Ninth Circuit Published Order on Abeyance — East Bay Sanctuary v. Trump

Record facts

N.D. Cal. · No. 4:18-cv-06810-JST · Doc. 199 · 2024-02-28 · Docket on CourtListener

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EAST BAY SANCTUARY 
COVENANT; CENTRAL 
AMERICAN RESOURCE CENTER; 
TAHIRIH JUSTICE CENTER; 
NATIONAL CENTER FOR 
LESBIAN RIGHTS; IMMIGRANT 
DEFENDERS LAW CENTER; 
AMERICAN GATEWAYS,  
Plaintiffs-Appellees, 
  v. 
JOSEPH R. BIDEN, President of the 
United States; MERRICK B. 
GARLAND, Attorney General; 
UNITED STATES DEPARTMENT 
OF JUSTICE; DAVID NEAL; 
EXECUTIVE OFFICE FOR 
IMMIGRATION REVIEW; 
ALEJANDRO N. MAYORKAS; U.S. 
DEPARTMENT OF HOMELAND 
SECURITY; UR M. JADDOU; 
UNITED STATES CITIZENSHIP 
AND IMMIGRATION SERVICES; 
TROY A. MILLER; UNITED 
STATES CUSTOMS AND BORDER 
No. 23-16032 
D.C. No. 4:18-cv-
06810-JST
ORDER 
FOR PUBLICATION 
UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
PROTECTION, 
Defendants-Appellants. 
Filed February 21, 2024 
Before:  William A. Fletcher, Richard A. Paez, and 
Lawrence VanDyke, Circuit Judges. 
Order; 
Dissent by Judge VanDyke 
SUMMARY* 
Immigration 
In a case in which the government appealed the district 
court’s 
order 
vacating 
the 
government’s 
rule, 
“Circumvention of Lawful Pathways,” which applies a 
presumption of asylum ineligibility to noncitizens who 
traveled through a country other than their own before 
entering the United States through the southern border with 
Mexico, the majority of the panel issued an order granting 
the parties’ Joint Motion to Place Appeal in Abeyance 
pending settlement negotiations in this case, and a related 
case, M.A. v. Mayorkas, No. 1:23-cv-1843 (D.D.C.).  The 
order also provided that submission of the case was vacated 
pending further court order.    
* This summary constitutes no part of the opinion of the court.  It has
been prepared by court staff for the convenience of the reader.
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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Dissenting, Judge VanDyke would deny the stay because 
the government has not provided a sufficient legal reason to 
grant it.  The only reason provided is that the government is 
litigating multiple cases in multiple courts, which is hardly 
abnormal for the government.  Because the request for a stay 
appears to be purely politically motivated, and the parties 
have provided no genuine legal reason for it, he would not 
grant the stay. 
COUNSEL 
Brian M. Boynton (argued), Principal Deputy Assistant 
Attorney General; Daniel Tenny, Sean R. Janda, and Brian 
J. Springer, Appellate Staff Attorneys; Antitrust Division,
United States Department of Justice, Washington, D.C.;
Patrick J. Glen and Christina P. Greer, Senior Litigation
Counsel: Erez Reuveni, Assistant Director; William C.
Peachey, Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Defendants-Appellants.
Spencer E. Wittmann Amdur (argued), Katrina L. Eiland, 
Morgan Russell, Oscar S. Roman, and Cody Wofsy, 
American Civil Liberties Union Foundation Immigrants’ 
Rights Project, San Francisco, California; Lee P. Gelernt, 
Omar C. Jadwat, Wafa Junaid, and Judy Rabinovitz, 
American Civil Liberties Union Foundation Immigrants’ 
Rights Project, New York, New York; Melissa E. Crow, 
Center for Gender & Refugee Studies, Washington, D.C.; 
Anne E. Peterson, Blaine Bookey, Julie B. Bourdoiseau, and 
Karen Musalo, Center for Gender & Refugee Studies, San 
Francisco, California; Robert Pauw, CGRS Cooperating 
Attorney, Gibbs Houston Pauw, Seattle, Washington; Keren 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
H. Zwick, Richard Calderone, Colleen Cowgill, and Mary
Georgevich, National Immigrant Justice Center, Chicago,
Illinois; Michelle Y. Cho, American Civil Liberties Union
Foundation of Northern California, San Francisco,
California; Angelo Guisado, Center for Constitutional
Rights, New York, New York; for Plaintiffs-Appellees.
Matt A. Crapo and Christopher J. Hajec, Immigration 
Reform Law Institute, Washington, D.C., for Amici Curiae 
Immigration Reform Law Institute.  
Katherine L. Evans and Charles S. Ellison, Duke University 
of Law Immigrant Rights Clinic, Durham, North Carolina, 
for Amici Curiae Professors of Immigration Law. 
Ashley B. Vinson, Akin Gump Strauss Hauer & Feld LLP, 
San Francisco, California, for Amici Curiae Former 
Immigration Judges & Former Members of the Board of 
Immigration Appeals.  
Alice Farmer, Office of the United Nations High 
Commissioner for Refugees, Washington, D.C.; Robert R. 
Anderson, Arnold & Porter Kaye Scholer LLP, Denver, 
Colorado; Samuel M. Witten and Kaitlin Konkel, Arnold & 
Porter Kaye Scholer LLP, Washington, D.C.; for Amici 
Curiae Office of the United Nations High Commissioner for 
Refugees. 
Kathleen R. Hartnett and Zoë Helstrom, Cooley LLP, San 
Francisco, California, for Amici Curiae National Citizenship 
and Immigration Services Council 119. 
Cameron C. Russell and Rebecca Berman, Freshfields 
Bruckhaus Deringer US LLP, New York, New York; Justina 
Sessions and J. Mia Tsui, Freshfields Bruckhaus Deringer 
US LLP, Redwood City, California; Seve Kale, Freshfields, 
Bruckhaus Deringer US LLP, Washington, D.C.; for Amici 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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Curiae Asylum  ACCESS MÉXICO A.C. AND INSTITUTO PARA
LAS MUJERES EN LA MIGRACIÓN A.C. 
Anwen Hughes, Christina Asencio, Rebecca Gendelman, 
and Licha M. Nyiendo, Human Rights First, New York, New 
York; Farida Chehata, Human Rights First, Los Angeles, 
California; for Amici Curiae Human Rights and Legal 
Services Organizations.  
ORDER 
The parties in this appeal have filed a Joint Motion to 
Place Appeal in Abeyance (Dkt. No. 83) pending settlement 
negotiations in this case, and a related case, M.A. v. 
Mayorkas, No. 1:23-cv-1843 (D.D.C.).  The motion is 
GRANTED as follows: 
This appeal is placed in abeyance pending the parties’ 
settlement discussions.  The parties shall file a joint status 
report 60 days after the entry of this order and every 60 days 
thereafter.  If the parties settle this case or settlement 
discussions fail, the parties shall promptly notify the court. 
Submission of this case is vacated pending further court 
order.
VANDYKE, Circuit Judge, dissenting: 
The current administration promulgated the rule 
challenged in this case to help manage the “historic surge in 
migration” that followed the end of the Title 42 order and to 
relieve “significant strain on DHS’s operational capacity at 
the border.”  See 88 Fed. Reg. 31314 (May 16, 2023) 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
(codified at 8 C.F.R. §§ 208.33, 1208.33).  After the 
plaintiffs brought this case to enjoin and vacate the rule, the 
federal government spent the better part of a year vigorously 
defending the rule’s critical necessity before the district 
court and in this court—all because, in the government’s 
words, “any interruption in the rule’s implementation will 
result in another surge in migration that will significantly 
disrupt and tax DHS operations.”  Indeed, only a few months 
ago, the government insisted that “[i]f the Rule is 
unavailable, [it] expects ‘a surge … that could match—or 
even exceed—the levels seen in the days leading up to the 
end of’ the Title 42 order,” and that “the negative 
consequences of such an increase in migration—for the 
government, for migrants, and for the public—would be 
even greater than [before].”  The executive even went so far 
as to urge that if our court were to rule against it in this 
appeal, we should nevertheless stay our decision pending the 
filing of a petition for relief from the Supreme Court to avoid 
the disastrous consequences of the rule not being in force 
even for a short period of time.  And while the outcome of 
this case in the lower courts (including this one) was 
anything but certain given the mess we previously made of 
our precedent during our court’s immigration wars with the 
prior presidential administration, the government has to 
know the Supreme Court would likely not only reach the 
correct result in this case, but in doing so rectify some of our 
court’s erroneous precedent.  Any adverse decisions from 
the Northern District of California and the Ninth Circuit 
would be mere temporary speed bumps on the way to 
eventual, likely inevitable, vindication of the rule from the 
Supreme Court. 
Taking the government at its word about the pressing 
need for this crucial rule to remain in effect and be enforced, 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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our court granted a stay of the district court’s decision 
enjoining the government’s rule.  We heard oral argument 
and are now poised to render our decision.  Then suddenly, 
out of the blue, the parties come to us hand-in-hand, jointly 
asking us to hold off making a decision while they “engage[] 
in discussions regarding the Rule’s implementation and 
whether a settlement could eliminate the need for further 
litigation.”  For months, the rule was so important that “any 
interruption” in its implementation, even for a short period 
of time, would incapacitate the executive’s border response.  
This panel made decisions based on those representations. 
Now, the government implies the rule isn’t so important after 
all.  Indeed, the government is now “engaged in discussions” 
that could result in the rule going away.  What? 
The administration’s abrupt about-face makes no sense 
as a legal matter.  Either it previously lied to this court by 
exaggerating the threat posed by vacating the rule, or it is 
now hiding the real reason it wants to hold this case in 
abeyance.  Given its success thus far in defending a rule it 
has consistently characterized as critical to its control of the 
border, and the fact that it has to realize its odds of success 
in this case can only improve as it works its way vertically 
through the federal court system, the government’s sudden 
and severe change in position looks a lot like a purely 
politically motivated attempt to throw the game at the last 
minute.  At the very least it looks like the administration and 
its frenemies on the other side of this case are colluding to 
avoid playing their politically fraught game during an 
election year. 
This court is a legal institution, not a political one.  Thus 
it must insist that parties provide adequate legal 
justifications for the relief they seek, whatever their 
underlying political motivations may be.  While I am of 
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course agnostic as to the sufficiency of the government’s 
political reasons for suddenly reversing course, it has 
provided no coherent legal reason why it has suddenly 
changed its position about the importance of the continued 
enforcement of the rule challenged in this case, so I would 
not grant the stay now requested. 
While we often hold cases in abeyance during settlement 
negotiations, the government has not given us any real 
reason to do so here.  The vague reasons the parties have 
provided for a stay of litigation are sharply at odds with the 
reasons the government gave us just a few short months ago 
for granting a stay of the district court’s preliminary 
injunction.  The purported reason for halting this case is that 
“there are currently two pending cases raising overlapping 
claims relating to the Rule and its implementation that have 
been brought by some similarly situated plaintiffs 
represented by overlapping counsel.”  This sounds more like 
a normal day in the life of a DOJ litigator than a compelling 
reason to stay a case.  Having multiple cases about the same 
issue in multiple courts is the norm for our federal 
government, so it can’t be a real reason to slam the brakes 
on a case.  And it’s not as if there is already a decision from 
a lower court in another circuit awaiting a helpful verdict on 
appeal.  There are simply two similar proceedings, and since 
the present one has progressed farther along than the one in 
the District Court for the District of Columbia, it makes little 
sense to think that proceeding is a reason to stay this one. 
The federal government routinely litigates similar issues in 
multiple courts, even when different circuits reach different 
conclusions. 
Aside from the non-reason provided by the parties, it is 
difficult to think of any other legal reason why they would 
seek to hold this case in abeyance.  The parties raise the 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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prospect of settlement but have provided no reason why 
either party would actually want to settle at this point given 
what the parties have previously told this court.  Any effect 
of the government’s only loss at this point has been reversed 
by winning a stay from this court of the district court’s 
vacatur.  Based on the issuance of that stay, the only 
reasonable conclusion was that a majority of the panel in this 
case thought the government was likely to prevail on the 
merits.  See Nken v. Holder, 556 U.S. 418, 425–26 (2009) 
(stating that one of the relevant factors in deciding to grant a 
stay is “whether the stay applicant has made a strong 
showing that he is likely to succeed on the merits” (emphasis 
added)).  Even assuming the government were to lose before 
this court on the merits, which would make our prior 
decision to stay the district court’s vacatur all the more 
perplexing, it is clear enough that the government is destined 
to prevail before the Supreme Court—whether on an 
emergency or permanent basis.  Indeed, the government has 
already strongly implied that it planned to do exactly that if 
it lost before this court.   
Given all of this, it’s hard to avoid any impression other 
than that the administration is snatching defeat from the jaws 
of victory—purposely avoiding an ultimate win that would 
eventually come later this year, whether from this court or 
from the Supreme Court. 
It is also unclear what a settlement would even look like 
in this case.  In its briefing, the government has repeatedly 
stressed the vital importance of this rule in fending off the 
border crisis.  As the government explained, “[w]ithout the 
Rule, the expected increase in border encounters threatened 
to overwhelm the Departments’ ‘ability to effectively 
process, detain, and remove, as appropriate, the migrants 
encountered,’ with attendant increases in the number of 
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migrants unlawfully present in the country, strains on 
government operations and resources, health and safety 
concerns for migrants at overcrowded processing facilities, 
and impacts on local communities along the southwest 
border.”  In the days before Title 42 ended, “‘DHS saw a 
historic surge in migration’ … that ‘culminated with the 
highest recorded encounter levels’ in history and ‘placed 
significant strain on DHS’s operational capacity at the 
border.’”  “Encounters between ports of entry nearly 
doubled in the month before May 11, increasing ‘from an 
average of approximately 4,900 per day’ to ‘approximately 
9,500 per day,’ including even higher numbers in the final 
few days.”  “Between May 8 and 11, the Border Patrol’s 
‘daily in-custody average’ was approximately 50% above 
‘its holding capacity.’” According to the government, “that 
overcrowding, combined with an increased average time in 
custody because of the many noncitizens who CBP needed 
to process, generated serious ‘health and safety risks to 
noncitizens, government personnel, and contract support 
staff.’”   
“If the Rule is unavailable, the government expects ‘a 
surge in border crossings that could match—or even 
exceed—the levels seen in the days leading up to the end of’ 
the Title 42 order.  The government thus ‘anticipates that any 
interruption in the rule’s implementation will result in 
another surge in migration that will significantly disrupt and 
tax DHS operations.’”  Given the criticality of this potential 
disruption in border operations, the government has 
repeatedly requested that “if the Court affirms in whole or in 
part, it leave the stay pending appeal in place pending the 
filing and disposition of any petition for further review.”  In 
other words: if you’re going to rule against us, please please 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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please make sure we have the opportunity to get a stay from 
the Supreme Court since this rule is so important.  
Unless the government has grossly misrepresented the 
importance of its rule and the ramifications of vacating it in 
its prior filings before this court, it seems that any prospect 
of settling this case by recission of the rule would be a 
nonstarter.  Indeed, the government has been very careful not 
to suggest that in its intentionally vaguely worded joint 
motion to hold this case in abeyance.   
And it would make little sense for the plaintiffs—who 
are public interest groups insisting they are harmed by the 
mere existence of the rule and that the rule is contrary to 
law—to accept anything less than rescission of the rule.  It 
is therefore difficult to see what kind of acceptable middle 
ground the two parties could reach that would satisfy the 
plaintiffs while allowing the government to keep enforcing 
the rule. 
The standardless timeline of the jointly requested 
abeyance is further evidence that this seems to be nothing 
more than a collusive effort to postpone resolution of this 
case until a more politically palatable time.  The parties have 
given no indication how long they expect the abeyance 
period to last, saying only that they will provide status 
reports every 60 days.  Should the court expect to sit on this 
case forever?  Until after election day in November?  Until 
ballot counting is finished long after that election?  January 
6, 2025?  Given that the parties have provided no real reason 
why they are asking to abruptly halt this appeal, we have no 
idea when they plan to start it up again.  My guess is that 
sometime after November would fit their “settlement 
negotiations” needs nicely. 
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Even if the government’s recent explanations cannot be 
taken at face value, we do know a few things for certain. 
This administration went to considerable lengths to both 
promulgate this rule and vigorously defend it.  Yet now, a 
mere nine months before the general election, and in the face 
of an immigration crisis that has produced one of the most 
intense showdowns between state and federal government in 
recent memory, the administration is requesting something 
that is completely inconsistent with its previous actions and 
representations to the court.  So why?  As I see it, there are 
several interrelated possibilities, all of which are wholly 
political—not legal—and thus do not merit the relief 
requested. 
The administration may want to avoid going before the 
Supreme Court to defend a rule that is obviously unpopular 
with its base during a presidential election year in which 
immigration figures to be an important issue.  The rule puts 
the administration in a political pickle.  It is both politically 
unpopular with some of its own constituency, and, as the 
government has vigorously argued, deeply necessary to 
prevent a worsening of the border crisis, which is perceived 
as one of this administration’s political vulnerabilities.  An 
abeyance splits the baby, temporarily ensuring that an 
important tool in its immigration-enforcement toolbox 
remains in place, while postponing any potential Supreme 
Court fight about that tool until after the election.  This 
temporary resolution to the political problems presented by 
this litigation affords the administration plausible deniability 
it can pitch to its base while it nevertheless continues to 
enforce the rule to stave off a worse crisis at the southern 
border. 
The government might also simply be trying to avoid 
another immigration loss in court, the optics of which could 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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be particularly devastating during the current immigration 
crisis.  Americans of all political persuasions are 
increasingly focused on—and worried about—the situation 
on our southern border.1  Placing these proceedings in 
abeyance avoids the possibility of a loss before the Ninth 
Circuit that could potentially exacerbate the issues at the 
border in the months leading up to the election—a loss made 
even more damaging given that it would be meted out by a 
panel comprised primarily of Democratic appointees, no 
less.  The CNN headline practically writes itself: “Biden 
Immigration Enforcement Policy Struck Down by Two 
Clinton Appointees.” 
Relatedly, the administration may be seeking to create 
policy that resonates with its base while blaming the 
practical results of that policy on the courts.  Such a strategy 
would be remarkably simple for the government to enact. 
1 See, e.g., Statement from President Joe Biden On the Bipartisan Senate 
Border Security Negotiations, The White House (Jan. 26, 2024), 
https://www.whitehouse.gov/briefing-room/statements-
releases/2024/01/26/statement-from-president-joe-biden-on-the-
bipartisan-senate-border-security-negotiations (President Joe Biden 
calling the border “broken”); Reese Gorman, Fetterman continues his 
feud with progressive Democrats and says they ‘left’ him, Washington 
Examiner 
(Jan. 
20, 
2024),
https://www.washingtonexaminer.com/news/2808370/fetterman-
continues-his-feud-with-progressive-democrats-and-says-they-left-him/ 
(Pennsylvania Senator John Fetterman saying “There is a crisis ….  We 
have a crisis at our border, and it can’t be controversial that we should 
have a secure border.”); Greg Abbott (@GregAbott_TX), Twitter (Sep. 
20, 
2023, 
4:34 
PM),
https://twitter.com/GregAbbott_TX/status/1704640256429985863 
(describing the border crisis as “an invasion”); ‘Secure our border along 
the southwest,’ Senator Cortez Masto speaks on protection issues, News 
3 Las Vegas (Jan. 24, 2024) (Nevada Senator Catherine Cortez Masto 
calling to “secure our border along the southwest”). 
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Step one: Stay proceedings before a final vindication of its 
position.  Step two: Settle, agree not to enforce the rule, and 
blame the courts for tying its hands.  If this is truly the 
government’s plan, then it is for all practical purposes 
seeking to repeal the rule without the need for notice and 
comment, and its pro forma defense of the rule has been 
rendered nothing more than a half-measure—an illusion.  It 
could take credit for creating an important rule and 
defending it with one hand, and then, by colluding with the 
plaintiffs, it can set the policy it actually wants with the 
other, all while publicly blaming the result—cloaked as it is 
in the language of a judicial “settlement”—on the courts. 
This would be even worse than “rulemaking-by-collective-
acquiescence.”  Arizona v. City & County of San Francisco, 
596 U.S. 763, 765–66 (2022) (Roberts, C.J., concurring). 
It’s “rulemaking by political settlement” while dishonestly 
shifting the blame to the non-political branch of government. 
Likewise, the executive may once again be trying to 
insulate bad Ninth Circuit caselaw from Supreme Court 
review.  As I and others have previously written, our Easy 
Bay precedents are clearly wrong.  See E. Bay Sanctuary 
Covenant v. Biden, 993 F.3d 640, 696 (9th Cir. 2021) 
(VanDyke, J., dissenting from the denial of rehearing en 
banc); id. at 687 (Bumatay, J., same).  Yet they aided the 
Democratic cause by invalidating Trump-era immigration 
rules.  If this case gets before the Supreme Court, the safe 
bet is that it would overrule those erroneous precedents. 
This settlement tactic is therefore a powerful tool for the 
administration: it lets it perpetuate bad—but politically 
favorable—law in the Ninth Circuit by settling before 
reaching the Supreme Court, and then throw up its hands and 
say it is bound by that law.   
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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Ultimately, it is impossible to know the government’s 
exact motives for its current course of action because it 
hasn’t even attempted to tell us.  But putting aside the 
political legitimacy of any of the potential motivations 
discussed above, one thing is clear: none of them are a 
legally sufficient reason to grant a judicial stay of this case, 
particularly since the request is directly at odds with the 
many dire predictions the government has previously made 
before this court.  Up until now, we have been repeatedly 
assured that the rule is critical to the security of the border. 
But now, astoundingly, the government seeks to abandon its 
defense of the rule—or at least put that defense on ice until 
a more politically convenient time.  Whatever the parties’ 
real motivations are for seeking to stay this case, they 
haven’t provided us with a legally sufficient basis for their 
sudden change of course.  Accordingly, I respectfully dissent 
from the panel’s decision to grant the stay motion.  
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