Executive, our court strikes down the Rule by inventing a 
conflict with Congress’s supposed intent.  See East Bay, 950 
F.3d at 1272–73 (holding the Rule “unlawful” because “it 
conflicts with the plain congressional intent”).  As explained 
above, the Rule is wholly consistent with § 1158(a); yet the 
panel professes that it “would be hard to imagine a more 
direct conflict than the one presented here.”  Id. at 1272 
(simplified). 
The Supreme Court has warned us against going beyond 
the “plain language” of the statute and “read[ing] into the 
text additional limitations designed to narrow the scope” of 
the statute.  Millbrook v. United States, 569 U.S. 50, 55 
(2013).  By grafting § 1158(a)’s broad scope of who can 
apply for asylum onto § 1158(b)’s necessarily narrower 
scope of who may (or may not) receive asylum, we do just 
that. 
The panel’s reading essentially conflates applying for 
and receiving asylum.  But just because an alien can apply 
for asylum does not entitle him or her to receive asylum.  
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Instead, whether an alien is ultimately granted asylum is 
purely a matter of executive grace.  See 8 U.S.C. 
§ 1158(b)(1)(A) (establishing that the Executive “may grant 
asylum”).6  Indeed, the government is authorized to deny a 
bid for asylum even if the “alien is a refugee within the 
meaning of [the statute].”  Id. § 1158(b)(1)(A), (b)(2)(A).  
All the more baffling, the panel even acknowledges that the 
Executive may consider an alien’s manner of entry when 
adjudicating an individual asylum case.  See East Bay, 950 
F.3d at 1273 (“[We] have long recognized that a refugee’s 
method of entering the country is a discretionary factor in 
determining whether the migrant should be granted 
[asylum].”).  If the Executive can consider manner of entry 
in individual cases, it stands to reason it can do so more 
broadly as well.  Cf. Lopez v. Davis, 531 U.S. 230, 243–44 
(2001) (rejecting argument that the Bureau of Prisons was 
required to make “case-by-case assessments” of eligibility 
for sentence reductions and explaining that an agency “is not 
required continually to revisit ‘issues that may be established 
fairly and efficiently in a single rulemaking’”) (simplified).  
The panel also justified its departure from the plain text 
by arguing that this reading would lead to “absurd results.”  
950 F.3d at 1272 (“Explicitly authorizing a refugee to file an 
asylum application because he arrived between ports of 
entry and then summarily denying the application for the 
 
6 See Moncrieffe v. Holder, 569 U.S. 184, 187 (2013) (describing 
grants of asylum as a “form[] of discretionary relief”); INS v. Aguirre–
Aguirre, 526 U.S. 415, 420 (1999) (explaining that the “decision whether 
asylum should be granted to an eligible alien is committed to the 
Attorney General’s [and the Secretary’s] discretion” under the INA); INS 
v. Cardoza-Fonseca, 480 U.S. 421, 443 (1987) (holding that an alien 
who satisfies asylum requirements under the INA “does not have a right 
to remain in the United States; he or she is simply eligible for asylum, if 
the Attorney General, in his discretion, chooses to grant it”). 
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same reason borders on absurdity.”).  The “absurdity canon 
isn’t a license for us to disregard statutory text where it 
conflicts with our policy preferences.”  Tamm v. UST–U.S. 
Trustee, Honolulu (In re Hokulani Square, Inc.), 776 F.3d 
1083, 1088 (9th Cir. 2015).  And frankly, there is no 
absurdity here at all.  The Rule says that everyone who 
arrives outside of a port of entry is able to apply for asylum, 
but because of the identified migrant crisis, for the 90-day 
period at the southern border, applicants must come in 
through a port of entry to successfully gain asylum.  While 
the panel majority may disagree with that policy decision, 
there is nothing absurd about it.  Indeed, § 1158 sets 
numerous categorical exclusions from asylum eligibility for 
aliens who are statutorily authorized to apply for asylum.  
See 8 U.S.C. § 1158(b)(2). 
If Congress wanted to preclude the Executive from 
basing asylum decisions on the manner of the alien’s arrival, 
it could have easily said so.  Simmons v. Himmelreich, 136 
S. Ct. 1843, 1848 (2016) (“[W]e presume Congress says 
what it means and means what it says.”).  But here, we have 
supplied the policy preference.  Although the panel majority 
purports to divine Congress’s intent, that is beside the point.  
Based on the text of the statute, the asylum-application 
provision expressly authorizes aliens who enter between 
ports of entry to file asylum applications, while the asylum-
granting provision contains no such guarantee.  Instead of 
trying to extract the intent of some 535 legislators in enacting 
§ 1158, we should have simply adhered to the plain meaning 
of the text. 
We should have been especially reluctant to exercise 
judicial power to circumvent the political branches’ 
implementation of immigration law.  Just last term, the 
Supreme Court explained, 
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[T]he power to admit or exclude aliens is a 
sovereign prerogative[.]  [T]he Constitution 
gives the political department of the 
government plenary authority to decide 
which aliens to admit, and a concomitant of 
that power is the power to set the procedures 
to be followed in determining whether an 
alien should be admitted. 
Thuraissigiam, 140 S. Ct. at 1982 (simplified). 
The Rule, therefore, rests on solid statutory ground.  
Congress permits the Attorney General to establish by 
regulation “additional limitations and conditions” on asylum 
eligibility.  8 U.S.C. § 1158(b)(2)(C).  The Attorney General 
did just that.  That should have been the end of the analysis.  
Nevertheless, we substitute our version of the asylum law for 
the one actually passed by Congress. 
IV. 
For these reasons, I respectfully dissent from the denial 
of rehearing en banc. 
 
VANDYKE, Circuit Judge, dissenting from denial of 
rehearing en banc: 
I agree with Judge Bumatay’s analysis and join his 
dissent in full.  I write separately to address the East Bay 
panel majority’s amended decision—specifically its past and 
present treatment of the binding effect of motions panels’ 
published opinions—and the tortured path that got us here.  
It was never necessary in this case for the panel majority to 
wade into this issue at all (more on that later), but both the 
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panel’s original and now-amended analyses are equally 
unsatisfying and will undoubtedly lead to more mischief on 
an important issue that we will wrestle with for years to 
come.  Although the revised East Bay panel opinion now no 
longer purports to overrule Lair v. Bullock, 798 F.3d 736 
(9th Cir. 2015)—which, of course, it never had the authority 
to do in the first place—the replacement rationale it provides 
is no less troublesome, and can only serve as an ever-ready 
escape valve for merits panels who wish to disregard a 
published motions panel decision that decided effectively 
identical issues. 
I. 
A. 
Some table-setting is necessary.  First, the law.  Before 
this case, our law-of-the-circuit rule vis-à-vis a motions 
panel’s published opinion was well-established and 
straightforward.  In Lair v. Bullock, a panel of our court held 
as a matter of first impression that “a motions panel’s 
published opinion binds future panels the same as does a 
merits panel’s published opinion.”  798 F.3d at 747.  There’s 
not much ambiguity in that statement. 
But what about our law-of-the-case jurisprudence?  Does 
that separate doctrine somehow undermine Lair’s clear 
ruling by allowing a merits panel to avoid being bound by a 
motions panel’s published opinion in the same case?  That 
question was resolved by our court years before Lair.  “No,” 
we said, en banc.  See Gonzalez v. Arizona, 677 F.3d 383, 
389 n.4 (9th Cir. 2012) (en banc) (“We now hold that the 
exceptions to the law of the case doctrine are not exceptions 
to our general ‘law of the circuit’ rule, i.e., the rule that a 
published decision of this court constitutes binding authority 
which ‘must be followed unless and until overruled by a 
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body competent to do so.’”) (quoting Hart v. Massanari, 
266 F.3d 1155, 1170 (9th Cir. 2001)). 
Taken together, Lair and Gonzalez were therefore clear 
and categorical: a motions panel’s published opinion is the 
law of the circuit—like any other published panel opinion—
for all subsequent panels, even the merits panel in the same 
appeal.1 
B. 
Next, this case.  On October 1, 2019, the same merits 
panel heard and submitted this and another high-profile case, 
both challenging Trump Administration immigration 
policies.  See E. Bay Sanctuary Covenant v. Trump (“East 
Bay”), 950 F.3d 1242 (9th Cir. 2020); Innovation Law Lab 
v. Wolf (“ILL”), 951 F.3d 1073 (9th Cir. 2020), cert. granted, 
141 S. Ct. 617 (2020).  In both cases, district courts had 
enjoined 
the 
government 
from 
carrying 
out 
the 
Administration’s policies, and the government applied to 
this court for emergency stays of those injunctions pending 
appeal.  In this case (East Bay), a motions panel of our court 
denied the government’s stay request in a published opinion.  
See E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 755 
(9th Cir. 2018).  But in ILL, a different motions panel granted 
the government’s stay request, again in a published opinion.  
See Innovation Law Lab v. McAleenan (“ILL (motions 
panel)”), 924 F.3d 503, 510 (9th Cir. 2019). 
Both cases proceeded to be heard by the same panel 
considering the merits of the district courts’ preliminary 
 
1 It’s worth emphasizing up front that I’m somewhat ambivalent as 
to whether the Lair-Gonzalez rule was the correct rule.  But right or 
wrong, it clearly was the rule in our circuit, and if we wanted to change 
it, we should have done so en banc. 
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injunctions.  That panel published decisions in both cases on 
the same day: February 28, 2020.  In East Bay, a two-judge 
majority on the merits panel agreed with the motions panel 
and affirmed the district court’s injunction.  In ILL, the same 
merits panel majority also affirmed the district court’s 
injunction.2  But the merits panel in ILL had a Lair problem: 
the motions panel’s published decision had reached a 
directly contrary result on at least one major issue in the case.  
Compare, e.g., ILL (motions panel), 924 F.3d at 509 (“[W]e 
conclude that DHS is likely to prevail on its contention that 
§ 1225(b)(1)” is consistent with the Administration’s 
policy.), with ILL, 951 F.3d at 1081 (“We conclude that 
plaintiffs have shown a likelihood of success on their claim 
that [the policy] is inconsistent with 8 U.S.C. § 1225(b).”). 
So the panel majority resourcefully applied some good 
old-fashioned judge-jitsu, admirable perhaps for its audacity 
if not its propriety or subtlety.  The majority first turned to 
East Bay—where Lair was both not at issue (because the 
motions and merits panels in East Bay reached the same 
conclusion) and, for that reason, not particularly relevant—
to create a new rule effectively toppling Lair and 
neutralizing its thorny imposition on the panel majority’s 
desired outcome in ILL.  In East Bay, the majority’s opinion 
announced a new rule: “we treat the motions panel’s 
decision as persuasive, but not binding.”  East Bay, 950 F.3d 
at 1265.  The decision simply asserted that Lair’s holding 
was dicta, and that even if it were precedential, there were 
“good policy and practical reasons for departing from 
 
2 Judge Fernandez, the third judge on both merits panels, wrote 
separately in both cases because, applying Lair, he believed the merits 
panel in both cases was bound by the earlier published motions panel 
opinions.  East Bay, 950 F.3d at 1284 (Fernandez, J., concurring in the 
result); ILL, 951 F.3d at 1095 (Fernandez, J., dissenting). 
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Lair[],” including law-of-the-case considerations.  See id. 
at 1262–63. 
That alone was remarkable for its chutzpah, considering 
it casually disregarded one of our court’s foundational rules 
undergirding the rule of law itself: that three-judge panels 
cannot overturn prior panel opinions unless they are “clearly 
irreconcilable with the reasoning or theory of intervening 
higher authority.”  Miller v. Gammie, 335 F.3d 889, 893 (9th 
Cir. 2003) (en banc); see also United States v. Contreras, 
593 F.3d 1135, 1136 (9th Cir. 2010) (en banc).  But a full-
blown critique of this rationale is unnecessary now because 
the majority has amended its opinion and thereby withdrawn 
some more offensive aspects of its prior analysis.  To 
summarize, though, the East Bay majority’s curt analysis in 
its initial opinion rather gruffly dismissed Lair and merely 
paid lip service to Gonzalez, which is why it was later forced 
to amend its opinion. 
But the real head-scratcher for the original East Bay 
decision was why the majority promulgated its new rule at 
all.  If you were looking only at East Bay itself, you would 
wonder what prompted the majority there to even delve into 
the Lair discussion.  Again, in East Bay, the motions panel 
and the merits panel were in vigorous agreement that the 
government was unlikely to succeed on the merits.  So why 
drag Lair into it? 
The reason is obvious once you zoom out: because of 
ILL, the other case decided by the same panel on the same 
day.  In ILL, the same two-judge majority needed to navigate 
around a published motions panel decision that went the 
other way.  See ILL, 951 F.3d at 1081 (“A preliminary 
question is whether a merits panel is bound by the analysis 
of a motions panel on a question of law, performed in the 
course of deciding an emergency request for a stay pending 
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appeal.”).  And how did the ILL majority answer that 
question?  By dutifully following precedent:  “On that 
question, we follow East Bay…in which we held that a 
motions panel’s legal analysis, performed during the course 
of deciding an emergency motion for a stay, is not binding 
on later merits panels.”  Id.  The only thing missing from the 
majority’s ILL decision is a solemn citation to Miller v. 
Gammie so everyone can know how serious the majority was 
about faithfully adhering to binding precedent—its own, in 
East Bay, that is.3 
To summarize ILL: the motions panel in a published 
opinion addressed the same legal questions presented to the 
merits panel, and under Lair and Gonzalez, the motions 
panel’s resolution of those questions should have controlled.  
But the merits panel majority didn’t like the result reached 
by the motions panel.  It needed that published opinion to be 
 
3 The panel majority defends its original East Bay decision rejecting 
Lair by reaching for the oldest excuse in the Book (literally):  “But we 
were asked to do it!”  See Genesis 3:12 (NIV) (“The man [Adam] said, 
‘The woman you put here with me—she gave me some fruit from the 
tree, and I ate it.’”).  The obvious response is no less antediluvian, and 
will be familiar to any parent: just because you were asked to do 
something doesn’t mean you should have.  Indeed, here the panel 
majority has implicitly acknowledged it shouldn’t have done what it 
originally did, by amending its opinion to remove the more offensive 
aspects of its original rationale.  So even assuming the parties had asked 
the panel to do what it did, that wouldn’t excuse it.  But, in fact, the panel 
majority can’t fairly blame the parties.  The panel in this case only 
needed to address Lair if it departed from the motions panel’s 
conclusions, which it didn’t.  The government didn’t even cite Lair, 
much less argue Lair’s rule was dicta, until a footnote in its reply brief.  
The panel majority purported to nullify Lair in its original opinion only 
because it needed Lair’s rule gone for ILL—not because Lair stood in 
the way of the panel’s conclusion in this case (which the panel’s 
amended opinion demonstrates, by reaching the same conclusion but 
without dissing Lair). 
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“persuasive,…not binding.”  East Bay, 950 F.3d at 1265.  So 
the majority overruled Lair in East Bay—where it was 
completely unnecessary to do so—so that it could 
immediately apply East Bay’s ILL-conceived rule in a 
decision where it could do some real work.4 
Back to East Bay: after the government’s request for en 
banc rehearing, the majority agreed to amend its opinion; a 
majority of our court was unwilling to vote in favor of en 
banc rehearing; and we arrived at our current juncture.  The 
East Bay panel majority’s amended opinion has now nixed 
its categorical rejection of Lair.  It replaces its prior 
repudiation of Lair with one of the oldest common law 
axioms: a “published motions panel order may be binding as 
precedent for other panels deciding the same issue.”  It 
vaguely concedes that “[t]here may be circumstances where 
a motions panel does answer the same legal question that is 
presented to the merits panel.”  But, as you might have 
guessed, the majority still concludes that in East Bay itself, 
the motions panel opinion “is not binding…because the 
issues are different.”  That way, you see, East Bay can still 
purport to serve as precedent for ILL and subsequent 
decisions that have involved Trump Administration policies 
 
4 Along with the same policy arguments outlined in East Bay, the 
ILL majority noted that its disregard of the motions panel’s earlier 
published decision was especially appropriate in ILL because, in that 
case, one of the ILL motions panel judges had “expressed the hope that 
the merits panel, with the benefit of full briefing and argument, would 
decide the legal questions differently.”  ILL, 951 F.3d at 1081.  For those 
not tracking the judicial composition of the various panels, that same 
motions panel judge was also part of the two-judge majority on the East 
Bay and ILL merits panels, thus triggering the venerable “I-told-you-so” 
rationale for disregarding precedent. 
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where the merits panel disagreed with the published motions 
panel opinion.5 
In just a moment, I’ll discuss the deficiencies of the now-
amended East Bay opinion’s seemingly innocuous and banal 
reasoning, and why we still should have taken this case en 
banc despite the panel’s retrenchment.  But first, it’s 
important to recap what happened here.  Originally, the East 
Bay majority adopted a clearly indefensible rationale to 
fabricate a new rule it could apply in a different case, where 
it needed to circumvent a motions panel opinion that decided 
the very same issue of law.  See ILL, 951 F.3d at 1081 
(reaching a directly contrary legal conclusion to that of the 
motions panel on whether the executive branch’s policy was 
consistent with the relevant statute).  After being called to 
the carpet by a petition for en banc rehearing, the majority 
stepped back from that blatantly inappropriate power-grab 
behind its original East Bay rule.  Of course, that’s easy 
enough to do now.  The original East Bay rule has already 
served its purpose: the majority got to its preferred outcome 
in ILL by applying the precedent-disregarding “rule” it 
manufactured in East Bay.  Discarding the old East Bay rule 
now, after the fact, and in a case where the “rule” was 
complete dicta to begin with, is pretty much costless.  
Mischief managed. 
 
5 At least one other merits panel of our court followed ILL’s lead 
when it declined to be bound by a published motions panel opinion.  That 
case involved the Public Charge Rule, where, as discussed further below, 
the motions panel reached legal conclusions contrary to those of the 
merits panel majority on virtually every question in the case.  Compare 
generally City & County of San Francisco v. USCIS, 981 F.3d 742 (9th 
Cir. 2020) (merits panel), with City & County of San Francisco v. USCIS, 
944 F.3d 773 (9th Cir. 2019) (motions panel). 
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Or maybe not.  In the real world, the lingering effects of 
pulling a stunt like this don’t just vanish.  Even putting aside 
the problems identified in Judge Bumatay’s dissent, and the 
problems with East Bay’s new replacement rationale 
discussed in the next section, this looks bad for our court—
because it is.  Even if none of the other reasons for taking 
this case en banc had merit (which they do), we should have 
done so if only to demonstrate to the public that we don’t 
approve of the barely disguised shenanigans that happened 
in East Bay and ILL.  It would have helped promote public 
confidence in the integrity and impartiality of our court.6 
II. 
It is true that the amended rationale in the East Bay 
majority’s opinion doesn’t represent the ham-fisted 
upheaval its original opinion did.  But it merely trades one 
evil for another.  Instead of rudely casting aside precedent, it 
distinguishes—rather than overrules—Lair, creating a new 
standardless standard that, as a practical matter, will allow 
any merits panel to disregard a motions panel’s published 
decision resolving virtually identical claims.  In addition to 
the several compelling reasons given in Judge Bumatay’s 
dissent as to why we should have taken this case en banc, 
 
6 The panel majority misconstrues what I characterize as its 
“mischief.”  I agree “there was nothing improper in the majority’s 
revision of its opinion to accommodate the views of our colleagues.”  
The “mischief” I reference was the panel’s “ILL-conceived” rule from 
its original opinion—not the panel “amending its opinion during the en 
banc process.”  My point is that while the panel majority (and apparently 
a majority of our court) may think that the panel has “managed” its 
original mischief by amending its opinion, it hasn’t—especially when 
you consider the indiscernible mess left by the panel’s new but still 
unsatisfying rationale, combined with our other recent decisions that I 
discuss in detail below. 
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there are at least two more considerations—related to each 
other—that further counseled in favor of reviewing the 
revised East Bay opinion. 
First, the East Bay majority’s new standard is 
indeterminate at best, retreating to the truism that two things 
are different, except when they’re not:  “The published 
motions panel order may be binding as precedent for other 
panels deciding the same issue, but it is not binding here.”  
This nebulous standard is completely unhelpful to future 
panels attempting to apply our precedent.  It is only helpful 
if we want to maximize merits panels’ discretion to do 
whatever they want with published motions panels’ opinions 
in the same case.  It is terrible for predictability and the rule 
of law, and should have been considered en banc for this 
reason alone. 
Second, and relatedly, although there might be one 
logically satisfying way to reconcile East Bay’s new 
“sometimes-it’s-binding, sometimes-it’s-not” rule with Lair, 
that specific reconciliatory interpretation of the East Bay 
majority’s rule obviously cannot be what the East Bay 
majority actually meant.  How do we know?  Because of 
what the judges from the East Bay majority have done in 
subsequent cases.  Their clear actions prevent their mushy 
words in East Bay from meaning the only thing that might 
have been meaningful. 
So after East Bay we really are left with a truly 
ambiguous standard giving merits panels maximum 
discretion and minimal guidance.  To explain requires me to 
first elaborate on how one could try to reconcile Lair and the 
new East Bay, and then describe how the panel majority’s 
actions in subsequent cases make clear that that can’t be 
what East Bay means. 
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Here is how an intrepid law professor might try to 
reconcile Lair and East Bay:  The amended East Bay opinion 
no longer rejects Lair out-of-hand, but nods to Lair while 
distinguishing it by retaining a lengthy but abstract 
discussion about the differences between adjudicating stay 
applications and preliminary injunctions.  The opinion 
engages in a superficial and formalistic analysis of the 
technical distinctions between stays and preliminary 
injunctions, but never pins down what those differences 
might mean here in the real world.  Once we dip below 
30,000 feet, however, we observe that whether a motions 
panel grants or denies a stay should have very different 
implications for a subsequent panel considering the merits of 
the preliminary injunction itself.  And therein lies a 
theoretical key to reconciling Lair and East Bay. 
To see how the stay and preliminary injunction standards 
interact differently depending on whether a stay is granted 
or denied requires looking closely at the standards 
themselves.  A party seeking a preliminary injunction before 
a district court bears the burden of establishing: 
[1] that he is likely to succeed on the merits, 
[2] that he is likely to suffer irreparable harm 
in the absence of preliminary relief, [3] that 
the balance of equities tips in his favor, and 
[4] that an injunction is in the public interest. 
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).  
By comparison, after a district court issues a preliminary 
injunction, the losing party seeking a stay of that injunction 
bears the considerably heavier burden of establishing: 
(1) [that] the stay applicant has made a strong 
showing that he is likely to succeed on the 
merits; (2) [that] the applicant will be 
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irreparably injured absent a stay; (3) [that] 
issuance of the stay will [not] substantially 
injure the other parties interested in the 
proceeding; and (4) [that] the public interest 
lies [with the issuance of a stay]. 
Nken v. Holder, 556 U.S. 418, 426 (2009) (emphases added) 
(citation omitted).  And the stay applicant doesn’t present its 
arguments in a vacuum, but must overcome a presumptively 
valid lower court decision that went the other way.  See Sw. 
Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 
918 (9th Cir. 2003) (explaining that appellate review of 
district court preliminary injunctions is “limited[,] and 
deferential”).  On top of that, the stay applicant bears the 
substantial burden of strongly showing that it is the party 
who is likely to succeed on the merits.  And the applicant 
must establish it “will be irreparably injured absent a stay.”  
Nken, 556 U.S. at 434 (emphasis changed).  Compare those 
showings to the less demanding “likely to succeed on the 
merits” and “likely to suffer irreparable harm” of the 
preliminary injunction inquiry.  Given the higher standards 
and inverted burdens, it is no surprise that stay applications 
are (and should be) denied most of the time; they are granted 
even more infrequently than are preliminary injunctions, 
which are themselves an “extraordinary remedy.”  Winter, 
555 U.S. at 22. 
Because of that, losing a stay motion (even in a published 
opinion)7 logically should not usually foreordain that party’s 
fate on the merits of the preliminary injunction.  A stay 
applicant unable to meet the onerous stay standard could still 
 
7 Most motions panel decisions aren’t published, and therefore 
cannot tie the hands of later merits panels.  See Haggard v. Curry, 
631 F.3d 931, 933 n.1 (9th Cir. 2010) (per curiam); 9th Cir. R. 36-3(a). 
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prevail in reversing a district court preliminary injunction, 
since the burden before the merits panel flips back to the 
original injunction proponent.  See id. at 20.  In most cases, 
like East Bay, the interplay of the shifting stay and injunction 
standards means that a motions panel’s denial of a stay won’t 
control the outcome of the later panel just considering the 
merits of the preliminary injunction itself.  So, if it could be 
limited to that context, the amended East Bay opinion’s 
observation that published stay opinions are not always 
binding on later merits panels could make some sense.  It 
also might not be inconsistent with Lair, because unlike in 
East Bay, Lair involved a situation where a stay was granted 
by the motions panel. 
In a Lair-type circumstance—that is, in the doubly rare 
case where the motions panel granted a stay of the 
preliminary injunction in a published opinion—the stay 
applicant is necessarily very likely to succeed on all the legal 
factors relevant to the preliminary injunction itself.  If a 
motions panel concludes that an applicant has demonstrated 
(1) a strong likelihood of success on the merits, (2) that it 
will be irreparably harmed absent a stay, (3) that other parties 
won’t be substantially harmed by the stay, and (4) that the 
public interest is served by a stay, then a fortiori the other 
party will almost always be prevented from meeting the 
considerably less burdensome preliminary injunction 
standard—unless the merits panel is allowed to just 
disregard the motions panel’s conclusions.  Both parties 
can’t likely succeed on the merits.  Both can’t show that the 
equities and public interest tip in their favor.  That’s simply 
not how the standards logically interact.  If, in a published 
decision, a motions panel concludes that the stay applicant 
surmounted its Sisyphean burden—despite the odds stacked 
against it—that’s generally a conclusive legal determination 
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that the applicant should also prevail on the merits, and so a 
preliminary injunction is unwarranted.8 
One might conclude, therefore, that, because Lair 
involved precisely this rare situation of a merits panel faced 
with a published motions panel decision granting a stay, this 
is the circumstance Lair had in view for its categorical 
motions-panels-opinions-bind-later-merits-panels 
rule.  
And, in contrast, East Bay’s new observation that motions 
panel decisions don’t always bind later merits panels is 
simply a reflection of the reality in that case—that the earlier 
motions panel had denied the stay.  Accordingly, one could 
argue that the East Bay panel majority’s focus on the 
distinctions between stays and preliminary injunctions was 
intended to serve as precisely this basis for reconciling East 
Bay and Lair—i.e., that East Bay applies if the motions panel 
denied the stay, but Lair applies if the motions panel granted 
the stay. 
But here in the real world, whoever makes this otherwise 
possibly satisfying academic argument is delusional.  The 
East Bay panel majority can’t have meant to reconcile Lair 
and East Bay this way because the very same two-judge 
panel majority immediately cited and relied on East Bay to 
ignore a motions panel opinion granting a stay in ILL, and 
has never retreated from that.  In fact, one of those two 
judges did the same thing again months later as part of the 
 
8 The exception might arise in a more traditional case where, after a 
stay is granted, the parties further develop the record in front of the 
district court before having the merits of their preliminary injunction 
considered on appeal.  In that case, a merits panel might actually be 
reviewing a meaningfully different case than the motions panel did.  But 
as the procedural histories of the various cases recounted herein 
illustrate, the development of our caselaw in this area does not seem to 
be driven much by “traditional” cases—at least not recently. 
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merits panel majority in the Public Charge cases, which also 
involved a published motions panel opinion granting a stay 
that was subsequently ignored by the two-judge merits panel 
majority.  So that theoretically reconciliatory reading of Lair 
and East Bay, as nice as it might be, just isn’t on the table—
unless we want to ignore reality. 
As if ILL were not bad enough, our merits panel decision 
in the Public Charge cases highlights just how unstructured 
our treatment of published motions panel stay opinions has 
become.  In three recent cases argued and decided together 
by this court, challengers to the Trump Administration’s 
revamped “Public Charge” rule obtained preliminary 
injunctions from two district courts in our circuit.  The 
government sought an emergency stay of these injunctions, 
which a motions panel of our court granted in a lengthy 
published opinion.  According to the motions panel, the 
government “mustered a strong showing of likelihood of 
success on the merits.”  City & County of San Francisco, 944 
F.3d at 807.  More specifically, the motions panel concluded: 
• The new rule was not contrary to law.  See id. at 798 
(“Congress has not spoken directly to the 
interpretation of ‘public charge’ in the INA.  Nor did 
it unambiguously foreclose the interpretation 
articulated in the Final Rule.”). 
• The new rule was not arbitrary and capricious.  See 
id. at 790. 
• The government would suffer irreparable harm 
absent a stay of the injunctions.  See id. at 806. 
• A stay would serve the public interest.  See id. at 807. 
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Contrast these clear holdings with those of the two-judge 
merits panel majority, which entirely reversed course on the 
same record and issues.  City & County of San Francisco, 
981 F.3d at 763.  The merits panel majority concluded: 
• “[T]he plaintiffs have demonstrated a high likelihood 
of success in showing that the Rule is inconsistent 
with any reasonable interpretation of the statut[e].”  
Id. at 758. 
• “We must conclude that the Rule’s promulgation was 
arbitrary and capricious.”  Id. at 762. 
• Plaintiffs established that they will likely suffer 
irreparable harm absent the preliminary injunctions.  
See id. 
• The public interest and equities favor the injunctions.  
See id. 
Same case, same legal issues, no interstitial factual 
developments—diametrically opposed legal conclusions.9  
The merits panel majority in the Public Charge appeal 
explained that it could depart from the carefully-reasoned 
holdings of the motions panel because (a) it had the benefit 
of more briefing on the same issues (including amicus 
briefs); and (b) some other circuits had since reached 
conclusions contrary to those of the motions panel.  See id. 
at 753–54.  Because our Public Charge decision never 
 
9 As a result, we now have on-point, circuit precedent in two 
different published opinions (from the motions panel and the merits 
panel) that reach opposite conclusions in the Public Charge Rule cases.  
Which binding precedent should the lower courts, and panels in 
subsequent cases, follow?  Addressing this problem is another reason our 
court should have taken this case en banc. 
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mentioned East Bay or ILL (or Lair or Gonzalez, or, for that 
matter, any precedent for disregarding the motions panel’s 
published legal conclusions), it isn’t clear whether the panel 
majority was implicitly applying the East Bay/ILL rule,10 or 
whether it was creating yet another novel rule that motions 
panels’ opinions are not binding whenever there is a lot more 
merits briefing—including some really good amicus 
briefs—and other circuits have reached a different 
conclusion than did our motions panel.11 
As these cases illustrate, the undeniable reality is that 
after Gonzalez, Lair, East Bay, ILL, and City & County of 
San Francisco have all been thrown in the mixer, our circuit 
doesn’t have anything close to a cognizable rule about how 
merits panels should treat motions panels’ earlier published 
stay opinions.  Perhaps, sitting en banc, we could adopt the 
approach described above reconciling Lair and East Bay.  Or 
we could make a rule that motions panels’ decisions granting 
a stay should always be unpublished, and thus not binding.  
Or, amending our earlier Gonzalez decision, we could 
conclude that motions panels’ decisions—published or 
not—are not binding on later panels in the same appeal 
(including merits panels), and address how our court and the 
 
10 As already noted, the Public Charge merits panel majority 
included an overlapping judge from the East Bay and ILL panel majority, 
so the Public Charge panel majority could hardly have been unaware of 
the East Bay rule, or Lair. 
11 Of course, if other circuits’ intervening contrary decisions were 
actually a legitimate consideration in deciding whether to apply binding 
circuit precedent, then so might be the fact that the U.S. Supreme Court 
had stayed those very same contrary decisions.  See Dep’t of Homeland 
Sec. v. New York, 140 S. Ct. 599, 599 (2020) (staying Second Circuit’s 
preliminary injunction); Wolf v. Cook County, 140 S. Ct. 681, 681 (2020) 
(same for Seventh Circuit). 
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district courts in other cases should treat inconsistent 
published motions and merits opinions from the same case.  
Our court sitting en banc might come up with any number of 
good solutions to the problems presented in cases like this.  
But until we do, we and those who litigate before us must 
content ourselves with the slop at the intersection of East 
Bay, ILL, City & County of San Francisco, Lair, Gonzalez—
and whatever future panel opinions applying those divergent 
precedents deliver.  It’s a pity that a majority of our court 
could not be persuaded to take this case en banc to untangle 
the muddle we’ve made of the Lair–Gonzalez rule. 
III. 
Recognizing the amended East Bay rationale for what it 
is—a plastic truism that, without now saying so, still 
subversively displaces Lair’s rule—it’s hard to see how 
anyone could think this is a good thing for the state of the 
law in our circuit.  Going forward, the hyper-elasticity of the 
new Lair–East Bay standard will undoubtedly be useful for 
merits panels seeking flexibility, but obviously less helpful 
to litigants seeking clarity and predictability.  This problem 
is not going to go away.  Given our circuit’s propensity to be 
the venue of choice to overrule certain administrations’ 
policies, we are sure to see this problem manifest again (and 
again) before too long.  Until we fix it, everybody will know 
that whether a motions panel’s published stay opinion has 
any binding force just depends on which merits panel you 
draw—not the law.  Cite Lair.  Cite East Bay.  Cite ILL or 
City & County of San Francisco.  Trust us to pick which one 
fits best. 
That breaks faith with our most fundamental obligation, 
which is to apply the law, not our preferences.  Panel 
majorities should not be allowed to simply change the rules 
when they find them inconvenient obstacles to preferred 
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substantive outcomes.  In the end, this type of overt results-
oriented judging can’t help but discredit our court and the 
rule of law generally. 
Any of these considerations should individually have 
been important enough to correct East Bay en banc.  But 
apparently, even in toto, they were not.  I must therefore 
respectfully express my disappointment. 
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