Order Reconsidering Standing on Remand — East Bay Sanctuary v. Trump

Record facts

N.D. Cal. · No. 4:18-cv-06810-JST · Doc. 226 · 2026-05-07 · Docket on CourtListener

Full text

1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
 
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
 
EAST BAY SANCTUARY COVENANT, 
et al., 
Plaintiffs, 
v. 
 
DONALD J. TRUMP, et al., 
Defendants. 
Case No. 18-cv-06810-JST   
 
 
ORDER RECONSIDERING STANDING 
ON REMAND 
Re: ECF Nos. 187, 205, 217, 222 
 
 
 
Plaintiffs are legal services organizations challenging a rule imposing a rebuttable 
presumption of asylum ineligibility for individuals who do not utilize certain “lawful pathways.”  
Two events relevant to this case occurred while it was on appeal to the Ninth Circuit.  First, the 
Supreme Court decided Food and Drug Administration v. Alliance for Hippocratic Medicine, 602 
U.S. 367 (2024), which addressed organizational standing.  Second, the Trump Administration 
took a series of executive actions foreclosing certain “lawful pathways” and otherwise restricting 
asylum.  The Ninth Circuit remanded the case for this Court to reconsider its prior order granting 
summary judgment to Plaintiffs, in light of both intervening changes.  Before the Court is the 
parties’ supplemental briefing addressing these issues.  The Court’s prior summary judgment order 
is hereby modified to reflect (1) that Alliance does not undermine Plaintiffs’ Article III standing 
and (2) that the termination of lawful pathways underscores the rule’s unlawfulness, as set forth 
below.  The Court therefore reaffirms its prior order.   
I. 
Background 
Promulgated by the Department of Homeland Security and the Department of Justice (“the 
Departments”) in May 2023, the Circumvention of Lawful Pathways Rule (“the Rule”) creates a 
rebuttable presumption of asylum ineligibility for noncitizens who crossed the southern border 
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 1 of 15

 
2 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
into the United States between May 11, 2023 and May 11, 2025, after traveling through a country 
other than their home country.  88 Fed. Reg. 31,314 (May 16, 2023); 8 C.F.R. §§ 208.33(a), 
1208.33(a).  Noncitizens who sought to enter the United States but lacked authorization to do so 
could avoid the presumption of asylum ineligibility by seeking asylum or protection in a third 
country through which they transited, using alternative legal mechanisms such as refugee 
admissions or parole processes, or by presenting themselves at a Port of Entry (POE) with a pre-
scheduled appointment for inspection and processing, made through the CBP One app.  8 C.F.R. 
§§ 208.33(a)(2), 1208.33(a)(2).  The presumption of ineligibility therefore functions as an 
incentive to promote these “lawful pathways,” the availability of which was a central premise of 
the Rule.  See 88 Fed. Reg. at 31,314 (“The rule encourages migrants to avail themselves of 
lawful, safe, and orderly pathways into the United States . . . .”).  A demonstration of 
exceptionally compelling circumstances could also rebut the presumption of ineligibility.  8 C.F.R. 
§§ 208.33(a)(3), 1208.33(a)(3).   
Plaintiffs are six legal services organizations that provide representation to asylum seekers, 
operating primarily in California and Texas: East Bay Sanctuary Covenant (“EBSC”), Central 
American Resource Center (“CARECEN”), American Gateways, Tahirih Justice Center, National 
Center for Lesbian Rights, and Immigrant Defenders Law Center (“ImmDef”).  Challenging the 
Rule as unlawful, they filed the complaint in this case on November 9, 2018, ECF No. 1, and an 
amended complaint on May 18, 2023, ECF No. 164.   
On July 25, 2023, the Court granted summary judgment to Plaintiffs, vacating the Rule as 
contrary to the asylum statute, 8 U.S.C. § 1158, arbitrary and capricious, and procedurally 
defective.  ECF No. 187.  The Court observed that “conditioning asylum eligibility on presenting 
at a port of entry or having been denied protection in transit” conflicts with Section 1158 
according to binding Ninth Circuit precedent.  Id. at 16 (citing EBSC v. Biden, 993 F.3d 640, 669–
70, 671 (9th Cir. 2021); EBSC v. Garland, 994 F.3d 962, 976, 678 (9th Cir. 2020)).  The Court 
then rejected Defendants’ argument that the existence of other exceptions or the possibility of 
rebutting the presumption of ineligibility saved the Rule, because there would be some individuals 
“for whom other exceptions are not available and who cannot rebut the presumption.”  Id. at 18–
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 2 of 15

 
3 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
19.  As to Article III standing, the Court found that Plaintiffs had established a concrete injury 
because the Rule “will frustrate Plaintiffs’ missions and require them to divert resources from 
existing programs” and “devote additional resources to each client seeking asylum,” which would 
decrease the number of clients served and “substantially affect” the organizations’ funding.  ECF 
187 at 8, 9–10.  Defendants appealed on July 25, 2023.  ECF No. 189.  The Ninth Circuit stayed 
this Court’s order vacating the Rule, ECF No. 196, and subsequently held appeal proceedings in 
abeyance pending settlement negotiations that were ultimately unsuccessful, ECF No. 205 at 7.   
On January 20, 2025, President Trump took three executive actions affecting the 
implementation of the Rule.  First, he issued an executive order directing the Secretary of 
Homeland Security to terminate the CBP One appointment system and certain parole processes 
including those allowing certain nationals of Cuba, Haiti, Nicaragua, and Venezuela (“CHNV”) to 
enter the U.S.  See Executive Order No. 14165 § 7(a)–(b), 90 Fed. Reg. 8,467, 8,468 (Jan. 29, 
2025).  While termination of the CBP One app was effective immediately, the CHNV parole 
programs were terminated on March 25, 2025.  Termination of the Parole Processes for Cubans, 
Haitians, Nicaraguans, and Venezuelans, 90 Fed. Reg. 13,611, 13,611 (Mar. 25, 2025).  In a 
second executive order issued the same day, the President indefinitely suspended all decisions on 
applications for refugee status, with exceptions only pursuant to the joint agreement of the 
Secretaries of State and Homeland Security.  See Executive Order No. 14163 § 3, 90 Fed. Reg. 
8,459, 8,459 (Jan. 30, 2025).   
The third action that day, Presidential Proclamation 10888, entitled “Guaranteeing the 
States Protection Against Invasion,” invoked the President’s authorities under the Immigration and 
Nationality Act (“INA”), 8 U.S.C. §§ 1182(f) and 1185(a), and the Constitution, to preclude the 
entry of noncitizens 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).  Presidential Proclamation 10888 §§ 1, 3, 90 Fed. Reg. 8,333, 8,335 (January 29, 2025).  The 
proclamation barred the same noncitizens from invoking certain forms of protection, including 
asylum.  Id. §§ 2, 3, 90 Fed. Reg. at 8,335.  Although the U.S. District Court for the District of 
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 3 of 15

 
4 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
Columbia enjoined the application of the Proclamation to noncitizens in the United States, 
Refugee & Immigrant Ctr. for Educ. & Legal Servs. v. Noem, 793 F. Supp. 3d 19, 111 (D.D.C. 
July 2, 2025), the D.C. Circuit stayed that order insofar as it enjoins, vacates, and declares 
unlawful the Proclamation’s restrictions on asylum, see Refugee & Immigrant Ctr. for Educ. & 
Legal Servs. v. Noem, No. 25-5243, Doc. No. 2128457, at p. 2 (D.C. Cir. Aug. 1, 2025). 
On February 5, 2025, the parties notified the Ninth Circuit that their settlement discussions 
were not successful and were given the opportunity to provide their views on how the case should 
proceed.  ECF No. 205 at 7.  The Ninth Circuit then vacated this Court’s prior summary judgment 
order and remanded for further proceedings, directing this Court to address the impact of two 
intervening changes: the Supreme Court’s decision in Food and Drug Administration v. Alliance 
for Hippocratic Medicine, 602 U.S. 367 (2024), and the above-detailed termination of certain 
“lawful pathways.”  Id. at 7–8.   
On April 29, 2025, this Court issued a scheduling order requesting supplemental briefing 
from the parties concerning the issues identified in the Ninth Circuit’s order.  ECF No. 209.  The 
Court also ordered Defendants to file a “statement regarding whether the Rule has been extended.” 
Id. at 2.  Although the Rule originally applied only to noncitizens who crossed the southern border 
between May 11, 2023, and May 11, 2025, the Biden Administration had proposed amending the 
Rule to apply indefinitely to new border crossers.  89 Fed. Reg. 81,156, 81,274 (Oct. 7, 2024). On 
May 20, 2025, Defendants notified the Court that they had not extended the Rule to apply to 
noncitizens who cross the border after May 11, 2025.  ECF 210.   
The Rule therefore only applies to those who crossed the border between May 11, 2023 
and May 11, 2025 and who have pending asylum proceedings.  ECF No. 217 at 6; 8 C.F.R. 
§ 208.33(a)(1)(i).  This includes individuals who crossed the border after January 20, 2025, who 
could not have come to the United States via CBP One appointments, and those crossing after 
March 25, 2025, to whom the CHNV parole programs were no longer available.  ECF No. 217 at 
6.  And although most noncitizens who crossed during that period are also ineligible for asylum 
because of Presidential Proclamation 10888, that proclamation is being challenged in court, as 
outlined above.  Id. 
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 4 of 15

 
5 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
II. 
Jurisdiction 
This Court has statutory jurisdiction over Plaintiffs’ claims under 28 U.S.C. § 1331.  
Article III standing is discussed below. 
III. 
Discussion 
A. Standing 
To establish Article III standing, “a plaintiff must show (1) it has suffered an ‘injury in 
fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or 
hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is 
likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”  
Cottonwood Env’t Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075, 1079 (9th Cir. 2015) (quoting 
Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). 
“[O]rganizations may have standing ‘to sue on their own behalf for injuries they have 
sustained.’”  Alliance, 602 U.S. at 393 (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 
379, n.19 (1982)).  “In doing so, however, organizations must satisfy the usual standards for injury 
in fact, causation, and redressability that apply to individuals.”  Id. at 393–94. 
In Havens, a nonprofit organizational plaintiff called HOME sued Havens Realty 
Corporation for “racial steering” practices in leasing its two apartment complexes.  455 U.S. at 
366–67.  HOME alleged that Havens’ discrimination had “frustrated” the organization’s “efforts 
to assist equal access to housing through counseling and other referral services” because the 
organization “has had to devote significant resources to identify and counteract the defendant’s 
racially discriminatory steering practices.”  Id. at 379.  The Court held that if Havens’ steering 
practices “perceptibly impaired” the plaintiff’s ability to provide services, then “there can be no 
question that the organization has suffered injury in fact.”  Id.  “Such concrete and demonstrable 
injury to the organization’s activities—with the consequent drain on the organization’s 
resources—constitutes far more than simply a setback to the organization’s abstract social 
interests.”  Id. (citing Sierra Club v. Morton, 405 U.S. 727, 739 (1972)). 
The Supreme Court followed up Havens in Alliance, which considered the contours of 
organizational standing in the context of medical associations’ challenge to FDA actions 
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 5 of 15

 
6 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
facilitating access to mifepristone, an abortion-inducing medication.  602 U.S. at 372–74.  The 
medical associations argued, in relevant part, that the FDA’s actions had “impaired” their “ability 
to provide services and achieve their organizational missions.”  Id. at 394.  As evidence of this 
impairment, they identified the costs of performing studies to “better inform their members and 
the public about mifepristone’s risks.”  Id.  They also identified the expenditure of “‘considerable 
time, energy, and resources’ drafting citizen petitions to FDA, as well as engaging in public 
advocacy and public education.”  Id.  “And all of that has caused the organizations to spend 
‘considerable resources’ to the detriment of other spending priorities.”  Id. 
On that record, the Supreme Court concluded that the associations had not shown any 
actual impairment to their missions because these costs were only incurred as part of the plaintiff 
organizations’ attempts to oppose the FDA’s policies.  The Court held that “an organization that 
has not suffered a concrete injury . . . cannot spend its way into standing simply by expending 
money to gather information and advocate against the defendant’s action.”  Id.  In other words, 
“[a]n organization cannot manufacture its own standing in that way.”  Id.   
In deciding Alliance, the Supreme Court both distinguished and reaffirmed Havens, in 
which the organizational plaintiffs had standing because the defendants’ actions “directly affected 
and interfered with” the plaintiff’s “core business activities.”  Alliance, 602 U.S. at 395 (citing 
Havens, 455 U.S. at 368).  “Critically, HOME not only was an issue-advocacy organization, but 
also operated a housing counseling service.”  Id.  In providing false information to the plaintiff’s 
Black employees about apartment availability, Havens Realty directly interfered with HOME’s 
core activities of providing counseling to home-seekers in a manner “not dissimilar to a retailer 
who sues a manufacturer for selling defective goods to the retailer.”  Id. 
Alliance was consistent with existing Ninth Circuit precedent.  See, e.g., EBSC v. Biden, 
993 F.3d at 663 (9th Cir. 2021) (“Of course, organizations cannot ‘manufacture the injury by 
incurring litigation costs or simply choosing to spend money fixing a problem that otherwise 
would not affect the organization at all,’ but they can show they ‘would have suffered some other 
injury’ had they ‘not diverted resources to counteracting the problem.’” (quoting La Asociacion de 
Trabajadores de Lake Forest v. Lake Forest, 624 F.3d 1083, 1088 (9th Cir. 2010)); EBSC v. 
Garland, 994 F.3d at 974–75 (9th Cir. 2021) (“Plaintiffs’ injuries are not ‘manufactured injuries” 
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 6 of 15

 
7 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
addressing “a problem that would not affect the organization at all.’  The injuries affect plaintiffs’ 
core mission and their organizational funding, and are sufficient to establish standing.” (citation 
modified)).   
In this Court’s summary judgment order, it found that the plaintiff organizations had 
adequately established two classes of injury in fact.  ECF No. 187 at 8–10.  First, all Plaintiffs had 
established standing because the Rule “will frustrate Plaintiffs’ missions and require them to divert 
resources from existing programs.”  Id. at 8.  “Plaintiffs will need to overhaul their screening and 
intake processes to determine whether clients can qualify for an exception to the Rule or rebut the 
presumption, and assign staff to gather relevant evidence and prepare such arguments.”  Id. at 8–9.  
For clients ineligible for asylum under the Rule, Plaintiffs will have to assist them in seeking 
withholding of removal and CAT withholding, which require greater investment of time and 
resources because they impose a higher evidentiary standard and because they do not allow for 
derivative claims by family members.  Id. at 9.  Forced to devote more resources to each client, 
Plaintiffs will be able to serve fewer clients.  Id.  And because of that, several Plaintiffs anticipate 
losing funding awarded based on the number of clients served, constituting a financial injury.  Id. 
at 9–10.  The Court therefore concluded that Plaintiffs had established standing because “the Rule 
will frustrate their organizational goals, require diversion of resources, and substantially affect 
their funding.”  Id. at 10.   
Defendants argue (1) that legally, Alliance prevents Plaintiffs from establishing standing 
based on the frustration of organizational goals or the diversion of resources and (2) that factually, 
Plaintiffs “have not substantiated any specific, non-attenuated loss of funding.”  ECF No. 222 at 8.  
The Court disagrees on both grounds. 
1. 
Impairment to Core Activities 
Because the Rule impairs their core activities, Plaintiffs have established organizational 
standing under Havens and Alliance.   
Plaintiffs’ core activities involve representing asylum seekers on affirmative asylum 
applications.  Half of Plaintiff EBSC’s operations budget is dedicated to representing asylum 
seekers on affirmative asylum applications, but approximately 30% of those clients cross the U.S. 
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 7 of 15

 
8 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
border between ports of entry after transiting through Mexico and are therefore ineligible for 
asylum under the Rule.  ECF No. 217 at 8.  Accordingly, EBSC noted a steep drop in the 
affirmative asylum applications it filed in the two years after the Rule took effect.  Id.  Tahirih 
Justice Center, National Center for Lesbian Rights, and American Gateways also provide 
representation for affirmative asylum applications and have been harmed because fewer 
individuals are eligible under the Rule.  Id.  These plaintiffs are also harmed because the Rule 
converts many affirmative asylum cases into defensive ones, which involve a greater number of 
proceedings and are more labor intensive.  Id.; ECF No. 217-12 ¶ 12.  And the Rule makes 
representing individuals made ineligible for asylum more difficult by forcing them to seek 
withholding of removal or CAT protection with their attendant higher evidentiary standards.  ECF 
No. 217 at 9.  Forced to engage in more labor-intensive forms of representation, Plaintiffs are 
forced to divert time and resources, leaving them able to serve fewer clients.  Id. at 9–10.  These 
impacts will continue because many noncitizens who entered during the Rule’s two-year window 
will have their cases adjudicated on the merits in the coming years.  Id. at 9.  As in Havens, and 
unlike in Alliance, these increased costs result from the application of the challenged executive 
action, not merely opposition to it.  
Defendants assert that Alliance “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.”  ECF No. 222 at 8.  It is true that Alliance rejected standing based on “a setback to 
the organization’s abstract social interests” and held that “issue-advocacy organizations” did not 
have standing simply because they “incurr[ed] costs to oppose [agency] actions” through lobbying 
and public education.  Alliance, 602 U.S. at 394–95.  But Alliance did not overrule Havens.  Id. at 
395 (citing Havens, 455 U.S. at 368).  Like the Havens plaintiff, HOME, Plaintiffs here provide 
counseling and legal services to clients.  And much like the racial steering practices harmed 
HOME’s activities in furtherance of fair housing by impairing its counseling services, the Rule 
impedes Plaintiffs’ attempts to secure immigration protection for their clients by making that 
representation more burdensome.  Just as HOME was forced to compensate for the harm by 
undertaking investigative efforts to root out the discrimination, Plaintiffs have been forced to 
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 8 of 15

 
9 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
compensate by shifting their focus to defensive proceedings, withholding of removal, and CAT 
protection.  455 U.S. at 379 (“HOME has had to devote significant resources to identify and 
counteract the defendant’s racially discriminatory steering practices.”).   
To be sure, this case is not precisely the same as Havens, which was an “unusual” case that 
the Court has not extended “beyond its context.”  Alliance, 602 U.S. at 396.  Namely, while the 
alleged misconduct in Havens interfered directly with the ease and accuracy of counseling in a 
manner akin to a “manufacturer . . . selling defective goods to the retailer,” here, the alleged 
misconduct has the most direct effect on the availability of relief for clients.  Alliance, 602 U.S. at 
395.  But under the particular circumstances of this case, it takes only one more step to connect the 
availability of relief for Plaintiffs’ clients to interference with their ability to provide services.  
Because so many clients are made ineligible for asylum, Plaintiffs must undertake more costly and 
burdensome representation efforts to compensate for the harm to their core services, ultimately 
serving fewer clients overall.  This is a far cry from the manufactured standing in Alliance.   
In support of their view that Plaintiffs have not established standing under Alliance, 
Defendants cite Coalition on Homelessness v. City & County of San Francisco, 758 F. Supp. 3d 
1102, 1128 (N.D. Cal. 2024).  Coalition on Homelessness relied on Arizona All. for Retired 
Americans v. Mayes, 117 F.4th 1165, 1177 (9th Cir. 2024), which has now been vacated and taken 
en banc, 130 F.4th 1177 (9th Cir. 2025).  And even under Arizona Alliance’s now-vacated read of 
Alliance’s standing requirement, the case here would pass muster.  Under Arizona Alliance, 
standing may not “hinge on the claim that the organization has diverted resources in response to 
government action that does not directly affect the organization’s existing core activities.”  Id. at 
1177.  But here, the government action directly affects Plaintiffs’ core activities by obstructing 
unlawful barriers to clients’ receipt of asylum and forcing Plaintiffs to compensate by diverting 
resources to other forms of representation. 
Defendants also aver that Plaintiffs’ “services have not been impaired within the meaning 
of Alliance, and any re-allocation of resources they have undertaken does not establish standing.”  
ECF No. 222 at 8.  But in the absence of that reallocation of resources and to some extent despite 
it, Plaintiffs have been and will continue to be impeded in their efforts to perform the core 
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 9 of 15

 
10 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
organizational function of representing noncitizens seeking immigration protection.  In no sense is 
Plaintiffs’ standing reliant on spending money on advocacy opposing the Rule; rather, their 
standing is established because they have had to spend more to compensate for the harm the Rule 
caused to their core organizational missions.1 
2. 
Funding-Loss Injury 
Alliance did not address an organization’s ability to establish standing based on the loss of 
funding.  As this Court and the Ninth Circuit previously held, Plaintiff EBSC has standing to 
challenge the Rule on that basis.  See ECF No. 187 at 9–10 (holding that EBSC established 
standing based on threatened loss of funding because it would be able to serve fewer clients under 
the Rule); EBSC v. Biden, 993 F.3d at 663–64 (holding that EBSC and other plaintiffs established 
funding-loss injury on a similar theory); EBSC v. Garland, 994 F.3d at 974 (same). 
Plaintiff EBSC has established that the Rule caused it to lose funding from a $2,000 per-
case grant that it receives for each affirmative asylum case.  ECF No. 217 at 10.  Since the Rule 
took effect, EBSC has had to turn away potential affirmative asylum application clients because 
 
1 Defendants also assert that the Supreme Court’s decision in United States v. Texas, 599 U.S. 670 
(2023), provides grounds for rejecting Plaintiffs’ standing.  ECF No. 222 at 13–14.  As a 
preliminary matter, this Court notes that the same argument was raised in Defendants’ summary 
judgment briefs, ECF No. 176-1 at 22; ECF No. 182 at 1–2, was considered by the Court in its 
prior order, ECF No. 187 at 10–11, and is outside of the scope of the supplemental briefing 
requested by the Court here.  United States v. Texas is, in any case, inapposite.  In that case, the 
Supreme Court held that state plaintiffs did not have standing to challenge immigration 
enforcement priorities resulting in too few arrests and prosecutions.  The dispute was not 
“judicially cognizable meaning “traditionally thought to be capable of resolution through the 
judicial process.”  Id. at 676 (quoting Raines v. Byrd, 521 U.S. 811, 819 (1997)).  This was so 
because the plaintiffs’ suit would interfere with the Executive’s “exclusive” and “absolute” 
discretion to allocate prosecutorial resources and the Court lacked “meaningful standards for 
assessing” the exercise of that discretion.  Id. at 679–80.  The state plaintiffs had identified no 
“precedent, history, or tradition of courts ordering the Executive Branch to change its arrest or 
prosecution policies so that the Executive Branch makes more arrests or initiates more 
prosecutions.”  Id. at 677.  In other words, the reasoning and outcome of United States v. Texas 
was extensively tethered to the executive’s discretion to decline to enforce the law or prosecute 
violations.  There are no nonenforcement decisions at issue here.  Moreover, the APA and the text 
of the INA provide clear standards for assessing the imposition of unlawful conditions on asylum.  
See ECF No. 187 at 15–19.  Finally, the Court in United States v. Texas stated that the “provision 
of legal benefits . . . could lead to a different standing analysis.”  599 U.S. at 683.  Asylum is a 
legal benefit.   
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 10 of 15

 
11 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
they were ineligible for asylum and EBSC has therefore lost the corresponding funding.  Id.  From 
May 2023 to May 2025, EBSC’s new affirmative asylum cases decreased by an average of 50 
cases a year from the last year before the Rule took effect, leading to an average loss of over 
$100,000 each year.  Id.  “Additionally, each potential asylum client that EBSC has been unable to 
represent because of the Rule ‘will also lead to a significant loss in future revenue,’ because 
EBSC’s ‘[s]uccessful affirmative asylum clients generally remain [its] clients in future 
applications’ for which EBSC charges or receives per-case funding, including green card and 
citizenship applications.”  Id.   
Defendants assert that “[a]t . . . the time of the amended complaint, EBSC had not 
adequately substantiated a prospective funding-loss injury,” but the Ninth Circuit has found 
arguments of the type made by Plaintiffs to suffice.  See EBSC v. Biden, 993 F.3d at 663–64 
(finding that EBSC had sufficiently established funding-loss injury because 80% of its clients 
would be ineligible for asylum under the challenged rule because they entered without stopping at 
a port of entry, causing EBSC to “suffer a concomitant loss of funding”). 
Meanwhile, Plaintiff ImmDef faces a loss of funding through a government-funded panel 
attorney program because the Rule increases the complexity of defensive asylum cases and 
therefore reduces the number of such cases ImmDef can take.  ECF No. 217 at 10; ECF No. 217-3 
¶ 15 (explaining that “if we are unable to take on new matters, we will not receive any of our 
budgeted funding from [a program with the Public Defender Office in San Diego]”).  Defendants 
object that “ImmDef does not quantify the number of cases it is currently handling versus those it 
handled previously,” ECF No. 222 at 19, but again, the Ninth Circuit has found a funding-loss 
injury sufficiently established based on an identical theory without requiring such quantification.  
See EBSC v. Biden, 993 F.3d at 664 (finding that CARECEN had sufficiently established funding-
loss injury because it receives flat funding from the state per client and would be able to serve 
fewer clients because of the challenged rule would result in clients being placed into more time- 
and resource-intensive withholding proceedings).   
Plaintiffs have established direct “injuries to their own pocketbooks.”  Washington v. 
Trump, 145 F.4th 1013, 1024 (9th Cir. 2025).  Even if Plaintiffs had not established impairment to 
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 11 of 15

 
12 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
their core organizational functions, two Plaintiffs have established financial injury that is 
unaffected by the holding in Alliance.   
B. Termination of Lawful Pathways 
The Ninth Circuit’s remand order also directed this Court to address the impact of 
Executive Order 14165, which terminated the CBP One app appointment scheduling system and 
the CHNV parole processes.  ECF No. 205 at 8.  The Court concludes that the termination of those 
pathways underscores the Rule’s inconsistency with the asylum statute.  Even before the 
termination, the Rule violated 8 U.S.C. § 1158 because it “condition[ed] asylum eligibility on 
presenting at a port of entry or having been denied protection in transit,” which “conflicts with the 
unambiguous intent of Congress” in 8 U.S.C. § 1158 according to binding Ninth Circuit 
precedent.  ECF No. 187 at 16 (citing EBSC v. Biden, 993 F.3d at 671 and EBSC v. Garland, 994 
F.3d at 976); see also id. at 17 (“Section 1158(a) permits noncitizens to apply for asylum 
regardless of whether or not they arrive at a designated port of entry; a rule that conditions 
eligibility for asylum on presentment at a port of entry conflicts with Section 1158(a).”).  Without 
access to CBP One appointments, the Rule’s violation of the asylum statute’s expansive 
authorization for noncitizens to apply for asylum is made even more severe.  And with respect to 
the availability of CHNV parole processes, the removal of an additional lawful pathway increases 
the number of individuals subject to the Rule’s rebuttable presumption of ineligibility in violation 
of Section 1158(a).   
Defendants argue that “the Rule’s presumption of asylum ineligibility is lawful . . . 
regardless of whether the CBP One scheduling system and parole processes continue to exist” 
because asylum is granted as a matter of discretion and the Executive may impose conditions 
intended to protect “systemic efficiency.”  ECF No. 222 at 21–22; see also id. at 23–24.  
Defendants raised these arguments in their summary judgment briefing and the Court rejected 
them.  See ECF No. 176-1 at 23–26.  Time has not improved their appeal.  In any event, because 
these arguments do not address the effect of the termination of lawful pathways, they are outside 
of the scope of the Ninth Circuit’s remand and the Court does not address them further.   
Defendants also argue that “the elimination of the CBP One appointment system and 
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 12 of 15

 
13 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
certain parole processes cannot, and does not, undermine the legality of the Rule” for two reasons.  
ECF No. 222 at 8.  First, there exist “additional exceptions and rebuttal grounds.”  Id.  Second, 
“the Rule was superseded by Presidential Proclamation during the relevant time period.”  Id.   
Defendants’ first argument is the Rule is lawful because even after CBP One appointments 
and CHNV parole were terminated, individuals could still receive asylum if they sought and were 
denied protection in a third country, showed exceptionally compelling circumstances, or rebutted 
the presumption of ineligibility.  ECF No. 222 at 23.  But this Court previously explained at length 
that providing means for circumventing an unlawful restriction do not render that restriction 
lawful if they are not meaningfully available to all asylum seekers.  ECF No. 187 at 22–30.  
Because the Rule bars individuals who did not seek protection in a third country, cannot show 
exceptionally compelling circumstances,2 and cannot rebut the presumption of ineligibility, it 
unlawfully conflicts with the asylum statute.  Moreover, the transit-country-denial requirement is 
contrary to the asylum statute under EBSC v. Garland, 994 F.3d at 975–980. 
Second, Defendants argue that “the elimination of any pathways discussed in the Rule had 
little to no practical impact” because Proclamation 10888 was in effect from the time that the 
pathways were terminated to the time the Rule expired.  ECF No. 222 at 24.  As Plaintiffs note, 
litigation over Proclamation 10888 is ongoing and, should the Proclamation ultimately be 
enjoined, the Proclamation will serve as no barrier to status for individuals who entered during the 
relevant time period.  ECF No. 223 at 11.  Furthermore, the existence of an independent barrier in 
Proclamation 10888 does nothing to alter this Court’s conclusion that the Rule was unlawful and 
that the termination of lawful pathways only underscores its unlawfulness. 
Plaintiffs finally argue that termination of lawful pathways punctuates the agency’s 
arbitrary and capricious decisionmaking, because the Rule relied on the existence of lawful 
 
2 Defendants baldly suggest that applicants would face no heavy burden establishing exceptionally 
compelling circumstances where “there is no available scheduling system or alternative lawful 
pathway to the United States.”  ECF No. 222 at 23.  But under the Rule, “[s]uch circumstances 
exist in cases of acute medical emergencies, ‘imminent and extreme threat to life or safety, such as 
an imminent threat of rape, kidnapping, torture, or murder,’ or ‘severe . . . trafficking in persons.’”  
ECF No. 187 at 4.   
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 13 of 15

 
14 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
pathways which now no longer exist.  ECF No. 187 at 24, 30.  However, Defendants are correct 
that the arbitrary-and-capricious determination is made based on the administrative record “before 
the [agency] at the time [it] made [its] decision.”  ECF No. 222 at 23 (quoting Citizens to Preserve 
Overton Park v. Volpe, 401 U.S. 402, 420 (1971)).  Plaintiffs respond that the termination of 
lawful pathways is still persuasive because the Court’s original holding relied in part on the fact 
that the lawful pathways were “completely discretionary,” “not incorporated into the Rule,” and 
“could be rescinded (or enjoined) at any time.”  ECF No. 223 at 10.  The fact that the lawful 
pathways were subsequently rescinded does in fact validate that holding, but technically speaking, 
the fact that lawful pathways were in fact terminated is irrelevant to the arbitrary-and-capricious 
analysis.  What is important is still that they could have been terminated at any time, the truth of 
which has not been affected by subsequent events. 
The termination of lawful pathways underscores the unlawfulness of the Rule and makes 
the consequences of the Rule’s unlawfulness more severe, but does not alter the Court’s 
conclusion that the agency’s decision to promulgate it was arbitrary and capricious. 
CONCLUSION 
 
The Court reaffirms its prior summary judgment order, ECF No. 187, and finds, for the 
reasons set forth above, that (1) Plaintiffs continue to have standing to challenge the Rule 
following FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), and (2) the termination  
/ / / 
/ / / 
/ / / 
/ / / 
/ / / 
/ / / 
/ / / 
/ / / 
/ / / 
 
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 14 of 15

 
15 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
United States District Court 
Northern District of California 
of the “lawful pathways” on which the Rule is premised further confirms the Rule’s 
unlawfulness.3   
IT IS SO ORDERED. 
Dated:  May 7, 2026 
______________________________________ 
JON S. TIGAR 
United States District Judge 
 
3 Defendants urge this Court to reconsider its decision to vacate the Rule in light of the Supreme 
Court’s decision in Trump v. CASA, 606 U.S. 831 (2025).  ECF No. 222 at 20.  But as numerous 
courts have since held, CASA had no bearing on vacatur, a remedy expressly provided for in the 
APA.  See, e.g., Doe v. Trump, 796 F. Supp. 3d 599, 603 (N.D. Cal. 2025) (rejecting “the CASA 
argument . . . because the Supreme Court did not resolve ‘the distinct question whether the 
Administrative Procedure Act authorizes federal courts to vacate federal agency action.’” (quoting 
CASA, 606 U.S. at 847 n.10)); New York v. United States Dep't of Energy, No. 6:25-CV-01458-
MTK, 2025 WL 3140578, at *16 (D. Or. Nov. 10, 2025) (same).  
Case 4:18-cv-06810-JST     Document 226     Filed 05/07/26     Page 15 of 15

File and source

File

gov.uscourts.cand.334557.226.0.pdf

Size

288,009 bytes

SHA-256

a5b560fda25ebd0998fd815bfd65a34c507529095eb96630a9796dfb58210d06

Our copy

gov.uscourts.cand.334557.226.0.pdf

Original

archive.org