Motion (2023-06-05)

Full text

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Omar C. Jadwat*

Lee Gelernt*
Anand Balakrishnan**
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad Street, 18th Floor
New York, NY 10004
T: (212) 549-2660
F: (212) 549-2654
ojadwat@aclu.org
lgelernt@aclu.org
abalakrishnan@aclu.org

Katrina Eiland (SBN 275701)
Morgan Russell (SBN 296137)
Spencer Amdur (SBN 320069)
Oscar Sarabia Roman (SBN 341385)
ACLU FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T: (415) 343-0770
F: (415) 395-0950
keiland@aclu.org
mrussell@aclu.org
samdur@aclu.org
osarabia@aclu.org

Attorneys for Plaintiffs (additional counsel listed on following page)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

East Bay Sanctuary Covenant, et al.,

Plaintiffs,

v.

Joseph R. Biden, President of the United States, et
al.,

Defendants.

Case No.: 18-cv-06810-JST

MEMORANDUM IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT

Case 4:18-cv-06810-JST   Document 169-1   Filed 06/05/23   Page 1 of 38

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Melissa Crow*
CENTER FOR GENDER & REFUGEE
STUDIES
1121 14th Street, NW, Suite 200
Washington, DC 20005
T: (202) 355-4471
F: (415) 581-8824
crowmelissa@uchastings.edu
Anne Peterson (SBN 258673)
Blaine Bookey (SBN 267596)
Julie Bourdoiseau (SBN 340462)
Karen Musalo (SBN 106882)
CENTER FOR GENDER & REFUGEE
STUDIES
200 McAllister Street
San Francisco, CA  94102
T: (415) 610-5729
F: (415) 581-8824
petersonanne@uchastings.edu
Attorneys for Plaintiffs
*Admitted Pro hac vice
** Application for admission pro hac vice
forthcoming
Keren Zwick*
Richard Caldarone*
Colleen Cowgill (SBN 321542)
Mary Georgevich*
NATIONAL IMMIGRANT JUSTICE
CENTER
224 S. Michigan Ave., Suite 600
Chicago, IL 60604
T: (312) 660-1370
F: (312) 660-1505
kzwick@heartlandalliance.org
rcaldarone@heartlandalliance.org
ccowgill@heartlandalliance.org
mgeorgevich@heartlandalliance.org
Michelle (Minju) Y. Cho (SBN 321939)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
T: (415) 621-2493
F: (415) 255-1478
mcho@aclunc.org
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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................... i
TABLE OF AUTHORITIES ......................................................................................................... ii
INTRODUCTION ........................................................................................................................ 1
BACKGROUND .......................................................................................................................... 4
I.
The Asylum System ........................................................................................................ 4
II.
Previous Asylum Bans..................................................................................................... 4
III.
The Rule.......................................................................................................................... 6
LEGAL STANDARD ................................................................................................................... 8
ARGUMENT ............................................................................................................................... 8
I.
The Rule Violates the Asylum Statute. ............................................................................ 8

 A.  The Rule’s Three Asylum Eligibility Conditions Are All Contrary to the Statute. ...... 9

 B.  The Rule Reimposes an Even Harsher Version of the Entry Ban. ............................. 11
II.
The Rule Is Arbitrary and Capricious. ........................................................................... 14

 A.  The Rule’s Justification Relies on Factors That Congress Has Rejected................... 14

 B.   The Record Contradicts the Rule’s Main Justification that Its Pathways Are Widely
Available. ............................................................................................................... 16
1.  CBP One Appointments. .................................................................................... 16
2.  Parole Programs. ................................................................................................ 18
3.  Transit Countries. .............................................................................................. 19
4.  Particularly Vulnerable Asylum Seekers. ........................................................... 23

  C.  The Record Does Not Support the Rule’s Assumption that People Who Enter
Between Ports or Pass Through Transit Countries Without Seeking Protection Have
Weaker Asylum Claims. ......................................................................................... 24

   D. Defendants Failed to Consider the Impact of Interrelated Border Processing Policies.
 ..................................................................................................................................... 25
III.
The Rule Is Procedurally Defective. .............................................................................. 28
IV. Plaintiffs Have Standing to Challenge the Rule. ............................................................. 30
CONCLUSION .......................................................................................................................... 31
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TABLE OF AUTHORITIES

Cases
Am. Radio Relay League v. FCC, 524 F.3d 227 (D.C. Cir. 2008) ................................................ 29
ANR Storage Co. v. FERC, 904 F.3d 1020 (D.C. Cir. 2018) ........................................................ 16
Arizona v. Mayorkas, 143 S. Ct. 478 (2022) .................................................................................. 6
Assoc. of Irritated Residents v. EPA, 10 F.4th 937 (9th Cir. 2021) ............................................... 15
Barr v. EBSC, 140 S. Ct. 3 (2019) ................................................................................................. 5
Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017) ...........................................4, 10, 15
California ex rel. Becerra v. Dep’t of the Interior, 381 F. Supp. 3d 1153 (N.D. Cal. 2019) ......... 28
Cap. Area Immigrants’ Rights Coal. v. Trump, 471 F. Supp. 3d 25 (D.D.C. 2020) ........................ 5
Casa de Maryland, Inc. v. Wolf, 486 F. Supp. 3d 928 (D. Md. 2020) ........................................... 27
Centro Legal de la Raza v. EOIR, 524 F. Supp. 3d 919 (N.D. Cal. 2021) ......................... 24, 28, 29
Dist. of Columbia v. USDA, 444 F. Supp. 3d 1 (D.D.C. 2020) ..................................................... 15
EBSC v. Barr, 385 F. Supp. 3d 922 (N.D. Cal. 2019) ........................................................... passim
EBSC v. Barr, 391 F. Supp. 3d 974 (N.D. Cal. 2019) .................................................................... 5
EBSC v. Barr, 519 F. Supp. 3d 663 (N.D. Cal. 2021) .................................................................... 5
EBSC v. Barr, 934 F.3d 1026 (9th Cir. 2019) ................................................................................ 5
EBSC v. Biden, 993 F.3d 640 (9th Cir. 2021)………………………………………………...passim
EBSC v. Garland, 994 F.3d 962 (9th Cir. 2020) ................................................................... passim
EBSC v. Trump, 354 F. Supp. 3d 1094 (N.D. Cal. 2018) ...................................................... passim
Gen. Elec. Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002) ................................................................ 13
Gill v. DOJ, 913 F.3d 1179 (9th Cir. 2019) ................................................................................. 13
Hall v. EPA, 273 F.3d 1146 (9th Cir. 2001) ................................................................................. 28
Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982) ....................................................... 30
I.A. v. Garland, No. 20-5271, 2022 WL 696459 (D.C. Cir. Feb. 24, 2022) .................................... 5
Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957 (9th Cir. 2002) ................................ 16
Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520 (N.D. Cal. 2020) ............................. 26, 27
INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ............................................................................ 14
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INS v. Stevic, 467 U.S. 407 (1984) .............................................................................................. 15
Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006) ................................................ 29
Kiakombua v. Wolf, 498 F. Supp. 3d 1 (D.D.C. 2020) ................................................................. 15
Louisiana v. CDC, 603 F. Supp. 3d 406 (W.D. La. 2022) .............................................................. 6
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983),
 .............................................................................................................................. …..15, 16, 25
Nat. Res. Def. Council, Inc. v. Daley, 209 F.3d 747 (D.C. Cir. 2000) .......................................... 15
Nat’l Ass’n of Manufacturers v. United States Dep’t of Homeland Sec., 491 F. Supp. 3d 549 (N.D.
Cal. 2020) ............................................................................................................................... 15
Nat’l Min. Ass’n v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998) ...................... 8
New York v. United States, 505 U.S. 144 (1992)........................................................................ 8, 9
Pangea Legal Servs. v. DHS, 501 F. Supp. 3d 792 (N.D. Cal. 2020) ..................................... 28, 29
Portland Cement Ass’n v. EPA, 665 F.3d 177 (D.C. Cir. 2011) ................................................... 26
Portland Cement Ass’n v. Ruckleshaus, 486 F.2d 375 (D.C. Cir. 1973) ....................................... 29
Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956 (9th Cir. 2001) ........................... 7
Simmons v. United States, 390 U.S. 377 (1968) ............................................................................. 9
Succar v. Ashcroft, 394 F.3d 9 (1st Cir. 2005) ............................................................................. 13
Texas v. DHS, 6:23-cv-7 (N.D. Tex. Jan. 24, 2023) ..................................................................... 19
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ................................................................... 14
Trump v. EBSC, 139 S. Ct. 782 (2018)  ......................................................................................... 5
Yu An v. Napolitano, 15 F. Supp. 3d 976 (N.D. Cal. 2014) ............................................................ 8
Zheng v. Gonzales, 422 F.3d 98 (3d Cir. 2005) ..................................................................... 11, 13
Matter of A-G-G-, 25 I. & N. Dec. 486 (BIA 2011)………………………………………………..7

Statutes
8 U.S.C. § 1157 .................................................................................................................4, 11, 15
8 U.S.C. § 1158 .................................................................................................................8, 10, 15
8 U.S.C. § 1158(a)(1) ........................................................................................................... passim
8 U.S.C. § 1158(a)(2) .................................................................................................................... 4
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8 U.S.C. § 1158(a)(2)(A) ........................................................................................................ 4, 10
8 U.S.C. § 1158(b)(1)(A) .............................................................................................................. 4
8 U.S.C. § 1158(b)(2) ................................................................................................................... 4
8 U.S.C. § 1158(b)(2)(A)(vi) ................................................................................................... 4, 10
8 U.S.C. § 1158(b)(2)(C) ...................................................................................................... 4, 8, 9
8 U.S.C. § 1225(b)(1) ............................................................................................................. 4, 15
8 U.S.C.§ 1229a ............................................................................................................................ 4
Refugee Act of 1980, Pub. L. No. 96-212 ..................................................................................... 4

Regulations
8 C.F.R. § 208.2(a)(1) ................................................................................................................... 4
Final Rule, Circumvention of Lawful Pathways, 88 Fed. Reg. 31,314 (May 16, 2023) ......... passim
Notice of Proposed Rulemaking, Circumvention of Lawful Pathways, 88 Fed. Reg. 11,704 (Feb.
23, 2023) .................................................................................................................. 6, 25, 27, 30
Implementation of Changes to the Parole Process for Venezuelans, 88 Fed. Reg. 1,279 (Jan. 9,
2023) ...................................................................................................................................... 12
Implementation of a Parole Process for Cubans, 88 Fed. Reg. 1,266 (Jan 9, 2023) ...................... 27
Implementation of a Parole Process for Nicaraguans, 88 Fed. Reg. 1,255 (Jan 9, 2023) ......... 12, 27
Implementation of a Parole Process for Haitians, 88 Fed. Reg. 1,243 (Jan 9, 2023) ..................... 27
Public Health Determination and Order Regarding Suspending the Right To Introduce Certain
Persons From Countries Where a Quarantinable Communicable Disease Exists, 87 Fed. Reg.
19,941 (Apr. 6, 2022) ................................................................................................................ 6
Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal,
and CAT Protection Claims by Asylum Officers, 87 Fed. Reg. 18,078 (Mar. 29, 2022) ..... 26, 29
Asylum Eligibility and Procedural Modifications, 85 Fed. Reg. 82,260 (Dec. 17, 2020) ................ 5
Notice of Order Under Sections 362 and 365 of the Public Health Service Act Suspending
Introduction of Certain Persons From Countries Where a Communicable Disease Exists, 85
Fed. Reg. 17,060 (Mar. 26, 2020) .............................................................................................. 6
Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (July 16, 2019) ................ 5
Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for
Protection Claims, 83 Fed. Reg. 55,934 (Nov. 9, 2018) ............................................................. 5
Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed. Reg. 30,674
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(July 27, 1990) .......................................................................................................................... 4
Aliens and Nationality; Refugee and Asylum Procedures, 45 Fed. Reg. 37,392 (June 2, 1980) ...... 4

Other Authorities
Dep’t Homeland Sec., Fact Sheet (May 10, 2023) ....................................................................... 11
Hamed Aleaziz, Signature Biden Asylum Reform Policy is Now on Hold, L.A. Times (Apr. 12,
2023) ...................................................................................................................................... 29
Fed. R. Civ. P. 56(a) ..................................................................................................................... 8

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INTRODUCTION
Defendants have adopted a Rule that severely restricts asylum eligibility at the U.S.-Mexico
border.  Congress provided that anyone who arrives in the United States, anywhere along the border,
can seek asylum.  Yet the Rule, called Circumvention of Lawful Pathways, 88 Fed. Reg. 31,314
(May 16, 2023), reduces the asylum system to a shell of what Congress created.  Virtually all non-
Mexicans who enter between ports of entry are ineligible for asylum.  And even people who present
at ports are ineligible unless they are lucky enough to secure an extremely scarce appointment
through a lottery using the new CBP One smartphone app.  The Rule is already inflicting untold
suffering on thousands of asylum seekers, who are either being deported to persecution or stranded
in Mexican states where migrants face horrific and pervasive violence.  The Rule is illegal and
should be vacated.
The Rule violates the asylum statute.  It forces asylum seekers to satisfy one of three
conditions to maintain asylum eligibility: enter at a port of entry after securing an appointment;
apply for protection in a transit country and receive a denial; or obtain parole approval from outside
the country.  Those who do not meet a condition are barred from obtaining asylum regardless of the
strength of their persecution claims.  But the Ninth Circuit has squarely held that the government
cannot force asylum seekers to enter at ports or seek asylum in transit countries; nor can the
government force asylum seekers to first obtain parole.  None of these conditions would be valid if
imposed individually, and it is equally invalid to make asylum seekers choose between them.
In practice, the Rule offers asylum seekers no real choice other than to wait for an
appointment and present at a port, because the record shows that the other supposed options are
inaccessible to almost everyone.  Its transit condition mirrors the prior transit ban, which almost no
asylum seekers were able to overcome during the year it was in effect.  And the parole programs—
limited to certain people from select countries—are not actually a way to overcome the Rule, since
participants must fly to U.S. airports, whereas the Rule only applies at the land border.  The Rule
also contains two narrow exceptions, but makes clear they will almost never be satisfied.  Therefore,
in reality, for the vast majority of asylum seekers, the Rule imposes a requirement to present at a
port in order to be considered for asylum.  That straightforwardly violates the asylum statute’s
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mandate that asylum must be available “whether or not” someone enters at a port.  8 U.S.C. §
1158(a)(1).  The Rule thus amounts to a rehash of the prior entry ban.  The agencies cannot reimpose
that illegal rule just by making cosmetic changes.
In addition to violating the statute, the Rule is arbitrary and capricious for a host of reasons.
Its main justification for scrapping the border asylum system is that asylum seekers have other
options, like seeking asylum in other countries, parole programs, the overseas refugee admission
program, and work visas.  But Congress, in guaranteeing asylum access at the border, reached
precisely the opposite conclusion—that these other mechanisms were insufficient to fulfill our
humanitarian and treaty obligations.  Agencies cannot base a regulation on the premise that
Congress’s core policy judgment was wrong.
The Rule’s key factual premise—that asylum seekers can simply avoid the eligibility bar
by choosing one of the available “pathways”—runs contrary to a mountain of evidence in the
record, which shows that the Rule’s three supposed options are unavailable to most asylum
seekers.  This is the same flaw that led the Ninth Circuit to hold the prior transit ban arbitrary and
capricious.
First, as noted, the parole programs do not exist for most countries, and even where they
do, their sponsor, passport, and airfare requirements make them inaccessible to many asylum
seekers.
Second, the record shows that port appointments are available only for a small fraction of
asylum seekers at the border.  Obtaining one requires waiting weeks or months in some of
Mexico’s most dangerous areas.  The CBP One app is also unfair and unreliable.  It requires
sophisticated smartphones, stable internet, and strong literacy in one of just three languages.  It
malfunctions constantly.  Its facial recognition technology doesn’t recognize dark skin tones.  The
list goes on.
Third, the record overwhelmingly refutes the agencies’ premise that seeking protection in
transit countries is a real alternative.  Mexico is, if anything, even more dangerous for migrants
than when this Court and the Ninth Circuit invalidated the transit ban.  Across the country, asylum
seekers face widespread extortion, kidnapping, murder, and rape.  Persecutors easily follow
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Central American asylum seekers into southern Mexico.  And in northern Mexico, cartels
systematically target asylum seekers who are waiting for a chance to enter the United States.
Meanwhile, Mexico’s asylum system is near collapse, unable to process more than a fraction of
the applications already pending, much less the dramatic increase the Rule envisions.  Its system
also imposes obstacles that prevent people from getting asylum or the final denials the Rule
requires.  The Rule does not identify a single country that is both safe for asylum seekers and able
to handle a significant increase in asylum requests.
The Rule barely engages with this damning evidence undermining its core assumptions.
Time and again, its circular response to well-documented barriers to each option is that there are
other options.  The Rule never grapples with the fact that all of its options are unavailable to most
asylum seekers, especially the most vulnerable, which will leave tens of thousands of people
without protection.
Finally, the Rule is procedurally defective because the agencies did not provide a
meaningful opportunity for public comment.  The short 30-day comment period did not
adequately allow commenters to address the Rule’s enormous changes and the circumstances in
the many countries it implicates.  Meanwhile, the agencies adopted a flurry of separate changes to
border processing policies without considering how they would interact with the Rule.  And
because they announced some of the changes after the comment period closed, commenters could
not assess the full impact of the Rule.  The agencies also deprived commenters of the ability to
address the studies and data underlying their conclusion that the end of the Title 42 policy would
cause a spike in migration.  These defects require that the Rule be vacated.
At bottom, the Rule re-imposes essentially the same requirements that this Court and the
Ninth Circuit have already invalidated, based on premises rejected by Congress and contradicted
by the record, all without giving the public sufficient opportunity to weigh in.  The agencies do not
have authority to largely nullify the asylum system at the border simply because they find it
inconvenient.  The Court should vacate the Rule and, as with both prior asylum bans, restore the
system that Congress created.
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BACKGROUND
I.
The Asylum System
Congress codified the right to seek asylum in the Refugee Act of 1980, Pub. L. No. 96-212.
Asylum claims can be raised in several settings, including expedited removal proceedings at the
border through credible fear interviews, 8 U.S.C.§ 1225(b)(1)(A)-(B), full removal proceedings in
immigration court, id. § 1229a, and affirmatively before the Department of Homeland Security
(“DHS”) asylum office, id. § 1158(b)(1)(A); 8 C.F.R. § 208.2(a)(1).
The asylum statute guarantees that anyone “physically present in the United States or who
arrives in the United States (whether or not at a designated port of arrival . . . ) . . . may apply for
asylum,” and may do so “irrespective” of their immigration status upon entry.  8 U.S.C.
§ 1158(a)(1).  Congress created this system to ensure that anyone who reached U.S. soil could seek
asylum without securing advance permission.  See Bringas-Rodriguez v. Sessions, 850 F.3d 1051,
1059-60 (9th Cir. 2017) (en banc); compare 8 U.S.C. § 1157 (establishing separate system for
refugee admissions from abroad).
The statute creates several narrow categories of people who are ineligible for asylum.  8
U.S.C. § 1158(a)(2), (b)(2).  These include people who have been “firmly resettled in another
country,” id. § 1158(b)(2)(A)(vi), and people who can be removed to a “safe third country” where
they are safe and can access “a full and fair procedure” for seeking asylum pursuant to a formal
agreement between the United States and the third country, id. § 1158(a)(2)(A).  The statutory
eligibility bars concern “either the safety of those already in the United States” or “the safety of
refugees.”  East Bay Sanctuary Covenant (“EBSC”) v. Biden, 993 F.3d 640, 681 (9th Cir. 2021)
(EBSC Entry Ban).  Though the government may “establish additional limitations and conditions”
on asylum eligibility, they must be “consistent with this section.”  8 U.S.C. § 1158(b)(2)(C).
II.
Previous Asylum Bans
For almost 40 years after Congress enacted the asylum statute in 1980, every new regulatory
bar to asylum was narrow.  See, e.g., 55 Fed. Reg. 30,674, 30,678, 30,683 (July 27, 1990) (bar for
certain criminal convictions); 45 Fed. Reg. 37,392 (June 2, 1980) (firm resettlement bar, later
adopted by Congress).
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In 2018, however, the government issued a regulation and presidential proclamation that
together barred asylum to anyone who entered the United States between ports of entry.  See 83 Fed.
Reg. 55,934 (Nov. 9, 2018) (“entry ban”).  This Court enjoined the entry ban nationwide, because,
among other things, the statute prohibits DHS from requiring asylum seekers to enter the country at
designated ports.  EBSC v. Trump, 354 F. Supp. 3d 1094, 1112, 1121 (N.D. Cal. 2018) (EBSC Entry
PI).  The Ninth Circuit and Supreme Court declined to stay the injunction.  EBSC v. Trump, 932
F.3d 742, 781 (9th Cir. 2018); Trump v. EBSC, 139 S. Ct. 782 (2018).  The Ninth Circuit later
affirmed this Court’s decision in all respects.  EBSC Entry Ban, 993 F.3d at 681.
In 2019, the government issued a regulation barring asylum to people who passed through
a third country en route to the United States, with narrow exceptions for people who applied for
and were denied protection in a transit country and for victims of a “severe form of trafficking.”
84 Fed. Reg. 33,829, 33,843-44 (July 16, 2019) (“transit ban”).  This Court enjoined the transit
ban nationwide, because Congress already addressed the narrow situations where asylum could be
denied based on availability of protection in other countries, and because the record contradicted
the rule’s conclusions that transit countries provided a safe and viable alternative for asylum
seekers.  EBSC v. Barr, 385 F. Supp. 3d 922, 952-57 (N.D. Cal. 2019) (EBSC Transit PI).  The
Ninth Circuit declined to stay the injunction, but narrowed its scope and remanded for further
factual development, after which this Court reinstated its nationwide scope.  EBSC v. Barr, 934
F.3d 1026, 1028-29 (9th Cir. 2019); EBSC v. Barr, 391 F. Supp. 3d 974, 985 (N.D. Cal. 2019).
The Supreme Court issued a stay without an opinion.  Barr v. EBSC, 140 S. Ct. 3 (2019).  The
Ninth Circuit then affirmed this Court’s merits ruling in full.  EBSC v. Garland, 994 F.3d 962,
982, 988 (9th Cir. 2020) (EBSC Transit Ban).
After the Supreme Court stayed the injunction, the transit ban applied for almost a year until
a district court vacated the rule for failure to follow notice-and-comment procedures.  Cap. Area
Immigrants’ Rights Coal. v. Trump, 471 F. Supp. 3d 25 (D.D.C. 2020), appeal dismissed sub nom
I.A. v. Garland, No. 20-5271, 2022 WL 696459 (D.C. Cir. Feb. 24, 2022).  The government then
re-issued the transit ban as a final rule, 85 Fed. Reg. 82,260 (Dec. 17, 2020), which this Court
enjoined, EBSC v. Barr, 519 F. Supp. 3d 663, 666-68 (N.D. Cal. 2021).
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In 2020, after the start of the COVID-19 pandemic, the government instituted a new policy,
called Title 42, under which asylum seekers were expelled without even being screened for asylum.
See 85 Fed. Reg. 17,060 (Mar. 26, 2020).  The policy left thousands of asylum seekers stranded in
dangerous conditions in Mexico without access to the U.S. asylum system.  See, e.g., PC_309011
(13,480 reported violent attacks on migrants in Mexico in 2021 and 2022); PC_32446-47 (2022
State Department report discussing violence against asylum seekers in Mexico).  In February 2021,
President Biden instructed the agencies to begin preparing to resume normal asylum processing.
AR_555.  The government formally rescinded Title 42 in April 2022, 87 Fed. Reg. 19,941, but the
policy remained in effect pursuant to a court order, Louisiana v. CDC, 603 F. Supp. 3d 406, 441
(W.D. La. 2022); see Arizona v. Mayorkas, 143 S. Ct. 478 (2022), until the COVID-19 public health
emergency expired on May 11, 2023, see 88 Fed. Reg. 31,319.
III.
The Rule
The government issued a Notice of Proposed Rulemaking (“NPRM”) on February 23, 2023.
88 Fed. Reg. 11,704.  After a truncated 30-day comment period during which it received more than
50,000 comments, the agencies issued the Rule on May 10, 2023—just six weeks later—without
any significant changes.  88 Fed. Reg. 31,314.  The Rule took effect the next day.  Id.
The Rule, which applies at the U.S.-Mexico border and adjacent coastal areas, eliminates
asylum eligibility for all adults and families who enter without authorization after passing through
a third country en route to the United States—i.e., all those who are not Mexican—unless they meet
one of three conditions.  To avoid the eligibility bar, a person must either have (1) “[p]resented at a
port of entry, pursuant to a pre-scheduled time and place” by using a mobile application called CBP
One; (2) “[s]ought asylum or other protection in a country through which the [noncitizen] traveled
and received a final decision denying that application” (an abandoned claim does not qualify); or
(3) received advance permission to travel to the United States “pursuant to a DHS-approved parole
process.”  Id. at 31,450-51.

1 In the administrative record, Defendants stamped documents the agencies compiled with page
numbers beginning “CLP_AR”; and stamped public comments (and attachments thereto) with page
numbers beginning “CLP_PC.”  For clarity, Plaintiffs cite these documents simply as “AR_1,”
“PC_1,” and so on.  Accordingly, all citations beginning with either “AR_” or “PC_” are to evidence
in the administrative record.
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The Rule contains several extremely narrow exceptions for those who fail to satisfy one of
these conditions.  The bar does not apply if a person can show, by a preponderance of the evidence,
that “at the time of entry,” they faced “exceptionally compelling circumstances,” such as an “acute
medical emergency,” a “severe form of trafficking,” or “an imminent and extreme threat to life or
safety, such as an imminent threat of rape, kidnapping, torture, or murder.”  Id.  This exception does
not apply to people requiring ongoing medical treatment for serious diseases, id. at 31,391-92; or to
people who have experienced threats to their life or safety in Mexico, unless the threats remain
“imminent,” id. at 31,392-93.  People who present at ports of entry can also be excused from the
CBP One requirement if they demonstrate, by a preponderance of the evidence, “that it was not
possible to access or use” the app.  Id.  The exception is intended to “capture[] a narrow set of
circumstances.”  Id. at 31,406.  It does not apply to someone who cannot afford a smartphone, id. at
31,401, or who cannot read in any of CBP One’s available languages, id. at 31,406.  There is no
exception for an asylum seeker’s inability to secure a CBP One appointment because not enough
appointments are available.
The Rule confusingly describes the bar as a “presumption” against asylum eligibility that
can be “rebutted.”  But a rebuttable presumption is generally a conclusion inferred from relevant
facts that is deemed true unless evidence is proffered to show that it is not true.  See, e.g., Schikore
v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956, 961 (9th Cir. 2001).  In asylum law, for
instance, the firm resettlement eligibility bar analysis operates as a true rebuttable presumption.  See
Matter of A-G-G-, 25 I. & N. Dec. 486, 501 (BIA 2011).  The Rule does not work that way.  Rather,
it functions simply as a blanket ban with exceptions, barring asylum to all non-Mexicans unless they
satisfy one of several conditions unrelated to the merits of their persecution claims.  See 88 Fed.
Reg. at 31,415 (all covered asylum seekers are barred absent a CBP One appointment, transit-
country protection denial, or pre-approved parole request—subject to narrow exceptions);
PC_21347-48 (comment from former immigration judges discussing this distinction).
On May 11, 2023, Plaintiffs filed a motion for leave to file an Amended and Supplemental
Complaint adding allegations and claims challenging the Rule, which this Court granted.
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LEGAL STANDARD
A motion for summary judgment should be granted if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”  Yu An v. Napolitano, 15 F.
Supp. 3d 976, 981 (N.D. Cal. 2014) (quoting Fed. R. Civ. P. 56(a)).  When a court “determines that
agency regulations are unlawful, the ordinary result is that the rules are vacated.”  Nat’l Min. Ass’n
v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409 (D.C. Cir. 1998).
ARGUMENT
I.
The Rule Violates the Asylum Statute.

The agencies can only create new asylum bars that are “consistent with” the asylum statute.
8 U.S.C. § 1158(b)(2)(C).  The Rule fails this test because it reimposes asylum conditions that the
Ninth Circuit has already held are inconsistent with § 1158.  EBSC Entry Ban, 993 F.3d 640
(invalidating rule that required asylum seekers to enter at ports); EBSC Transit Ban, 994 F.3d 962
(invalidating requirement to apply for protection in transit countries).2  Under binding precedent,
the Rule cannot stand.

 The Rule is contrary to law because it requires asylum seekers to choose between three
options that would each be inconsistent with the statute if imposed as a standalone requirement: the
agencies could not require all asylum seekers to enter at ports, or to apply for asylum in transit
countries, or to apply for parole from outside the United States.  The Ninth Circuit already reached
that conclusion as to the entry and transit conditions.  And since the agencies could not impose any
of those requirements as a standalone condition, they cannot impose them as “alternatives.”  None
of them is “consistent with” the statute, so the supposed choice between them is likewise
inconsistent with the statute.  8 U.S.C. § 1158(b)(2)(C); see New York v. United States, 505 U.S.
144, 176 (1992) (where each alternative “standing alone” would be invalid, offering a supposed
“choice between” them is likewise invalid).
The Rule is also contrary to law because in practice it requires the vast majority of asylum
seekers to come to a port of entry, just like the first asylum ban.  That’s because the record shows

2 This Court enjoined those bans on the same grounds.  EBSC Transit PI, 385 F. Supp. 3d 922;
EBSC Entry PI, 354 F. Supp. 3d 1094.
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that the Rule’s other conditions and exceptions are impossible for almost all non-Mexican asylum
seekers to satisfy.  Their only real option is therefore to appear at a port of entry, even though
§ 1158(a)(1) guarantees asylum access “whether or not” at a port.  The Rule is therefore
straightforwardly unlawful under the Ninth Circuit’s decision invalidating the prior entry ban.  And
in fact, the Rule is even harsher this time, because even at ports, it forces asylum seekers to wait for
appointments, which are numerically limited and outright unavailable to many of the most
vulnerable.  The Rule thus effectively reimposes a stricter version of the prior entry ban.

In both its formal structure and its practical effect, the rule is inconsistent with the asylum
statute.  It should be vacated.
A. The Rule’s Three Asylum Eligibility Conditions Are All Contrary to the Statute.
The Rule offers a supposed choice among three conditions to avoid the eligibility bar: port
of entry, transit denial, or parole.  But under clear precedent, none of the three conditions, if imposed
as a standalone requirement for asylum eligibility, would be “consistent with” the asylum statute.  8
U.S.C. § 1158(b)(2)(C).  They do not become consistent just because they are imposed in the
alternative.  Where each requirement is invalid “standing alone,” “it follows that [the government]
lacks the power to offer [asylum seekers] a choice between the[m].”  See New York, 505 U.S. at 176
(holding that Congress could not force States to choose among independently-unlawful
requirements); see also, e.g., Simmons v. United States, 390 U.S. 377, 394 (1968) (where criminal
defendant could not be forced to give up constitutional claim or waive privilege against self-
incrimination, he could not be forced to choose between those supposed options).
1.  The first condition that asylum seekers may satisfy to overcome the bar is to apply for
asylum at a port of entry, after securing an appointment using CBP One.  88 Fed. Reg. at 31,317-
18, 31,450-51.  But this Court and the Ninth Circuit have held that DHS cannot require asylum
seekers to enter at ports of entry, because § 1158(a)(1) allows any noncitizen who arrives in the
United States “whether or not at a designated port of arrival” to seek asylum.  EBSC Entry Ban, 993
F.3d at 669-70; see id. at 658 (Congress “mandated equity in its treatment of all refugees, however
they arrived.”); EBSC Entry PI, 354 F. Supp. 3d at 1112-13.  This requirement is therefore illegal
for the same reasons the prior entry ban was illegal.  And in fact, the Rule’s entry requirement is
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even harsher than before.  Now, even at ports, people must have CBP One appointments, which are
drastically limited in number and wholly inaccessible to many.  See infra Part II.B.1 (detailing CBP
One barriers).  If DHS cannot “require[] migrants to enter the United States at ports of entry to
preserve their eligibility for asylum,” EBSC Entry Ban, 993 F.3d at 669, it certainly cannot limit
asylum to a small subset of people who enter at ports.
2.  The second condition that asylum seekers can meet to overcome the bar is to apply for
protection and receive a denial in a third country en route to the United States.  88 Fed. Reg. at
31,450-51.  This, too, is invalid under circuit precedent.  The Ninth Circuit has held that the agencies
could not require asylum seekers to apply for protection and receive denials in transit, because
Congress already “specifically addressed” the categories of people who are barred from asylum
because they can seek protection in other countries.  See EBSC Transit Ban, 994 F.3d at 976-79
(discussing 8 U.S.C. § 1158(a)(2)(A), (b)(2)(A)(vi)); see also EBSC Transit PI, 385 F. Supp. 3d at
943-47.  Those two statutory provisions include critical guarantees to assure asylum seekers’
safety—guarantees which the prior transit ban and the current ban jettison entirely.  Id.  The Rule’s
transit-denial requirement is therefore invalid because it “would make entirely superfluous the
protection provided by the two safe-place bars in § 1158.”  EBSC Transit Ban, 994 F.3d at 978.
3.  The Rule’s third possible condition for overcoming the bar—at least for citizens of a few
countries—is to apply for parole from abroad and receive permission to travel to the United States.
88 Fed. Reg. at 31,450-51; see id. at 31,325, 31,349 (programs exist for only five countries).  Like
the others, this is a requirement the government has no power to impose.  The whole purpose of the
Refugee Act was to “create a predictable and permanent admissions system” so that asylum seekers
would not have to rely on “ad hoc” country-specific uses of “parole.”  Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1060 (9th Cir. 2017) (en banc) (detailing the history).  Congress therefore
made asylum available “irrespective of [a] status” like parole.  8 U.S.C. § 1158(a)(1).  And it allowed
asylum for anyone who is “physically present” or “arrives at” the border, rejecting the idea that
people needed to seek advance permission from outside the country.  Id.  Congress specifically
created a separate refugee admission system for people to apply for protection from abroad.  8 U.S.C.
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§ 1157.  Requiring asylum seekers to first obtain parole would fly in the face of the congressional
scheme.
Thus, each of the Rule’s three supposed choices would be an illegal condition standing alone.
The government cannot force asylum seekers to choose among them, since none of them is
consistent with the asylum statute.  Nor do the Rule’s narrow exceptions impact the analysis.  They
apply only in “exceptionally compelling circumstances,” like an “acute medical emergency,” an
“imminent and extreme threat” to life or safety, or “severe trafficking.”  88 Fed. Reg. at 31,450-51;
see also id. at 31,406 (CBP One exception only for “a narrow set of circumstances” at ports).  The
transit ban was enjoined despite also containing narrow exceptions.  See EBSC Transit PI, 385 F.
Supp. 3d at 935.  Minor exceptions like these have no impact on the Rule’s legality.  If they did, an
agency could resurrect any illegal rule just by adding some miniscule carveout.  See, e.g., Zheng v.
Gonzales, 422 F.3d 98, 119 (3d Cir. 2005) (“very narrow exception” did not impact rule’s legality).
B. The Rule Reimposes an Even Harsher Version of the Entry Ban.
In reality, the Rule does not offer any real choice at all.  Despite its complex structure, the
Rule reduces to a reincarnation of the entry ban, albeit in an even more restrictive form.  Under the
Rule, noncitizens arriving at the southern border have only one actual option to seek asylum, and
that is to present at a port of entry—and even then, only with a CBP One appointment.  That violates
the statute, which provides for asylum “whether or not” a person arrives “at a designated port of
arrival.”  8 U.S.C. § 1158(a)(1).  This renders the Rule unlawful regardless of the legality of the
transit and parole conditions.
The Rule claims that it is “materially different” from the entry ban because asylum seekers
can avoid the entry-based condition by choosing a different option.  88 Fed. Reg. at 31,378, 31,382.
But the record shows that the Rule’s other “pathways” for maintaining eligibility are illusory: They
are unavailable to almost all asylum seekers at the border.  And with no other real options, the ban’s
application turns entirely on a person’s manner of entry: If a person enters at a port (with an
appointment), asylum eligibility is preserved; if they enter between ports, asylum is barred.
Consequently, the Rule functions just like the first entry ban for covered asylum seekers, as the
government has described it publicly.  See Dep’t of Homeland Sec., Fact Sheet (May 10, 2023)
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(explaining that “individuals who unlawfully cross the U.S. southwest border will be presumed
ineligible for asylum” under new regulations).3  It is thus squarely controlled by the Ninth Circuit’s
decision invalidating that ban, EBSC Entry Ban, 993 F.3d 640, which held that DHS cannot require
asylum seekers to enter at ports.  The agencies cannot evade that holding by adding illusory
“alternatives.”
The parole condition cannot be satisfied by virtually anyone subject to the Rule.  The Rule
applies only at the southern land border and adjacent coastal areas.  88 Fed. Reg. at 31,450-51.  But
participants in the parole programs discussed in the Rule cannot enter at the border.  They “must
agree to fly at their own expense to an interior U.S. port of entry (POE),” i.e. an airport, “rather than
entering at a land POE.”  88 Fed. Reg. 1,279, 1,279 (Jan. 9, 2023); see also, e.g., 88 Fed. Reg. 1,255,
1,256, 1,263 (Jan. 9, 2023) (requiring “air travel”).  And people cannot be granted parole once they
arrive in the U.S.-Mexico border region because the programs disqualify anyone who enters Panama
or Mexico irregularly, e.g., 88 Fed. Reg. at 1,255, as nearly all asylum seekers must do, see, e.g.,
AR_4871-72; PC_22859.  Therefore, although these programs provide an additional way for some
people to come to the United States, the programs are not a viable option for asylum seekers at the
border.  It’s as if the Rule included an exception for people who enter on tourist visas, even though
the Rule only applies to people who enter “without documents sufficient for lawful admission.”  88
Fed. Reg. at 31,450.  Parole is simply a separate way to enter the United States.  It has virtually no
impact on the Rule’s operation.
The transit-denial condition is similar.  During the year it was in force, the prior transit ban
functioned as a near-total ban on asylum for non-Mexicans, barring asylum in over 98% percent of
cases where it applied.  PC_39850 & n.29 (just 421 of 25,158 people subjected to transit ban met
its transit-denial or trafficking exceptions).  In other words, it imposed a condition that almost no
asylum seekers could meet.  The present Rule’s transit-denial condition imposes the exact same
requirement and will achieve the same result.4

3
https://www.dhs.gov/news/2023/05/10/fact-sheet-additional-sweeping-measures-humanely-
manage-border.
4 The near-impossibility of overcoming the transit bar presents another reason why that requirement
is illegal.  Compare supra Part I.A.2 (explaining why transit-denial requirement is illegal on its

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The reasons for this are clear.  The record shows that obstacles to pursuing protection are
simply too great for most asylum seekers.  See infra Part II.B. (detailing this evidence); EBSC
Transit Ban, 994 F.3d at 982 (rejecting view that transit countries were a “safe option” for most
asylum seekers).  Asylum seekers face the ever-present threat of violence and abuse in transit
countries, especially in the Mexican states where asylum seekers must wait for CBP One
appointments or for Mexico to adjudicate their claims.  Infra at 17-20.  And transit countries’ asylum
systems are either underdeveloped, completely overwhelmed, or both.  Infra at 21.  They are unable
to process even their existing applications, much less the sizeable increases in filings contemplated
by the Rule’s transit condition.  Id.; see also EBSC Transit PI, 385 F. Supp. 3d at 952-53 (transit
ban failed to acknowledge that it would necessitate a “massive increase” in asylum claims in
Mexico).  And in Mexico, administrative barriers mean that even people who apply for but are not
granted protection often do not receive the “final denial” that the Rule requires.  Infra at 21.  It is
therefore unsurprising that, as DHS’s own data confirms, almost no asylum seekers (fewer than 2%)
could satisfy the prior transit ban’s requirements.
With the Rule’s other “alternatives” unavailable to most asylum seekers, the only option left
is to present at a port, just like the prior entry ban.  And even at ports, the Rule restricts asylum
severely, by requiring appointments that only a small fraction of people can secure.  As a result, the
Rule is controlled by the Ninth Circuit’s decision invalidating the entry ban.  See EBSC Entry Ban,
993 F.3d 640.  An agency cannot re-enact an illegal policy just by using different terminology and
adding illusory alternatives.  And courts regularly look to these “practical effects” to assess a rule’s
legality.  Gill v. DOJ, 913 F.3d 1179, 1185 (9th Cir. 2019); see, e.g., Gen. Elec. Co. v. EPA, 290
F.3d 377, 382-85 (D.C. Cir. 2002) (same); Zheng, 422 F.3d at 120 (statutory violation based on “the

face).  It is not “consistent with” § 1158 to impose a condition that, in practice, virtually no one can
satisfy, which thereby eliminates asylum for most people.  Congress intended to make asylum
broadly available “anywhere along the United States’s borders.”  EBSC Entry Ban, 993 F.3d at 669,
674.  While Congress made certain narrow exceptions, and permitted DHS to add similar ones, see
EBSC Transit Ban, 994 F.3d at 977-78, Congress did not give DHS a free hand to make most people
seeking protection ineligible for asylum.  Courts have applied the same principle in rejecting
immigration rules that would “essentially reverse[] the eligibility structure set out by Congress.”
Zheng v. Gonzales, 422 F.3d 98, 119-20 (3d Cir. 2005) (policy rendered most parolees ineligible for
adjustment); see Succar v. Ashcroft, 394 F.3d 9, 26 (1st Cir. 2005) (agency cannot “render[]
ineligible most of the class that Congress rendered eligible”).
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regulation’s effect”); Texas v. United States, 809 F.3d 134, 173-74 (5th Cir. 2015) (examining prior
similar rule to determine how a new rule would operate in practice).  Here, the Rule’s effect is plain:
For almost all asylum seekers, it reimposes an even harsher version of the same entry ban that this
Court and the Ninth Circuit invalidated.
Thus, because of its operation in practice, the Rule straightforwardly contradicts
§ 1158(a)(1).  Even if the Rule’s other conditions were legal, the agencies cannot issue a rule that
effectively forces asylum seekers to enter at ports.
II.
The Rule Is Arbitrary and Capricious.
The Rule is arbitrary and capricious for at least four reasons.  First, one of its main
justifications for restricting asylum at the border—that other “pathways” are available—relies on
factors that Congress did not intend the agencies to consider.  Second, the Rule’s basic premise that
the supposed “pathways” are available to most asylum seekers is contradicted by uncontroverted
record evidence.  Third, the Rule depends on an assumption—that people barred by the Rule are
less likely to have meritorious claims—which finds no support in the record, and which the Ninth
Circuit has already rejected.  Fourth, the agencies failed to adequately consider the impact of
simultaneously-enacted, interrelated policies on the Rule’s conclusions.
A.  The Rule’s Justification Relies on Factors That Congress Has Rejected.
The Rule justifies its dramatic restriction of asylum by asserting that asylum seekers have
other “pathways” to protection outside of the U.S. asylum system at the border: A few people can
get asylum in neighboring countries; people from a handful of countries can get parole through an
approved program; some will get refugee status through overseas processing; others can get work
visas.  88 Fed. Reg. at 31,332-33.  But the agencies cannot curtail asylum just by pointing to other
supposed options for immigrating.  Congress intended to create a robust asylum system knowing
full well that these other mechanisms existed, precisely because Congress determined that these
other options did not satisfy the United States’ humanitarian commitments and treaty obligations.
See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 436 (1987) (discussing treaty obligations
underpinning asylum statute).  So even if the other “pathways” mentioned in the Rule were widely
available—which they are not, infra Part II.B.—this justification relies on factors that “Congress
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has not intended [the agencies] to consider.”  Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); see, e.g., Nat. Res. Def. Council, Inc. v. Daley, 209 F.3d
747, 753 (D.C. Cir. 2000) (policy that “completely diverges from any realistic meaning” of the
statute arbitrary and capricious); Kiakombua v. Wolf, 498 F. Supp. 3d 1, 46 (D.D.C. 2020) (policy
that conflicts with “the goals of the statute” is arbitrary and capricious) (quotation marks omitted).5
Congress has made asylum broadly available “anywhere along the United States’s borders.”
EBSC Entry Ban, 993 F.3d at 669; see 8 U.S.C. § 1225(b)(1) (asylum procedures specifically for
people at the border).  Congress created this system in 1980 and has maintained it in subsequent
legislation.  See 8 U.S.C. § 1158 (amended in 1990, 1994, 1996, 2001, 2002, 2005, and 2008).
Critically, this system has always coexisted with the supposed pathways the Rule identifies.  The
executive has long offered large parole programs on a country-specific basis.  See Bringas-
Rodriguez, 850 F.3d at 1059-60.  The refugee admissions program was created alongside asylum in
1980 to allow people to apply for protection from abroad.  8 U.S.C. § 1157.  Other countries in the
region have long offered asylum as signatories to the same treaties that Congress implemented in
the Refugee Act.  See INS v. Stevic, 467 U.S. 407, 425-27 (1984) (discussing signatory obligations
under international refugee treaties).  The immigration laws have provided work-related and other
visas for decades.  See, e.g., Nat’l Ass’n of Manufacturers v. United States Dep’t of Homeland Sec.,
491 F. Supp. 3d 549, 566 (N.D. Cal. 2020).  In creating an asylum system separate from all of these
other mechanisms, Congress’s necessary premise was that these other options were insufficient to
satisfy our international obligations and protect people fleeing persecution.  See Bringas-Rodriguez,
850 F.3d at 1059-60.
The Rule’s rationale depends on exactly the opposite conclusion—that these other
alternatives are “sufficient avenues for migrants with valid claims to apply for asylum,” 88 Fed.
Reg. at 31,329, and therefore justify dramatically reducing the availability of asylum at the border.

5 This defect—that the Rule’s main policy justification has been rejected by Congress—renders the
Rule arbitrary and capricious.  But the same defect also helps show why the Rule conflicts with the
statute. As the Ninth Circuit has explained,“there is considerable overlap between a [statutory]
challenge at Chevron step two and an argument that an agency’s action is arbitrary and capricious.”
Assoc. of Irritated Residents v. EPA, 10 F.4th 937, 945 (9th Cir. 2021); see EBSC Entry Ban, 950
F.3d at 1273 (finding entry ban arbitrary and capricious under Chevron step two); Dist. of Columbia
v. USDA, 444 F. Supp. 3d 1, 24 n.13 (D.D.C. 2020) (collecting cases).
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That is an arbitrary and capricious justification.  See ANR Storage Co. v. FERC, 904 F.3d 1020,
1026 (D.C. Cir. 2018) (invalidating agency action whose “justification” was not “reasonable”);
Idaho Sporting Congress, Inc. v. Rittenhouse, 305 F.3d 957, 971 (9th Cir. 2002) (invalidating rule
whose “justification” was “directly contrary to one of [Congress’s] fundamental purposes”).  The
government cannot justify a rule on the basis that Congress’s core judgment was wrong.

B. The Record Contradicts the Rule’s Main Justification that Its Pathways Are
Widely Available.
The Rule’s main factual premise is that its several “lawful pathways”—CBP One
appointments, parole approval, and asylum in transit countries—provide ample means for asylum
seekers at the border to obtain protection.  The preamble repeats this premise throughout and invokes
it in response to dozens of comments.  See, e.g., 88 Fed. Reg. at 31,364-70, 31,375-82.  Just as with
the prior ban, this premise is contradicted by a “mountain of evidence” that the Rule fails to grapple
with.  EBSC Transit Ban, 994 F.3d at 981 (quoting EBSC Transit PI, 385 F. Supp. 3d at 955)
(enjoining transit ban on this basis).
In reality, the Rule dramatically curtails asylum access because the “pathways” it identifies
are not available to most asylum seekers.  CBP One is not a new path to protection, but rather a
drastic reduction in asylum access at ports of entry.  The parole programs discussed in the Rule are
available for only five countries and could be canceled or enjoined anytime.  And as the Ninth
Circuit has held, transit countries do not present a safe or available option for most asylum seekers.
The Rule’s characterization of itself is therefore deeply inaccurate, because in reality, it eliminates
asylum for most people, both at and between ports of entry.
By disregarding all of this contrary evidence, the agencies “failed to consider an important
aspect of the problem” and made a decision that “runs contrary to the evidence.”  EBSC Transit
Ban, 994 F.3d at 982 (quoting State Farm, 463 U.S. at 43).
1.  CBP One Appointments.  The Rule touts the app as a new “pathway” to seek protection,
see, e.g., 88 Fed. Reg. at 31,397-99, 31,450-51, but, in reality, it sharply reduces asylum access at
ports of entry.  Previously, asylum was available to anyone who presented at a port.  But because
the app offers far too few appointments—just 1,250 per day border-wide, AR_2489—access is
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restricted to a small fraction of those who would otherwise seek asylum.  See PC_ 24902 (“the most
pressing issue is the insufficient number of appointments”), 24903-08 (documenting significant
unmet demand for CBP One appointments in February 2023); AR_2485, 2489 (DHS projection of
approximately 5,400 border encounters per day through September 2023 with the Rule in place).
That fraction will become far smaller if, as the Rule contemplates, asylum seekers who
would have otherwise entered between ports now attempt to use CBP One.  DHS has increased the
number of daily CBP One appointments since Title 42 ended, but the current 1,250 per day limit is
still far too low and DHS has not indicated plans for a further increase.  See AR_2489.  The lucky
asylum seekers who eventually get appointments in the CBP One lottery must wait weeks or longer
in dangerous conditions.  The record amply documents people unsuccessfully trying for weeks or
months to obtain CBP One appointments for exemptions from the Title 42 policy.  E.g., PC_20360-
61 (families waiting weeks without success), 21167 (wait times of “several months”), 34910-12
(“only two of more than 1,000 migrants got appointments in the first two weeks”).
The northern Mexican cities where CBP One forces asylum seekers to wait “are among the
most dangerous areas in the world.”  PC_25090; see also PC_23693 (DHS citing evidence that
“individuals awaiting their court hearings” under policy that returned asylum seekers to Mexico
“were subject to extreme violence and insecurity at the hands of transnational criminal
organizations”).  In a 2022 study, large majorities of providers working with asylum seekers in the
area reported that more than half their clients had been kidnapped, extorted, sexually assaulted, or
raped near the border.  PC_21752.
Moreover, even if appointments were more widely available, the CBP One app imposes
significant obstacles.  It is plagued with technological barriers and glitches that make it difficult or
impossible for many asylum seekers to use.  The app’s “geo-fencing” technology only allows people
to make appointments while in northern and central Mexico, 88 Fed. Reg. at 31,399, leaving those
who are unable to schedule appointments stranded in dangerous circumstances indefinitely.  See,
e.g., PC_20361-62, 31532-33 (documenting attacks on people waiting for appointments).  Many
people lack stable internet service or cannot afford the sophisticated smartphone models needed to
run the app.  PC_20662, 21093-94, 21170-71, 25460, 31896, 32317, 32973-74, 33006.  The app is
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available only in English, Spanish, or Haitian Creole, and requires strong literacy skills.  PC_31531,
31898-900, 32315.  It frequently malfunctions, and its error messages are delivered only in English.
AR_6715; PC_21169-70, 25499-500, 31900, 32315-17, 32975-76.  And its facial recognition
technology functions to discriminate against Black and Indigenous people and others with darker
skin tones.  PC_21168-69, 25499-500, 34910-11.
Although the Rule has a limited exception to the CBP One requirement for people who
present at ports, the preamble makes clear that the exception will almost never be available.  For
example, it states that a person may not satisfy the exception even if they cannot afford a
smartphone, or cannot read, or cannot understand the app’s limited set of languages.  88 Fed. Reg.
31,401, 31,406.  And a person who attempts to assert this or the other exception runs a huge risk: If
U.S. officials decide that the exception does not apply, the person may be immediately removed and
barred from entry for years, even though they presented to officials believing that an exception
applied.
Thus, because appointments are so limited, and because of the endless problems the app
continues to generate, forcing people to use CBP One unreasonably decimates asylum access at
ports.
2.  Parole Programs.  The parole programs cited in the Rule, while helpful to those who
qualify, do little to preserve the asylum access that the Rule curtails.  Programs exist for only five
countries, which means asylum seekers from most of the world do not have access.  See 88 Fed.
Reg. at 31,325, 31,349 (programs for Ukraine, Cuba, Haiti, Nicaragua, and Venezuela only).
Excluded countries include many that are experiencing acute refugee emergencies right now.  See,
e.g., PC_22932-33 (Cameroon), 22955-57 (Colombia), 22973-75 (El Salvador), 22978-79 (Eritrea),
23014-15 (Honduras), 23158-59 (Sudan).  Even within the five countries, access is limited, because
the programs require people to obtain passports, find U.S. sponsors, and pay for plane tickets, all of
which are out of reach for many.  See supra Part I.B.  As explained, the four largest parole programs
do not present any option for asylum seekers at the southern border where the Rule applies, because
the programs require air travel and individuals in Mexico are nearly all disqualified due to their
irregular entry into Panama or Mexico.  See supra at 12.  Moreover, the current parole programs are
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completely discretionary and are not incorporated into the Rule.  See 88 Fed. Reg. at 31,370.  They
could be rescinded (or enjoined) at any time.6  See 88 Fed. Reg. at 31,410 (recognizing that parole
programs could end).
In short, while they are a positive development for those who benefit, the parole programs
are categorically unavailable to asylum seekers from most countries and to nearly everyone at the
border covered by the Rule.
3.  Transit Countries.  The agencies disregarded overwhelming evidence that obtaining
asylum in transit countries remains unrealistic for most people, just like the last time this Court and
the Ninth Circuit considered the issue.  See EBSC Transit Ban, 994 F.3d at 980 (holding transit ban
arbitrary and capricious because record contradicted agencies’ assumption that Mexico was a
“feasible” or “safe option”).  Transit countries are not remotely safe for most asylum seekers to
transit through, let alone wait months or years for asylum decisions.  The Rule fails to identify a
single country that is both safe for asylum seekers and equipped to handle any substantial increase
in asylum applications.
The pattern of violence and exploitation against asylum seekers in Mexico is even more
well-documented in the current record than it was for the transit ban.  Violent crime in the country
has reached historic highs, and cartels “prey upon people migrating through Mexico.”  PC_23079,
23082.  Such attacks are alarmingly common: nearly 13,500 instances of kidnapping, rape, torture,
murder, and other violent attacks on asylum seekers in Mexico were documented in 2021 and 2022.
PC_30901; see also PC_76248-87 (cataloging crimes).  Central American asylum seekers in
particular are in danger of being pursued into Mexico by the same persecutors they sought to flee.
AR_4881; PC_25090, 29741.
Crimes against asylum seekers in Mexico are rarely investigated or punished.  PC_23082.
When a Salvadoran asylum seeker tried to report her kidnapping and rape to Mexican police, officers
told her they would not “accept her complaint because she was a migrant and ‘migrants liked to be
raped.’”  PC_31901.  When a Black Honduran asylum seeker tried to report that she had been

6 See Texas v. DHS, 6:23-cv-7 (N.D. Tex. filed Jan. 24, 2023) (challenging parole programs for
Cuba, Haiti, Nicaragua, and Venezuela), Dkt. 90 (scheduling expedited trial for June 2023).
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kidnapped, beaten, and raped in front of her son, Mexican police “instead taunted her, asking her
how much she would charge to give them a turn.”  PC_31902.
Mexican authorities themselves also victimize migrants.  AR_4881; PC_23082, 32446; see
also, e.g., PC_22857, 29743-44, 32447, 33178 (discussing incidents).  Women, LGBTQ+, and
Black asylum seekers are particularly vulnerable.  AR_4862 (women and Black migrants especially
at risk of abuse by authorities); PC_22672 (Mexican police targeting Black asylum seekers);
PC_29701-02, 29704-06 (Mexican officials target LGBTQ+ asylum seekers for extortion and
violence); PC_29741 (“[m]any assaults” on women transiting Mexico “involve Mexican
authorities”); PC_32769 (one-fifth of Haitian asylum seekers in Mexico surveyed in 2021 had been
threatened, extorted, or beaten by police).
The record makes clear that people seeking asylum also face severe violence in Guatemala
and other transit countries.  The State Department reports that Guatemala “remains among the most
dangerous countries in the world,” with “widespread and serious” sexual and gender-based violence.
PC_24105, 25150.  Migrants transiting the country are abused, assaulted, and extorted by police and
immigration authorities.  PC_29447.  Guatemala thus cannot provide asylum seekers “even minimal
levels of safety and well-being.”  PC_26150.  Similarly, Belize has “one of the highest per capita
murder rates in the world,” and rape and other violent crimes are common.  PC_23728.  The State
Department likewise warns of extensive violence in Colombia, and reports that migrants there are
subjected to forced labor with impunity.  PC_23780-82, 34263.  Refugee women in Colombia face
especially frequent attacks.  PC_29608.  Ecuador presents similar dangers, PC_23232, 23829, with
women and LGBTQ+ asylum seekers at particular risk, PC_22586, 34282.  Other common transit
countries are no safer.  E.g., AR_996 (“widespread and violent repression and human rights
violations” in Nicaragua); PC_25181 (asylum seekers in Honduras suffer “abuse and sexual
exploitation by criminal organizations”); PC_23875-76, 34188-89 (widespread violence in El
Salvador); PC_21610 (“gender-based violence is present for girls, women, and LGBTIQ+ persons
along the entire migratory route” from Panama through Mexico).

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Transit countries also continue to have woefully inadequate asylum systems unequipped to
process the applications they already receive.  Many transit countries have asylum systems that are
so underdeveloped as to be effectively nonexistent.  See, e.g., PC_25143, 26235, 26309, 29465
(Guatemala); PC_23478-80, 23483-86 (UNHCR data reflecting extremely low numbers of asylum
grants in Belize, Colombia, Guatemala, and Honduras).  The asylum systems in the only two transit
countries that process a meaningful number of claims—Mexico and Costa Rica—are already at a
breaking point.  Costa Rica—a country of just five million people—already has ten times more
asylum applicants per capita than the United States.  PC_29161-62.  Asylum seekers make up 4%
of its population.  PC_30102; see also PC_23473-74 (from mid-2021 to early 2022, the number of
Nicaraguan asylum seekers in Costa Rica doubled to 150,000).  As a result, Costa Rica’s system is
“under severe stress.”  PC_23348.  Asylum seekers face a “years-long wait for an appointment” to
even begin the process; one applicant’s appointment was scheduled for 2030.  PC_30102, 30107.
Meanwhile, Mexico’s asylum agency is “in a situation of near-breakdown,” according to its
director.  PC_22811.  The “overwhelmed” and underfunded agency has a quickly-growing backlog
of cases.  PC_22855; see PC_22864 (174-fold caseload increase from 2011 to 2021, while funding
increased just 2.5-fold); PC_23388-89 (applications rose from just under 1,300 in 2014 to nearly
130,000 in 2021).  At its peak in 2021, Mexico’s asylum agency decided just 38,102 applications.
AR_5707.  That is less than a third of the number of applications it received that year.  Id.  And
since then, the number of cases Mexico decided actually fell in 2022.  Id.  Even though Mexico
already can only decide a fraction of the applications it receives each year, the Rule contemplates
that tens of thousands more people will now apply for asylum in Mexico (or other already-
overstrained countries).  See 88 Fed. Reg. at 31,410-11; see also PC_23388 (“[I]t is expected that
the . . . rule will significantly increase the number of asylum applications filed in Mexico.”).  Just
as before, “[t]he Rule does not even acknowledge this outcome, much less suggest that Mexico is
prepared to accommodate such a massive increase.”  EBSC Transit PI, 385 F. Supp. 3d at 952.
Transit countries’ restrictive policies and practices make the Rule’s condition even less
realistic.  Mexico imposes a harsh 30-day filing deadline that many asylum seekers cannot meet.
AR_4866; PC_21976, 22852, 33406.  Those who miss the deadline do not have their claims
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adjudicated but do not receive a denial either.  See PC_20781, 23430.  Indeed, the thousands of
people currently at the U.S.-Mexico border are likely well past the 30-day deadline.  Mexico also
has asylum offices in only ten places, many situated in the country’s poorest and most dangerous
states, and an application is considered abandoned if someone either leaves the state or misses
weekly check-ins where they applied.  See AR_4877; PC_21965-66, 21980-83, 22858, 23388,
33410.  These policies mean that thousands of people who try to apply in Mexico get neither asylum
nor final decisions denying their claims.  Even those who pursue applications in Mexico are
regularly refouled to persecution.  PC_21587, 21962, 22504, 22856, 23433-34; see also, e.g.,
PC_22605, 33450 (similar refoulement by Ecuador and Guatemala).  And those who make it
through this gauntlet and receive final denials may be deported from Mexico before they can reach
the United States.  See PC_21961-62 (describing Mexico’s “mass detention and deportation of
migrants”); see also AR_4881, 4889; PC_23318-19, 22665.
Rather than confront these glaring facts about transit countries, the agencies inaccurately
dismiss them as “generalizations,” and persist in assuming that these countries provide viable
options for asylum seekers.  88 Fed. Reg. at 31,410-11.  For example, instead of grappling with the
specific deficiencies in Mexico’s ability to provide safe refuge, the Rule cites the recent increase in
asylum applicants there, on the premise that those applicants “felt safe enough to apply for asylum
in Mexico.”  Id. at 31,414-15; see AR_5707 (three-fold increase in applicants from 2020 to 2021);
compare EBSC Transit PI, 385 F. Supp. 3d at 952 (agencies likewise defended transit ban based on
increased applications in Mexico).  But more applications do not signal that conditions in Mexico
have meaningfully improved.  The marked increase in applicants in 2021 and 2022 over earlier years
happened only after the Title 42 policy effectively ended access to asylum in the United States in
2020, leaving many asylum seekers trapped in Mexico with no choice but apply there—“even if
they do not feel safe in Mexico,” AR_4874.  The record also makes clear that many people file
asylum applications in Mexico just to obtain documents they hope will reduce their risk of
refoulement while they travel onward.  AR_4874; PC_22811, 23442.  And as explained, Mexico
has been utterly unable to keep pace with the increase so far, which does not include the further
spike in applications that the Rule contemplates.
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Similarly, the Rule highlights Colombia and Belize as two other transit countries that have
“made significant strides” in providing protection, citing a Colombian temporary status program for
Venezuelans and an amnesty program in Belize.  88 Fed. Reg. at 31,411.  It elsewhere notes a
regularization program in Costa Rica.  Id. at 31,416.  But the eligibility cut-offs for all three
programs have passed.  PC_22823 (Costa Rica’s program available to people who sought asylum
there by September 2022); PC_22825 (Belize’s program available to those who sought asylum there
by March 2020); PC_23398, 23400 (Colombia’s program available to people who entered the
country legally by January 2023 or others who entered by January 2021).  They do not indicate that
these countries can provide refuge to asylum seekers going forward.
The record thus makes clear that the three main “pathways” the Rule invokes are plagued
with problems and unavailable to most asylum seekers.  As with the previous asylum bans, the
agencies have “failed to consider” these problems and instead made assumptions that “run[] counter
to the evidence.”  EBSC Transit Ban, 994 F.3d at 983.
In response to these defects, the Rule’s circular refrain is that the failures of one pathway are
curable by the other pathways.  See, e.g., 88 Fed. Reg. at 31,412, 31,415 (people who are not safe
in transit countries can seek parole or use CBP One); id. at 31,408, 31,327 (people who cannot seek
parole can use CBP One); id. at 31,370 (if parole programs end, those nationals can use CBP One);
id. at 31,340 (pointing to “multiple ways” to rebut the presumption).  Those pivots amount to a
refusal to grapple with contrary evidence in the record.  If the facts show that each “pathway” is
narrow, unsafe, and inaccessible for many asylum seekers, it cannot be enough for the agencies to
respond that other narrow, unsafe, and inaccessible pathways are also available.
4.  Particularly Vulnerable Asylum Seekers.  The irrationality of this approach is
underscored by the Rule’s responses to concerns raised about the most vulnerable asylum seekers,
such as women and LGBTQ+, Indigenous, and Black people.  These groups together constitute a
large share of all asylum seekers and face heightened barriers to accessing all three “pathways.”
See, e.g., AR_4862, 4883; PC_90-93, 20232, 20620, 20669, 22586, 22671-72, 24935, 26352,
29608, 29701, 29741, 31901-02, 32769, 33348, 34282, 75948, 76254-55, 76278 (detailing
increased vulnerability to violence and discrimination).  Yet the Rule utterly failed to consider its
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uniquely harmful impact on them.  See EBSC Transit Ban, 994 F.3d at 983-84 (holding ban arbitrary
and capricious for failure to adequately grapple with its effect on a group that faces “special
vulnerability”).
In response to comments about the Rule’s disproportionate impact on women and LGBTQ+
people due to increased risk of harm in transit countries and while waiting for CBP One
appointments, the Rule simply says that they should use a “pathway[] . . . that does not involve a
dangerous journey to the United States.”  88 Fed. Reg. at 31,351.  But the Rule fails to acknowledge
that, for most women and LGBTQ+ people, the Rule contains no viable alternative.  As the agencies
concede, id., the transit countries that make the journey dangerous cannot be safe havens for these
asylum seekers.  And the parole programs apply only to a select few people in a select few countries.
If a person is not from one of those countries and cannot safely wait in Mexico, the Rule leaves them
without any options at all.
Similarly, commenters and legislators raised concerns about the Rule’s “particularly
detrimental” and “discriminatory impact” on Black and Indigenous asylum seekers, because they
face increased violence and discriminatory treatment in transit countries, and because of the biased
limitations of CBP One.  88 Fed. Reg. at 31,349, 31,352-53; see also, e.g., AR_1258-64 (letters
from U.S. Senators addressing racial bias in CBP One’s facial recognition function); AR_4881
(Black and Indigenous asylum seekers face racism from Mexican officials); PC_90 (Black and
Indigenous asylum seekers targeted in Mexico); PC_22671 (anti-Black racism by Mexican
officials); PC_69080-89 (documenting experiences of Black migrants).  The agencies again brushed
aside concerns raised about this group’s ability to access any of the pathways.  However, when
confronted with facts that so seriously undermine the Rule’s core assumptions, agencies must do
more than “nod to concerns raised by commenters only to dismiss them in a conclusory manner.”
Centro Legal de la Raza v. EOIR, 524 F. Supp. 3d 919, 958 (N.D. Cal. 2021) (cleaned up).

C. The Record Does Not Support the Rule’s Assumption that People Who Enter
Between Ports or Pass Through Transit Countries Without Seeking Protection
Have Weaker Asylum Claims.
Just like the previous transit ban, the Rule arbitrarily assumes that applicants subject to its
bar are “not likely to have a meritorious asylum claim.”  EBSC Transit Ban, 994 F.3d at 980
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(invalidating transit ban on this basis).  The Rule explains that, by barring people who did not apply
in transit countries and who do not wait for an appointment at a port, the Rule allows immigration
courts “to focus on those claims most likely to warrant protection.”  88 Fed. Reg. at 31,381 (citing
NPRM, 88 Fed. Reg. at 11,742); see id. at 31,329, 31,335-36, 31,343, 31,387 (focus on excluding
people who likely do not have “meritorious” claims); NPRM, 88 Fed. Reg. at 11,737 (“[T]hose who
would circumvent orderly procedures and forgo readily available options may be less likely to have
a well-founded fear of persecution than those individuals who do avail themselves of an available
lawful opportunity.”).
This assumption continues to be arbitrary for a host of reasons.  There simply “is no evidence
in the record to support the Rule’s assumption.”  EBSC Transit Ban, 994 F.3d at 982.  The agencies
keep extensive data about people’s migration histories, means of entry, and case outcomes.  And yet
the Rule points to no evidence showing that people who transit without seeking protection, or people
who enter between ports, are less likely to have meritorious claims.
This assumption also “ignores extensive evidence in the record documenting the dangerous
conditions” and dysfunctional asylum systems in transit countries, which “would lead [noncitizens]
with valid asylum claims to pursue those claims in the United States.”  Id. at 983.  Indeed, a “long
line of cases” in the Ninth Circuit recognizes that “the failure to apply for asylum in a [third] country
through which [a noncitizen] has traveled has no bearing on the validity of [a noncitizen’s] claim
for asylum in the United States.”  Id. at 982-83 (“preference for asylum in the United States rather
than Guatemala or Mexico is irrelevant to the merits”); see EBSC Entry Ban, 993 F.3d at 671
(entering between ports “says little about the ultimate merits of [an] asylum application”).

D. Defendants Failed to Consider the Impact of Interrelated Border Processing
Policies.
Finally, Defendants “entirely failed to consider an important aspect of the problem” by
neglecting to consider how this Rule—and their purported justifications for it—interacts with other
contemporaneous and interrelated policy changes.  State Farm, 463 U.S. at 43.  A rule that “bas[es]
its decision on a premise the agency itself has already planned to disrupt is arbitrary and capricious,”
particularly when “contemporaneous” and “closely related” policy changes are implicated.
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Portland Cement Ass’n v. EPA, 665 F.3d 177, 187 (D.C. Cir. 2011).  In other words, an agency must
consider separate policy changes made “by the same agency, at the same time, on overlapping
topics.”  Immigrant Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520, 541 (N.D. Cal. 2020).
Defendants made a number of interrelated policy changes to asylum processing close in time
to the Rule’s effective date.  For example, DHS decided to resume the practice of conducting some
credible fear interviews in Customs and Border Patrol (“CBP”) custody and later shortened the
notice period for such interviews from 48 to 24 hours.  See AR_2188.  The agencies also
implemented a policy of removing certain non-Mexican nationals in expedited removal to Mexico.
88 Fed. Reg. at 31,317 n.21; see also infra at 29 (discussing recent DHS decision to cease
implementing another asylum processing regulation, 87 Fed. Reg. 18,078 (Mar. 29, 2022)).  These
separately-adopted changes impact the agencies’ justifications for the Rule, but the agencies did not
consider their interaction with the Rule at all.
For instance, the Rule relies on another erroneous premise that stricter asylum screening at
the border is necessary to address the supposedly high credible fear interview (“CFI”) passage rate.
See 88 Fed. Reg. at 31,330.  Critically, however, the agencies did not consider the compounding
effect of conducting many of these interviews in CBP custody and within 24 hours of asylum
seekers’ arrival.  This is a significant oversight, as rapid CFIs in CBP custody make it extremely
difficult for asylum seekers to present their claims due to poor conditions of confinement, inadequate
access to counsel and basic information about the process, and lack of opportunity to adjust
physically or prepare even minimally for the high-stakes interview.  E.g., PC_31507-09, 32980-82.
Evidence from the policy’s prior iteration shows that the CFI passage rate for asylum seekers
interviewed in CBP custody was significantly lower than that of the general population.  88 Fed.
Reg. at 31,362.  With both policies now in place, many asylum seekers not only have to confront
the Rule’s eligibility bar, but also must to do so under even more challenging conditions.  Although
that policy’s reinstatement was announced after the close of the Rule’s comment period, some
commenters raised concerns that it might be revived and stressed the harmful cumulative impact of
the two policies.  In their response, the agencies refused to consider the other policy’s intersection
with Rule and simply stated that it was outside the scope of the Rule.  Id. at 31,355, 31,363.  But
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where a key justification for the Rule is the purported high CFI passage rate, simultaneously-enacted
policies that also predictably lower that rate are directly relevant.
The agencies also failed to adequately address the Rule’s interaction with DHS’s separate
decision to begin executing the expedited removal orders of certain third country nationals to
Mexico instead of their countries of origin.  See 88 Fed. Reg. 31,317, n.21 (citing AR_4631-32,
“The White House, Mexico and United States Strengthen Joint Humanitarian Plan on Migration”
(May 2, 2023)).  That unprecedented policy allows DHS to more quickly remove individuals from
countries like Haiti, Nicaragua, Venezuela, and Cuba to which expedited removals have recently
proven difficult.  See, e.g., 88 Fed. Reg. at 11,711 (challenges repatriating citizens of Venezuela and
Nicaragua); 88 Fed. Reg. at 1,259 (DHS able to repatriate only small number of Nicaraguans leading
to longer periods in custody); 88 Fed. Reg. at 1,270-72 (challenges to repatriating Cuban nationals
and resulting pressure on DHS resources); 88 Fed. Reg. at 1,247-48 (same for Haitian nationals).
The agencies justified the need for the Rule’s eligibility bar based in part on limited detention
capacity and overcrowding in border facilities.  See 88 Fed. Reg. 31,363; 88 Fed. Reg. 11,715.  Yet
the agencies entirely failed to consider that the third-country removal policy would necessarily
address the same issues, by leading to shorter periods in custody for thousands of noncitizens.
Courts in this District and elsewhere have held similar failures to be arbitrary and capricious.
See, e.g., Immigrant Legal Res. Ctr., 491 F. Supp. 3d at 541 (“By failing to consider the combined
impact of [two related rules regarding DHS fees], DHS either failed to consider an important aspect
of the problem and disregarded ‘inconvenient facts’ about the combined impact of these rules, or
DHS reached a conclusion that defies common sense.”); Casa de Maryland, Inc. v. Wolf, 486 F.
Supp. 3d 928, 965 (D. Md. 2020) (criticizing DHS for failing to consider “the cumulative impact of
[two different] rules on bona fide asylum seekers”).  In failing to assess the combined impact of
these intertwined policies, Defendants violated a fundamental tenet of reasoned decision-making.
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III.
The Rule Is Procedurally Defective.
For at least three reasons, the agencies violated the APA by failing to “provide the public
with a meaningful opportunity to comment on the proposed provisions.”  See Hall v. EPA, 273 F.3d
1146, 1162 (9th Cir. 2001) (emphasis added) (cleaned up).
First, the agencies provided only an abbreviated 30-day comment period, which courts in
this District have repeatedly held is generally too “short” for a rule like this one that makes
significant and sweeping changes.  See Pangea Legal Servs. v. DHS, 501 F. Supp. 3d 792, 818-19
(N.D. Cal. 2020); California ex rel. Becerra v. Dep’t of the Interior, 381 F. Supp. 3d 1153, 1177
(N.D. Cal. 2019); see also Centro Legal de la Raza v. EOIR, 524 F. Supp. 3d 919, 953-55 (N.D.
Cal. 2021).  This short period was a particular obstacle here given the Rule’s enormous, complex
changes that impact matters of life or death for people fleeing persecution.  See 88 Fed. Reg. at
31,433, 31,447.  The Rule implicates the asylum systems and security situations in a dozen
countries.  It was impossible for commenters to gather and analyze comprehensive information on
these and other topics in only 30 days.  See, e.g., AR_6669-76 (more than 170 organizations
requesting additional time and specifying how it would allow them to more effectively explain the
Rule’s devastating effects on people seeking asylum); PC_31497-99 (Plaintiff American
Gateways), 32363-64 (Plaintiff ImmDef), 32713 n.10, 32743 (Plaintiff Tahirih).
Second, the harm from the deficient comment period was compounded by the agencies’
closely related, extensive policy changes, some of which they initiated after the comment period
closed.  See supra Part II.D.  As explained above, the agencies’ revival of CFIs in CBP custody,
which occurred after the comment period closed, provides a stark example of the consequences of
the agencies’ piecemeal approach.  Most commenters on the Rule were unable to address this
concerning intersection because they did not know the CBP-custody policy would soon be
reinstated.  And the late-breaking announcement of the CBP-custody interviews allowed the
agencies to dismiss the few comments raising the potential for compounding harms as outside the
scope of the Rule.  88 Fed. Reg. at 31,362-63.
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Likewise, just days after the close of the comment period, the agencies announced an
indefinite pause on a different regulation issued in March 2022,7 which permits asylum officers,
rather than just immigration judges, to adjudicate the asylum applications of people who were
subject to expedited removal and passed their CFIs.  See 87 Fed. Reg. 18,078, 18,090 (Mar. 29,
2022).  This major policy shift was not yet public during the comment period and, in fact, DHS
continued to tout the 2022 rule as a centerpiece of the agencies’ approach to asylum.  See AR_ 1252.
As a result, commenters were unable to address the agencies’ decision to abandon that policy in
favor of the Rule’s drastically different and significantly more harmful approach.
Courts have enjoined other immigration rules on this same ground, where, like here, agencies
issued “numerous intertwined” and significant policy changes in a piecemeal manner that “directly
intersect” with the Rule.  Centro Legal, 524 F. Supp. 3d at 958, 962.  In doing so, the “true impact”
of the Rule was “obscured and the public was deprived of a meaningful opportunity to comment.”
Id. at 962; see also Pangea Legal Servs., 501 F. Supp. 3d at 821 (similar “staggered” policymaking
in which “the full impact of a [r]ule was not clear until after the comment period”).
Third, the agencies failed to provide the public with critical data underpinning the Rule.
“Integral to an agency’s notice requirement is its duty to ‘identify and make available technical
studies and data that it has employed in reaching the decisions to propose particular rules.’”  Kern
Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006) (quoting Solite Corp. v. EPA, 952
F.2d 473, 484 (D.C. Cir. 1991)).  Nor does the APA “allow[] an agency to cherry-pick” studies or
data for public comment.  Am. Radio Relay League v. FCC, 524 F.3d 227, 237 (D.C. Cir. 2008).
After all, “‘[i]t is not consonant with the purpose of a rule-making proceeding to promulgate rules
on the basis of . . . data that, to a critical degree, is known only to the agency.’”  Id. (quoting Portland
Cement Ass’n v. Ruckleshaus, 486 F.2d 375, 393 (D.C. Cir. 1973)).
That is just what the agencies did here.  The agencies’ asserted need for the Rule rested on
their “anticipation of a potential surge in migration at the southwest border . . . following the
termination of” Title 42.  88 Fed. Reg. at 31,314.  The agencies’ sole evidence for that “surge”

7 Hamed Aleaziz, Signature Biden Asylum Reform Policy is Now on Hold, L.A. Times (Apr. 12,
2023), https://www.latimes.com/politics/story/2023-04-12/biden-asylum-processing-rule-pause.
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comes from an analysis by the Office of Immigration Statistics (“OIS”) of DHS’s own “Southwest
Border Planning Model.”  Id. at 31,316 & n.14; see also 88 Fed. Reg. at 11,705 & n.11.  But the
NPRM did not provide the public with that OIS analysis, the planning model underlying it, or the
data the model used.  The agencies instead hid the ball, preventing the public from assessing the key
evidence purportedly justifying the Rule.  That is a straightforward violation of the APA.
IV.
Plaintiffs Have Standing to Challenge the Rule.
The Ninth Circuit has held that organizations in the exact position as Plaintiffs had Article
III standing to challenge the prior entry and transit bans because those rules forced them to divert
resources and lose clients, threatening their “core mission and their organizational funding.”  EBSC
Transit Ban, 994 F.3d at 975; see EBSC Entry PI, 354 F. Supp. 3d at 1109-10 (same); EBSC Transit
PI, 385 F. Supp. 3d at 937 (same).
The present Rule causes Plaintiffs these same injuries.  It diverts their resources and
frustrates their shared mission of serving asylum seekers by making their representation costlier and
more time- and labor-intensive.  See Smith Decl. (EBSC) ¶¶ 4-15, 18-20; Alvarez Decl.
(CARECEN) ¶¶ 4-7, 11-16; Garza Decl. (Tahirih) ¶¶ 5-10, 12-23; Calonje Decl. (NCLR) ¶¶ 6-10,
13-18, 20-31; Toczylowski Decl. (ImmDef) ¶¶ 5-15, 18, 36-37; Yang Decl. (American
Gateways) ¶¶ 3, 7-14, 17-25; see also EBSC Entry Ban, 993 F.3d at 663 (holding that the
organizations established that the entry ban has “‘perceptibly impaired’ [their] ability to perform the
services they were formed to provide”) (citation omitted).  Accordingly, Plaintiffs have standing
under Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).  The Rule also costs Plaintiffs
clients, which in turn costs several of them funding, either because their funding is place-specific
and the Rule will prevent clients from reaching them, or because “a large portion of their funding
[is] tied to the number of asylum applications pursued.”  See EBSC Transit Ban, 994 F.3d at 974;
Smith Decl. (EBSC) ¶¶ 16-22; Alvarez Decl. (CARECEN) ¶¶ 8, 13-16; Garza Decl. (Tahirih) ¶¶
16-26; Toczylowski Decl. (ImmDef) ¶¶ 32-40; see also Yang Decl. (American Gateways) ¶ 28.
Those injuries likewise establish standing.  See EBSC Transit Ban, 994 F.3d at 974; EBSC Entry
Ban, 993 F.3d at 663-64.
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CONCLUSION
The Court should grant Plaintiffs’ motion for summary judgment and vacate the Rule.

Dated: June 5, 2023

Lee Gelernt*
Omar Jadwat*
Anand Balakrishnan**
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
125 Broad St., 18th Floor
New York, NY 10004
T:  (212) 549-2660
F:  (212) 549-2654
lgelernt@aclu.org
ojadwat@aclu.org
abalakrishnan@aclu.org

Melissa Crow*
CENTER FOR GENDER & REFUGEE
STUDIES
1121 14th Street, NW, Suite 200
Washington, D.C. 20005
T: (202) 355-4471
F:  (415) 581-8824
crowmelissa@uchastings.edu

Anne Peterson (SBN 258673)
Blaine Bookey (SBN 267596
Julie Bourdoiseau (SBN 340462)
Karen Musalo (SBN 106882)
CENTER FOR GENDER & REFUGEE
STUDIES
200 McAllister Street
San Francisco, CA  94102
T: (415) 610-5729
F: (415) 581-8824
petersonanne@uchastings.edu

Attorneys for Plaintiffs

*Admitted Pro hac vice

** Application for pro hac vice admission
forthcoming

Respectfully submitted,

/s/ Katrina Eiland
Katrina Eiland (SBN 275701)
Morgan Russell (SBN 296137)
Spencer Amdur (SBN 320069)
Oscar Sarabia Roman (SBN 341385)
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
IMMIGRANTS’ RIGHTS PROJECT
39 Drumm Street
San Francisco, CA 94111
T:  (415) 343-1198
F:  (415) 395-0950
keiland@aclu.org
mrussell@aclu.org
samdur@aclu.org
osarabia@aclu.org

Keren Zwick*
Richard Caldarone*
Colleen Cowgill (SBN 321542)
Mary Georgevich*
NATIONAL IMMIGRANT JUSTICE
CENTER
224 S. Michigan Ave., Suite 600
Chicago, Illinois 60604
T: (312) 660-1370
F: (312) 660-1505
kzwick@heartlandalliance.org
rcaldarone@heartlandalliance.org
ccowgill@heartlandalliance.org
mgeorgevich@heartlandalliance.org

Michelle (Minju) Y. Cho (SBN 321939)
AMERICAN CIVIL LIBERTIES UNION OF
NORTHERN CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
T: (415) 621-2493
F: (415) 255-1478
mcho@aclu.org

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