Rule 28 J Letter Regarding Capital Area Immigrants Rights Coalition Cair v. Trum

Summary

Exhibit 6 to Document 112-3 filed 10/26/20 in Case 4:19-cv-04073-JST: a July 17, 2020 letter from the Department of Justice Civil Division to Mark Langer, Clerk of the District of Columbia Circuit Court of Appeals, in Nos. 20-5106 and 20-5129, responding to Plaintiffs’ Rule 28(j) letter regarding Capital Area Immigrants’ Rights Coalition v. Trump and East Bay Sanctuary Covenant v. Barr. The letter states that neither case supports Plaintiffs, because Plaintiffs do not challenge the Rule in this case, are not parties to CAIR, and the East Bay injunction is presently stayed by order of the Supreme Court. It carries the signature text /s/ Erez Reuveni, Assistant Director, Office of Immigration Litigation.

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EXHIBIT “6”
Case 4:19-cv-04073-JST   Document 112-3   Filed 10/26/20   Page 1 of 4

U.S. Department of Justice

Civil Division
SGS:ERR

Washington, DC 20530
________________________________________________________________________

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BY ECF

July 17, 2020

Hon. Mark Langer, Clerk
District of Columbia Circuit Court of Appeals
E. Barrett Prettyman U.S. Courthouse and
William B. Bryant Annex
333 Constitution Ave. NW
Washington, DC  20001

Re: M.M.V., Nos. 20-5106 and 20-5129 (scheduled for argument September,
11, 2020), Response to Rule 28(j) Letter

Dear Mr. Langer:

We write in response to Plaintiffs’ recent Rule 28(j) letter regarding Capital
Area Immigrants’ Rights Coalition (CAIR) v. Trump, Nos. 19-cv-2117, 19-cv-2530,
2020 WL 3542481 (D.D.C. June 30, 2020) and  East Bay Sanctuary Covenant v.
Barr, ---F.3d---, 2020 WL 3637585 (9th Cir. July 6, 2020).

In CAIR, a district court in this Circuit set aside an interim final rule that
rendered ineligible for asylum, with limited exceptions, aliens who transit through
at least one other country before reaching the United States, without first applying
for asylum in a country through which they transited, see 84 Fed. Reg. at 33,843, for
failure to follow notice-and-comment procedures. 2020 WL 3542481, *19-23. In
East Bay, the Ninth Circuit upheld an injunction of the same rule, ruling that it was
likely the rule was not authorized by statute and was arbitrary and capricious. 2020
WL 3637585, *10-16.

Neither case supports Plaintiffs. First, Plaintiffs do not challenge the Rule in
this case, or any implementation of the Rule, Gov’t Br. 9-12 & n.3, and have
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repeatedly disclaimed any such challenge in this case. Id. Instead, they challenge
alleged “credible fear policies” implementing 8 U.S.C. § 1225(b)(1) independent of
the Rule. Id. 1, 9-12. The district court found that the policies Plaintiffs purport to
challenge are in all but one instance either “unwritten,” and thus outside the scope
of permitted review under 8 U.S.C. § 1252(e)(3)(A)(ii), or were not challenged
within “60 days” of their implementation, and so time-barred under 8 U.S.C.
§ 1252(e)(3)(B). Id. 12-18. The Rule’s legality or existence is irrelevant to those
holdings. Second, even if Plaintiffs could undo their explicit and repeated waiver of
any challenge to the Rule or its implementation, Plaintiffs in this case are not parties
to CAIR, and received final orders of removal not subject to further direct review
when the Rule was valid, and so those orders are not impacted by CAIR. Id. 9, n.3.
Third, the East Bay injunction is presently stayed by order of the Supreme Court
pending disposition of any “petition for a writ of certiorari.” Id. 9-10 & n.4.

Sincerely,

/s/ Erez Reuveni

EREZ REUVENI

Assistant Director

Department of Justice
Civil Division

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station
Washington D.C.  20044

cc: Caroline Heller, et al. (by ECF)

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Case 4:19-cv-04073-JST   Document 112-3   Filed 10/26/20   Page 3 of 4

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CERTIFICATE OF COMPLIANCE

I certify that the foregoing letter complies with the word limit of Fed. R. App.
P. 28(j), in that the body of the letter is 348 words in length.

CERTIFICATE OF SERVICE

I certify that on July 17, 2020, I filed the foregoing with the District of
Columbia Circuit Court of Appeals by using the Court’s CM/ECF system. I further
certify that all party participants are members of the CM/ECF system and that the
system will accomplish service of process.

/s/ Erez Reuveni

EREZ REUVENI

Assistant Director

Department of Justice
Civil Division

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station
Washington D.C.  20044

USCA Case #20-5106      Document #1852296            Filed: 07/17/2020      Page 3 of 3
Case 4:19-cv-04073-JST   Document 112-3   Filed 10/26/20   Page 4 of 4

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