Court filing
Defendants' Supplemental Opposition Brief on Remand — East Bay Sanctuary v. Trump
Filed August 5, 2025 in East Bay Sanctuary v. Trump; one of 67 filings from this case.
Record facts
| Court | N.D. Cal. |
|---|---|
| Filed | 2025-08-05 |
N.D. Cal. · No. 4:18-cv-06810-JST · Doc. 222 · 2025-08-05 · Docket on CourtListener
Full text
DEFENDANTS’ BRIEF ON REMAND
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BRETT A. SHUMATE
Assistant Attorney General
BRIAN C. WARD
Acting Assistant Director
KATHERINE J. SHINNERS
Senior Litigation Counsel
DC Bar No. 978141
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Telephone: (202) 598-8259
katherine.j.shinners@usdoj.gov
Attorneys for Defendants
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
East Bay Sanctuary Covenant, et al.,
Plaintiffs,
v.
Donald J. Trump, et al.,
Defendants.
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CASE NO. 4:18-cv-06810-JST
DEFENDANTS’ SUPPLEMENTAL
OPPOSITION BRIEF ON REMAND
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TABLE OF CONTENTS
INTRODUCTION......................................................................................................................................1
SUPPLEMENTAL BACKGROUND ......................................................................................................1
ARGUMENT ..............................................................................................................................................6
I.
FDA v. Alliance for Hippocratic Medicine Demonstrates that Plaintiffs Cannot Establish
Article III Standing to Vacate the Rule. ......................................................................................6
II.
The Rule is Lawful and Is Not Arbitrary and Capricious. ......................................................14
CONCLUSION ........................................................................................................................................17
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TABLE OF AUTHORITIES
CASE LAW
Arizona All. for Retired Americans v. Mayes,
117 F.4th 1165 (9th Cir. 2024) ............................................................................................................. 10
Arizona All. for Retired Americans v. Mayes,
130 F.4th 1177 (9th Cir. 2025) ............................................................................................................. 10
Califano v. Yamasaki,
442 U.S. 682 (1979) .............................................................................................................................. 13
California Cmtys. Against Toxics v. US EPA,
688 F.3d 989 (9th Cir. 2012) ................................................................................................................ 13
California v. Texas,
593 U.S. 659 (2021) .............................................................................................................................. 12
California Wilderness Coal. v. U.S. Dep’t of Energy,
631 F.3d 1072 (9th Cir. 2011) .............................................................................................................. 13
Citizens to Preservce Overton Park v. Volpe,
401 U.S. 402 (1971) .............................................................................................................................. 16
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) .............................................................................................................................. 11
Coal. on Homelessness v. City & Cnty. of San Francisco,
758 F. Supp. 3d 1102 (N.D. Cal. 2024) .................................................................................................. 7
E. Bay Sanctuary Covenant v. Biden,
993 F.3d 640 (9th Cir. 2021) .............................................................................................................. 7, 9
E. Bay Sanctuary Covenant v. Biden,
No. 23-16032, 2023 WL 11662094 (9th Cir. Aug. 3, 2023) .................................................................. 2
E. Bay Sanctuary Covenant v. Garland,
994 F.3d 962 (9th Cir. 2021) .................................................................................................................. 3
E. Bay Sanctuary Covenant v. Trump,
134 F.4th 545 (9th Cir. 2025) ................................................................................................................. 5
FDA v. Alliance for Hippocratic Medicine (“Alliance”),
602 U.S. 367 (2024) ....................................................................................................................... passim
Gill v. Whitford,
585 U.S. 48 (2018) .................................................................................................................................. 6
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Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) ...................................................................................................................... 6, 7, 11
Hecht Co. v. Bowles,
321 U.S. 321 (1944) .............................................................................................................................. 12
Immigrant Defenders Law Center v. Noem,
No. 25-2581, 2025 WL 2080742 (9th Cir. July 18, 2025)................................................................ 9, 12
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) .............................................................................................................................. 14
Kowalski v. Tesmer,
543 U.S. 125 (2004) ................................................................................................................................ 8
Las Americas Immigr. Advoc. Ctr. v. DHS,
No. 24-cv-1702, --- F. Supp. 3d ---, 2025 WL 1403811 (D.D.C. May 9, 2025) .................................... 3
Linda R.S. v. Richard D.,
410 U.S. 614 (1973) ................................................................................................................................ 6
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .......................................................................................................................... 6, 11
Nat’l Wildlife Fed’n v. Espy,
45 F.3d 1337 (9th Cir. 1995) ................................................................................................................ 13
Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Noem,
No. 25-cv-306 (RDM), 2025 WL 1825431 (D.D.C. July 2, 2025) ........................................................ 5
Sw. Ctr. for Biological Diversity v. U.S. Forest Serv.,
100 F.3d 1443 (9th Cir. 1996) .............................................................................................................. 16
Trump v. CASA, Inc.,
145 S. Ct. 2540 (June 27, 2025)...................................................................................................... 12, 13
United States v. Texas,
599 U.S. 670 (2023) ............................................................................................................................ 6, 7
Weinberger v. Romero-Barcelo,
456 U.S. 305 (1982) .............................................................................................................................. 12
ADMINISTRATIVE DECISIONS
Matter of D-A-C-,
27 I. & N. Dec. 575 (B.I.A. 2019) ........................................................................................................ 15
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Matter of Pula,
19 I. & N. Dec. 467 (B.I.A. 1987) ........................................................................................................ 15
STATUTES
5 U.S.C. § 705 ........................................................................................................................................... 12
5 U.S.C. § 706(2) ...................................................................................................................................... 12
8 U.S.C. § 1158 ................................................................................................................................... 2, 4, 5
8 U.S.C. § 1158(a) ...................................................................................................................................... 2
8 U.S.C. § 1158(a)(2)(A) ............................................................................................................................ 3
8 U.S.C. § 1158(a)(2)(B) .......................................................................................................................... 14
8 U.S.C. § 1158(a)(2)(C) .......................................................................................................................... 14
8 U.S.C. § 1158(b)(1)(A) .......................................................................................................................... 14
8 U.S.C. § 1158(b)(2)(A)(vi) ...................................................................................................................... 3
8 U.S.C. § 1158(b)(2)(C) ...................................................................................................................... 2, 14
8 U.S.C. § 1182(a) ...................................................................................................................................... 4
8 U.S.C. § 1182(a)(1) .................................................................................................................................. 4
8 U.S.C. § 1182(a)(1)-(3) ............................................................................................................................ 4
8 U.S.C. § 1182(f) ....................................................................................................................................... 4
8 U.S.C. § 1185(a) ...................................................................................................................................... 4
REGULATIONS
8 C.F.R. § 208.33(a).................................................................................................................................... 1
8 C.F.R. § 208.33(a)(2) ............................................................................................................................... 2
8 C.F.R. § 208.33(a)(2)(C).................................................................................................................. 16, 17
8 C.F.R. § 208.33(a)(2)(i) ........................................................................................................................... 2
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8 C.F.R. § 208.33(a)(3) ......................................................................................................................... 2, 16
8 C.F.R. § 1208.33(a).................................................................................................................................. 1
8 C.F.R. § 1208.33(a)(2) ............................................................................................................................. 2
8 C.F.R. § 1208.33(a)(3) ............................................................................................................................. 2
8 C.F.R. § 1208.33(a)(2)(i) ......................................................................................................................... 2
8 C.F.R. § 1208.33(a)(2)(C)................................................................................................................ 16, 17
8 C.F.R. § 1208.33(a)(3) ....................................................................................................................... 2, 16
FEDERAL REGISTER
88 Fed. Reg. 31,314 .................................................................................................................... 1, 2, 14, 16
89 Fed. Reg. 48,487 .................................................................................................................................... 3
89 Fed. Reg. 48,710 .................................................................................................................................... 3
89 Fed. Reg. 80,351 .................................................................................................................................... 3
89 Fed. Reg. 81,156 .................................................................................................................................... 3
90 Fed. Reg. 8,333 ...................................................................................................................................... 4
90 Fed. Reg. 8,467 .................................................................................................................................. 4, 5
90 Fed. Reg. 13,611 .............................................................................................................................. 4, 16
EXECUTIVE ORDER
E.O. 14165 .............................................................................................................................................. 4, 5
PRESIDENTIAL PROCLAMATIONS
Proclamation 10888 .............................................................................................................................. 4, 17
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MISCELLANEOUS
CBP, CBP One™ Appointments Increased to 1,450 Per Day (June 30, 2023) (stating that more than
49,000 aliens had presented at Southwest border ports of entry through scheduled CBP One
appointments for inspection as of June 30, 2023) available at
https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day
(last visited Aug. 5, 2025) .......................................................................................................... 31
CBP, CBP Removes Scheduling Functionality in CBP One™ App (Jan. 21, 2025),
https://www.cbp.gov/newsroom/national-media-release/cbp-removes-scheduling-functionality-cbp-
one-app (last visited Aug. 5, 2025) .............................................................................................. 4
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INTRODUCTION
Plaintiffs, six legal-services organizations operating primarily in Texas and California, continue to
seek to overturn a Rule that does not apply to them. That Rule creates a rebuttable presumption of asylum
ineligibility for certain of their clients or potential clients: aliens who crossed the southern border into the
United States from May 11, 2023, to May 11, 2025, after traveling through a country other than their home
country. The Rule contains several exceptions to that presumption, including if an alien sought and was
denied protection in a third country through which he traveled. Defendants respectfully submit this brief
pursuant to the Court’s April 29, 2025, scheduling order. ECF 209; see also ECF 221.
The basis for this Court’s prior holding that the Plaintiff organizations have standing is no longer
viable in light of the Supreme Court’s holding in FDA v. Alliance for Hippocratic Medicine (“Alliance”),
602 U.S. 367 (2024), which rejected the notion that an organization can show standing to challenge an
action merely by demonstrating frustration of mission and a consequent diversion of resources. Plaintiffs’
supplemental and prior evidence fails to establish that they have a cognizable injury post-Alliance. Their
services have not been impaired within the meaning of Alliance, and any re-allocation of resources they
have undertaken does not establish standing. Further, they have not substantiated any specific, non-
attenuated loss of funding, even assuming such downstream monetary injuries were cognizable.
Further, Defendants respectfully maintain that the Court, in previously finding that the Rule was
contrary to law and arbitrary and capricious, did not sufficiently consider the purposes of the Rule and the
variety of options and exceptions available under the Rule to avoid the presumption of asylum ineligibility.
In any event, the elimination of the CBP One appointment system and certain parole processes cannot,
and does not, undermine the legality of the Rule—particularly given the existence of additional exceptions
and rebuttal grounds, and the fact that the Rule was superseded by Presidential Proclamation during the
relevant time period.
SUPPLEMENTAL BACKGROUND
The Circumvention of Lawful Pathways Rule (the Rule), promulgated in May 2023, generally
imposed a rebuttable presumption of asylum ineligibility on certain aliens who crossed the southern border
without authorization between May 11, 2023, and May 11, 2025, after traveling through a third country.
88 Fed. Reg. 31,314 (May 16, 2023); 8 C.F.R. §§ 208.33(a), 1208.33(a). The Departments of Justice and
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Homeland Security (the Departments) promulgated the Rule under their statutory authority to “by
regulation establish additional limitations and conditions, consistent with this section [8 U.S.C. § 1158],
under which an alien shall be ineligible for asylum.” 8 U.S.C. § 1158(b)(2)(C). Aliens who sought to enter
the United States but lacked authorization to do so were able to avoid the presumption of asylum
ineligibility by seeking asylum or protection in a third country through which they transited en route to
the United States, using alternative pathways such as refugee admissions or parole processes like the
former parole programs for nationals of Cuba, Haiti, Nicaragua, and Venezuela (CHNV), or by presenting
themselves at a Port of Entry (POE) with a pre-scheduled appointment for inspection and processing. 8
C.F.R. §§ 208.33(a)(2), 1208.33(a)(2). Appointments to present at POEs were made through the CBP One
app. Additionally, aliens are able to rebut the presumption by demonstrating exceptionally compelling
circumstances. 8 C.F.R. §§ 208.33(a)(3), 1208.33(a)(3). Unaccompanied alien children are exempt from
the presumption. 8 C.F.R. §§ 208.33(a)(2)(i), 1208.33(a)(2)(i).
Plaintiffs, six organizations that provide legal services to aliens primarily in parts of California and
Texas, filed this lawsuit challenging the Rule under the Administrative Procedure Act (APA). On July 25,
2023, the Court granted summary judgment to Plaintiffs and vacated the Rule, see ECF 187,1 although the
Court’s order was stayed by the Ninth Circuit, see E. Bay Sanctuary Covenant v. Biden, No. 23-16032,
2023 WL 11662094, at *1 (9th Cir. Aug. 3, 2023). As relevant here, the Court found that Plaintiffs had
shown the requisite injury because the Rule “will frustrate Plaintiffs’ missions and require them to divert
resources from existing programs,” ECF 187 at 8, and that the “devot[ion of] additional resources to each
client seeking asylum” would “substantially affect [the organizations’] funding.” ECF 187 at 9–10.
On the merits, the Court determined that the Rule is contrary to law because it is inconsistent with
the asylum statute, 8 U.S.C. § 1158. ECF 187 at 15–19. It reasoned that the Rule “restrict[s]” asylum
eligibility based on manner of entry, and that the statute provides that aliens who are present in the United
States may apply for asylum “regardless of whether or not [they] arrive at a designated port of arrival,” 8
U.S.C. § 1158(a). ECF 187 at 17–18. It also reasoned that the Rule’s imposition of a presumption of
1 The Court’s Order appeared to vacate all aspects of the Rule, including the Rule’s removal of
language from the Code of Federal Regulations concerning the Third-Country Transit Rule and Entry
Rule. See 88 Fed. Reg. at 31,319 (explaining amendments removing the provisions of those rules, which
had been previously vacated or enjoined).
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asylum ineligibility on those who failed to seek asylum or protection in third countries through which they
traveled is inconsistent with the principles of the safe-third-country and firm-resettlement bars, 8 U.S.C.
§§ 1158(a)(2)(A) and (b)(2)(A)(vi), which allow asylum to be denied “only if there is a safe option in
another country.” ECF 187 at 18 (quoting E. Bay Sanctuary Covenant v. Garland, 994 F.3d 962, 979 (9th
Cir. 2021)). The Court dismissed the relevance of other means of excepting oneself from or rebutting the
presumption. See id.
The Court also determined that the Rule was arbitrary and capricious because the Departments
considered the availability of other lawful pathways to the United States, which, in the Court’s view, are
“irrelevant” to asylum eligibility under the Immigration and Nationality Act (INA), and because each
exception to the asylum-ineligibility presumption may not be available to all aliens. ECF 187 at 20–30.
The Court also found APA procedural violations despite the Rule’s 33-day notice and comment period.
See ECF 187 at 30–33. Defendants appealed. See E. Bay Sanctuary Covenant v. Biden, No. 23-16032 (9th
Cir.).
Meanwhile, in 2024 the Departments promulgated a new rule—Securing the Border—that
established a limitation on asylum eligibility for those who enter the United States during times when
encounters between ports of entry are above thresholds specified by two Presidential Proclamations:
“Securing the Border,” 89 Fed. Reg. 48,487 (June 7, 2024), and “Amending Proclamation 10773,” 89 Fed.
Reg. 80,351 (Oct. 2, 2024). The Securing the Border interim final rule took effect on June 5, 2024, see
89 Fed. Reg. 48,710 (June 7, 2024), and was replaced by a final rule effective October 1, 2024, see 89
Fed. Reg. 81,156 (Oct. 7, 2024). The rule’s limitation on asylum eligibility remained in effect for illegal
border crossers from June 5, 2024, until May 9, 2025, when the rule was vacated by the U.S. District Court
for the District of Columbia. See Las Americas Immigr. Advoc. Ctr. v. DHS, No. 24-cv-1702, --- F. Supp.
3d ---, 2025 WL 1403811 (D.D.C. May 9, 2025).
On January 20, 2025, to address the nation’s broken immigration system and the ongoing crisis at
the southern border that had not been resolved by the Rule or other actions of the prior administration, the
President took two actions relevant to the questions to be addressed in this briefing. The first, the Executive
Order titled “Securing Our Borders,” called for the Department of Homeland Security (DHS) to “ceas[e]
using the ‘CBP One’ application as a method of paroling or facilitating the entry of otherwise inadmissible
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aliens into the United States” and to terminate “all categorical parole programs that are contrary to the
policies of the United States established in” the President’s Executive orders, including the CHNV
programs. Executive Order 14165 § 7(a)-(b), 90 Fed. Reg. 8467, 8468 (Jan. 29, 2025). In accordance with
that Order, DHS “announced removal of the scheduling functionality within the CBP One™ mobile
application, effective Jan. 20, 2025, at noon EST.” CBP, CBP Removes Scheduling Functionality in CBP
One™ App (Jan. 21, 2025), https://www.cbp.gov/newsroom/national-media-release/cbp-removes-
scheduling-functionality-cbp-one-app (last visited July 30, 2025). On March 25, 2025, the Secretary of
Homeland Security terminated the CHNV parole programs. Termination of the Parole Processes for
Cubans, Haitians, Nicaraguans, and Venezuelans, 90 Fed. Reg. 13,611 (Mar. 25, 2025).
The second Presidential action, Presidential Proclamation 10888, titled “Guaranteeing the States
Protection Against Invasion,” invokes the President’s authorities under the INA, 8 U.S.C. §§ 1182(f ) and
1185(a), and the Constitution, to preclude the entry of aliens who engage in an invasion across the southern
border, or who fail to submit “sufficient medical information and reliable criminal history and background
information as to enable fulfillment of the requirements of” the inadmissibility provisions of 8 U.S.C.
§ 1182(a)(1)–(3). Proclamation §§ 1, 3, 90 Fed. Reg. 8333, 8335 (Jan. 29, 2025). This includes precluding
aliens from invoking provisions of the INA, including the asylum statute, that would permit their
continued presence in the United States. Proclamation §§ 1, 3, 90 Fed. Reg. at 8335.
Specifically, the President invoked his authority under 8 U.S.C. §§ 1182(f ) and 1185(a) and found
“that the entry into the United States … of aliens engaged in the invasion across the southern border is
detrimental to the interests of the United States,” and thus suspended the “entry into the United States of
such aliens” until “a finding that the invasion at the southern border has ceased.” Proclamation § 1. The
Proclamation further restricts “aliens engaged in the invasion across the southern border” from “invoking
the provisions of the INA that would permit their continued presence in the United States, including, but
not limited to” 8 U.S.C. § 1158, until the President issues “a finding that the invasion at the southern
border has ceased.” Proclamation § 2. Additionally, the President determined “that the entry into the
United States … of any alien who fails, before entering the United States, to provide Federal officials with
sufficient medical information and reliable criminal history and background information as to enable
fulfillment of the requirements of” 8 U.S.C. § 1182(a)(1)–(3), “is detrimental to the interests of the United
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States”; he therefore suspended “entry into the United States of such aliens” and “restrict[ed] their access
to provisions of the INA that would permit their continued presence in the United States, including, but
not limited to” 8 U.S.C. § 1158. Proclamation § 3. Finally, the President invoked his “express and inherent
powers in Article II of the Constitution of the United States,” including “control over foreign affairs,” to
suspend “the physical entry of any alien engaged in the invasion across the southern border of the United
States” until the President issues “a finding that the invasion at the southern border has ceased.”
Proclamation § 4.
Although the District Court of the District of Columbia has enjoined the application of the
Proclamation to aliens in the United States, Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Noem,
No. 25-cv-306 (RDM), 2025 WL 1825431 (D.D.C. July 2, 2025), the government has appealed. See
Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Noem, No. 25-5243 (D.C. Cir.). The district court’s
order has been stayed insofar as it enjoins, vacates, and declares unlawful the Proclamation’s restrictions
on asylum. See id., Doc. No. 2128457, at p. 2 (D.C. Cir. Aug. 1, 2025).
On April 10, 2025, the Ninth Circuit vacated this Court’s order vacating the Rule and remanded
for consideration of (1) the Supreme Court’s “new guidance on how organizations may establish standing”
set forth in Food and Drug Administration v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024),
and (2) what impact Executive Order 14165 § 7(a)–(b), which terminated the “lawful pathways” on which
the Rule relies in part, see 90 Fed. Reg. 8467, 8468 (Jan. 20, 2025), has on this case. E. Bay Sanctuary
Covenant v. Trump, 134 F.4th 545, 547–48 (9th Cir. 2025). This Court issued a briefing schedule. See ECF
209, 221. Defendants subsequently reported that the Rule had not been extended, which meant that aliens
who cross the southern land border or adjacent coastal borders into the United States after May 11, 2025,
are not subject to the Rule. See ECF 210.
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ARGUMENT
I.
FDA v. Alliance for Hippocratic Medicine Demonstrates that Plaintiffs Cannot Establish
Article III Standing to Vacate the Rule.
Organizations “must satisfy the usual standards for injury in fact, causation, and redressability that
apply to individuals.” Alliance, 602 U.S. at 393–94 (citing Havens Realty Corp. v. Coleman, 455 U.S.
363, 379 (1982)). As an initial matter, where a regulation—like the Rule at issue here—does not directly
regulate the plaintiff, standing “is ordinarily substantially more difficult to establish.” Alliance, 602 U.S.
at 382 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)). Here, Plaintiffs seek to vacate
the Rule as to all covered aliens based on their assertions of downstream, indirect impacts of the Rule’s
presumption of asylum ineligibility on their allocation of resources and the legal work they do. The various
Plaintiffs claim that the Rule has caused them to make changes to their approach to assisting with and
handling the immigration cases of aliens who seek asylum or other forms of protection in the United
States—including sometimes by spending more time and resources on certain cases—and to take time to
learn about the Rule, educate their staff, and adapt their counseling materials. Certain Plaintiffs also
conversely claim that their caseload in certain areas of their practices has been reduced since the Rule was
in place, which could eventually cause them to lose some funding or to shift their work or funding sources.
These downstream, incidental impacts are not the type of “invasion of a legally protected interest”
sufficient to support Article III standing. Gill v. Whitford, 585 U.S. 48, 65 (2018). The Rule regulates
asylum eligibility for certain aliens, and the Plaintiff organizations lack any “judicially cognizable
interest” in how the Executive enforces the immigration laws against third parties. Linda R.S. v. Richard
D., 410 U.S. 614, 619 (1973).
The Supreme Court reiterated these principles in United States v. Texas, 599 U.S. 670 (2023),
holding that they precluded plaintiff States from establishing standing to challenge the Executive’s
immigration enforcement priorities, even though the States contended that those priorities caused the
States to spend additional money. Each of the reasons underlying the Supreme Court’s decision in Texas
are applicable here: in the Rule, the Departments “do[] not exercise coercive power” over “the plaintiff,”
Texas, 599 U.S. at 678; challenges to immigration enforcement policies like the Rule’s exercise of
statutory enforcement authority to limit asylum eligibility “run up against the Executive’s Article II
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authority to enforce federal law,” id. (which, here, implicates “foreign-policy objectives” including
cooperation with regional partners concerning migration, see id. at 679); and the courts lack “meaningful
standards for assessing” the Rule’s discretionary exercise of authority to set conditions on asylum, which
reflects a complicated balancing of various factors like resource constraints, public safety, and the situation
at the southwest border in 2023, id. at 679–80. Nor does this case involve the “provision of legal benefits,”
see ECF 187 at 11, which the Supreme Court said “could lead to a different standing analysis,” 599 U.S.
at 683. Here, Plaintiffs urge that the Executive Branch is impermissibly exercising its discretionary
authority to deny asylum, and thus to subject aliens to removal; their entire interest therefore hinges on
the circumstances in which aliens are subject to immigration enforcement.
Like the States in Texas, Plaintiffs cannot leverage the incidental effects of enforcement policies
directed at third parties to create Article III standing for themselves. Any changes plaintiffs may make in
their own affairs in light of the Executive’s exercise of enforcement discretion with respect to others are
not judicially cognizable injuries.
The Supreme Court’s decision in Alliance confirms that the Plaintiff organizations lack standing
here. As the Ninth Circuit recognized in remanding this case for further consideration, this Court’s finding
of organizational standing based on “diversion of resources” and “frustration of mission” is irreconcilable
with the Supreme Court’s holding in Alliance. See, e.g., Coal. on Homelessness v. City & Cnty. of San
Francisco, 758 F. Supp. 3d 1102, 1128 (N.D. Cal. 2024) (“[T]he Supreme Court recently rejected the
‘frustration-of-mission and diversion-of-resources theories’ in Hippocratic Medicine.”). In Alliance, the
Supreme Court explained that its prior decision in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982),
did not stand for the broad proposition that an organization that diverts resources in response to a policy
that touches on or frustrates its mission has standing to challenge that policy. See 602 U.S. at 395. It is not
enough that “an organization diverts its resources in response to defendants’ actions,” even if it will
“expend considerable time, energy, and resources” in response to a policy change. 602 U.S. at 394–95.
Thus, contrary to prior Ninth Circuit precedent, a “frustration of mission” or “purpose” and a diversion of
resources to address that frustration is not sufficient to establish standing. See E. Bay Sanctuary Covenant
v. Biden, 993 F.3d 640, 663 (9th Cir. 2021). Instead, an unregulated organization must show that the
challenged action “perceptibly impair[s]” or “interferes with” its activities by imposing an affirmative
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“impediment” to performing those activities. Id. This requirement safeguards against an organization
being permitted to “spend its way into standing.” Id. As the Supreme Court made clear in Alliance, Havens
Realty was an “unusual case” where the defendant, as part of its challenged practice, provided the
organizational plaintiff’s employees with “false information about apartment availability,” thereby
“perceptibly impair[ing] [the organization’s] ability to provide counseling and referral services to” its
home-seeking clients. Alliance, 602 U.S. at 395–96. Thus, the organizational plaintiff’s theory of standing
in Havens Realty was akin to that of “a retailer who sues a manufacturer for selling [it] defective
goods.” Id. at 395.
Plaintiffs’ evidence does not demonstrate the type of interference with or impairment of their
existing legal services that could amount to a cognizable injury under Havens Realty. Nothing about the
Rule directly regulates the organizations’ provision of legal services. The Rule’s condition on asylum
eligibility also does not make it more difficult for the Organizations to provide legal services to aliens, at
least no more than any change in law requires lawyers to adapt their representation of clients. At most,
Plaintiffs’ evidence demonstrates the common-sense principle that changes to the legal landscape of
asylum eligibility may mean that some aliens will not be eligible for that relief and that, in particular cases,
lawyers will have to meet additional evidentiary or procedural burdens to try to establish their clients’
eligibility for relief or other protection from removal. See ECF 217 at 5–6; see also, e.g., ECF 169-2 at
¶¶ 11–12, 15; ECF 169-5 at ¶¶ 16–18; ECF 169-6 at ¶¶ 19–20; ECF 169-7 at ¶¶ 23–24; ECF 217-2 at ¶¶
12–17; ECF 217-3 at ¶¶ 11, 13–14; ECF 217-4 at ¶¶ 8–10; ECF 217-5 at ¶¶ 16, 20–24. Accepting such
common-place impacts of legal developments on legal services providers as judicially cognizable injuries
would allow lawyers to sue whenever changes in the law require them to change their approach to handling
particular cases or to do more research or devote more resources to particular cases. Such a theory of
lawyer standing is startling, as it would provide lawyers with standing to sue over every new statute or
regulation that touches their core business areas and nullify the principle that lawyers generally lack an
independent interest in the rules applicable to their clients. See Kowalski v. Tesmer, 543 U.S. 125, 130-34
(2004) (addressing third-party standing). Plaintiffs’ theory would, for example, allow “medical
malpractice attorney[s]” to claim cognizable injury from “tort reform statutes,” id. at 134 n.5, on the
ground that the statutes require them to gather relevant evidence or otherwise limit their ability to take on
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clients, thereby affecting their caseload and income. It would also allow “attorney[s] specializing in Social
Security cases [to] challenge implementation of a new regulation,” id., on the ground that they will respond
by expending resources developing arguments. Such injuries thus cannot constitute the type of impairment
of services contemplated in Alliance.2
Similarly, Plaintiffs assert that the Rule has caused them to spend resources on learning and
obtaining information about the Rule, training staff, updating internal procedures, conducting educational
outreach to the public, and developing new strategies for counseling aliens who may be ineligible for
asylum under the Rule. See, e.g., ECF 217 at 6; ECF 217-1 at ¶ 13; ECF 217-2 at ¶ 18; ECF 169-2 at ¶ 16;
ECF 169-7 at ¶ 25. But such education and outreach expenditures are the type of activities taken in
response to a government policy that cannot satisfy standing. See, e.g., Alliance, 602 U.S. at 394. They
do not represent any independent impairment of the Organizations’ pre-existing activities, but are instead
a continuation of those activities. As the Supreme Court explained in Alliance, an organization “cannot
spend its way into standing simply by expending money to gather information and advocate against the
defendant’s action.” Alliance, 602 U.S. at 394. Although the Supreme Court references advocacy
activities, the principle announced in Alliance is broader—it places the focus of the injury analysis on the
impairment of the organization’s services, rather than on the organization’s expenditures or allocation of
resources. This principle is thus not limited to “issue-advocacy” organizations, as Plaintiffs contend (ECF
217 at 4), but applies equally to direct services organizations who spend money or resources in response
to the challenged policy without any corresponding impairment to their ability to provide services.3 As
2 The Supreme Court’s decisions in Texas and Alliance, which scale back significantly on judicial
recognition of injuries of third-party entities in the context of Article III standing, require revisiting this
Court’s and the Ninth Circuit’s rejection of similar arguments, including in E. Bay Sanctuary Covenant v.
Biden, 993 F.3d 640, 664 (9th Cir. 2021). This argument does not conflate the merits of the claim with
standing—it only concerns the type of injuries that are judicially cognizable, not whether the Rule is lawful
under the APA. Further, these same principles demonstrate why Plaintiffs are not within the relevant zone
of interests of the asylum statute or the INA generally, which do not evince any Congressional concern
for the interests of lawyers and legal services providers. See ECF 176-1 at 9 n.7; ECF 182 at 2 n.1.
3 In its recent decision on a stay motion in Immigrant Defenders Law Center v. Noem, --- F. 4th --
-, No. 25-2581, 2025 WL 2080742 (9th Cir. July 18, 2025), the Ninth Circuit glossed over this
requirement, finding a “concrete and demonstrable injury” to core activities without adequately explaining
what precisely constituted the impairment to those activities that triggered the identified re-allocation or
expenditure of resources—seemingly equating those uses of resources with the impairment itself. Id. at
*9. That reasoning runs contrary to the holding of Alliance. But this decision is in any event not instructive
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the Supreme Court’s reasoning in Alliance made clear, courts should not allow an organization to
demonstrate standing any time it shifts resources from one set of direct-service activities to another set of
similar activities in support of its mission. Instead, the organization must show that the new policy directly
harms its already-existing core activities. To hold otherwise would impermissibly allow organizations to
manufacture standing to challenge any policy that touches on their mission by voluntarily spending money
in response to the policy and in support of their mission. See Alliance, 602 U.S. at 394.
Nor does a reduction in the number of affirmative asylum applications that Plaintiffs East Bay
Sanctuary Covenant (EBSC) or American Gateways have assisted in filing—assuming such reductions
are fairly traceable to the Rule—qualify as an impairment of services. See ECF 217 at 5; ECF 217-1 at
¶ 9; ECF 217-4 at ¶ 7.4 A reduction in the number of aliens who entered before May 12, 2025, and who
are potentially eligible for asylum does not impair the organization’s ability to provide its services
generally. This theory is essentially that the demand for certain of these Organizations’ core services has
been reduced. But American Gateways also represents clients in defensive applications for asylum. See
id. at ¶ 6. Even so, assuming that there are fewer aliens that can avail themselves of these organizations’
affirmative asylum services due to the Rule, this does not equate to an impairment of or interference with
those existing services. Similarly, a reduction in the number of clients any particular organization may
serve because they need to spend more time on certain asylum cases, see ECF 217-2 at ¶ 20, likewise does
not impair the organization’s ability to provide services to the clients they do serve. The Rule may frustrate
the organization’s mission by making it more difficult for certain aliens to obtain asylum, but this is not
the type of impairment to services that Alliance requires for EBSC to show standing. “Like an individual,
an organization may not establish standing simply based on the intensity of the litigant’s interest, no matter
here, where Plaintiffs do not base their arguments on the type of expenditures alleged in Immigrant
Defenders, and given that the Ninth Circuit is currently considering en banc an appeal that addressed the
impact of Alliance on the Circuit’s organizational-standing precedents, see Arizona All. for Retired
Americans v. Mayes, 130 F.4th 1177 (9th Cir. 2025) (ordering rehearing en banc in, and vacating, Arizona
All. for Retired Americans v. Mayes, 117 F.4th 1165, 1170 (9th Cir. 2024)).
4 Tahirih Justice Center (“Tahirih”) also conclusorily asserts that the Rule has “inhibited the ability
of some prospective clients to reach Tahirih’s services areas,” ECF 217-5 at ¶ 19, but this does not amount
to any type of injury to Tahirih itself. Moreover, this speculative impact—unsupported by any specific
examples—appears to be attributable to the use of expedited removal and exercise of mandatory statutory
detention authorities. See id.
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how longstanding the interest and no matter how qualified the organization.” Alliance, 602 U.S. at 394
(cleaned up); see also Havens Realty, 455 U.S. at 379 (a “setback to the organization’s abstract social
interests” is insufficient to support standing). Yet, at base, this is what these organizations have shown: a
setback to their interests in helping some aliens obtain asylum. See, e.g., ECF 169-7 at ¶ 20 (asserting that
the Rule will “frustrate NCLR’s mission” by making it more difficult for some aliens to seek asylum
affirmatively). EBSC, for example, does not argue that the Rule impairs its ability to counsel aliens, nor
that the Rule has prevented EBSC from continuing its work. Indeed, EBSC has continued to file numerous
affirmative asylum applications, despite the existence of the Rule and the Securing the Border rule’s limits
on asylum eligibility, and it has not shifted to representing clients in defensive cases as it initially projected
it would be forced to do. See ECF 217 at ¶ 9; ECF 169-6 at ¶¶ 18–19. Accordingly, a reduction in certain
affirmative asylum clients covered by the Rule due to a decreased eligibility for asylum does not constitute
the type of impairment recognized in Alliance.
Lastly, Plaintiffs argue that EBSC will suffer a financial injury in the form of a loss of funding or
lost future revenue as a result of the decrease in affirmative asylum applications it can file. ECF 217 at 6–
7. Assuming such a downstream financial injury is cognizable (it is not, see supra at 6–7), the declaration
submitted demonstrates that this injury remains attenuated and speculative. See Alliance, 602 U.S. at 383
(standing’s causation requirement “rules out attenuated links—that is, where the government action is so
far removed from its distant (even if predictable) ripple effects”). Standing must be measured based on
whether injury was imminent or “certainly impending” at the time of the Complaint. Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 409 (2013); Lujan, 504 U.S. at 571 n.4. At or around the time of the amended
complaint, EBSC had not adequately substantiated a prospective funding-loss injury, instead speculating
that it could experience a “marked decrease” in its budget. See ECF 169-6 at ¶ 16. Even now, its assertions
concerning loss of funding remain vague and non-specific. EBSC has not specified how much funding it
applied for or received for its affirmative asylum work since the Rule, and it fails to specify whether the
approximated funding decrease has materialized. See ECF 217-1 at ¶ 10. EBSC also fails to demonstrate
any concrete loss of funding from successful asylum applicants’ applications for other benefits. Plaintiffs
have likewise failed to substantiate any projected loss of funding for Immigrant Defenders (ImmDef).
ImmDef speculates that, because it is “handling fewer removal cases than they would otherwise accept,”
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this “promises to impact” its funding. ECF 217-3 at ¶ 15. But ImmDef does not quantify the number of
cases it is currently handling versus those it handled previously, nor does it specifically attest that it will
lose or has lost funding. See id. At most, ImmDef vaguely asserts that it must wait longer to receive
payment for its work on an administrative appeal if the appeal takes time to resolve—but this bears no
apparent relationship to the Rule. Accordingly, these two organizations’ alleged funding or revenue losses
do not satisfy Article III standing.
There is another recent Supreme Court development concerning scope of relief, which relates
closely to the standing issues in this matter: Trump v. CASA, Inc., 145 S. Ct. 2540 (June 27, 2025).
Although this decision post-dates (and thus is not addressed by) the Ninth Circuit’s remand order or this
Court’s scheduling order on remand, it is instructive as to the scope of the relief as compared to the scope
of the harms asserted by the particular Plaintiffs. It emphasized the principle that equitable relief may be
no “broader than necessary to provide complete relief to each plaintiff with standing to sue.” 145 S. Ct. at
2562–63; see also id. at 2557. Although the Supreme Court in CASA declined to expressly extend its
holding to the APA context, see 145 S. Ct. at 2554 n.10, its complete-relief principle for crafting injunctive
relief at minimum provides important limits on the relief of “set[ting] aside” agency action under 5 U.S.C.
§ 706(2). Cf. Immigrant Defenders, 2025 WL 2080742, at *15 (applying the complete-relief principle to
stays of agency action under 5 U.S.C. § 705).
Congress enacted the APA against a background rule that statutory remedies should be construed
in accordance with “traditions of equity practice.” Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). Courts
“do not lightly assume that Congress has intended to depart from established principles” of equity,
Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982), and ordinarily courts expect that Congress will
make “an unequivocal statement of its purpose” if it intends to make “a drastic departure from the
traditions of equity practice,” Hecht Co., 321 U.S. at 329. Thus, as Defendants previously argued, the
APA does not authorize universal vacatur. See ECF 176-1 at 34. Indeed, remedies “ordinarily operate with
respect to specific parties,” rather than “on legal rules in the abstract”; reading the APA to authorize
universal relief in the form of vacatur would do the opposite. California v. Texas, 593 U.S. 659, 671
(2021).
But at minimum, the “set aside” language of § 706(2) must be considered alongside the principle
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that equitable relief must be no broader than necessary to afford relief to the specific Plaintiffs. Although
the Ninth Circuit has recognized vacatur as an available remedy for a successful APA challenge to a
regulation, see, e.g., California Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072, 1095 (9th Cir.
2011), it has also treated universal vacatur of agency action as a discretionary equitable remedy—not a
remedy that is automatic or compelled. See, e.g., Nat’l Wildlife Fed’n v. Espy, 45 F.3d 1337, 1343 (9th
Cir. 1995) (stating that the court “is not required to set aside every unlawful agency action.”); see
California Cmtys. Against Toxics v. US EPA, 688 F.3d 989, 994 (9th Cir. 2012) (per curiam) (declining
to enter vacatur in favor of remand). As an equitable remedy, vacatur should also be governed by the
complete-relief principles set forth in CASA.
In CASA, the Supreme Court explained that for determining the scope of equitable relief, “the
question is not whether an injunction offers complete relief to everyone potentially affected by an allegedly
unlawful act; it is whether an injunction will offer complete relief to the plaintiffs before the court.” CASA,
145 S. Ct. at 2557 (citing Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“[I]njunctive relief should be
no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.”)).
Applying this complete-relief principle here—and assuming Plaintiffs could establish standing and prevail
on the merits—the Rule at most may only be set aside to the extent it would remedy the cognizable harms
of those Plaintiffs who can demonstrate Article III standing. Thus, it is important to consider whether each
Plaintiff has standing, and the extent of that Plaintiff’s cognizable harms. That is especially true because
the Organizations’ reach is topically and geographically limited. Several of the Organizations operate only
in certain regions of California. See ECF 169-2 at ¶ 5 (asserting that Central American Resource Center
(CARECEN) serves clients in the Los Angeles, Van Nuys, and San Bernadino areas); ECF 175 at ¶¶ 2, 8
(asserting that ImmDef operates and serves clients in Southern California and Tijuana, Mexico); see also
ECF 169-6 at ¶ 6 (asserting that EBSC serves San Francisco Asylum Office only, which includes
applicants in California, Washington, Oregon, and part of Nevada). Some Plaintiffs often serve only
particular categories of alien clients. See ECF 169-7 at ¶ 11 (asserting that National Center for Lesbian
Rights serves only LGBTQ clients in the San Francisco area); ECF 169-5 at ¶¶ 3, 5 (asserting that Tahirih
serves women, girls, and other survivors of gender-based violence and has offices in Falls Church, VA;
Baltimore, Maryland; Atlanta, Georgia; Houston, Texas; and San Bruno, CA). American Gateways serves
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clients in Central Texas. ECF 169-3 at ¶¶ 4–5. Although Defendants maintain that none of the Plaintiffs
can establish cognizable harms for the reasons stated above, at minimum, CASA counsels that any relief
must be tailored to the scope of the Plaintiffs’ harms.
II.
The Rule is Lawful and Is Not Arbitrary and Capricious.
Defendants maintain, as previously argued before this Court and on appeal, that the Rule’s
presumption of asylum ineligibility is lawful and the Rule is not arbitrary and capricious. This is true
regardless of whether the CBP One scheduling system and parole processes continue to exist.
First, Defendants respectfully maintain that the Rule’s presumption of asylum ineligibility is
lawful, regardless of the availability of exceptions. See ECF 176-1 at 10–12. Asylum is always a matter
of “discretion”—never of “entitlement.” INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.6 (1987). Thus,
Congress has specified that the Executive “may grant asylum” to an alien who satisfies governing
requirements but is never obligated to do so. 8 U.S.C. § 1158(b)(1)(A) (emphasis added). And the INA
expressly provides that the Departments may by rule establish “limitations and conditions” on asylum
eligibility, beyond those already set out in the statute, that are “consistent with” the asylum statute. Id.
§ 1158(b)(2)(C). The Rule temporarily established a presumption of asylum ineligibility that was aimed
at safeguarding the effective functioning of the immigration system. See 88 Fed. Reg. at 31,314–19. No
provision of § 1158 prohibits consideration of these factors or otherwise clashes with the Rule. Because
the Rule and the statute coexist with no conflict or contradiction, the Rule is “consistent with” § 1158.
See ECF 176-1 at 10.
Moreover, although not necessary to establish consistency with the statute, multiple provisions in
§ 1158 affirmatively underscore the permissibility of the Rule’s focus on protecting the systemic
efficiency of the asylum system. Congress conditioned the grant of asylum on an alien applying “in
accordance with the requirements and procedures established by” the Departments. 8 U.S.C.
§ 1158(b)(1)(A). Congress itself has already established mandatory bars to asylum aimed at promoting
systemic efficiency. For example, Congress has generally prohibited applications for asylum more than
one year after an alien entered the United States. 8 U.S.C. § 1158(a)(2)(B). And Congress has generally
prohibited aliens from pursuing successive asylum applications when the previous application was denied.
See id. § 1158(a)(2)(C). These provisions make clear that the INA does not prioritize the identification of
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otherwise-meritorious asylum claims above all else, and that administrative practicality and systemic
efficiency are legitimate considerations. Nothing in the statute suggests that Congress intended to
foreclose the Departments from similarly taking systemic considerations into account. Indeed, the
Executive Branch has long considered factors similar to those underlying the Rule in determining whether
any particular asylum applicant warrants a favorable exercise of discretion. See ECF 176-1 at 13 (citing
Matter of D-A-C-, 27 I. & N. Dec. 575, 578 (B.I.A. 2019) (explaining “[t]he ultimate consideration” for
whether an alien is deserving of discretionary relief, including asylum, is whether granting relief “appears
to be in the best interest of the United States,” as determined by the Executive Branch officials charged
with making asylum determinations), and Matter of Pula, 19 I. & N. Dec. 467, 473–74 (B.I.A. 1987)
(holding that an alien’s “circumvention of orderly refugee procedures” is a relevant consideration in
whether he warrants discretionary relief and considering the alien’s “manner of entry or attempted entry,”
and availability of protection in countries which he passed through)).
Because the Rule is thus consistent with the asylum statute, the availability of exceptions—
including parole processes and the CBP One appointment exception—and rebuttal grounds are immaterial
to whether the Rule is authorized by law. Defendants did, however, point to such exceptions to distinguish
this case from Ninth Circuit precedent addressing categorical bars to asylum. The Court erred in its prior
decision by likening the Rule here to the rules at issue in East Bay I (entry rule) and East Bay II (transit
rule), because those rules categorically denied asylum to most aliens who entered the United States
between ports of entry or who transited a third country without first seeking asylum there, respectively.
In this Rule, in contrast, the presumption of asylum ineligibility does not operate as a categorical bar based
solely on manner of entry or based solely on failure to seek asylum in a third country. The Rule provided
multiple means by which an alien may avoid or rebut the presumption of asylum eligibility, including, but
not limited to, using parole processes or pre-scheduling an appointment to present themselves at a POE.
The termination of the CBP One appointment system or of certain parole processes does not
undermine Defendants’ arguments on this score. These two pathways were not the only means of avoiding
the presumption of asylum ineligibility under the Rule. As noted, the Rule does not definitively preclude
aliens from receiving asylum even if they did not pursue any alternative pathway to enter the United States.
See ECF 176-1 at 14. Thus, the termination of these two pathways illustrates the soundness of Defendants’
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arguments—without CBP One appointments or parole processes, aliens subject to the Rule still could have
sought protection in a third country or, if they were not able to do so and/or nonetheless entered illegally
between POEs, they may still rebut the presumption by showing exceptionally compelling circumstances.
See 8 C.F.R. §§ 208.33(a)(2)(C), (3), 1208.33(a)(2)(C),(3). Moreover, contrary to Plaintiffs’ arguments,
the rebuttal ground for “exceptionally compelling circumstances” does not directly require an asylum
applicant to demonstrate that “it would be unreasonable to require the use of the DHS appointment
scheduling system or pursuit of another lawful pathway.” See ECF 217 at 8 (citing 88 Fed. Reg. at 31,338);
8 C.F.R. §§ 208.33(a)(3), 1208.33(a)(3). However, even if it did, this would not be a heavy burden for an
applicant to meet where there is no available scheduling system or alternative lawful pathway to the United
States.
Regardless, as explained, even if the Rule’s presumption of asylum ineligibility were solely based
on manner of entry or included no exceptions at all, it would be lawful. Although the Rule sought to
address record irregular migration by encouraging the use of orderly pathways to enter the United States
and discouraging illegal entry between ports of entry, the fact that certain of those pathways no longer
exist does not undermine the lawfulness of the Rule.
Second, whether the Rule is arbitrary or capricious is judged not by events that occur after the
agency decision but based on the administrative record “before the [agency] at the time [it] made [its]
decision.” Citizens to Preservce Overton Park v. Volpe, 401 U.S. 402, 420 (1971) (emphasis added); see
also Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (agency
action must be examined based on the “administrative record in existence at the time of the decision”).
Thus, Plaintiffs are wrong that subsequent events can support a finding that the Rule is “arbitrary and
capricious” or provide a basis not to apply the rule after the fact. See ECF 217 at 8. Further, Defendants
respectfully disagree with the Court’s conclusion that the administrative record showed that the Rule’s
exceptions were not reasonably available to many aliens. These options were reasonably available, viable
options used by numerous aliens. See 90 Fed. Reg. at 13,618 (explaining that 532,000 aliens received
parole under the CHNV parole programs); CBP, CBP One™ Appointments Increased to 1,450 Per Day
(June 30, 2023) (stating that more than 49,000 aliens had presented at Southwest border ports of entry
through
scheduled
CBP
One
appointments
for
inspection
as
of
June
30,
2023)
at
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https://www.cbp.gov/newsroom/national-media-release/cbp-one-appointments-increased-1450-day. As
explained above and in Defendants’ prior briefing, the Rule contained a variety of different exceptions
and options for aliens to avoid asylum ineligibility—including the ability to demonstrate exceptionally
compelling circumstances when the alien did not use the appointment system. See supra at 15–16.
Moreover, the elimination of any pathways discussed in the Rule had little to no practical impact.
As Plaintiffs themselves acknowledge, the Rule was largely irrelevant from January 20, 2025 to May 11,
2025, because Proclamation 10888 was in effect during that entire time period and cut off access to the
asylum process altogether for aliens who crossed the border illegally, under the President’s statutory and
constitutional authorities to suspend entry of aliens. Although plaintiffs in a separate challenge to
application of this Proclamation to aliens within the United States were recently successful in the district
court, that district-court order has been appealed and has been partially stayed as to the Proclamation’s
restrictions on asylum. See supra at 5. Assuming the government ultimately prevails in that litigation, the
Proclamation will continue to be applicable to those who crossed the border without authorization during
the relevant time period. Accordingly, it is doubtful that the end of CBP One on January 20 and the pause
or elimination of certain parole processes like CHNV had a practical impact on the application of the
Rule’s presumption of asylum ineligibility—including to Plaintiffs’ clients or potential clients.
CONCLUSION
The Court should modify its prior summary judgment opinion to hold that Plaintiffs lack standing
to challenge the Rule following FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024). The
Court should also modify its holdings on Plaintiffs’ APA claims because the termination of the CBP One
appointment system and certain parole programs only serves to underscore that the Rule is not contrary to
law or arbitrary and capricious.
//
//
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Dated: August 5, 2025
Respectfully submitted,
BRETT A. SHUMATE
Assistant Attorney General
BRIAN C. WARD
Acting Assistant Director
By: /s/ Katherine J. Shinners
KATHERINE J. SHINNERS
Senior Litigation Counsel
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: (202) 598-8259
Email: katherine.j.shinners@usdoj.gov
Attorneys for Defendants
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