Defendants' Emergency Motion to Stay Pending Appeal — East Bay Sanctuary v. Trump

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N.D. Cal. · No. 4:18-cv-06810-JST · Doc. 190 · 2023-07-25 · Docket on CourtListener

Full text

MOTION FOR STAY 
East Bay v. Trump, Case No. 4:18-cv-06810-JST  
 
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BRIAN M. BOYNTON 
Principal Deputy Assistant Attorney General 
WILLIAM C. PEACHEY 
Director 
EREZ REUVENI 
Assistant Director  
Office of Immigration Litigation 
U.S. Department of Justice, Civil Division 
P.O. Box 868, Ben Franklin Station 
Washington, DC 20044 
Tel: (202) 307-4293 
Email: Erez.R.Reuveni@usdoj.gov 
PATRICK GLEN 
CHRISTINA P. GREER 
Senior Litigation Counsel 
 
 
UNITED STATES DISTRICT COURT  
FOR THE NORTHERN DISTRICT OF CALIFORNIA 
OAKLAND DIVISION 
 
 
East Bay Sanctuary Covenant, et al., 
Plaintiffs, 
v. 
Joseph R. Biden, et al., 
 
Defendants. 
 
             
     No. 4:18-cv-06810-JST 
 
EMERGENCY MOTION TO STAY 
ORDER AND FINAL JUDGMENT  
ORDER PENDING APPEAL 
 
      
 
 
 
 
Case 4:18-cv-06810-JST   Document 190   Filed 07/25/23   Page 1 of 8

 
MOTION FOR STAY 
East Bay v. Trump, Case No. 4:18-cv-06810-JST 
 
 
 
 
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INTRODUCTION 
 
Defendants hereby move for a stay, pending completion of appellate proceedings, of this 
Court’s order and final judgment granting Plaintiffs’ motion for summary judgment, entered on 
July 25, 2023. See ECF Nos. 187-88. The Solicitor General has authorized an appeal of the 
Court’s order, see 28 C.F.R. § 0.20(b), and the Government recently filed the Notice of Appeal. 
In light of the serious harms to the government and the public interest occasioned by the vacatur 
(as described more fully below), Defendants respectfully request that the Court rule on this motion 
by end of the day on July, 26, 2023, so Defendants may promptly seek appellate relief if necessary. 
If, upon reviewing this motion, the Court does not find Defendants have met the requirements for 
a stay, Defendants request this Court summarily deny the motion without awaiting a response 
from Plaintiffs. Defendants have simultaneously filed a motion to shorten the time to respond to 
this motion.1  
 
Defendants recognize and appreciate the Court stayed its order for 14 days, until 11:59 
PM, August 8, 2023 to permit Defendants to seek emergency relief at the appellate level. ECF 
No. 187 at 35; see Fed. R. Civ. P. 6(a)(1). That order may reflect the Court’s judgment that an 
additional stay beyond fourteen days is not warranted. Federal Rule of Appellate Procedure 8 
requires, however, that “[a] party must ordinarily move first in the district court for the following 
relief: a stay of the judgment or order of a district court pending appeal.” Fed. R. App. P. 8(a)(1). 
Therefore, out of an abundance of caution, Defendants respectfully submit this motion for a full 
stay of the Court’s order pending resolution of appellate proceedings. 
 
As explained below, the balance of harms weighs strongly in favor of a stay and, 
respectfully, Defendants are likely to prevail on the merits in their appeal. This Court’s order 
directly undermines the Executive Branch’s efforts taken to prevent an expected increase in 
encounters at the southwest border following the termination of the Title 42 order issued by the 
Centers for Disease Control and Prevention (CDC). See Circumvention of Lawful Pathways, 88 
Fed. Reg. 31,314 (May 16, 2023) (the “Rule”). The Rule helps prevent that potentially significant 
                           
1 Defendants have conferred with Plaintiffs, who oppose the relief requested in this motion. 
Plaintiffs also oppose any request to decide the motion without a response and request until noon 
pacific July 26 to file a response. 
Case 4:18-cv-06810-JST   Document 190   Filed 07/25/23   Page 2 of 8

 
MOTION FOR STAY 
East Bay v. Trump, Case No. 4:18-cv-06810-JST 
 
 
 
 
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increase in encounters at the southwest border, which would overwhelm the immigration system, 
incentivize human smuggling, lead to extreme overcrowding in border facilities, and undermine 
the ability of the Department of Homeland Security (DHS) and the Department of Justice (DOJ) 
to effectively manage the asylum and immigration system. The Court’s order immediately harms 
the public by vacating this Rule, issued in accordance with the Departments’ broad and express 
statutory authority over asylum. The order also undermines the Executive Branch’s efforts, 
including its ongoing international diplomatic efforts, to share the burdens of irregular migration 
with other Western Hemisphere countries. Defendants acted within their statutory and 
constitutional authority to address an anticipated influx of migrants, and the Court’s injunction 
irreparably harms the Government and jeopardizes important national interests. The 
organizational Plaintiffs, by contrast, have identified only speculative harms to their abstract 
missions and to their administrative interests they claim they would suffer from implementation 
of the Rule. 
 
STANDARD OF REVIEW 
In deciding a motion to stay an order pending appeal, courts consider four factors: 
“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; 
(2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay 
will substantially injure the other parties interested in the proceeding; and (4) where the public 
interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009). 
ARGUMENT 
I. The Balance of Harms Weighs Strongly in Favor of a Stay. 
 
As explained below and in Defendants’ previous submissions, ECF No. 176-1 at 34-35; 
ECF No. 182 at 24-25, the serious and irreparable harms to the Government and public from the 
Court’s order outweigh any harm Plaintiffs might suffer if the order is stayed pending appeal. The 
Supreme Court has reached similar conclusions in other cases involving border management and 
foreign policy when it stayed in full the injunction issued by this court in Barr v. East Bay 
Sanctuary Covenant, 140 S. Ct. 3 (2019), and by other district courts in Trump v. Hawaii, 138 S. 
Ct. 542 (2017) and Trump v. Int’l Refugee Assistance Project (IRAP), 138 S. Ct. 542 (2017).  The 
Case 4:18-cv-06810-JST   Document 190   Filed 07/25/23   Page 3 of 8

 
MOTION FOR STAY 
East Bay v. Trump, Case No. 4:18-cv-06810-JST 
 
 
 
 
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Supreme Court and Ninth Circuit held similarly when they stayed an injunction restraining the 
Migrant Protection Protocols, Innovation L. Lab v. McAleenan, 924 F.3d 503, 510 (9th Cir. 2019); 
Wolf v. Innovation L. Lab, 140 S. Ct. 1564 (2020), as did the Supreme Court and Fifth Circuit 
concerning injunctions pertaining to the border wall—another significant border management 
issue, Trump v. Sierra Club, 140 S. Ct. 1 (2019) (granting stay pending appeal); El Paso Cty., 
Texas v. Trump, 982 F.3d 332, 337 (5th Cir. 2020) (noting a motion panel had stayed the district 
court’s injunction pending appeal), cert. denied, No. 20-298 (2021). In those cases, the Supreme 
Court and circuit courts necessarily determined the harms to the Government’s border-
management and foreign-policy interests from the injunctions were irreparable and outweighed 
any harms to the plaintiffs’ interests. See Nken, 556 U.S. at 434. The Government’s foreign policy 
and border-management interests here—which relate to efforts with Mexico and other countries 
to address irregular migration, as well as the Government’s efforts to prevent an unprecedented 
increase in the number of migrants seeking to illegally enter the United States at the southwest 
land border that would overwhelm the Departments’ ability to effectively manage the asylum 
system, the border, and removal of noncitizens—are similarly weighty. 
 
This Court’s order undermines the Executive Branch’s constitutional and statutory 
authority to implement its immigration priorities and secure the border. The Executive Branch’s 
protection of these interests warrants the utmost deference, particularly where, as here, it acts 
based on “[p]redictive judgment[s]” regarding the Rule’s effect on the border and negotiations 
with foreign countries. Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988); see Holder v. 
Humanitarian Law Project, 561 U.S. 1, 33-35 (2010). Thus, a stay pending appeal is appropriate 
where the Court’s order presents “not merely an erroneous adjudication of a lawsuit between 
private litigants, but an improper intrusion by a federal court into the workings of a coordinate 
branch of the Government.” INS v. Legalization Assistance Project, 510 U.S. 1301, 1305-06 
(1993) (O’Connor, J., in chambers). 
 
The Court’s order preventing the Government’s chosen means of implementing its 
statutory authorities concerning asylum and expedited removal imposes irreparable harm on the 
Government and the public, as previously explained. ECF No. 176-1 at 34-35; ECF No. 182 at 
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MOTION FOR STAY 
East Bay v. Trump, Case No. 4:18-cv-06810-JST 
 
 
 
 
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24-25. The injunction frustrates the “public interest in effective measures to prevent the entry of” 
unauthorized noncitizens at the Nation’s borders, United States v. Cortez, 449 U.S. 411, 421 n.4 
(1981), by setting aside the Executive Branch’s chosen means of responding to an anticipated, 
imminent increase in encounters at the southwest border—of tens of thousands of noncitizens 
seeking to enter our country in response to the end of Title 42, overwhelming the immigration 
system, incentivizing human smuggling, and leading to dangerous overcrowding in border 
facilities. The public interest is served by encouraging noncitizens to avail themselves of lawful, 
safe, and orderly pathways to entering and seeking asylum in this country and elsewhere, and 
ensuring the Departments’ continued ability to safely, effectively, and humanely enforce and 
administer U.S. immigration law, including provisions concerning asylum and removal. The relief 
ordered by the Court thus would “deeply intrude[] into the core concerns of the executive branch,” 
Adams v. Vance, 570 F.2d 950, 954 (D.C. Cir. 1978), and undermine the “efficient administration 
of the immigration laws at the border,” Innovation Law Lab, 924 F.3d at 510. 
 
As the Government has already explained, but for the Rule, which depends on a balance 
of both consequences and incentives, encounters were predicted to have been significantly higher, 
overwhelming border enforcement resources at great risk to the public, migrants, and DHS 
officers. 88 Fed. Reg. at 31,315, 31,331, 31,337-38, 31,442; ECF 176-2 (Declaration of Blas 
Nuñez-Neto, Assistant Secretary for Border and Immigration Policy), ¶¶ 3, 7-24. Indeed, in the 
run-up to the Title 42 order’s termination, encounters rose to record levels, averaging up to 10,000 
per day, causing dangerous overcrowding in facilities and overwhelming limited CBP and ICE 
resources. Id., ¶¶ 9-12. While, as a result of the Rule, those numbers dropped after May 11 to an 
average of 3,400 per day, DHS statistical models show that absent the Rule, those numbers could 
rapidly rise again to 10,000 encounters a day or higher, causing a potentially significant spike in 
encounters at the border. Id., ¶¶ 4, 25-37; see also id., ¶¶ 27-39 (describing serious harms to 
DHS’s ability to effectively enforce the immigration laws if the Rule is vacated). And DHS 
recently reported in June the lowest encounter numbers since February 2021. See CBP Releases 
June 
2023 
Monthly 
Update 
(July 
18, 
2023), 
available 
at 
https://www.cbp.gov/newsroom/national-media-release/cbp-releases-june-2023-monthly-update 
Case 4:18-cv-06810-JST   Document 190   Filed 07/25/23   Page 5 of 8

 
MOTION FOR STAY 
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(noting that “the U.S. Border Patrol recorded 99,545 encounters between ports of entry along the 
Southwest border: a 42% decrease from May 2023,” that “[t]otal Southwest border encounters in 
June, including individuals who presented at ports of entry with or without a CBP One 
appointment, were 144,607, a 30% decrease from May 2023,” and that “[t]hese are the lowest 
monthly 
Southwest 
border 
encounter 
numbers 
since 
February 
2021”); 
see 
also 
https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (listing statistics)).2 The 
Rule is a direct cause of that decrease. ECF 176-2, ¶¶ 13-24. 
 
Further, the Supreme Court has warned of “the danger of unwarranted judicial interference 
in the conduct of foreign policy,” Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 116 (2013), 
and has cautioned against judicial orders that undermine “sensitive and weighty interests of … 
foreign affairs,” Humanitarian Law Project, 561 U.S. at 33-34. The Court’s order does just that, 
by vacating a rule that implements the result of ongoing diplomatic negotiations and is necessary 
to securing continued foreign Government cooperation with the United States’ foreign policy 
goals. ECF 176-2, ¶¶ 40-47. 
 
Moreover, the extraordinary harms the United States faces as a result of the order 
significantly outweigh any harm the four organizational Plaintiffs might face from a stay pending 
appeal. Indeed, Plaintiffs do not identify a single noncitizen affected by the Rule and instead 
allege abstract goals or speculative injuries “in terms of money, time and energy”—but that is not 
irreparable injury that can outweigh the harms caused by the order. Sampson v. Murray, 415 U.S. 
61, 90 (1974). Nor is the claimed loss of an opportunity to comment sufficient. See Amoco Prod. 
Co. v. Vill. of Gambell, 480 U.S. 531, 545 (1987); Elk Assocs. Funding Corp. v. U.S. Small Bus. 
Admin., 858 F. Supp. 2d 1, 31 (D.D.C. 2012). And Plaintiffs may not rely on possible harm to 
third parties whom they do not represent in asserting injury warranting relief. See United States 
v. Texas, 143 S. Ct. 1964, 1971 (2023) (explaining that individuals or entities not directly 
regulated by immigration law lack Article III standing to challenge the Executive Branch’s 
decisions concerning enforcement or non-enforcement of those laws against third parties). 
                           
2 See United States v. Orozco-Acosta, 607 F.3d 1156, 1164 n.5 (9th Cir. 2010) (taking judicial 
notice of statistics compiled by DHS and DOJ); United States v. Esquivel, 88 F.3d 722, 726-27 
(9th Cir. 1996) (similar, on appeal, even if not presented to the district court). 
Case 4:18-cv-06810-JST   Document 190   Filed 07/25/23   Page 6 of 8

 
MOTION FOR STAY 
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II. Defendants Are Likely to Prevail on the Merits.  
 
Recognizing this Court has reached a contrary conclusion, Defendants nonetheless 
respectfully submit a stay pending appeal is additionally warranted because Defendants are likely 
to succeed on the merits of their appeal. See Nken, 556 U.S. at 434. Specifically, as Defendants 
explained in their briefing and at argument, the Rule is consistent with the asylum statute, is not 
arbitrary and capricious, and satisfies all applicable procedural requirements. ECF No. 176-1 at 
10-32; ECF No. 182 at 2-22. 
CONCLUSION 
 
For the reasons stated above and in Defendants’ prior briefing, Defendants respectfully 
request the Court grant a stay pending appeal, and respectfully request a decision by end of the 
day, July 26, 2023. 
 
Respectfully submitted, 
 
 
 
 
 
 
 
BRIAN M. BOYNTON 
 
 
 
 
 
 
Principal Deputy Assistant Attorney General 
 
WILLIAM C. PEACHEY 
Director 
 
      By: /s/ Erez Reuveni 
EREZ REUVENI 
Assistant Director  
Office of Immigration Litigation 
U.S. Department of Justice, Civil Division 
P.O. Box 868, Ben Franklin Station 
Washington, DC 20044 
Tel: (202) 307-4293 
Email: Erez.R.Reuveni@usdoj.gov 
 
PATRICK GLEN 
CHRISTINA P. GREER 
Senior Litigation Counsel 
 
Dated: July 25, 2023  
 
 
Attorneys for Defendants 
 
 
Case 4:18-cv-06810-JST   Document 190   Filed 07/25/23   Page 7 of 8

 
MOTION FOR STAY 
East Bay v. Trump, Case No. 4:18-cv-06810-JST 
 
 
 
 
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CERTIFICATE OF SERVICE 
 
I hereby certify that on July 25, 2023, I electronically filed the foregoing document with 
the Clerk of the Court for the United States Court of for the Northern District of California by 
using the CM/ECF system. Counsel in the case are registered CM/ECF users and service will be 
accomplished by the CM/ECF system.  
 
    
 
 
 
     By:  /s/ Erez Reuveni            
 
 
 
 
 
EREZ REUVENI 
 
 
 
 
 
 
 
 
Assistant Director 
 
 
 
 
 
United States Department of Justice 
 
 
 
 
 
Civil Division 
 
 
Case 4:18-cv-06810-JST   Document 190   Filed 07/25/23   Page 8 of 8

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