Motion of States for Leave to File Brief as Amicus Curiae

Summary

A Motion of the States for Leave to File Brief as Amicus Curiae, dated December 5, 2018 and filed as Document 82 in East Bay Sanctuary Covenant, et al. v. Donald J. Trump, et al., Case No. 3:18-cv-06810-JST, in the U.S. District Court for the Northern District of California, signed s/ James F. Zahradka II for the State of California. The motion is made on behalf of California, Washington, Massachusetts, New York, Connecticut, Hawaii, Illinois, Maryland, Minnesota, New Jersey, Oregon, Vermont and the District of Columbia, in support of plaintiffs' motion for preliminary injunction concerning the DHS Interim Final Rule, 83 Fed. Reg. 55934. The States state that plaintiffs consent and that defendants said they would not oppose a brief half the length of the parties' principal briefs, which the proposed brief exceeds. They argue that courts have broad discretion to accept amicus briefs.

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  Motion of States for Leave to File Brief as Amicus Curiae
Case No. 3:18-cv-06810-JST

XAVIER BECERRA
Attorney General of California
MICHAEL NEWMAN
Senior Assistant Attorney General
CHRISTINE CHUANG
Senior Deputy Attorney General
JAMES F. ZAHRADKA II (SBN 196822)
VILMA PALMA-SOLANA
SHUBHRA SHIVPURI
Deputy Attorneys General
1515 Clay Street, 20th Floor
Oakland, CA  94612-0550
Telephone: (510) 879-1247
E-mail:  James.Zahradka@doj.ca.gov
Attorneys for the State of California

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
East Bay Sanctuary Covenant, Al Otro Lado,
Innovation Law Lab, and Central American
Resource Center in Los Angeles,

Plaintiffs,
v.
Donald J. Trump, President of the United
States, in his official capacity; Matthew G.
Whitaker, Acting Attorney General, in his
official capacity; U.S. Department of Justice;
James McHenry, Director of the Executive
Office for Immigration Review, in his official
capacity; the Executive Office for
Immigration Review; Kirstjen M. Nielsen,
Secretary of Homeland Security, in her official
capacity; U.S. Department of Homeland
Security; Lee Francis Cissna, Director of the
U.S. Citizenship and Immigration Services, in
his official capacity; U.S. Citizenship and
Immigration Services; Kevin K. McAleenan,
Commissioner of U.S. Customs and Border
Protection, in his official capacity; U.S.
Customs and Border Protection; Ronald D.
Vitiello, Acting Director of Immigration and
Customs Enforcement, in his official capacity;
Immigration and Customs Enforcement,

Defendants.

Case No. 3:18-cv-06810-JST

MOTION OF THE STATES OF
CALIFORNIA, WASHINGTON,
MASSACHUSETTS, NEW YORK,
CONNECTICUT, HAWAII, ILLINOIS,
MARYLAND, MINNESOTA, NEW
JERSEY, OREGON, VERMONT, AND
THE DISTRICT OF COLUMBIA FOR
LEAVE TO FILE BRIEF AS AMICUS
CURIAE IN SUPPORT OF PLAINTIFFS’
MOTION FOR PRELIMINARY
INJUNCTION

Case 4:18-cv-06810-JST   Document 82   Filed 12/05/18   Page 1 of 4

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Motion of States for Leave to File Brief as Amicus Curiae
Case No. 3:18-cv-06810-JST

The States respectfully request leave to file a brief as amicus curiae in support of
plaintiffs’ motion for preliminary injunction. A copy of the proposed brief is attached hereto as
Exhibit 1. Plaintiffs consent to the States’ request; defendants stated they would not oppose the
brief if it were half of the length of the parties’ principal briefs. However, the proposed brief
exceeds that length.
IDENTITY OF AMICI STATES AND STATEMENT OF INTEREST
The States are California, Washington, Massachusetts, New York, Connecticut, Hawaii,
Illinois, Maryland, Minnesota, New Jersey, Oregon, Vermont, and the District of Columbia. The
Department of Homeland Security’s (DHS) Interim Final Rule: Aliens Subject to a Bar on Entry
under Certain Presidential Proclamations; Procedures for Protection Claims (the Rule), 83 Fed.
Reg. 55934 will cause considerable harm to a range of the States’ interests.
The States invest significant resources to provide education, health care, and other
services to immigrants residing within their borders, including asylum-seekers and asylees, in
order to appropriately transition them into life in our States. Further, the States have a strong
interest in ensuring that their interests and the interests of their residents are considered when
important proposed agency actions are proposed, and in ensuring that federal agencies refrain
from rulemaking that violates the law and Constitution.
Specifically, the States argue that the Rule by design forces asylum seekers to ports of
entry; combined with federal government’s existing policy of denying many individuals access to
this channel, a continuous bottleneck will be created outside the border. Asylum seekers will
suffer unnecessary harm and may be re-traumatized by having to wait months in inhumane border
conditions. The States also demonstrate that they, their local jurisdictions, and non-governmental
organizations will be responsible for addressing the additional harm that asylum-seekers will
suffer as a result of the Rule, which will require devotion of state resources. Moreover, the States
have allotted public funds to ensure that immigrants have access to counsel for their asylum
claims, and the changes made by the Rule will significantly frustrate the ability of legal aid
groups to represent asylum-seekers. Finally, current residents of the States will suffer distress
over the uncertainty of their asylum-seeking relatives languishing at the border.
Case 4:18-cv-06810-JST   Document 82   Filed 12/05/18   Page 2 of 4

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Motion of States for Leave to File Brief as Amicus Curiae
Case No. 3:18-cv-06810-JST

The proposed brief presents an important and unique perspective to the Court, is relevant
to the disposition of the issues in this case, and will assist the Court in understanding the impact
of DHS’s Interim Final Rule on the public interest as demonstrated by the significant harms that
Amici States will suffer without the preliminary relief that plaintiffs seek. The Amici States have
complied with the Court’s instructions in its November 27, 2018 scheduling order (ECF 50) in
drafting their proposed brief.
ARGUMENT
District courts have broad discretion to permit third parties to participate in cases as amici
curiae. See, e.g., Inst. of Med. Educ., Inc. v. W. Ass’n of Sch. & Colleges, 2013 WL 6672443, at
*3 n.1 (N.D. Cal. Dec. 18, 2013) (citing Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir. 1982)).
Courts exercise this discretion liberally; “there are no strict prerequisites that must be established
prior to qualifying for amicus status.” In re Roxford Foods Litigation, 790 F. Supp. 987, 997
(E.D. Cal. 1991).
Federal appellate courts expressly recognize the inherent value of States’ contributions to
the determination of legal issues through amicus briefs, allowing States to file them as of right.
See Sup. Ct. R. 37.4 (2017) (“[n]o motion for leave to file an amicus curiae brief is necessary if
the brief is presented . . . on behalf of a State . . . when submitted by its Attorney General”); Fed.
R. App. P. 29(a)(2) (“[A] state may file an amicus-curiae brief without the consent of the parties
or leave of court.”). Although this Court does not have a similar rule, leave to file the Amici
States’ attached brief is appropriate under general principles regarding amicus briefs.
Courts have accepted amicus briefs from non-parties where the legal issues “have
potential ramifications beyond the parties directly involved or if the amicus has unique
information or perspective that can help the court beyond the help that the lawyers for the parties
are able to provide.” Sonoma Falls Developers, LLC v. Nevada Gold & Casinos, Inc., 272 F.
Supp. 2d 919, 925 (N.D. Cal. 2003) (internal quotation marks omitted).  Such factors support the
filing here.
Case 4:18-cv-06810-JST   Document 82   Filed 12/05/18   Page 3 of 4

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Motion of States for Leave to File Brief as Amicus Curiae
Case No. 3:18-cv-06810-JST

CONCLUSION
For the foregoing reasons, Amici States respectfully request that the Court grant leave to
file the attached amicus curiae brief in support of plaintiffs’ motion for preliminary injunction.

Dated: December 5, 2018

Respectfully Submitted,

XAVIER BECERRA
Attorney General of California
MICHAEL L. NEWMAN
Senior Assistant Attorney General
CHRISTINE CHUANG
Supervising Deputy Attorney General

s/ James F. Zahradka II
JAMES F. ZAHRADKA
VILMA PALMA-SOLANA
SHUBHRA SHIVPURI
Deputy Attorneys General
Attorneys for the State of California

Case 4:18-cv-06810-JST   Document 82   Filed 12/05/18   Page 4 of 4

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