Motion (2023-06-23)
- Date
- 2023-06-23
Summary
Plaintiffs' reply in support of their motion for summary judgment and opposition to the defendants' cross motion in East Bay Sanctuary Covenant, et al. v. Joseph R. Biden, Case No. 18-cv-06810-JST, in the U.S. District Court for the Northern District of California, filed June 23, 2023 as Document 181. The brief challenges the Final Rule, Circumvention of Lawful Pathways, 88 Fed. Reg. 31,314. Its table of contents argues that the Rule is contrary to law, arbitrary and capricious and procedurally defective, that plaintiffs have standing, and that 8 U.S.C. § 1252(f)(1) does not apply. It also asks the court to reject partial vacatur and remand without vacatur. The conclusion asks the court to grant summary judgment to plaintiffs and vacate the Rule. The 40-page filing is signed by Katrina Eiland for plaintiffs' counsel.
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Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 1 of 40
1 Omar C. Jadwat* Katrina Eiland (SBN 275701)
Lee Gelernt* Morgan Russell (SBN 296137)
2 Anand Balakrishnan** Spencer Amdur (SBN 320069)
ACLU FOUNDATION Oscar Sarabia Roman (SBN 341385)
3 IMMIGRANTS’ RIGHTS PROJECT ACLU FOUNDATION
125 Broad Street, 18th Floor IMMIGRANTS’ RIGHTS PROJECT
4 New York, NY 10004 39 Drumm Street
T: (212) 549-2660 San Francisco, CA 94111
5 F: (212) 549-2654 T: (415) 343-0770
ojadwat@aclu.org F: (415) 395-0950
6 lgelernt@aclu.org keiland@aclu.org
abalakrishnan@aclu.org mrussell@aclu.org
7 samdur@aclu.org
osarabia@aclu.org
8
Attorneys for Plaintiffs (additional counsel listed on following page)
9
UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA
11 East Bay Sanctuary Covenant, et al.,
Case No.: 18-cv-06810-JST
12 Plaintiffs,
13 v.
PLAINTIFFS’ REPLY TO THEIR
14 Joseph R. Biden, President of the United States, et MOTION FOR SUMMARY JUDGMENT
al., AND OPPOSITION TO DEFENDANTS’
15
Defendants. CROSS MOTION
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Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 2 of 40
1
Melissa Crow* Keren Zwick*
2 CENTER FOR GENDER & REFUGEE Richard Caldarone*
STUDIES Colleen Cowgill (SBN 321542)
3 1121 14th Street, NW, Suite 200 Mary Georgevich*
Washington, DC 20005 NATIONAL IMMIGRANT JUSTICE
4 T: (202) 355-4471 CENTER
F: (415) 581-8824 224 S. Michigan Ave., Suite 600
5 crowmelissa@uchastings.edu Chicago, IL 60604
T: (312) 660-1370
6 Anne Peterson (SBN 258673) F: (312) 660-1505
Blaine Bookey (SBN 267596) kzwick@heartlandalliance.org
7 Julie Bourdoiseau (SBN 340462) rcaldarone@heartlandalliance.org
Karen Musalo (SBN 106882) ccowgill@heartlandalliance.org
8 CENTER FOR GENDER & REFUGEE mgeorgevich@heartlandalliance.org
STUDIES
9 200 McAllister Street Michelle (Minju) Y. Cho (SBN 321939)
San Francisco, CA 94102 AMERICAN CIVIL LIBERTIES UNION
10 T: (415) 610-5729 FOUNDATION OF NORTHERN
F: (415) 581-8824 CALIFORNIA, INC.
11 petersonanne@uchastings.edu 39 Drumm Street
San Francisco, CA 94111
12 Robert Pauw** T: (415) 621-2493
CGRS Cooperating Attorney F: (415) 255-1478
13 GIBBS HOUSTON PAUW mcho@aclunc.org
1000 Second Avenue, Suite 1600
14 Seattle, WA 98104
T: (206)682-1080
15 F: (206)689-2270
rpauw@ghp-law.net
16
17
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Attorneys for Plaintiffs
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*Admitted Pro hac vice
20 ** Application for admission pro hac vice
forthcoming
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Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 3 of 40
1 TABLE OF CONTENTS
2
INTRODUCTION ........................................................................................................................... 1
3
ARGUMENT .................................................................................................................................. 3
4
I. The Rule Is Contrary to Law. ........................................................................................ 3
5
A. The Government Cannot Force Asylum Seekers to Choose Between Three
6
Invalid Requirements. ............................................................................................. 3
7
B. The Rule Amounts to a Harsher Entry Ban with Slight Cosmetic Changes. .......... 8
8
II. The Rule Is Arbitrary and Capricious. ........................................................................ 10
9
A. The Rule’s Justification Relies on Factors That Congress Has Rejected.............. 11
10
B. The Record Contradicts the Rule’s Justification that Its Pathways Are Widely
11 Available. .............................................................................................................. 12
12
C. The Record Does Not Support the Rule’s Assumption that People Who Enter
13 Between Ports or Pass Through Transit Countries Without Seeking Protection
Have Weaker Asylum Claims. .............................................................................. 17
14
D. The Agencies Failed to Consider Related Border Policies. .................................. 19
15
III. The Rule Is Procedurally Defective. ........................................................................... 20
16
17 IV. Plaintiffs Have Standing.............................................................................................. 22
18 V. 8 U.S.C. § 1252(f)(1) Does Not Apply. ...................................................................... 24
19 A. 8 U.S.C. § 1252(f)(1) Does Not Apply to Vacatur. .............................................. 24
20 B. 8 U.S.C. § 1252(f)(1) Does Not Apply to Policies Implementing the Asylum
Statute. ................................................................................................................... 25
21
VI. The Court Should Vacate the Rule in Full. ................................................................. 27
22
23 A. The Court Should Reject the Government’s Novel Request for Partial Vacatur. . 27
24 B. Remand Without Vacatur Is Not Warranted. ........................................................ 27
25 CONCLUSION ............................................................................................................................. 30
26
27
28
i
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 4 of 40
1 TABLE OF AUTHORITIES
2 Cases
3 Advocate Health Care Network v. Stapleton,
581 U.S. 468 (2017) .................................................................................................................... 27
4
Al Otro Lado v. Mayorkas,
5 619 F. Supp. 3d 1029 (S.D. Cal. 2022) ....................................................................................... 25
6 Al Otro Lado, Inc. v. Mayorkas,
2022 WL 3142610 (S.D. Cal. Aug. 5, 2022) ........................................................................ 25, 26
7
Alabama Ass’n of Realtors v. HHS,
8 141 S. Ct. 2485 (2021) .................................................................................................................. 6
9 Alaska Factory Trawler Ass’n v. Baldridge,
831 F.2d 1456 (9th Cir. 1987) ..................................................................................................... 21
10
All. for the Wild Rockies v. United States Forest Serv.,
11 907 F.3d 1105 (9th Cir. 2018) ..................................................................................................... 28
12 Allen v. Milligan,
599 U.S. ___, 2023 WL 3872517 (2023) ...................................................................................... 4
13
Allina Health Servs. v. Sebelius,
14 746 F.3d 1102 (D.C. Cir. 2014) .................................................................................................. 22
15 Am. Radio Relay League v. FCC,
524 F.3d 227 (D.C. Cir. 2008) .................................................................................................... 22
16
Bringas-Rodriguez v. Sessions,
17 850 F.3d 1051 (9th Cir. 2017) ....................................................................................................... 7
18 CAIR Coalition v. Trump,
471 F. Supp. 3d 25 (D.D.C. 2020) .............................................................................................. 28
19
Cal. ex rel. Becerra v. Dep’t of Interior,
20 381 F. Supp. 3d 1153 (N.D. Cal. 2019) ...................................................................................... 21
21 California v. Trump,
963 F.3d 926 (9th Cir. 2020) ......................................................................................................... 4
22
Cent. Lincoln Peoples’ Util. Dist. v. Johnson,
23 735 F.2d 1101 (9th Cir. 1984) ..................................................................................................... 20
24 Chamber of Commerce v. DHS,
504 F. Supp. 3d 1077 (N.D. Cal. 2020) ...................................................................................... 20
25
Chamber of Commerce v. SEC,
26 443 F.3d 890 (D.C. Cir. 2006) .................................................................................................... 22
27 City & Cnty. of S.F. v. Azar,
411 F. Supp. 3d 1001 (N.D. Cal. 2019) ...................................................................................... 27
28
ii
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1 Cook County v. Wolf,
962 F.3d 208 (7th Cir. 2020) ......................................................................................................... 4
2
Council of S. Mountains, Inc. v. Donovan,
3 653 F.2d 573 (D.C. Cir. 1981) .................................................................................................... 20
4 Ctr. for Biological Diversity v. NHTSA,
538 F.3d 1172 (9th Cir. 2008) ..................................................................................................... 18
5
Ctr. for Biological Diversity v. Ross,
6 480 F. Supp. 3d 236 (D.D.C. 2020) ............................................................................................ 28
7 Dep’t of Commerce v. New York,
139 S. Ct. 2551 (2019) .......................................................................................................... 18, 19
8
Doe v. Indian River Sch. Dist.,
9 653 F.3d 256 (3d Cir. 2011) .......................................................................................................... 4
10 EBSC v. Biden,
993 F.3d 640 (9th Cir. 2021) ................................................................................................ passim
11
EBSC v. Trump,
12 354 F. Supp. 3d 1094 (N.D. Cal. 2018) ................................................................................ 23, 27
13 EBSC v. Barr,
385 F. Supp. 3d 922 (N.D. Cal. 2019) ............................................................................ 5, 6, 7, 23
14
EBSC v. Garland,
15 994 F.3d 962 (9th Cir. 2020) ................................................................................................ passim
16 Florida v. Mayorkas,
2023 WL 3398099 (N.D. Fla. May 11, 2023) ............................................................................. 26
17
Florida v. United States,
18 __ F. Supp. 3d. ___, No. 21-1066, 2023 WL 2399883 (Mar. 8, 2023) ....................................... 25
19 Garland v. Aleman Gonzalez,
142 S. Ct. 2057 (2022) .................................................................................................... 24, 25, 26
20
Gill v. Whitford,
21 138 S. Ct. 1916 (2018) ................................................................................................................ 27
22 Gonzales v. DHS,
508 F.3d 1227 (9th Cir. 2007) ..................................................................................................... 26
23
Gonzalez v. ICE,
24 975 F.3d 788 (9th Cir. 2020) ....................................................................................................... 26
25 Habeas Corpus Res. Ctr. v. DOJ,
2009 WL 185423 (N.D. Cal. Jan. 20, 2009) ............................................................................... 21
26
Hall v. EPA,
27 273 F.3d 1146 (9th Cir. 2001) ..................................................................................................... 20
28
iii
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 6 of 40
1 HollyFrontier Cheyenne Refining, LLC v. Renewable Fuels Ass’n,
141 S. Ct. 2172 (2021) .................................................................................................................. 7
2
Humane Soc’y of the United States v. Jewell,
3 76 F. Supp. 3d 69 (D.D.C. 2014) .......................................................................................... 28, 30
4 Humane Soc’y of United States v. Zinke,
865 F.3d 585 (D.C. Cir. 2017) .................................................................................................... 28
5
Ill. Pub. Telecomms. Ass’n v. FCC,
6 123 F.3d 693 (D.C. Cir.1997) ..................................................................................................... 28
7 Johnson v. Branch,
364 F.2d 177 (4th Cir. 1966) ......................................................................................................... 4
8
Los Angeles v. FAA,
9 63 F.4th 835 (9th Cir. 2023) .............................................................................................. 9, 15, 19
10 Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) .................................................................................................................... 27
11
Matter of Pula,
12 19 I&N Dec. 467 (BIA 1987).................................................................................................... 6, 7
13 Merrill v. Milligan,
142 S. Ct. 879 (2022) (Mem.) ....................................................................................................... 3
14
Monsanto Co. v. Geertson Seed Farms,
15 561 U.S. 139 (2010) .................................................................................................................... 24
16 Moreno Galvez v. Jaddou,
52 F.4th 821 (9th Cir. 2022) ........................................................................................................ 25
17
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
18 463 U.S. 29 (1983) ...................................................................................................................... 12
19 Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs,
145 F.3d 1399 (D.C. Cir. 1998) .................................................................................................. 27
20
New York v. United States,
21 505 U.S. 144 (1992) ...................................................................................................................... 4
22 NFIB v. Dep’t of Labor,
142 S. Ct. 661 (2022) .................................................................................................................... 5
23
Nken v. Holder,
24 556 U.S. 418 (2009) ................................................................................................................ 3, 29
25 NRDC v. EPA,
571 F.3d 1245 (D.C. Cir. 2009) .................................................................................................. 28
26
NRDC v. NHTSA,
27 894 F.3d 95 (2d Cir. 2018) .......................................................................................................... 20
28
iv
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 7 of 40
1 O.A. v. Trump,
404 F. Supp. 3d 109 (D.D.C. 2019) ...................................................................................... 27, 28
2
Pangea Legal Servs. v. DHS,
3 501 F. Supp. 3d 792 (N.D. Cal. 2020) ........................................................................................ 20
4 Petroleum Commc’ns, Inc. v. FCC,
22 F.3d 1164 (D.C. Cir. 1994) .................................................................................................... 19
5
Reno v. Am-Arab Anti-Discrimination Comm.,
6 525 U.S. 471 (1999) .................................................................................................................... 24
7 San Francisco v. DHS,
408 F. Supp. 3d 1057 (N.D. Cal. 2019) ........................................................................................ 5
8
Spence v. Bailey,
9 465 F.2d 797 (6th Cir. 1972) ......................................................................................................... 4
10 Stewart v. Azar,
313 F. Supp. 3d 237 (D.D.C. 2018) ............................................................................................ 28
11
Texas v. United States,
12 40 F.4th 205 (5th Cir. 2022) ........................................................................................................ 24
13 Texas v. United States,
50 F.4th 498 (5th Cir. 2022) ........................................................................................................ 24
14
Trump v. Hawaii,
15 138 S. Ct. 2392 (2018) ................................................................................................................ 27
16 United States v. Texas,
No. 22-58, __ U.S. ___, 2023 WL 4139000 (U.S. June 23, 2023) ......................................... 4, 23
17
Youngstown Sheet & Tube Co. v. Sawyer,
18 343 U.S. 579 (1952) ...................................................................................................................... 6
19 Zheng v. Gonzales,
422 F.3d 98 (3d Cir. 2005) ............................................................................................................ 5
20
21 Statutes
22 5 U.S.C. § 706(2) ............................................................................................................................ 24
23 8 U.S.C. § 1153 ............................................................................................................................... 26
24 8 U.S.C. § 1158 ....................................................................................................................... 6, 8, 25
25 8 U.S.C. § 1158(a)(1) .............................................................................................................. 1, 8, 10
26 8 U.S.C. § 1158(a)-(b) ..................................................................................................................... 25
27 8 U.S.C. § 1158(b)(2)(C) ........................................................................................................ 3, 6, 25
28 8 U.S.C. § 1158(d)(5)(B) ................................................................................................................ 25
v
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 8 of 40
1
8 U.S.C. § 1182 ............................................................................................................................... 26
2
8 U.S.C. § 1182(d)(5) ...................................................................................................................... 26
3
8 U.S.C. § 1184 ............................................................................................................................... 26
4
8 U.S.C. § 1187 ............................................................................................................................... 26
5
8 U.S.C. § 1225 ............................................................................................................................... 25
6
8 U.S.C. § 1225(b)(1)(B) .................................................................................................................. 7
7
8 U.S.C. § 1226 ............................................................................................................................... 25
8
8 U.S.C. § 1229a ............................................................................................................................. 25
9
8 U.S.C. § 1231 ............................................................................................................................... 25
10
8 U.S.C. § 1231(a)(1) ...................................................................................................................... 26
11
8 U.S.C. § 1231(a)(5) ...................................................................................................................... 26
12
8 U.S.C. § 1252(f) ........................................................................................................................... 24
13
8 U.S.C. § 1252(f)(1) ............................................................................................................... passim
14
8 U.S.C. § 1255 ............................................................................................................................... 26
15
8 U.S.C. § 1481 ............................................................................................................................... 26
16
8 U.S.C. §§ 1421-1427 .................................................................................................................... 26
17
Pub. L. No. 104-208, Div. C, § 306(a)(2), 110 Stat. (1996) ........................................................... 25
18
19 Regulations and Executive Actions
20 8 C.F.R. § 1208.33(b) ...................................................................................................................... 27
21 8 C.F.R. § 208.33(a)(1) ..................................................................................................................... 8
22 8 C.F.R. § 208.33(a)(2)(i) ................................................................................................................. 9
23 8 C.F.R. § 208.33(a)(2)(ii)(B) ........................................................................................................... 9
24 8 C.F.R. § 208.33(b) ........................................................................................................................ 27
25 8 C.F.R. § 208.33(a)(2)(ii)(A) ........................................................................................................... 9
26 8 C.F.R. § 212.21(b)(5)(iii) ............................................................................................................... 5
27 Executive Order 14010 (Feb. 2, 2021), 86 Fed. Reg. 8,267........................................................... 20
28 Final Rule, Circumvention of Lawful Pathways, 88 Fed. Reg. 31,314 (May 16, 2023).......... passim
vi
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1
Notice of Proposed Rulemaking, Circumvention of Lawful Pathways, 88 Fed. Reg. 11,704 (Feb.
2 23, 2023)............................................................................................................... 12-13, 18, 22, 26
3 Public Health Determination and Order Regarding Suspending the Right To Introduce Certain
Persons From Countries Where a Quarantinable Communicable Disease Exists, 87 Fed. Reg.
4 19,941 (Apr. 6, 2022) .................................................................................................................. 20
5 Public Health Reassessment and Order Suspending the Right to Introduce Certain Persons From
Countries Where a Quarantinable Communicable Disease Exists, 86 Fed. Reg. 42,828 (Aug. 5,
6 2021)............................................................................................................................................ 20
7 Other Authorities
8 H.R. 2182, 104th Cong. § 1(a) (1995) .............................................................................................. 7
9
10
11
12
13
14
15
16
17
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Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 10 of 40
INTRODUCTION
1
The government provides no meaningful response to the key elements of Plaintiffs’ claims.
2
Instead, it repeatedly describes the Rule and its rationales without offering a valid defense of its
3
legality. And the government confirms the Rule’s devastating impact—thousands of people with
4
likely viable claims already ordered deported because of the bar—and acknowledges that many
5
asylum seekers have no readily available “pathway” to present their meritorious claims. The
6
government essentially argues that, even if the Rule’s components are contrary to the basic
7
principles of the asylum system—and therefore unlawful—it should still be allowed to maintain the
8
eligibility bar because some people can enter the country under parole programs and via CBP One
9
appointments, and it fears strained processing capacity if the bar is lifted.
10
As to the Rule’s statutory conflict, the government does not make a serious attempt to contest
11
that, under binding precedent, it lacks the power to impose any of the Rule’s three conditions—port
12
of entry, transit denial, parole—as a standalone requirement. Nor does the government explain why
13
it can force asylum seekers to choose among these invalid requirements, none of which is “consistent
14
with” the asylum statute. Its main response is to identify a series of superficial ways in which the
15
Rule differs from the prior bans. All of them are irrelevant to the Rule’s legality.
16
The government also fails to show that the Rule gives asylum seekers any real option other
17
than to present at a port of entry, just like the first asylum ban. As to parole, its arguments do not
18
dispute that parole will help virtually no asylum seekers at the border—the only people to whom the
19
Rule applies. As to transit countries, the government’s declaration confirms that almost no one can
20
satisfy the transit-denial condition, just as under the prior transit ban. Given that these two
21
“pathways” are largely unavailable to people subject to the Rule, the only option the Rule gives
22
them is to enter at a port, in direct conflict with 8 U.S.C. § 1158(a)(1).
23
The government notably refuses to defend some of the Rule’s core justifications, instead
24
claiming that they are not a part of the Rule. But the preamble repeatedly relies on the premise that
25
non-asylum options for entering the United States justify a significant reduction in asylum access at
26
the border—a premise that Congress has rejected. And it consistently invokes the rationale that
27
asylum seekers who do not use one of the Rule’s supposed “pathways” have weaker claims—a
28
1
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 11 of 40
1 premise the Ninth Circuit has rejected. The preamble treats these as essential justifications for the
2 Rule, even if the government will not defend them in its brief.
3 As for the record, the government takes the same circular approach as the preamble,
4 sidestepping the problems of one “pathway” by pointing to others, which themselves are plagued
5 with problems. For instance, the government does not dispute, and its declaration confirms, that
6 CBP One appointments remain so scarce that asylum seekers must wait weeks and months to secure
7 them. The government does not cite any evidence contradicting Plaintiffs’ proof of the enormous
8 dangers faced by migrants in Mexico and other transit countries, or the serious flaws with Mexico’s
9 asylum system that make it impossible for many people to receive asylum there or the final denials
10 the Rule requires.
11 The government has no better defense of the Rule’s procedural defects. It argues that the
12 agencies faced a tight deadline with the end of Title 42, but they knew all along that Title 42 was
13 temporary and the CDC sought to terminate the policy a year before they issued the Rule. The
14 government confirms that the agencies spent at least 18 months preparing for the policy to end. The
15 agencies cannot wait until the last minute and then invoke the exigency they created to justify taking
16 shortcuts. Nor can the government justify the agencies’ refusal to provide the study and model that
17 were used to generate the Rule’s key prediction that ordinary Title 8 processing—which, unlike
18 Title 42 expulsion, comes with formal deportation, years-long bars to admission, and potential
19 criminal prosecution—would be insufficient to manage the border after Title 42. This prevented
20 commenters from effectively addressing whether the Rule was needed to avoid a post-Title 42 spike.
21 Finally, the government’s contentions on threshold issues are meritless. The Ninth Circuit
22 has already rejected all of its standing and zone-of-interest arguments. Vacatur is universally agreed
23 to be the appropriate remedy for unlawful agency action. Section 1252(f)(1) does not apply to
24 vacatur or to policies implementing the asylum statute. And remand without vacatur is not
25 warranted. Remand may be available when a rule simply requires a bit more explanation to reach
26 the same result, but here, the agencies cannot change the statute, the record, or the Rule’s key
27 rationales. The disruption the government claims is also overblown. It asserts that the Rule is the
28 only thing preventing a renewed a spike in encounters. But it does not show that ordinary Title 8
2
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 12 of 40
1 consequences will not achieve a similar effect. And it ignores the disruption to 40 years of asylum
2 practice, and to Plaintiffs whose clients face grievous harms and an impossible choice: to wait
3 indefinitely in Mexico and face kidnapping or worse; or to enter between ports and face asylum
4 ineligibility.
5 ARGUMENT
6 I. The Rule Is Contrary to Law.
7 Plaintiffs’ opening brief explained why the Rule is invalid on its face, and why in practice it
8 re-imposes a harsher version of the prior entry ban. The government does not contest the core
9 elements of these claims. Most of its arguments sidestep the main issues, and many respond to
10 arguments that Plaintiffs have not made.
11 A. The Government Cannot Force Asylum Seekers to Choose Between Three Invalid
12 Requirements.
The government does not meaningfully engage with Plaintiffs’ main statutory claim. As
13
Plaintiffs explained, the Rule requires asylum seekers to satisfy one of three requirements, each of
14
which would be illegal if imposed as a standalone requirement. Mot. 9-11. Given that none of the
15
requirements is “consistent with” the asylum statute, 8 U.S.C. § 1158(b)(2)(C), the government
16
cannot force asylum seekers to choose between them. Imposing invalid requirements in the
17
alternative does not make them valid.
18
Defendants do not challenge these contentions. They do not claim that they can require all
19
asylum seekers to enter at ports with an appointment. See E. Bay Sanctuary Covenant (“EBSC”) v.
20
Biden, 993 F.3d 640, 669-70 (9th Cir. 2021) (EBSC Entry Ban) (resolving this issue). They do not
21
claim that, under Ninth Circuit precedent, they can force asylum seekers to apply for protection and
22
receive a denial in transit countries. See EBSC v. Garland, 994 F.3d 962, 976-79 (9th Cir. 2020)
23
(EBSC Transit Ban) (same). 1 They do not claim that they can require asylum seekers to obtain
24
25 1
The government notes that the Supreme Court stayed the injunction of the prior transit ban without
opinion. Opp. 3, 15. But the Ninth Circuit subsequently held that the ban was unlawful, and that is
26 what controls here. EBSC Transit Ban, 994 F.3d 962. In any event, a Supreme Court “stay order is
not a ruling on the merits, but instead simply stays the District Court’s injunction pending a ruling
27 on the merits.” Merrill v. Milligan, 142 S. Ct. 879 (2022) (Mem.) (Kavanaugh, J., concurring); see
Nken v. Holder, 556 U.S. 418, 432 (2009) (stay pending appeal does not “decide[] the merits,” but
28 rather “hold[s] the matter under review in abeyance because the appellate court lacks sufficient time
3
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1 advance travel permission. Opp. 16-17 (arguing primarily the red herring that the INA “allow[s] a
2 parolee to seek asylum”). 2 The government also cites no authority suggesting that, even if each of
3 these requirements would be invalid on its own, the agencies can nonetheless force asylum seekers
4 to comply with one of them. And for good reason: the government cannot force a “choice between”
5 alternatives that would be invalid “standing alone.” New York v. United States, 505 U.S. 144, 176
6 (1992); see Doe v. Indian River Sch. Dist., 653 F.3d 256, 279 (3d Cir. 2011) (explaining that “the
7 government cannot force one to choose between” requirements that could not be imposed
8 individually); Johnson v. Branch, 364 F.2d 177, 180 (4th Cir. 1966) (same); Spence v. Bailey, 465
9 F.2d 797, 800 (6th Cir. 1972) (similar). These uncontested points are sufficient to resolve Plaintiffs’
10 first statutory claim.
11 The government’s response largely just re-describes the Rule and argues that it differs from
12 prior bans, because it provides a choice between three requirements and contains additional narrow
13 exceptions. See Opp. 14-15 (attempt to distinguish entry ban); id. at 16 (same for transit ban). That
14 is true as a basic description of the Rule, but it is not responsive to Plaintiffs’ argument that the
15 requirements are all inconsistent with the asylum statute.
16 The government’s other attempts to distinguish the current Rule from its predecessors are
17 equally unresponsive to the analysis above and do not impact the Rule’s validity. First, the
18 government repeats the Rule’s statement that it establishes a “presumption” against asylum
19 eligibility, instead of a “bar.” Opp. 14, 15-16. That is pure semantics. However it is described,
20 the Rule renders a huge category of people ineligible for asylum unless they meet conditions that
21
to decide the merits”). Unsurprisingly, then, the Supreme Court and lower courts frequently rule on
22 the merits for the party that lost at the stay stage. See, e.g., Allen v. Milligan, 599 U.S. __, 2023 WL
3872517 (2023), compare 142 S. Ct. 879 (Mem.); United States v. Texas, No. 22-58, __ U.S. ___,
23 2023 WL 4139000 (U.S. June 23, 2023), compare 143 S. Ct. 51 (Mem.); EBSC Transit Ban, 994
F.3d 962; California v. Trump, 963 F.3d 926, 949 (9th Cir. 2020); Cook County v. Wolf, 962 F.3d
24 208, 233-34 (7th Cir. 2020). The transit ban stay therefore has no bearing on the issues presented
in this case.
25 2
The government responds at length to a supposed “conten[tion] that the Refugee Act foreclosed
26 entry via parole for asylum seekers.” Opp. 16. But Plaintiffs made no such argument. Of course
asylum seekers can receive parole, and parolees can seek asylum. Plaintiffs acknowledge that, for
27 those asylum seekers who qualify, the parole programs are a benefit. Mot. 17. Plaintiffs’ argument
is instead that the government cannot require putative asylum seekers to first obtain parole or other
28 advance travel permission, since that would conflict with the text and purpose of the asylum statute.
See infra at 7; Mot. 10-11. The government makes no argument to the contrary.
4
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1 the agencies may not impose, just like the prior bans did. The choice of terminology makes no
2 difference. Nor, as Plaintiffs explained, Mot. 7, does the Rule function like an actual rebuttable
3 presumption—a point to which Defendants do not respond.
4 Second, the agencies point out that the Rule has more exceptions than the prior rules. Opp.
5 3, 14, 15-16, 21 (discussing “rebuttal”). But courts consistently vacate illegal rules despite narrow
6 exceptions. See NFIB v. Dep’t of Labor, 142 S. Ct. 661, 663-65 (2022) (vaccine mandate violated
7 statute despite a number of exceptions); Zheng v. Gonzales, 422 F.3d 98, 119 (3d Cir. 2005) (rule
8 invalid despite “narrow exception”); San Francisco v. DHS, 408 F. Supp. 3d 1057, 1110 (N.D. Cal.
9 2019) (invalid immigration rule contained several “narrow exception[s],” see 8 C.F.R.
10 § 212.21(b)(5)(iii)) (quotation marks omitted), aff’d, 981 F.3d 742 (9th Cir. 2020). Indeed, the
11 transit ban was invalidated despite its narrow exceptions, EBSC Transit PI, 385 F. Supp. 3d at 935,
12 and the government provides no reason why an additional exception reserved for “exceptionally
13 compelling circumstances” would make any difference. Opp. 14. This is particularly true where the
14 Rule’s preamble states that this exception is reserved for only the rarest and most extraordinary
15 scenarios, such as when a person faces “an imminent and extreme threat” of “rape” or “torture” “at
16 the time of entry” into the United States. 88 Fed. Reg. at 31,450. 3
17 Third, the government suggests that, unlike the prior bans, “the rule provides alternative
18 pathways” to asylum. Opp. 14, 20. But the Rule itself says exactly the opposite: “this rule does not
19 create, expand, or otherwise constitute the basis for any lawful pathways.” 88 Fed. Reg. at 31,370.
20 Fourth, the government claims that the Rule is different because, separate from the Rule, the
21 government has “significantly expanded” other options for people to seek protection in the United
22 States. Opp. 1-2, 3. But that is both wrong and beside the point. It’s wrong because the government
23 has largely curtailed access to the normal means of seeking protection from persecution. Forcing
24
3
25 The government suggests that not all “exceptionally compelling circumstances” necessarily
involve circumstances at the time of entry. Opp. 7 n.4. But as applied to danger, the government
26 does not dispute that any safety threat must be “extreme and imminent” “at the time of entry.” 88
Fed. Reg. at 31,318 & n.36, 31,322, 31324-25. The Rule consistently stresses that less urgent or
27 extreme threats will not suffice. Id. That comes nowhere close to the safeguards required by the
firm resettlement and the safe third country provisions to guarantee that an asylum seeker has a
28 “genuinely safe option in another country” where they can live freely and seek long-term legal
protection. EBSC Transit Ban, 994 F.3d at 979.
5
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1 people to use CBP One does not expand anything, but rather reduces access to asylum at ports of
2 entry, Mot. 16; the government has effectively eliminated asylum for people who enter between
3 ports, Mot. 11-13; and, in the last several years, the government has admitted the fewest refugees
4 processed overseas since the Refugee Act was enacted, PC_039834. Though the government has
5 created separate programs like the parole processes mentioned in the Rule, those programs are not
6 a replacement for asylum and are only available to people from a tiny handful of countries. But the
7 government’s claim is also beside the point, because the legal question is whether the Rule’s own
8 limitations are “consistent with” § 1158, not whether the administration has, separate from the Rule,
9 tightened or loosened migration in general. Even if the government massively expanded tourist
10 visas, parole, or anything else, that would not justify violating § 1158 by requiring asylum seekers
11 to enter at ports or apply in transit countries.
12 Apart from trying to distinguish the prior bans, the government’s other statutory arguments
13 are unavailing. It argues at length that the asylum statute gives it authority to create new eligibility
14 bars. Opp. 10-12. But Plaintiffs never argued otherwise. While the government can add new bars,
15 they must “consistent with” the statute. 8 U.S.C. § 1158(b)(2)(C). This requirement is unaffected
16 by the government’s prediction that “large numbers” of people may seek asylum. Opp. 12. The
17 two prior bans were struck down despite similar concerns about an “influx of persons seeking
18 asylum.” EBSC Transit PI, 385 F. Supp. 3d at 959; see EBSC Entry Ban, 993 F.3d at 695 (Bumatay,
19 J., dissenting). And the Supreme Court has made clear that such claimed exigencies “do[] not permit
20 agencies to act unlawfully.” Alabama Ass’n of Realtors v. HHS, 141 S. Ct. 2485, 2490 (2021) (citing
21 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582 (1952)).
22 As it has before, the government argues that its ultimate discretion to grant or deny asylum
23 to eligible applicants expands its authority to adopt bars to eligibility itself. Opp. 13. The Ninth
24 Circuit has already rejected that theory. EBSC Transit Ban, 994 F.3d at 979-80. Likewise
25 foreclosed is the government’s reliance on Matter of Pula, 19 I&N Dec. 467 (BIA 1987), for the
26 proposition that manner of entry and transit are relevant at the discretionary stage, after eligibility
27 has been determined. Opp. 13, 15, 21. Even there, entry between ports is “worth little if any
28 weight.” EBSC Entry Ban, 993 F.3d at 671 (quotation marks omitted). As to transit, “Matter of
6
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1 Pula was superseded by the mandatory firm resettlement bar.” EBSC Transit PI, 385 F. Supp. 3d
2 at 946-47; see EBSC Transit Ban, 994 F.3d at 983 (Pula not even cited on appeal). The government
3 highlights that Pula mentions “circumvention of orderly refugee procedures” as a relevant factor.
4 Opp. 13. But Pula actually rejects the idea that this is a sufficient reason to deny asylum, or even
5 to require (as the Rule does) an “unusual showing of countervailing equities.” 19 I&N Dec. at 473.
6 Finally, the government argues for general “deference” to its view that the Rule is valid.
7 Opp. 13-14. It is unclear whether the government means to ask specifically for Chevron deference,
8 since its brief does “not mention Chevron,” and in the transit ban case, the government “disclaimed
9 reliance on Chevron during oral argument.” EBSC Transit Ban, 994 F.3d at 976; see HollyFrontier
10 Cheyenne Refining, LLC v. Renewable Fuels Ass’n, 141 S. Ct. 2172, 2180 (2021) (“declin[ing] to
11 consider” Chevron deference where “the government does not” ask for it). But even if Chevron
12 applied, the Ninth Circuit has already held that the Rule’s entry and transit conditions are “contrary
13 to the unambiguous language of § 1158” and so they fail Chevron at step one. See EBSC Transit
14 Ban, 994 F.3d at 976; EBSC Entry Ban, 993 F.3d at 671, 675. The same is true of the parole
15 condition. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059-60 (9th Cir. 2017) (statute ended
16 the practice of requiring asylum seekers to obtain travel permission through parole); see also Mot.
17 11-12.
18 Even if the statute were ambiguous, “the Rule fails at the second step of Chevron because it
19 is an arbitrary and capricious interpretation of the statutory provision.” EBSC Entry Ban, 993 F.3d
20 at 671; see Mot. 14-16. The port-of-entry requirement conflicts with “the United States’s treaty
21 obligations” and conditions asylum on a factor that is “worth little if any weight.” Id. at 671-72.
22 The transit-denial requirement is one that almost no asylum seeker can satisfy—something Congress
23 could not have intended in creating a robust asylum system at the border. Mot. 12 n.4; see 8 U.S.C.
24 § 1225(b)(1)(B) (ensuring access to asylum specifically for people who arrive at the border). Indeed,
25 Congress squarely rejected a proposal that would have required asylum seekers to first apply in
26 transit countries. See H.R. 2182, 104th Cong. § 1(a) (1995). And as for parole, as Plaintiffs have
27 explained, the whole purpose of the asylum statute was to ensure that asylum seekers would not
28
7
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1 have to rely on first obtaining ad hoc grants of parole. Mot. 10-11. Thus, even if § 1158 were
2 ambiguous, it is not reasonable to conclude that these requirements are “consistent with” the statute.
3 B. The Rule Amounts to a Harsher Entry Ban with Slight Cosmetic Changes.
4 As Plaintiffs explained, the Rule collapses into a rehash of the prior entry ban, because it
5 forces most asylum seekers to enter at a port, and bars them from asylum if they do not. Mot. 11-
6 14. The Rule’s other options are essentially illusory, as they apply to so few asylum seekers who
7 are subject to the Rule that, for almost everyone, entering at a port after securing a CBP One
8 appointment is the only potential option. This violates § 1158(a)(1), which specifically authorizes
9 people to apply for asylum “whether or not” at a port. EBSC Entry Ban, 993 F.3d at 669.
10 The government does not contest that the Rule would violate § 1158(a)(1) if it effectively
11 required people at the border to enter at ports to be eligible for asylum. See Opp. 17-18. But it
12 argues that the Rule does not force most people to ports, because the two other “pathways” identified
13 in the Rule are widely available to asylum seekers at the border. Its arguments are incorrect.
14 As Plaintiffs explained, the Rule’s parole provision does not present a real way for asylum
15 seekers at the border to avoid the Rule’s port-of-entry requirement. Mot. 12. The government has
16 no coherent response. To the contrary, it acknowledges that the programs identified in the Rule
17 require participants to fly to interior U.S. airports. Opp. 17, 23, 24. The government cannot deny
18 that such participants will never encounter the Rule, because it only applies at the “southwest land
19 border or adjacent coastal borders.” 8 C.F.R. § 208.33(a)(1). Nor does the government dispute that
20 almost no one can apply for parole through these programs after they reach the border, because
21 migrants’ irregular entry into Mexico or Panama renders them ineligible. Mot. 12. It is thus clear
22 that those who are subject to the Rule—asylum seekers at the border—will virtually never overcome
23 the Rule using the parole exception. Whether or not “significant numbers of individuals” can fly to
24 U.S. airports through the parole programs, Opp. 18, the relevant point here is that people at the
25 border cannot use this avenue to overcome the bar and will therefore have to present at ports.
26 The government’s brief vaguely suggests that some parole program participants may, “if
27 necessary, attempt[] to cross the southwest border.” Opp. 24. But the record and the Rule identify
28 no such cases, and certainly make no attempt to show that this happens with any regularity. See Los
8
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1 Angeles v. FAA, 63 F.4th 835, 842 (9th Cir. 2023) (agency action must be justified by “the agency’s
2 own articulation” and not “post hoc explanations” by “counsel”) (cleaned up). And for good reason,
3 since a person would take an enormous risk of being denied parole by entering at a land border in
4 spite of the programs’ clear “air travel” requirements. 4 Mot. 12. Even if that happened on a rare
5 occasion, it would not change the key point that the parole exception will exempt virtually no one
6 at the border from the requirement to enter at a port. 5
7 The Rule’s transit-denial exception is just as illusory. The government does not dispute that
8 over 98% of asylum seekers were unable to meet that condition during the year the prior transit ban
9 was in effect. See Mot. 12-13; Opp. 18-19 (no mention of this). In the Rule’s preamble, the agencies
10 did not even bother to address this striking fact—that one of the Rule’s two main “pathways” for
11 maintaining asylum eligibility at the border was previously, in fact, available to almost no one. The
12 government’s declaration confirms that this remains true: Only 3% of people interviewed by USCIS
13 so far have qualified for an “exception” to the Rule. See Nuñez-Neto Decl. ¶ 16. That figure
14 includes, not just people who received a denial in a transit country, but also people who proved they
15 could not use CBP One. See 8 C.F.R. § 208.33(a)(2)(i), (ii)(B) (describing these as “exceptions”).
16 So while 3% is minuscule, the real number of people who can satisfy the transit-denial condition is
17 likely far lower. The government notably does not provide this figure.
18 As Plaintiffs explained, the record makes clear why so few people can qualify for the transit-
19 denial exception to the Rule. Mot. 13, 19-23; infra at 15-17. Most asylum seekers are unsafe in
20 transit countries, where migrants are constantly targeted by gangs, cartels, and police; they cannot
21 find sanctuary in these countries or be expected to wait in danger while they pursue their claims.
22
4
The government asserts that Plaintiffs arguments are misplaced because the parole condition does
23 not require someone to have been granted parole, but merely to have been “provided appropriate
authorization to travel to the United States to seek parole.” Opp. 16 (citing 8 C.F.R.
24 §208.33(a)(2)(ii)(A)). Plaintiffs, however, do not contend otherwise. Instead, Plaintiffs argue that,
for virtually everyone subject to the Rule, obtaining this advance travel authorization is not possible
25 and it would be irrational for anyone with prior authorization to come to the border instead of flying
in, as the program terms require.
26 5
The government also gestures at the theoretical possibility of grants of parole outside the new
27 programs the Rule cites. Opp. 18. But the Rule makes no attempt to suggest that these other
mechanisms would exempt large numbers of people at the border from the port-of-entry
28 requirement. And the family-based programs the government cites, Opp. 18, are directed towards
people who have means of immigrating unrelated to any protection needs.
9
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1 Many more are deported by immigration authorities before they can apply, while their cases are
2 pending, or soon after they are resolved; they never reach the U.S. border to apply for asylum.
3 Others who try to apply for asylum in Mexico are thwarted by the enormous procedural hurdles
4 imposed by Mexico’s asylum system, receiving neither asylum nor the “final denial” that the Rule
5 requires. The transit condition thus presents no real alternative to the requirement to enter at a port.
6 The government’s main response, as in the Rule itself, is that Mexico recently began
7 receiving a larger number of applications, and grants a high percentage of the cases it decides. Opp.
8 18-19. But that does little to show that the transit-denial “pathway” is a meaningful alternative to
9 the Rule’s port-of-entry requirement. The number of applications increased only as a result of Title
10 42 blocking access to asylum in the United States, and the number means little for people who face
11 too much danger in Mexico to even apply. Many of those who do apply do not find sufficient safety
12 in Mexico, but submit applications in a desperate attempt to avoid refoulement by Mexican
13 immigration officials. Mot. 22. The number of decided cases is also a small percentage of the
14 applications—far lower than Defendants claim—and it appears to be declining. See infra at 15. Of
15 those, people who receive asylum obviously cannot satisfy the transit-denial condition and must
16 remain in Mexico even if they are not safe. And many who do not receive asylum still cannot satisfy
17 the transit-denial condition, because their application is rejected for reasons other than a “final
18 denial.” Mot. 13, 21-22. The government’s brief offers no response to any of these problems. When
19 you consider all of them together, it is not surprising that fewer than 2% of asylum seekers could
20 satisfy the condition the Rule now re-imposes.
21 Thus, because the other two options are largely illusory, in the mine run of cases, the Rule
22 will force asylum seekers at the border to enter at a port, in direct violation of § 1158(a)(1).
23 II. The Rule Is Arbitrary and Capricious.
24 The Rule is arbitrary and capricious because at least three of its central justifications are
25 impermissible or baseless. First, the Rule’s assertion that its limited pathways provide “sufficient
26 avenues” to protection defies Congress’s contrary judgment. 88 Fed. Reg. at 31,329. Second, its
27 premise that one or more of those pathways will be “available” to those fleeing persecution is
28 contradicted by overwhelming and uncontested record evidence. Third, there is no evidence for the
10
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1 Rule’s assertion—which it makes repeatedly, despite the government’s denials—that it bars people
2 who are less likely to have valid asylum claims. And the Rule is also arbitrary and capricious
3 because it fails to account for the effects of related, contemporaneous policy changes with
4 overlapping rationales.
5 A. The Rule’s Justification Relies on Factors That Congress Has Rejected.
6 Congress guaranteed asylum access anywhere along the U.S. border, despite the availability
7 of asylum in other countries, and despite Congress’s authorization of other means of seeking entry,
8 including immigrant and non-immigrant visas, refugee admission, and humanitarian parole
9 processes. The Rule is impermissibly based on the contrary conclusion. Mot. 14-16.
10 Defendants claim that Plaintiffs’ argument “misrepresents” the Rule. Opp. 21. But the Rule
11 repeatedly states the rationale that third countries, CBP One appointments, and other means of
12 seeking entry to the United States offer “sufficient avenues for migrants with valid claims to apply
13 for asylum.” 88 Fed. Reg. at 31,329; id. at 31,330 (same); see id. at 31,352 (asylum seekers unable
14 to “apply[] for asylum in a third country” or present with CBP One appointments can instead seek
15 entry via “an employment-based visa or refugee admission”); id. at 31,353 (“if any noncitizens,
16 including members of indigenous communities and people of color, do not believe that they will be
17 able to meaningfully access protection in a third country,” they may instead “seek parole pursuant
18 to a DHS-approved parole process” or apply for an “employment-based visa or refugee admission”).
19 Defendants also assert that the Rule does not aim to “dramatically reduce” the availability
20 of asylum. Opp. 21 (cleaned up). But the preamble is clear. The Rule explicitly seeks to reduce
21 what the agencies view as an unduly “high number” of asylum seekers who could otherwise “pursue
22 their claims” in full removal proceedings. 88 Fed. Reg. at 31,315; id. at 31,330 (Rule aims to
23 “reduce[] the number of individuals” able to pursue asylum claims); id. at 31,334 (same); see also,
24 e.g., id. at 31,338 (Rule “will result in fewer” asylum seekers “being placed into removal
25 proceedings”). Defendants respond that a meaningful number of people can still enter the country
26 through CBP One and parole. Opp. 22; but see infra at 13-15. But that is not responsive to the
27 defect here, which is the Rule’s rationale—that reducing asylum is justified by other options for
28
11
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1 entry and protection outside the U.S. asylum system. That is an impermissible justification whatever
2 the size of the reduction.
3 Defendants’ remaining contentions misunderstand this claim. The defect is not that the
4 agencies “rel[ied] on systemic efficiency concerns,” Opp. 21, but rather that they relied on
5 mechanisms other than asylum to conclude that access to asylum could be dramatically curtailed.
6 Plaintiffs’ argument also does more than “repackage” the agencies’ statutory violations, Opp. 21,
7 because the Rule’s reliance on a rationale that Congress rejected renders it arbitrary and capricious
8 independent of whether its operative terms conflict with the asylum statute. See Motor Vehicle Mfrs.
9 Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 6 And the fact that
10 Congress gave the agencies some leeway to create regulatory bars, Opp. 22, is irrelevant, because
11 even if a rule falls within an agency’s statutory authority, its justification still cannot rely on “factors
12 which Congress has not intended [the agencies] to consider.” State Farm, 463 U.S. at 43. Because
13 the Rule deems sufficient the very means to seek protection that Congress judged inadequate to
14 comply with U.S. treaty obligations, it fails that test.
15 B. The Record Contradicts the Rule’s Justification that Its Pathways Are Widely
16 Available.
The government similarly fails to defend the Rule’s premise that its “pathways” are readily
17
accessible to asylum seekers.
18
The government first erects a straw man, claiming Plaintiffs argue that a “a core premise of
19
the rule is that a viable alternative pathway will be available to every noncitizen affected by the
20
rule.” Opp. 22 (emphasis added). But Plaintiffs instead challenge the Rule’s actual premise: that
21
“[a]vailable pathways” provide adequate “mechanisms for migrants to enter the United States and
22
make their protection claims,” such that those who “fail to avail themselves” of these options should
23
face “consequences.” 88 Fed. Reg. at 31,318; see id. at 31,352 (stating the Rule bars asylum seekers
24
who “choose to forgo such options”); id. at 31,366 (describing “purpose of this rule” as “preserving
25
the opportunity for individuals fleeing persecution to pursue protection-based claims”); see also 88
26
27
6
28 As Plaintiffs’ noted, however, Defendants’ reliance on factors that Congress rejected does further
underscore the statutory violation. See Mot. 15 n.5; supra at 7-8 (addressing Chevron step two).
12
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1 Fed. Reg. 11,704, 11,737 (NPRM) (stating that Rule would bar “those who would circumvent
2 orderly procedures and forgo readily available options”) (emphasis added). This was a necessary
3 premise of the Rule, because the agencies never claimed or explained why they would adopt the
4 same Rule if these pathways were not, in fact, readily available to most asylum seekers.
5 This key premise is contrary to the record. Overwhelming record evidence—which the
6 government largely fails to contest—shows that many asylum seekers have no pathway they can
7 access when they get to the border. Accordingly, the Rule’s premise that its pathways generally
8 preserve asylum seekers’ access to protection is arbitrary and capricious.
9 1. CBP One Appointments. The government does not dispute the key record evidence
10 showing that the CBP One pathway is unavailable to most asylum seekers. First, it does not contest
11 that there are not nearly enough CBP One appointments for asylum seekers at the border, who may
12 be unable to “wait weeks or longer” to secure appointments. Mot. 16-17; see Opp. 23-24.
13 Defendants instead note that over the course of a year, the number of appointments will exceed the
14 number of people encountered at the border in some years—although far fewer than in 2019 and
15 other past years. Opp. 23. But the question is whether the Rule actually makes asylum “available”
16 to those currently fleeing persecution, e.g., 88 Fed. Reg. at 31,329, and there is no dispute that the
17 Rule fails to do so. Indeed, the government does not contest that there is an “insufficient number of
18 appointments.” Mot. 17 (quoting PC_24902); see also Nuñez-Neto Decl. ¶¶ 22, 26 (discussing
19 asylum seekers waiting for appointments in Mexico). And by pointing to the total number of people
20 who might be able to get a CBP One appointment in a year, the government also ignores the fact
21 there are entire categories of asylum seekers who because of indigence, language capacity, illiteracy,
22 and other barriers will never have access to those appointments at all.
23 Second, the government does not dispute that asylum seekers waiting to secure CBP One
24 appointments in Mexico face grave danger that could force them to enter between ports. Mot. 17.
25 Defendants note that CBP One can be accessed in central Mexico as well as in the north. Opp. 23;
26 see also Mot. 17 (acknowledging same). Naturally, however, most asylum seekers trying to secure
27 appointments to cross the U.S. border are “currently waiting in northern Mexico.” 88 Fed. Reg. at
28 31,400; accord PC_24899-910, 33003-4. And the dangers facing asylum seekers are not limited to
13
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1 northern Mexico. Mot. 19-20 (detailing record evidence of violence against asylum seekers
2 throughout Mexico); PC_33467-75 (State Department warning of high levels of violence in
3 numerous central Mexican states).
4 Third, the government does not contest the numerous problems with CBP One’s
5 functionality, including that its facial recognition discriminates against Black and Indigenous
6 asylum seekers. Mot. 17-18; see Opp. 23. The government instead argues—without citation to the
7 record—that many noncitizens will be able to “satisfy the rule’s exceptions” to the CBP One
8 appointment condition, insisting that these “exceptions are meaningful.” Opp. 23, 24. The Rule’s
9 preamble and the government’s own declaration indicate otherwise. 88 Fed. Reg. at 31,401
10 (suggesting that people who cannot afford smartphones should try to borrow them from “trusted
11 partners,” rather than indicating they will satisfy the exception); id. at 31,406 (CBP One exception
12 applicable at ports only “captures a narrow set of circumstances in which it was truly not possible
13 for the noncitizen to access or use the CBP One app”); id. (rejecting “‘illiteracy’ exception and
14 instead suggesting that non-literate people “seek assistance, including translation assistance, in
15 using the app”). The same is true for the “imminent and extreme threat” exception. Id. at 31,380
16 (stressing that this exception is “narrow”); see also id. at 31,418 (stating that “broad exceptions . . .
17 would be contrary to the purpose of the rule”). 7
18 The government also claims that the parole programs make it likely that, in the future, fewer
19 noncitizens will have to wait at the border for appointments. Opp. 24. But that is unlikely, because
20 the programs have been in place for months already, they only affect a tiny number of countries,
21 and as the government acknowledges they could end. 88 Fed. Reg. at 31,410. In any event, the
22 government’s claim ignores the asylum seekers who are already at the border, who cannot use the
23 Rule’s parole exception, Mot. 12, and cannot get appointments without a long and dangerous wait.
24 2. Parole Programs. As to the parole pathway, the government merely repeats that the Rule
25 7
The government’s declaration confirms that just 3% of asylum seekers interviewed by USCIS in
26 the Rule’s first month satisfied an “exception,” which under the Rule encompasses the exceptions
for parole authorization, inability to use CBP One, and denial of protection in transit. Nuñez-Neto
27 Decl. ¶ 16. Only 8% demonstrated the so-called rebuttal grounds based on medical emergencies,
imminent and extreme threats, and severe trafficking, id.—even though only people in extremely
28 dire situations would likely risk asylum ineligibility in hopes of establishing one of these narrow
rebuttal grounds.
14
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1 technically contains an exception for people already granted permission to travel to the United States
2 to seek parole. Opp. 24. But as explained, the exception is illusory. See supra at 8-9. The
3 government does not dispute that the current parole programs the Rule relies on apply to only five
4 countries. Mot. 12, 18. Nor does it dispute that many asylum seekers from those five countries
5 cannot satisfy the programs’ requirements that participants obtain valid passports, U.S.-based
6 sponsors, and airline tickets to the United States. Id. at 18. And it does not dispute that if the
7 programs end or are enjoined, the Rule’s bar will be unaffected.
8 3. Transit Countries. Defendants claim that “the rule adduces substantial evidence that
9 seeking asylum in transit countries is a viable option for many migrants.” Opp. 25. They fail to
10 identify any such record evidence.
11 The government does not contest that asylum seekers are systematically targeted for violence
12 and exploitation in Mexico. Mot. 19-20; see Opp. 25-26. The government does claim, without
13 record support, that Mexico has made “security gains.” Opp. 26. But in reality, the overwhelming
14 evidence shows that Mexico’s “rates of violent crime have skyrocketed” in recent years, and are
15 now at “historic highs.” PC_23079; see also Mot. 19. Defendants also do not contest the extensive
16 evidence of widespread violence against asylum seekers in other transit countries, including Belize,
17 Guatemala, Colombia, and Ecuador. Mot. 20.
18 Defendants instead argue that what they call “potential harm to migrants” in Mexico is
19 acceptable in part because the agencies reasonably relied upon “the high number of claims [Mexico]
20 can adjudicate every year.” Opp. 25-26 (citing 88 Fed. Reg. at 31,414). That is divorced from both
21 the record evidence and the Rule’s stated rationale. The government mistakenly states that Mexico
22 adjudicated more than 63,000 asylum applications in 2022. Opp. 18 n.11. The actual number was
23 less than 35,000, which was lower than the number adjudicated in 2021. AR_5707. The record
24 thus reflects—and the government does not contest—that Mexico’s overwhelmed asylum agency is
25 unequipped to handle the cases it already has, much less the significant further increase in
26 applications the Rule contemplates. Mot. 21. In any event, the Rule relied on the number of
27 applications Mexico received in the last two years, not the number of applications Mexico
28 adjudicates. 88 Fed. Reg. at 31,414, 31,415; see Los Angeles, 63 F.4th at 842 (agency action must
15
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1 be justified by “the agency’s own articulation”). And the government does not contest that those
2 recent application numbers are hugely inflated both because the Title 42 policy barred asylum
3 seekers from the United States and left them with nowhere else to turn—“even if they do not feel
4 safe in Mexico,” AR_4874—and because many people apply for asylum in Mexico to get temporary
5 travel documents in hopes of avoiding refoulement as they continue their journey north. Mot. 22;
6 cf. 88 Fed. Reg. at 31,415 (assuming without evidence that the 2022 application figures reflect the
7 number of asylum seekers who “felt safe enough” in Mexico). The government also does not contest
8 the many other barriers that prevent people fleeing persecution from accessing Mexico’s asylum
9 system or receiving final denials even if they do apply. Mot. 21-22.
10 Nor do the government’s claims regarding other transit countries withstand scrutiny.
11 Defendants note that Colombia and Belize recently permitted certain asylum seekers already in those
12 countries to regularize their status. Opp. 24. But they do not contest that the cut-off dates for both
13 programs, like that in Costa Rica, have passed. Mot. 23. It is true that Colombia and “every Central
14 American country” are parties to the U.N. refugee treaties as well as “the non-binding Cartagena
15 Declaration.” Opp. 25. But Belize, Guatemala, Honduras, and Colombia have granted asylum and
16 “complementary protection” under that Declaration to only around 2,500 people total in the last two
17 decades. PC_23478-80, 23483-86. Nicaragua’s asylum agency “has not met since 2015.”
18 PC_24084. El Salvador’s system has “major regulatory and operational gaps.” PC_34206. And
19 Panama adjudicates “fewer than 50 cases annually” and grants “less than 1 percent.” PC_24122.
20 Unable to identify specific evidence supporting their position, the government directs the
21 Court to “see generally” more than 1,200 pages of the record. Opp. 18 n.11. The portions of those
22 documents that address transit countries’ asylum systems actually support Plaintiffs’ position. See,
23 e.g., AR_5007 (Mexico needs to “strengthen the capacity” of its asylum agency “to deliver
24 protection”); AR_5014 (Costa Rica’s “asylum system is under pressure,” and applicants face
25 “extended claim processing times, loss of livelihoods, economic hardship, and xenophobia”);
26 AR_6313 (many Venezuelans in Colombia “face barriers in accessing the asylum system,” and “a
27 significant number of refugees and migrants face multiple challenges” there due to ongoing “armed
28 conflict”); AR_6338 (noting “continued deterioration of the security situation” in Ecuador, where
16
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1 Venezuelan “refugees and migrants . . . are often exposed to sexual abuse”).
2 Because one of its essential premises is contradicted by a “mountain of evidence” that the
3 agencies failed to address, the Rule is arbitrary and capricious. EBSC Transit Ban, 994 F.3d at 981.
4 4. Particularly Vulnerable Asylum Seekers. The government argues that there are two
5 ways in which the Rule adequately considered the particular challenges and dangers facing women
6 and Black, Indigenous, and LGBTQ+ people fleeing persecution. First, the government cites the
7 Rule’s narrow “imminent and extreme threats” exception. Opp. 26. But a person who knows they
8 are very likely to face extreme violence due to their identity cannot afford to wait for a particular
9 threat to become concretely “imminent” before crossing the border—especially where they have
10 already suffered attacks in Mexico, which do not qualify them for this exception. Mot. 7, 23-24;
11 see also Mot. 19-20 (detailing record evidence of Mexican criminals and officials preying on
12 vulnerable populations with impunity); EBSC Entry Ban, 993 F.3d at 671 (“The most vulnerable
13 refugees are perhaps those fleeing across the border through the point physically closest to them.”).
14 And many of the harms faced by people in these groups, like deportation or exclusion from
15 employment and legal protection, presumably would not qualify as “imminent and extreme” enough
16 to satisfy the exception. Mot. 23-24.
17 Second, the government claims that the Rule’s asylum restrictions themselves account for
18 the dangers these groups face by aiming to reduce their “incentive to make a dangerous irregular
19 migration journey.” Opp. 26; see also 88 Fed. Reg. at 31,352-53 (recommending that they seek
20 advance parole, employment-based visas, or admission as refugees). In other words, the Rule
21 essentially says that the solution to its obstacles is for these asylum seekers not to seek asylum at
22 all. Like the transit ban’s rationale for not exempting unaccompanied children, this “explanation in
23 no way addresses the special vulnerability” of these groups. EBSC Transit Ban, 994 F.3d at 984.
24 C. The Record Does Not Support the Rule’s Assumption that People Who Enter
25 Between Ports or Pass Through Transit Countries Without Seeking Protection
Have Weaker Asylum Claims.
26
In defending the transit ban, the government offered “only a single record citation” which
27
they claimed justified an “assumption that [noncitizens] subject to [it] do not have a valid asylum
28
claim.” EBSC Transit Ban, 994 F.3d at 983. The Ninth Circuit held the ban arbitrary and capricious
17
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1 because that lone citation did not, in fact, support the agencies’ assumption. Id. at 980, 983. Here,
2 Defendants do not offer even a single record citation in support of the Rule’s analogous assumption.
3 See Opp. 26-27. Therefore, just like the transit ban, this Rule is arbitrary and capricious.
4 The government instead asserts that the Final Rule “is not based on [this] premise,” and that
5 only “the NPRM suggests such reasoning.” Opp. 26 & n.12. That is incorrect. As Plaintiffs showed,
6 Mot. 25, the Rule repeatedly claims that it preserves eligibility for applicants more likely to have
7 valid asylum claims and bars those without valid claims. For example, the Rule states that it enables
8 the agencies to sort out and “remov[e] those with non-meritorious claims.” 88 Fed. Reg. at 31,336.
9 The same paragraph states that “[t]he Departments believe that the [Rule’s] condition on eligibility”
10 is “reasonable and necessary for the reasons discussed in the NPRM.” Id. (emphasis added) (citing
11 NPRM, 88 Fed. Reg. 11,744-47). The cited pages of the NPRM, in turn, state the very same
12 assumption: that the Rule would facilitate the “rejection of unmeritorious claims” and “removing
13 those with non-meritorious claims.” 88 Fed. Reg. at 11,744-45; accord id. at 11,746-47 (the Rule
14 would filter out people with “non-meritorious claims,” “make it more difficult for those with non-
15 meritorious claims” to apply for asylum, and cause “those without meritorious claims to be
16 removed”); see also id. at 11,737 (“those who would circumvent orderly procedures and forgo
17 readily available options may be less likely to have a well-founded fear of persecution”). Elsewhere,
18 the final Rule asserts that its “lawful pathways” are sufficient “for migrants with valid claims,” id.
19 at 31,329; that it enables the agencies to “identify[] non-meritorious claims” in order to “focus on
20 those claims most likely to warrant protection,” 88 Fed. Reg. at 31,381 (citing NPRM, 88 Fed. Reg.
21 at 11,742); and that people who cross the border irregularly “unfairly delay the adjudication of
22 meritorious claims for asylum,” id. at 31,387.
23 The government also contends that they needed no evidentiary basis for this assumption
24 because it only formed part of their “‘weighing of risks and benefits.’” Opp. 26 (quoting Dep’t of
25 Commerce v. New York, 139 S. Ct. 2551, 2571 (2019)). But assumptions that inform such balancing
26 must still be supported by evidence. Ctr. for Biological Diversity v. NHTSA, 538 F.3d 1172, 1198,
27 1202-03 (9th Cir. 2008) (agency’s cost-benefit analysis was arbitrary and capricious because “[n]o
28 evidence support[ed]” one of the factual assertions involved); compare Dep’t of Commerce, 139 S.
18
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1 Ct. at 2569 (agency’s analysis was not arbitrary and capricious because “[t]he evidence before the
2 [agency] supported [its] decision”). Because its reasoning is premised on the same baseless
3 assumption as before, the Rule is arbitrary and capricious.
4 D. The Agencies Failed to Consider Related Border Policies.
5 The agencies cannot justify the Rule’s failure to consider its interaction with roughly
6 contemporaneous and interrelated policy changes, including rapid credible fear interviews (“CFIs”)
7 in CBP custody and the removal of third-country nationals to Mexico, both of which share
8 intersecting aims with the Rule. Opp. 27-28.
9 The agencies contend that the policy of conducting CFIs in CBP custody is categorically
10 “beyond the scope of the rule.” Opp. 27 (citing 88 Fed. Reg. at 31,363). That is wrong. Agencies
11 must consider whether, “given” other related policies, a rule should not be adopted. Petroleum
12 Commc’ns, Inc. v. FCC, 22 F.3d 1164, 1173 (D.C. Cir. 1994). The commenters who foresaw the
13 CBP custody policy urged the agency not to adopt the Rule, arguing that the policies together would
14 be a “fiasco,” PC_31507, and set “unachievable” standards, PC_32981. The government argues
15 that the commenters were wrong on the merits about the policies’ interaction. Opp. 27 (arguing that
16 the commenters’ concern was “not supported by the record”). But the agencies never said that in
17 the Rule—they flatly refused to engage with the issue. 88 Fed. Reg. at 31,363. Counsel cannot now
18 supply the response that the agencies refused to give. See Los Angeles, 63 F.4th at 842.
19 The government also argues it has the legal authority to conduct CFIs in CBP custody, Opp.
20 27-28, but that is entirely unresponsive to Plaintiffs’ argument. The question is whether the agencies
21 appropriately considered the wisdom of adopting the Rule along with that separate policy.
22 As to third-country national removals to Mexico, the agencies’ response amounts to another
23 lengthy non-sequitur. Plaintiffs argued that the agencies failed to consider that the third-country
24 removal policy would also “lead[] to shorter periods in custody,” thereby undermining a key
25 justification for the Rule—the supposed need to reduce pressure on detention capacity. Mot. 27.
26 More generally, in adopting the Rule, the agencies assumed a third-country removal policy would
27 not exist. See 88 Fed. Reg. at 31,316 (“DHS encounter projections and planning models . . . suggest
28 that encounters could rise to 11,000 per day, absent policy changes and absent a viable mechanism
19
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1 for removing” nationals from the four countries now subject to the removal policy) (emphasis
2 added). The government’s response confirms as much. It uniformly points to portions of the Rule
3 explaining the need for a third-country removal policy, but that do not consider the impact of that
4 soon-to-be-adopted policy on the Rule and its justifications. See Opp. 28.
5 The agencies therefore failed to consider important aspects of the problem and the Rule is
6 arbitrary and capricious as a result. See Mot. 27 (citing cases).
7 III. The Rule Is Procedurally Defective.
8 The agencies seek to evade their obligation to “provide the public with a meaningful
9 opportunity to comment,” Hall v. EPA, 273 F.3d 1146, 1162 (9th Cir. 2001), by invoking “exigent
10 circumstances” surrounding the end of Title 42. Opp. 28-30. But any exigency was solely of the
11 agencies’ own making. The President and CDC instructed the agencies to prepare for the end of
12 Title 42 two years ago, 86 Fed. Reg. 8,267 (Feb. 2, 2021); 86 Fed. Reg. 42,828 (Aug. 5, 2021); 87
13 Fed. Reg. 19,941 (Apr. 6, 2022), and the government confirms that it spent 18 months planning for
14 it, Nuñez-Neto Decl. ¶ 8. The agencies had ample time to develop and announce their plans while
15 also complying with the APA’s procedural requirements; they simply failed to do so. The agencies’
16 own delay cannot provide a basis for circumventing the APA. Chamber of Commerce v. DHS, 504
17 F. Supp. 3d 1077, 1087 (N.D. Cal. 2020); accord, e.g., NRDC v. NHTSA, 894 F.3d 95, 114 (2d Cir.
18 2018); Cent. Lincoln Peoples’ Util. Dist. v. Johnson, 735 F.2d 1101, 1117 (9th Cir. 1984); Council
19 of S. Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C. Cir. 1981).
20 The government’s further defense of the shortened comment period also falls flat. It is
21 irrelevant that the APA does not specify a minimum comment period (Opp. 29), because the
22 necessary length of a comment period turns on the complexity of the rule. See, e.g., Pangea Legal
23 Servs. v. DHS, 501 F. Supp. 3d 792, 819 (N.D. Cal. 2020). The agencies do not even attempt to
24 explain why 30 days 8 was sufficient for a regulation that indisputably wreaks “enormous, complex
25 changes that impact matters of life or death.” Mot. 28. They also ignore the cases finding 30 days
26 to be too short in similar circumstances. Id. (collecting cases).
27 8
The government claims that the comment period was 33 days. Plaintiffs calculate 32 days from
28 the publication date (with the last two days before the deadline over a weekend). In either case, the
comment period length fell far short of what was necessary for meaningful participation.
20
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1 Instead, the agencies contend that the number of comments they received shows that the
2 comment period was long enough. Opp. 29. But the fact that commenters scrambled to provide
3 some information does not mean that they had adequate time to assemble complete information. See
4 Cal. ex rel. Becerra v. Dep’t of Interior, 381 F. Supp. 3d 1153, 1177 (N.D. Cal. 2019) (the “number
5 of commenters does not show that the [agency] provided an adequate amount of time”). There is
6 ample evidence that, given more time, commenters would have presented the agencies with more
7 data and information, including, for example, “a thorough refutation of . . . misapprehensions about
8 the safety and availability of asylum processing in transited countries,” PC_32743, 9 reports on the
9 experiences and needs of “clients stranded at the border,” PC_31523, and data collected, e.g., about
10 Black migrants from the “more than 16,000 members” of the American Immigration Lawyers’
11 Association, PC_20737. And the agencies’ claim that this significant additional information could
12 not have changed the outcome would be true only if the agencies had “an unalterably closed mind
13 on matters critical to the disposition of the proceeding”—which would itself violate the APA.
14 Alaska Factory Trawler Ass’n v. Baldridge, 831 F.2d 1456, 1467 (9th Cir. 1987); see Habeas
15 Corpus Res. Ctr. v. DOJ, 2009 WL 185423, at *9 (N.D. Cal. Jan. 20, 2009).
16 The government likewise does not dispute that the timing of their announcements
17 undermined the public’s ability to fully address the interaction of interrelated policies with the Rule.
18 See Opp. 30-31. Instead, they again invoke “harmless” error because the comments would not “have
19 been different” with this information. Id. 30-31. But the agencies do not dispute that, for instance,
20 conducting rapid credible fear interviews in CBP custody makes it more difficult for people both to
21 find counsel and to satisfy the Rule’s onerous burdens. See Mot. 26. Had the agencies announced
22 that policy earlier, they would have received much more on that topic from additional commenters.
23 Finally, the agencies do not dispute that they failed to disclose the critical OIS study and the
24 model it analyzed, which together underpinned the agencies’ conclusion that the Rule was necessary
25 to manage migration after Title 42. See Opp. 31-32. Nor do they dispute that the study was critical
26
9
27 The agencies contend that commenters should have anticipated the need to discuss asylum systems
throughout the Western Hemisphere at length from the phrase “and partner nations” in a January
28 2023 statement. Opp. 30 (emphasis removed). But three words in a press release are no substitute
for full notice and comment procedures under the APA.
21
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1 to their conclusion that restoring ordinary Title 8 processing and consequences would not be
2 sufficient to prevent unmanageable numbers of border crossings and thus to their decision to adopt
3 the Rule. See id. The agencies suggest that disclosure was not required, but their own authority
4 confirms that “an agency’s failure to disclose critical material, on which it relies, deprives
5 commenters” of the right “to participate in rulemaking.” Allina Health Servs. v. Sebelius, 746 F.3d
6 1102, 1110 (D.C. Cir. 2014) (quotation omitted); see also Mot. 29-30.
7 The agencies claim that it was sufficient for the NPRM to cite some of the underlying
8 data. Opp. 31-32. But the Rule is premised on the model’s undisclosed calculations and predictions,
9 not the disclosed subset of the raw data that was used in the model. See NPRM, 88 Fed. Reg.
10 11,704-05, 11,708–14 (cited at 88 Fed. Reg. at 31,328); 88 Fed. Reg. at 31,314, 31,316, 31,331,
11 31,341, 31,363-64. This data provides no substitute for the actual analysis that formed a basis of
12 the Rule. Am. Radio Relay League v. FCC, 524 F.3d 227, 237 (D.C. Cir. 2008).
13 The government’s claim that this violation was harmless, Opp. 31-32, again lacks merit.
14 Had the study and model been disclosed, commenters would have—among other things—been able
15 to “assess the validity of the projection[s],” to analyze the effect of the January 2023 parole programs
16 on the model’s forecasts, and to use “the model’s outputs” to present other “reasonable alternatives”
17 for consideration. PC_31205; see also, e.g., PC_4000, 21457. Commenters would thus have had
18 “something useful to say,” and no more is needed “to establish prejudice.” Chamber of Commerce
19 v. SEC, 443 F.3d 890, 905 (D.C. Cir. 2006). 10
20 Individually and collectively, these procedural failures deprived the public of a meaningful
21 opportunity to comment on the Rule.
22 IV. Plaintiffs Have Standing.
23 Contrary to Defendants’ arguments, the Ninth Circuit has held that organizations in the exact
24 position as Plaintiffs had Article III standing. EBSC Transit Ban, 994 F.3d at 975; see also EBSC
25
10
26 The agencies’ contention that their predictive model was “entirely correct,” Opp. 32, is
misleading. The model predicted events after Title 42 ended, 88 Fed. Reg. at 31,316, while the
27 agencies now point to evidence concerning events before Title 42 ended, Nuñez-Neto Decl. ¶¶ 9-
12. The agencies do not say whether their undisclosed model predicted the increase in border
28 crossings before the end of Title 42, or the decrease afterward. In any case, post-decisional events
have no bearing on whether pre-decisional procedural violations prejudiced commenters.
22
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1 Entry Ban PI, 354 F. Supp. 3d 1094, 1109-10 (N.D. Cal. 2018) (same); EBSC Transit Ban PI, 385
2 F. Supp. 3d 992, 937 (N.D. Cal. 2019) (same). That court has already rejected each of the arguments
3 Defendants make here. Opp. 9. It held that Linda R.S. and Sure-Tan are not relevant, that Plaintiffs
4 have standing even though they are not individual asylum seekers, and that the harms they face are
5 not speculative. See EBSC Entry Ban, 993 F.3d at 663-64 & n.6. 11 Nor did it require Plaintiffs to
6 analyze the effects of prior policies, contra Opp. 9, given that the harms Plaintiffs face are clear and
7 flow directly from the intended operation of the Rule. Even “one less client that they may have had
8 but-for the Rule’s issuance is enough” to establish standing. EBSC Entry Ban, 993 F.3d at 664; see
9 also EBSC Transit Ban, 994 F.3d at 974. And here, for instance, despite the Rule’s assertion that
10 “CBP will not turn away individuals without appointments,” 88 Fed. Reg. at 31,365, ImmDef
11 explains that it has already witnessed CBP officers turn away many asylum seekers, Toczylowski
12 Decl. (ImmDef) ¶¶ 40-48, thus preventing ImmDef from representing them in asylum proceedings.
13 Plaintiffs also explain how the Rule’s intended decrease in CFI passage rates will injure their
14 respective organizations. See Smith Decl. (EBSC) ¶¶ 14-22; Alvarez Decl. (CARECEN) ¶¶ 11-16;
15 Garza Decl. (Tahirih) ¶¶ 16-26 Calonje Decl. (NCLR) ¶¶ 15-25; Toczylowski Decl. (ImmDef)
16 ¶¶ 18, 26-39; Yang Decl. (American Gateways) ¶ 17-25. And while not necessary for standing here,
17 Plaintiffs do show diversion of resources due to the prior transit ban, including time spent litigating
18 withholding and CAT claims for clients barred from asylum. See Suppl. Yang Decl. ¶¶ 5-8. 12
19
20
21 11
The Supreme Court’s decision in United States v. Texas, issued today, does not address this. It
does not concern organizational standing or standing to challenge substantive eligibility rules. It
22 only addresses standing to challenge “the Executive Branch’s exercise of enforcement discretion
over whether or not to arrest or prosecute,” which is not at issue in the present case. 2023 WL
23 4139000, *4; see id. at *5-6 (explaining the “problems raised by judicial review of the Executive
Branch’s arrest and prosecution policies”); id. at *7-8, 9 (emphasizing that “this case raises only [a]
24 narrow Article III standing question”).
12
25 As Defendants acknowledge, the Ninth Circuit and this Court have repeatedly rejected
Defendants’ zone of interest argument. See EBSC Entry Ban, 993 F.3d at 668; see also EBSC Entry
26 Ban TRO, 349 F. Supp. 3d 838, 854 (N.D. Cal. 2018) (same); EBSC Entry Ban Stay, 354 F. Supp.
3d 1085, 1091 (N.D. Cal. 2018) (same); EBSC Entry Ban PI, 354 F. Supp. 3d 1094, 1110-11 (N.D.
27 Cal. 2018) (same). Plaintiffs fall within the statute’s zone of interest for the same reasons as last
time. See Smith Decl. (EBSC) ¶¶ 4-15, 18, 20; Alvarez Decl. (CARECEN) ¶¶ 4-7, 11-16; Garza
28 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.
23
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 33 of 40
1 V. 8 U.S.C. § 1252(f)(1) Does Not Apply.
2 Defendants invoke 8 U.S.C. § 1252(f)(1), which provides that, with some exceptions, courts
3 may not “enjoin or restrain the operation of the provisions of part IV of this subchapter.” Opp. 32-
4 33. But § 1252(f)(1) does not apply here for two independent reasons. As multiple courts have
5 held, § 1252(f)(1) only prevents injunctions, not the vacatur that Plaintiffs seek. And by its plain
6 terms, § 1252(f)(1) only prevents courts from enjoining the operation of specific provisions of the
7 INA, and those provisions do not include the asylum statute.
8 A. 8 U.S.C. § 1252(f)(1) Does Not Apply to Vacatur.
9 Section 1252(f)(1) “prohibits lower courts from entering injunctions that order federal
10 officials to take or to refrain from taking actions” pursuant to certain INA provisions. Garland v.
11 Aleman Gonzalez, 142 S. Ct. 2057, 2065 (2022) (emphasis added). That § 1252(f) is limited to
12 injunctions is confirmed both “by its title”—“Limit on injunctive relief”—and “its plain terms,”
13 which restrict courts’ authority to “enjoin or restrain the operation” of specified INA provisions.
14 Reno v. Am-Arab Anti-Discrimination Comm., 525 U.S. 471, 481 (1999); see also Biden v. Texas,
15 142 S. Ct. 2528, 2538-39 (2022) (section 1252(f)’s “title . . . makes clear the narrowness of its
16 scope”). Accordingly, § 1252(f)(1) “is nothing more or less than a limit on injunctive relief.” Reno,
17 525 U.S. at 481 (1999) (emphasis added).
18 Vacatur is not injunctive relief. See 5 U.S.C. § 706(2) (instructing courts to “set aside”
19 unlawful agency action). An injunction is “a drastic and extraordinary remedy.” Monsanto Co. v.
20 Geertson Seed Farms, 561 U.S. 139, 165 (2010). It “tells someone what to do or not to do.” Aleman
21 Gonzalez, 142 S. Ct. at 2064 (citation omitted). Vacatur, by contrast, is a “less drastic remedy.”
22 Monsanto Co., 561 U.S. at 165-66. Unlike an injunction, vacatur “neither compels nor restrains”
23 agency action. Texas v. United States, 40 F.4th 205, 220 (5th Cir. 2022). The courts to consider the
24 issue have therefore uniformly held that § 1252(f)(1) as interpreted by Aleman Gonzalez “does not
25 apply to vacatur.” Texas v. United States, 50 F.4th 498, 528 (5th Cir. 2022); accord, e.g., Florida
26
27
28
24
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 34 of 40
1 v. United States, __ F. Supp. 3d. ___, No. 21-1066, 2023 WL 2399883, at *34-35 (Mar. 8, 2023);
2 Al Otro Lado v. Mayorkas, 619 F. Supp. 3d 1029, 1045 (S.D. Cal. 2022).
3 B. 8 U.S.C. § 1252(f)(1) Does Not Apply to Policies Implementing the Asylum Statute.
4 Even if it applied to vacatur, § 1252(f)(1) still would not bar the relief in this case, because
5 it does not apply to asylum eligibility rules. The text of § 1252(f)(1) bars only injunctions of policies
6 that implement “the provisions of chapter 4 of title II [of the Immigration and Nationality Act
7 (INA)],” which govern certain aspects of the detention and removal process. Moreno Galvez v.
8 Jaddou, 52 F.4th 821, 830 (9th Cir. 2022); see Pub. L. No. 104-208, Div. C, § 306(a)(2), 110 Stat.
9 at 3009-611 (1996); Aleman Gonzalez, 142 S. Ct. at 2066 n.3 (explaining that the statute bars
10 injunctions of policies that “enforce or implement” the covered statutes). 13 By its terms, this does
11 not prevent courts from enjoining all immigration policies, only policies that implement a few
12 specified sections: those found in “chapter 4,” which provide the procedures for the removal system,
13 including detention, adjudication, and physical removal. See, e.g., 8 U.S.C. § 1226 (detention),
14 § 1229a (regular removal proceedings), § 1225 (expedited removal proceedings), § 1231 (removal
15 operations).
16 The Rule’s bar is not covered by § 1252(f)(1). The bar implements 8 U.S.C. § 1158 which
17 contains both the eligibility rules for asylum, id. at § 1158(a)-(b), and the provision the government
18 claims as authority for the Rule, id. § 1158(b)(2)(C); see also id. § 1158(d)(5)(B). The asylum
19 statute is located in chapter 1, not chapter 4. Thus, by its plain terms, § 1252(f)(1) does not apply.
20 The Ninth Circuit and other courts have consistently held that § 1252(f)(1) is not triggered
21 by injunctions of policies that implement statutes outside of chapter 4. See, e.g., Al Otro Lado, Inc.
22 v. Mayorkas, 2022 WL 3142610, *23 (S.D. Cal. Aug. 5, 2022) (enjoining application of asylum ban
23 to certain class members despite § 1252(f)(1)); Gonzalez v. ICE, 975 F.3d 788, 813-15 (9th Cir.
24
13
25 The text of the statute as enacted by Congress conflicts with the text later codified in the U.S.
Code at § 1252(f)(1). See Moreno Galvez, 52 F.4th at 830. The version Congress enacted applies
26 the injunction bar to “chapter 4 of title II” of the INA, whereas the codified version refers to “part
IV of this subchapter,” meaning U.S. Code Title 8, chapter 12, subchapter II, part IV. These two
27 sets of statutes—“chapter 4” and “part IV”—are not coextensive, but the differences are not material
here, because neither set includes the asylum statute. Because the enacted text trumps the “changed”
28 version in the U.S. Code, Moreno Galvez, 52 F.4th at 830, Plaintiffs refer to the relevant provisions
as those in “chapter 4.”
25
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 35 of 40
1 2020) (detainer policy, see 8 U.S.C. § 1357(d)); Gonzales v. DHS, 508 F.3d 1227, 1233 (9th Cir.
2 2007) (adjustment-of-status policy, see 8 U.S.C. § 1255); Florida v. Mayorkas, 2023 WL 3398099,
3 at *6 (N.D. Fla. May 11, 2023) (parole policy, see 8 U.S.C. § 1182(d)(5)). Defendants argue that
4 even though the asylum statute is outside chapter 4, § 1252(f)(1) still bars relief because asylum
5 rules are applied as part of the removal process, and so an injunction of an asylum policy will have
6 collateral effects on removal. Opp. 32-33. The Ninth Circuit has squarely rejected that position. In
7 Gonzales, it explicitly held that such “collateral effect[s]” on the removal system do not trigger
8 § 1252(f)(1). 508 F.3d at 1233. And in Catholic Social Services, Inc. v. INS the Ninth Circuit
9 upheld an injunction that expressly barred removals, even though the removal statutes are in chapter
10 4, see 8 U.S.C. § 1231(a)(5) (reinstatement); id. § 1231(a)(1) (execution of removal orders), because
11 the effect on removal was a downstream consequence of enjoining a non-chapter-4 policy regarding
12 adjustment of status. Catholic Social Servs., 232 F.3d 1139, 1145, 1149-50 (9th Cir. 2000) (en
13 banc); see Gonzales, 508 F.3d at 1233 (reaffirming this rule); Al Otro Lado, 2022 WL 3142610, at
14 *23 (applying this rule). The Supreme Court left this rule undisturbed in Aleman, stating that it was
15 not addressing the “proposition that a court may enjoin the unlawful operation of a provision that is
16 not specified in § 1252(f)(1) even if that injunction has some collateral effect on the operation of a
17 covered provision.” Aleman, 142 S. Ct. at 2067 n.4 (emphasis in original) (citing Gonzales).
18 Apart from being foreclosed by precedent, the government’s position—that any collateral
19 effect on removal proceedings triggers § 1252(f)(1)—would write the limiting language out of the
20 statute’s text and enormously expand its reach. Dozens if not hundreds of the INA’s substantive
21 rules come from outside of chapter 4, and most of them could have a collateral effect on removal
22 proceedings, because they could affect a person’s removability. See, e.g., 8 U.S.C. § 1153
23 (immigrant visas), § 1182 (inadmissibility grounds), § 1184 (admission of nonimmigrant), § 1187
24 (temporary admission), § 1255 (adjustment of status), §§ 1421-1427 (naturalization), § 1481
25 (denaturalization). On the government’s theory, these non-chapter-4 provisions would be covered
26 by § 1252(f)(1), even though its text is limited to “chapter 4.” If that were true, Congress could
27 have erased “chapter 4” and simply written that courts could not “enjoin or restrain the operation of
28
26
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 36 of 40
1 the provisions of chapter 4 of title II” of the INA. See Advocate Health Care Network v. Stapleton,
2 581 U.S. 468, 477-78 (2017) (refusing to interpret statute “as if it were missing [] two words”).
3 The government’s only remaining contention is that even if the Court can vacate the Rule’s
4 eligibility bar, it cannot vacate the Rule’s separate expedited and regular removal procedures. Opp.
5 32 (citing 88 Fed. Reg. at 11,724 and 8 C.F.R. §§ 208.33(b), 1208.33(b)). Besides being wrong, it
6 is irrelevant, because if the Court vacates the eligibility bar, the Rule’s tag-along procedures for
7 applying the bar have “no independent effect” whether or not they are separately vacated. EBSC
8 Entry PI, 354 F. Supp. 3d at 1121 n.22.
9 VI. The Court Should Vacate the Rule in Full.
10 A. The Court Should Reject the Government’s Novel Request for Partial Vacatur.
11 Defendants’ argument that the Court may vacate the Rule only as to Plaintiffs is foreclosed
12 by Ninth Circuit precedent. See EBSC Entry Ban, 993 F.3d at 681 (“Because of the broad equitable
13 relief available in APA challenges, a successful APA claim by a single individual can affect an
14 ‘entire’ regulatory program.”). Other courts have reached the same conclusion. E.g., Nat’l Mining
15 Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (“[W]hen a reviewing
16 court determines that agency regulations are unlawful, the ordinary result is that the rules are
17 vacated—not that their application to the individual petitioners is proscribed.”) (quotation omitted);
18 City & Cnty. of S.F. v. Azar, 411 F. Supp. 3d 1001, 1025 (N.D. Cal. 2019) (“All of the courts that
19 have been presented with the possibility of such a remedy have rejected it.”); O.A. v. Trump, 404 F.
20 Supp. 3d 109, 153 (D.D.C. 2019). The government’s cases all involved injunctive relief, which, as
21 explained above, is different from vacatur. See Gill v. Whitford, 138 S. Ct. 1916 (2018); Madsen v.
22 Women’s Health Ctr., Inc., 512 U.S. 753 (1994); Trump v. Hawaii, 138 S. Ct. 2392 (2018). 14
23 B. Remand Without Vacatur Is Not Warranted.
24 “[V]acatur . . . normally accompanies a remand,” unless “equity demands” that a regulation
25 be “left in place while the agency reconsiders.” All. for the Wild Rockies v. United States Forest
26
14
27 The government invokes severability, but does not explain which provisions it would sever from
the rest. Opp. 33. In any event, the possibility of severability has never prevented courts from
28 vacating illegal rules. And because each requirement in the Rule is illegal, unsafe, and inaccessible,
vacatur of each provision is necessary to provide complete relief to Plaintiffs.
27
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 37 of 40
1 Serv., 907 F.3d 1105, 1121 (9th Cir. 2018) (emphasis removed). In considering a departure from
2 this default remedy, courts evaluate “the seriousness of the [rule]’s deficiencies (and thus the extent
3 of doubt whether the agency chose correctly) and the disruptive consequences” of vacating it.
4 Humane Soc’y of United States v. Zinke, 865 F.3d 585, 614 (D.C. Cir. 2017). For a court to remand
5 without vacatur, the deficiencies must be of the sort that “can be redressed on remand,” such as a
6 “mere failure in explanation.” Ctr. for Biological Diversity v. Ross, 480 F. Supp. 3d 236, 245
7 (D.D.C. 2020). These factors heavily support vacatur. See O.A. v. Trump, 404 F. Supp. 3d 109,
8 152-53 (D.D.C. 2019) (vacating entry ban on statutory grounds); CAIR Coalition v. Trump, 471 F.
9 Supp. 3d 25, 55 (D.D.C. 2020) (vacating transit ban on procedural violation alone).
10 Here, the Rule’s numerous serious deficiencies cannot be remedied on remand. The Rule’s
11 statutory conflicts obviously cannot be cured. See NRDC v. EPA, 571 F.3d 1245, 1276 (D.C. Cir.
12 2009) (denying remand for this reason); Humane Soc’y of the United States v. Jewell, 76 F. Supp.
13 3d 69, 137 (D.D.C. 2014) (same), aff’d sub nom. Humane Soc’y of United States v. Zinke, 865 F.3d
14 585 (D.C. Cir. 2017). And the defects in the agencies’ reasoning are “serious and pervading”—they
15 go to the very “heart” of the agencies’ choice to adopt the Rule—because they involve the Rule’s
16 core justifications and its consistency with the record. Id. at 614-15; see Ill. Pub. Telecomms. Ass’n
17 v. FCC, 123 F.3d 693, 693 (D.C.Cir.1997) (practice is “ordinarily to vacate the rule” where it is
18 unlikely to be “readopted upon the basis of a more adequate explanation”). The agencies could not
19 reach the same result on remand, as doing so would require transforming the record facts and
20 abandoning the Rule’s main rationales. See Humane Soc’y of United States, 865 F.3d at 614-615;
21 Stewart v. Azar, 313 F. Supp. 3d 237, 272-73 (D.D.C. 2018) (vacating for failure to consider an
22 important aspect and collecting cases).
23 The disruption prong likewise supports vacatur. It is the Rule that upends forty years of
24 asylum law. Leaving it in place during remand would substantially harm the plaintiff organizations,
25 their clients, and thousands of other people seeking asylum who will be removed to danger or face
26 grave harms in Mexico as they wait for CBP One appointments.
27 These harms have only increased since the Rule’s effective date. See Opp. 34-35 (relying
28 on post-implementation facts). Asylum seekers continue to wait “for weeks or months before
28
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 38 of 40
1 receiving an appointment.” Paredes Decl., Ex. A at 3; accord id., Ex. B at 3. Those waiting continue
2 to endure “unstable living conditions and security risks in Mexican border cities” where “Black,
3 LGBTQ+, Indigenous, and non-Spanish-speaking asylum seekers have faced targeted
4 discrimination.” Id., Ex. A at 3; see also id., Ex. D at 2-3.
5 Meanwhile, only a tiny percentage of people are allowed to present at ports of entry without
6 CBP One appointments in hopes of meeting an exception. Mexican officials strictly limit the
7 number of those without appointments they let reach the ports, permitting as few as 15 people per
8 day in some locations. Id., Ex. A at 3-11. U.S. border officials also regularly turn away those who
9 do manage to reach the ports without appointments, telling them that CBP One is “the only way to
10 request asylum.” Id., Ex. C at 7, 8; accord id., Ex. D at 2. Even people seeking exceptions for
11 urgent medical needs or threats of rape or murder have had to wait “for over two weeks” because so
12 few people without CBP One appointments are processed. Id., Ex. B at 3; see also id., Ex. D at 3.
13 Thus, despite Defendants’ suggestions otherwise, e.g., Opp. 24, many people without CBP One
14 appointments are unable to seek exemptions. Paredes Decl., Ex. C at 7; see also id., Ex. D at 3.
15 Thousands who request asylum without meeting one of the conditions are being barred from
16 asylum and removed despite credible claims of persecution. Cf. Nken, 556 U.S. at 436 (noting in
17 stay context the “public interest in preventing [noncitizens] from being wrongfully removed,
18 particularly to countries where they are likely to face substantial harm”). In recent pre-pandemic
19 years, 83% of asylum seekers at the border were “screened in” by USCIS. That number has
20 plummeted to just 46% under the Rule—the vast majority of whom were barred from asylum and
21 screened for withholding and CAT protection under a higher standard. Nuñez-Neto Decl. ¶ 15-16.
22 Extrapolating from the government’s data suggests that around 2,450 people with likely viable
23 asylum claims—30% of those screened—were wrongfully ordered removed just in the Rule’s first
24 month. 15 And “thousands more” currently face the same fate. Id.
25
26 15
950 people met an exception, of whom 717 (75.5%) screened in under the credible fear standard.
27 Nuñez-Neto Decl. ¶ 16. Had the 7,243 people barred by the Rule faced that same low standard and
passed at the same rate, 5,468 of them would have screened in. That’s 2,450 more than the 3,036
28 barred people who actually screened in under the Rule’s higher standard. The roughly 2,450 people
screened out due the Rule amounts to 30% of the 8,195 interviewed. See id.
29
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 39 of 40
1 By contrast, the government does not demonstrate that the disruption it alleges would be so
2 “substantial as to outweigh the serious substantive errors” in the Rule. Humane Soc’y of the United
3 States, 76 F. Supp. 3d at 137. The government predicts a spike in encounters if the Rule is vacated,
4 Nuñez-Neto Decl. ¶¶ 14, 25; see also, e.g., 88 Fed. Reg. at 31,316, 31,335 (similar), but the evidence
5 does not support its inflated forecast. First, the government makes no effort to isolate the Rule’s
6 effect on encounters from the effect of returning to normal Title 8 processing. Under Title 42, there
7 were no legal consequences from expulsion to Mexico—those expelled could simply cross again,
8 id. ¶ 7—and so Title 42 strongly incentivized people to repeatedly enter between ports. See Br. for
9 Federal Respondents at 4, Huisha-Huisha v. Mayorkas, No. 22-592 (S. Ct. Feb. 7, 2023). Under
10 Title 8, by contrast, people can request asylum at ports, reducing the incentive to enter between
11 ports. And those who do not establish credible fear are removed to their home countries and face a
12 5-year bar to reentry, as well as the risk of criminal prosecution for unlawful reentry. The
13 government does not show that these different consequences are insufficient to maintain lower post-
14 Title 42 encounter levels. In fact, its sources instead show that it was “penalties under Title 8” that
15 encouraged people to enter between ports before the end of Title 42 and not after. See Nuñez-Neto
16 Decl. ¶ 22 (emphasis added). Nor does the government disaggregate the impact of regional partners
17 simultaneously “undertak[ing] their own measures” to "reduc[e] migratory flows." Id. ¶ 14.
18 The government’s prediction about vacatur relies heavily on its undisclosed model, but the
19 model’s assumptions appear contradictory and unreliable. According to the government, the model
20 predicts that a return to Title 8 processing would cause encounters to return to the same heightened
21 levels that occurred in the days just before the end of Title 42. Id. ¶¶ 4, 25. But it makes no sense
22 to assume that encounters would be the same under Title 42 and Title 8, given their differing
23 incentives. And it is especially strange to assume that Title 8 numbers would match the anomalously
24 high numbers that occurred because people wanted to enter before Title 42 ended to avoid Title 8’s
25 harsher consequences. The government’s “planning models” and extrapolations thus provide little
26 support for its predictions about vacatur. Id.
27 CONCLUSION
28 The Court should grant summary judgment to Plaintiffs and vacate the Rule.
30
Case 4:18-cv-06810-JST Document 181 Filed 06/23/23 Page 40 of 40
Dated: June 23, 2023
1 Respectfully submitted,
Lee Gelernt*
2 Omar Jadwat* /s/ Katrina Eiland
Anand Balakrishnan** Katrina Eiland (SBN 275701)
3 AMERICAN CIVIL LIBERTIES UNION Morgan Russell (SBN 296137)
FOUNDATION Spencer Amdur (SBN 320069)
4 IMMIGRANTS’ RIGHTS PROJECT Oscar Sarabia Roman (SBN 341385)
125 Broad St., 18th Floor AMERICAN CIVIL LIBERTIES UNION
5 New York, NY 10004 FOUNDATION
T: (212) 549-2660 IMMIGRANTS’ RIGHTS PROJECT
6 F: (212) 549-2654 39 Drumm Street
lgelernt@aclu.org San Francisco, CA 94111
7 ojadwat@aclu.org T: (415) 343-1198
abalakrishnan@aclu.org F: (415) 395-0950
8
keiland@aclu.org
Melissa Crow* mrussell@aclu.org
9 CENTER FOR GENDER & REFUGEE samdur@aclu.org
STUDIES osarabia@aclu.org
10 1121 14th Street, NW, Suite 200
Washington, D.C. 20005
11 T: (202) 355-4471 Keren Zwick*
F: (415) 581-8824 Richard Caldarone*
12 crowmelissa@uchastings.edu Colleen Cowgill (SBN 321542)
13 Mary Georgevich*
Anne Peterson (SBN 258673) NATIONAL IMMIGRANT JUSTICE
Blaine Bookey (SBN 267596 CENTER
14 Julie Bourdoiseau (SBN 340462) 224 S. Michigan Ave., Suite 600
Karen Musalo (SBN 106882) Chicago, Illinois 60604
15 CENTER FOR GENDER & REFUGEE T: (312) 660-1370
STUDIES F: (312) 660-1505
16 200 McAllister Street kzwick@heartlandalliance.org
San Francisco, CA 94102 rcaldarone@heartlandalliance.org
17 T: (415) 610-5729 ccowgill@heartlandalliance.org
F: (415) 581-8824 mgeorgevich@heartlandalliance.org
18 petersonanne@uchastings.edu
19 Michelle (Minju) Y. Cho (SBN 321939)
Robert Pauw** AMERICAN CIVIL LIBERTIES UNION OF
CGRS Cooperating Attorney NORTHERN CALIFORNIA, INC.
20 GIBBS HOUSTON PAUW 39 Drumm Street
1000 Second Avenue, Suite 1600 San Francisco, CA 94111
21 Seattle, WA 98104 T: (415) 621-2493
T: (206)682-1080 F: (415) 255-1478
22 F: (206)689-2270 mcho@aclu.org
rpauw@ghp-law.net
23
24
25 Attorneys for Plaintiffs
26 *Admitted Pro hac vice
27 ** Application for pro hac vice admission
forthcoming
28
31
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