Motion (2023-07-26)
- Date
- 2023-07-26
Summary
Plaintiffs' Opposition to Defendants' Emergency Motion to Stay Order and Final Judgment Pending Appeal in East Bay Sanctuary Covenant, et al. v. Joseph R. Biden, President of the United States, et al., Case No. 18-cv-06810-JST, U.S. District Court for the Northern District of California, filed July 26, 2023 as Document 193. Counsel from the ACLU Foundation Immigrants' Rights Project, the Center for Gender & Refugee Studies and the National Immigrant Justice Center ask the court to deny the stay motion, ECF No. 190. The opposition argues the government's border-encounter predictions rely on a comparison to the final days of Title 42, citing 136,673 unique encounters in May and 144,607 total encounters in June. It also argues the public interest weighs against a stay and the government is unlikely to prevail on appeal. The filing is 6 pages.
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Case 4:18-cv-06810-JST Document 193 Filed 07/26/23 Page 1 of 6
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
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Attorneys for Plaintiffs (additional counsel listed on following page)
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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’ OPPOSITION TO
14 Joseph R. Biden, President of the United States, et DEFENDANTS’ EMERGENCY MOTION
al., TO STAY ORDER AND FINAL
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Defendants. JUDGMENT PENDING APPEAL
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Case 4:18-cv-06810-JST Document 193 Filed 07/26/23 Page 2 of 6
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
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17
18
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 193 Filed 07/26/23 Page 3 of 6
INTRODUCTION
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The Court should deny the government’s motion for a stay of this Court’s summary
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judgment order pending appeal. ECF No. 190 (“Mot.”). The Court has already stayed its order for
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14 days at the government’s request to permit it to seek emergency relief from the Court of Appeals.
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The government’s motion presents no persuasive reason for the Court to depart from that judgment
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and grant a longer stay.
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The government’s predictions that the Court’s vacatur of the Rule will result in an
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unmanageable increase in border encounters are based on an inapt comparison to the days before
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Title 42 expired. Moreover, this Court’s order will leave in place the parole programs and other
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policies the government has touted as reducing encounter numbers. The government’s vague
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appeals for deference to its border and foreign policy plans are foreclosed by the Ninth Circuit’s
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decisions affirming injunctions against the two prior asylum bans. Meanwhile, the government
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ignores the harm to the public interest that results from unlawfully removing asylum seekers to
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persecution. And as the reasoning of this Court’s order makes clear, the government is not likely to
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succeed on the merits of its appeal.
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ARGUMENT
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I. The Balance of Harms Weighs Decisively Against a Longer Stay.
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The core of the government’s equitable argument is its renewed assertion that the Rule has
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caused a significant decrease in encounters at the southwest border since Title 42 ended, such that
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vacatur will cause an unmanageable increase. Mot. 4-5. But the government’s predictions are
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flawed for numerous reasons.
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For example, the government assumes that, without the Rule, encounter numbers will return
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to the levels that occurred in the final days before Title 42 ended. But as the government has
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acknowledged, encounter numbers were anomalously high under Title 42, which imposed no legal
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consequences on expulsion to Mexico and therefore encouraged repeat crossings. ECF No. 181 at
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30. Because of this, people had a particular incentive to attempt repeated crossings in the final days
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before the policy’s announced end on May 11, that is “before—not after—Title 42’s expiration.”
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ECF No. 176-2 ¶ 22. It makes no sense to assume that, without the Rule, encounters under Title 8
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Case 4:18-cv-06810-JST Document 193 Filed 07/26/23 Page 4 of 6
1 with its attendant consequences would match encounters under Title 42, much less the unusually
2 high numbers in the final days of Title 42.
3 Relatedly, the government’s assertion that the Rule caused a substantial decrease in
4 encounters from May to June relies on a flawed comparison of total encounters, which include
5 repeat encounters. See Mot. 4-5. As the Rule acknowledges, “39 percent of all Title 42 expulsions
6 [were] followed by a re-encounter of the same individual within 30 days versus a 9 percent 30-day
7 reencounter rate for Title 8 repatriations.” 88 Fed. Reg. 31,314, 31,335 (May 16, 2023). Because
8 this dramatically different re-encounter rate distorts the encounter figures for May, the more relevant
9 comparison would be the difference in unique encounters between May and June. There were
10 136,673 “unique individuals encountered” at the southern border in May. 1 Notably, DHS has not
11 made public the equivalent unique encounter figure for June. 2 But assuming the 144,607 total
12 southwest border encounters in June 3—all of which were under Title 8—involved the same 9
13 percent re-encounter rate as prior Title 8 encounters over the last three years, 88 Fed. Reg. at 31,335,
14 that would mean there were approximately 131,600 unique encounters in June. That is just 4 percent
15 fewer unique encounters than the 136,673 unique encounters in May.
16 Additionally, vacatur of the Rule will leave in place other initiatives like the parole programs
17 and the policy of removing certain third-country nationals to Mexico, which the government has
18 touted as “yielding a substantial decrease in encounter numbers.” See, e.g., 88 Fed. Reg. at 31,316.
19 The CBP One scheduling system will also remain available. See ECF No. 182 at 7 n.4
20 (acknowledging that the existence of such “pathways” do not depend on the Rule). Whatever
21 benefits these programs provide the agencies will therefore be unaffected by the Court’s order.
22 The government also broadly warns against “judicial interference” in its asserted “border-
23 management and foreign-policy interests.” Mot. 3, 5. However, the prior asylum bans that this
24 Rule repackages even more explicitly asserted “foreign affairs” concerns, as part of their rationale
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26 1
Customs & Border Protection, CBP Releases May 2023 Monthly Operational Update (June 20,
2023), https://www.cbp.gov/newsroom/national-media-release/cbp-releases-may-2023-monthly-
27 operational-update.
2
See Customs & Border Protection, CBP Released June 2023 Monthly Update (July 18, 2023),
28 https://www.cbp.gov/newsroom/national-media-release/cbp-releases-june-2023-monthly-update.
3
Id.
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Case 4:18-cv-06810-JST Document 193 Filed 07/26/23 Page 5 of 6
1 for bypassing notice and comment. Nonetheless, this Court’s injunctions were affirmed on the
2 merits by the Ninth Circuit, which held in both cases that the same equitable factors applicable here
3 favored enjoining those earlier rules. E. Bay Sanctuary Covenant (EBSC) v. Garland, 994 F.3d 962,
4 984-85 (9th Cir. 2021); EBSC v. Biden, 993 F.3d 640, 677-79 (9th Cir. 2021). While “the public
5 has an interest in relieving burdens on the asylum system and the efficient conduct of foreign
6 affairs,” “as [this Court] noted, ‘shortcutting the law, or weakening the boundary between Congress
7 and the Executive, are not the solutions to these problems.’” EBSC v. Garland, 994 F.3d at 985.
8 The government also wrongly disregards the public interest in “‘ensuring that we do not
9 deliver [noncitizens] into the hands of their persecutors,’ and ‘preventing [noncitizens] from being
10 wrongfully removed, particularly to countries where they are likely to face substantial harm.’”
11 EBSC v. Biden, 993 F.3d at 678 (citations omitted). Contrary to the government’s assertion that
12 “Plaintiffs do not identify a single noncitizen affected by the Rule,” Mot. 5, it is undisputed that
13 every week that passes with the Rule in effect, thousands more noncitizens are being barred from
14 asylum and ordered removed solely because of the Rule. ECF No. 176-2 ¶ 16 (more than 4,000
15 noncitizens ordered removed due to the Rule from May 12 to June 13, 2023, with “thousands more”
16 being processed under the Rule as of June 16).
17 II. The Government is Unlikely to Prevail on the Merits.
18 The government’s motion does not identify any specific defects in this Court’s reasoning,
19 instead simply directing the Court to its prior briefing on the merits of Plaintiffs’ claims. Mot. 6.
20 For the reasons set forth in the Court’s Order and in Plaintiffs’ summary judgment briefs, ECF No.
21 169-1 and 181, the government is unlikely to prevail on the merits in its appeal.
22 CONCLUSION
23 The Court should deny the government’s motion for a stay pending appeal.
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Case 4:18-cv-06810-JST Document 193 Filed 07/26/23 Page 6 of 6
Dated: July 26, 2023 Respectfully submitted,
1
Lee Gelernt* /s/ Katrina Eiland
2 Omar Jadwat* Katrina Eiland (SBN 275701)
Anand Balakrishnan** Morgan Russell (SBN 296137)
3 AMERICAN CIVIL LIBERTIES UNION Spencer Amdur (SBN 320069)
FOUNDATION Oscar Sarabia Roman (SBN 341385)
4 IMMIGRANTS’ RIGHTS PROJECT AMERICAN CIVIL LIBERTIES UNION
125 Broad St., 18th Floor FOUNDATION
5 New York, NY 10004 IMMIGRANTS’ RIGHTS PROJECT
T: (212) 549-2660 39 Drumm Street
6 F: (212) 549-2654 San Francisco, CA 94111
lgelernt@aclu.org T: (415) 343-1198
7 ojadwat@aclu.org F: (415) 395-0950
abalakrishnan@aclu.org keiland@aclu.org
8
mrussell@aclu.org
Melissa Crow* samdur@aclu.org
9 CENTER FOR GENDER & REFUGEE osarabia@aclu.org
STUDIES
10 1121 14th Street, NW, Suite 200
Washington, D.C. 20005 Keren Zwick*
11 T: (202) 355-4471 Richard Caldarone*
F: (415) 581-8824 Colleen Cowgill (SBN 321542)
12 crowmelissa@uchastings.edu Mary Georgevich*
13 NATIONAL IMMIGRANT JUSTICE
Anne Peterson (SBN 258673) CENTER
Blaine Bookey (SBN 267596 224 S. Michigan Ave., Suite 600
14 Julie Bourdoiseau (SBN 340462) Chicago, Illinois 60604
Karen Musalo (SBN 106882) T: (312) 660-1370
15 CENTER FOR GENDER & REFUGEE F: (312) 660-1505
STUDIES kzwick@heartlandalliance.org
16 200 McAllister Street rcaldarone@heartlandalliance.org
San Francisco, CA 94102 ccowgill@heartlandalliance.org
17 T: (415) 610-5729 mgeorgevich@heartlandalliance.org
F: (415) 581-8824
18 petersonanne@uchastings.edu Michelle (Minju) Y. Cho (SBN 321939)
19 AMERICAN CIVIL LIBERTIES UNION OF
Robert Pauw** NORTHERN CALIFORNIA, INC.
CGRS Cooperating Attorney 39 Drumm Street
20 GIBBS HOUSTON PAUW San Francisco, CA 94111
1000 Second Avenue, Suite 1600 T: (415) 621-2493
21 Seattle, WA 98104 F: (415) 255-1478
T: (206)682-1080 mcho@aclu.org
22 F: (206)689-2270
rpauw@ghp-law.net
23
24
25 Attorneys for Plaintiffs
26 *Admitted Pro hac vice
27 ** Application for pro hac vice admission
forthcoming
28
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