No. 18A615

In the

Supreme Court of the United States
_______________________________

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,
Applicants,
v.

EAST BAY SANCTUARY COVENANT, ET AL.,
Respondents.
_______________________________
RESPONDENTS’ OPPOSITION TO APPLICATION FOR STAY
_______________________________

Jennifer Chang Newell
Cody H. Wofsy
Spencer E. Amdur
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
David Cole
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
915 15th Street NW
Washington, DC 20005
Melissa Crow
SOUTHERN POVERTY LAW CENTER
1666 Connecticut Avenue NW
Suite 100
Washington, D.C. 20009

Lee Gelernt
Counsel of Record
Omar Jadwat
Judy Rabinovitz
Daniel Galindo
Celso Perez
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street
New York, NY 10004
212-549-2660
lgelernt@aclu.org
Baher Azmy
Angelo Guisado
Ghita Schwarz
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
Additional counsel on next page

 Mary Bauer
SOUTHERN POVERTY LAW CENTER
1000 Preston Avenue
Charlottesville, VA 22903

Christine P. Sun
Vasudha Talla
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111

Attorneys for Respondents East Bay Sanctuary Covenant, et al.

 CORPORATE DISCLOSURE STATEMENT
In accordance with United States Supreme Court Rule 29.6, respondents
make the following disclosures:
1) Respondents East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab,
and Central American Resource Center of Los Angeles do not have parent
corporations.
2) No publicly held company owns ten percent or more of the stock of any
respondent.

i

 INTRODUCTION
This case does not present the type of extraordinary circumstances
warranting an emergency stay pending appeal to the circuit.

The temporary

restraining order (TRO) issued by the district court, and the denial of a stay by the
court of appeals, do no more than preserve the nearly 40-year status quo codified by
Congress. Indeed, as the Ninth Circuit observed, the Administration’s quarrel here
is really with the longstanding and fundamental policy decision Congress made four
decades ago and consistently and explicitly reaffirmed over the years, even as it
enacted other significant restrictions on asylum eligibility and procedures.
Moreover, the TRO will terminate by its own terms on December 19, and the
government has shown no justification sufficient for the extraordinary intervention
of staying it in its last two days of effect.
After World War II and the horrors experienced by refugees who were turned
away by the United States and elsewhere, Congress joined the international
community in adopting standards for the treatment of those fleeing persecution. A
key safeguard is the assurance, explicitly and unambiguously codified, that one
fleeing persecution can seek asylum regardless of where, or how, he or she enters
the country. 8 U.S.C. § 1158(a)(1) (providing that one may seek asylum “whether or
not” he or she enters at a designated port and “irrespective of . . . status”).
Congress was not encouraging or condoning illegal entry or entry between
ports. Rather it was acknowledging the fundamental reality -- and principle -- that
the manner or place of entry does not determine or diminish the degree of danger or
1

 threat of persecution faced by vulnerable refugees who seek protection between
designated ports of entry. Congress also understood that some vulnerable refugees
will be forced to enter between ports of entry. The unrebutted evidence in this case
shows that those arriving at the southern border who are fleeing persecution are
desperate and often unsophisticated, have no understanding of the option to apply
for asylum at a port, are forced by gangs and others to enter away from designated
ports of entry, or cannot realistically travel to such ports because of danger and
distance (with families and small children sometimes hundreds of miles away from
the nearest port). Even worse, some refugees, like unaccompanied children, are
stranded in Mexico because they are not being permitted to apply for asylum at
ports of entry, leaving them no other way to seek refuge.
The Executive contends that the country faces an unmanageable crisis
because of the number of refugees seeking to enter between ports and that this
justifies overriding Congress’s judgment.

Even if the numbers were indeed

historically high, which they are not, it would be for Congress to alter the clear
statutory framework governing asylum that it created and has maintained over
forty years -- including during

times when there were far more apprehensions

between ports of entry. In fact, the number of migrants apprehended between ports
of entry last year was considerably lower than in the recent past -- totaling fewer
than 400,000, compared to 700,000 to 1.6 million each year from 2000 to 2008. Dist.
Ct. ECF No. 8-2 ¶¶ 3-4.

2

 The government seeks to add weight to its argument by relying on the
President’s Proclamation. But as the government conceded below, it is only the
regulation, and not the Proclamation, that bars asylum. Unlike the travel ban case,
the Proclamation here does no actual work, as it simply denies entry to those who
are already denied entry under federal law.

Moreover, the President cannot

override a direct congressional pronouncement. Trump v. Hawaii, 138 S. Ct. 2392,
2411 (2018) (explaining that the case would have been very different had the travel
ban been in “conflict” with a specific statutory directive).
Nor does the “caravan” justify an emergency stay. Notably, the caravan is
barely mentioned in the preamble to the new regulation. That is not surprising
given that experts (as well the U.S. military) have downplayed the numbers and
significance of the caravan. In fact, to the extent the Administration continues to
point to the caravan, it is to suggest that there is chaos at the port of entry in
Tijuana.

But those problems are the result of the Administration’s refusal to

process more than a handful of asylum seekers each day, not the number of
entrants between ports.
For four decades, Congress has not altered the fundamental rule that one
fleeing persecution can apply for asylum whether or not he or she enters at a port of
entry. Insofar as the Administration believes its regulation can override the explicit
language in a 40-year-old statute, that question can, if necessary, be decided in the
normal course.

3

 STATEMENT
1. Congress’s judgment has been consistent and unequivocal: Asylum
represents a critical safeguard that should be available whether individuals come to
a port of entry or enter the United States between such ports. That was the case
from the very beginning of the modern asylum system. The 1980 Refugee Act gave
“statutory meaning to our national commitment to human rights and humanitarian
concerns,” reflecting “one of the oldest and most important themes in our Nation’s
history: welcoming homeless refugees to our shores.” App. 80a (quoting 125 Cong.
Rec. 23231-32 (Sept. 6, 1979)).
The original 1980 Act provided for asylum for individuals “physically present
in the United States or at a land border or port of entry, irrespective of such alien’s
status.” Refugee Act § 208(b), 94 Stat. 105. Were that language not clear enough,
in 1996 Congress -- while imposing new restrictions on asylum in other ways -reemphasized the same point in even more specific terms. 1

The statute now

provides:
Any alien who is physically present in the United States or who arrives
in the United States (whether or not at a designated port of arrival and
including an alien who is brought to the United States after having
been interdicted in international or United States waters), irrespective
of such alien’s status, may apply for asylum in accordance with this
section or, where applicable, section 1225(b) of this title.
8 U.S.C. § 1158(a)(1) (emphasis added).
Among other changes, in 1996, as part of the same legislation, Congress instituted
an expedited removal process for asylum seekers who enter at a port of entry or
between ports, to streamline the process. See 8 U.S.C. § 1225(b)(1). But, as noted,
Congress reaffirmed with even stronger language that asylum seekers who enter
between the ports must be allowed to apply for asylum.
4
1

 On November 9, 2018, the government issued an Interim Final Rule (the
“Rule”) and a Proclamation that “make asylum unavailable to any alien who seeks
refuge in the United States if she entered the country from Mexico outside a lawful
port of entry.” App. 4a. Specifically, the Rule established a new bar to asylum,
providing that individuals “entering ‘along the southern border with Mexico’ may
not be granted asylum if the alien is ‘subject to a presidential proclamation . . .
suspending or limiting the entry of aliens’ on this border.” App. 3a (quoting Aliens
Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for
Protection Claims, 83 Fed. Reg. 55,934, 55,952 (Nov. 9, 2018)).
The Rule was published without notice-and-comment procedures and “in
anticipation of” the Proclamation -- which was then issued the same day. Stay App.
35. The Proclamation suspended entry of any noncitizens through the border with
Mexico except at ports of entry. Addressing Mass Migration Through the Southern
Border of the United States, 83 Fed. Reg. 57,661, 57,663 (Nov. 9, 2018). But such
entry is already prohibited by statute, see 8 U.S.C. §§ 1182(a)(6)(A)(i), 1325(a), so
the Proclamation does “not have any practical effect” apart from the Rule, App. 51a
n.14.
Plaintiffs -- four nonprofit organizations that represent and serve asylum
seekers -- filed suit that day and sought a TRO. They asserted that the combined
effect of the Rule and Proclamation was squarely contrary to Congress’s directions
in § 1158(a)(1), and that the government had unlawfully bypassed the procedural
requirements of the Administrative Procedure Act (APA) in promulgating the Rule,
5

 see 5 U.S.C. § 553. They introduced evidence that the Rule would dramatically
impair their finances by denying them per-case fees for representing asylum
seekers; would force them to divert their scarce resources and frustrate their
organizational missions; and would violate the rights of their vulnerable clients,
including unaccompanied children stranded in Mexico.
2. On November 19, the district court granted the TRO at issue in this
application. It held that the “rule barring asylum for immigrants who enter the
country outside a port of entry irreconcilably conflicts with the [Immigration and
Nationality Act (INA)] and the expressed intent of Congress.” App. 80a-81a. In
denying the government’s motion for a stay, the district court rejected any attempt
to “fix” perceived flaws in the enacted policy of Congress by issuing “a rule that
directly contravenes the statute.” App. 78a. The court explained:
“[I]f a statute needs repair, there’s a constitutionally prescribed way to
do it. It’s called legislation. To be sure, the demands of bicameralism
and presentment are real and the process can be protracted. But the
difficulty of making new laws isn’t some bug in the constitutional
design: it’s the point of the design, the better to preserve liberty.”
App. 78a-79a (quoting Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1990 (2017)
(Gorsuch, J., dissenting)).
The district court also held that Plaintiffs had made a sufficient showing on
the merits of their procedural APA claim that the Rule was issued without the
requisite notice and comment.

With regard to the exception for regulations

involving a “foreign affairs function of the United States,” 5 U.S.C. § 553(a)(1), the
court observed that the government had failed to offer an explanation of “how
6

 eliminating notice and comment would assist the United States in its negotiations”
with foreign countries, App. 106a. The court likewise held that the government had
not satisfied the “good cause” exception, see 5 U.S.C. §§ 553(b)(B), (d)(3), at least at
this early stage, because various considerations seriously undercut the “linchpin
assumption” that noncitizens’ behavior would be substantially impacted if there
were a notice-and-comment period. App. 107a-108a.
The district court held that Plaintiffs had demonstrated irreparable injury
and standing to sue, and that the other factors favored a TRO. It concluded that
the Rule imposed direct financial injuries on the Plaintiffs, and also forced them to
divert their resources and frustrated their organizational missions. App. 90a-92a.
The court further held that Plaintiffs had third party standing to assert the
rights of their clients. App. 93a-94a. In particular, the court held that Plaintiffs
could assert the rights of their unaccompanied child clients who were trapped in
Mexico.

Those children were, as a practical matter, “entirely barred from

presenting their claims at a port of entry.”

App. 90a.

As the district court

explained, the barriers to these children presenting at a port went beyond the
government’s “established policy of limiting the number of people who may present
asylum claims at ports of entry -- called ‘metering,’” which has led to “lengthy
delays” for asylum seekers at ports as they are placed on a waiting list to seek
asylum.

App. 90a.2

The court explained that unaccompanied children are not

The President has noted the lengthy backlog in asylum processing at the San
Ysidro port of entry, and has told asylum seekers even at ports to just “[g]o home.”.
Donald J. Trump (@realDonaldTrump), Twitter (Nov. 18, 2018) (“The Mayor of
7
2

 allowed on the list at all, so they are “categorically barred from applying at ports of
entry.” App. 94a. Yet, because of the Rule, they are also prohibited from seeking
asylum by entering between ports.

This situation was untenable, the court

explained, particularly in light of the “high rates of violence and harassment while
waiting to enter, as well as the threat of deportation [from Mexico] to the countries
from which they have escaped.” App. 109a; see also App. 74a-75a.
3. The government waited eight days after the TRO issued, then noticed an
appeal and sought a stay in the district court. D. Ct. ECF No. 54 (scheduling order).
The district court denied the stay. App. 79a. The government then sought a stay
from the court of appeals.
On December 7, the court of appeals denied the stay motion in a published 21 opinion.3 Judge Bybee, writing for the court, held that the Rule was contrary to
§ 1158(a)(1). The court of appeals stressed that “Congress required the Government
to accept asylum applications from aliens, irrespective of whether or not they
arrived lawfully through a port of entry.”

App. 46a.4

The court rejected the

Tijuana, Mexico, just stated that ‘the City is ill-prepared to handle this many
migrants, the backlog could last 6 months.’ Likewise, the U.S. is ill-prepared for
this invasion, and will not stand for it. They are causing crime and big problems in
Mexico. Go home!”).
The court held that the TRO was appealable because it “meets the criteria for
treatment as a preliminary injunction.” App. 24a.
3

The court of appeals further noted that “Congress enacted the Refugee Act . . . to
bring the INA into conformity with the United States’s obligations under” the 1951
Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150, and
the 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223,
606 U.N.T.S. 267. App. 10a; see also App. 99a-100a.
8
4

 government’s attempt to justify the Rule by distinguishing between the right to
submit an application for asylum and eligibility for asylum, explaining that “it is
the hollowest of rights that an alien must be allowed to apply for asylum regardless
of whether she arrived through a port of entry if another rule makes her
categorically ineligible for asylum based on precisely that fact.” App. 44a-45a.
The court explained that, at bottom, this was a case about separation of
powers. “Just as we may not, as we are often reminded, ‘legislate from the bench,’
neither may the Executive legislate from the Oval Office.” App. 51a.
This separation-of-powers principle hardly needs repeating. The power
of executing the laws . . . does not include a power to revise clear
statutory terms that turn out not to work in practice . . . .
App. 51a-52a (internal quotation marks omitted).
The court of appeals likewise concluded that the government was unlikely to
prevail in defending against the procedural APA notice-and-comment claim.

It

rejected the foreign affairs exception, observing that “the Government has not
explained how immediate publication of the Rule, instead of announcement of a
proposed rule followed by a thirty-day period of notice and comment, is necessary
for negotiations with Mexico.” App. 56a-57a. And it likewise rejected the good
cause exception, explaining that “the Government’s reasoning is only speculative at
this juncture.” App. 60a; see id. (noting that the government itself admitted it could
not determine how the Proclamation would impact the behavior of noncitizens). It
further rejected the government’s arguments as to the other stay factors.

9

 Although the court of appeals was divided 2-1 on the government’s likelihood
of success on the merits, it unanimously held that Plaintiffs had standing. The
court held that the Plaintiffs had shown “that enforcement of the Rule has
frustrated their mission”; that it required “diversion of resources, independent of
expenses for this litigation, from their other initiatives”; and that it “will cause
them to lose a substantial amount of funding.” App. 31a, 33a. It likewise held that
Plaintiffs satisfied the APA’s zone-of-interests test.

App. 35a-40a.

The court,

however, rejected third party standing based on its misimpression that Plaintiffs’
clients, trapped in Mexico, were “complaining that government action will make
[their] criminal activity,” crossing between ports, “more difficult.”

App. 28a

(internal quotation marks omitted).
Judge Leavy concurred in the majority’s standing analysis. App. 66a. He
dissented, however, on the merits of the substantive INA claim, without addressing
the procedural APA notice-and-comment claim.
The government requested a stay ruling from the court of appeals by
December 7, see 9th Cir. ECF No. 4-1 at 1, and the court issued its ruling on that
day. Four days later, the government filed the instant application with this Court.
The district court is scheduled to hear Plaintiffs’ preliminary injunction motion on
December 19.5

The administrative record was submitted in the district court on November 29 and
will be at issue in the December 19 preliminary injunction hearing; the government
had not yet submitted the record at the time of the TRO hearing, and therefore it is
not part of the record before this Court.
10
5

 ARGUMENT
The government bears a “heavy burden” to justify the “extraordinary” relief
of a stay. Whalen v. Roe, 423 U.S. 1313, 1316 (1975) (Marshall, J., in chambers). It
must establish “(1) a reasonable probability that four Justices will consider the
issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority
of the Court will vote to reverse the judgment below; and (3) a likelihood that
irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 558
U.S. 183, 190 (2010).
“Because this matter is pending before the Court of Appeals, and because the
Court of Appeals denied [its] motion for a stay, [the government] has an especially
heavy burden.” Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1320
(1994) (Rehnquist, C.J., in chambers); see also Edwards v. Hope Med. Grp. for
Women, 512 U.S. 1301, 1302 (1994) (Scalia, J., in chambers) (an “applicant seeking
an overriding stay from this Court bears ‘an especially heavy burden’”). Indeed,
such stays are “rare and exceptional,” granted only “upon the weightiest
considerations.”

Fargo Women’s Health Organization v. Schafer, 507 U.S. 1013,

1014 (1993) (O’Connor, J., concurring in denial of stay application) (voting to deny
stay despite view that lower court decisions were “inconsistent” with Supreme
Court precedent).
Moreover, as a threshold matter, the government requests this Court’s
extraordinary intervention despite the fact that the TRO it seeks to stay is
scheduled to expire on December 19, when the district court conducts a hearing on
11

 Plaintiffs’ motion for a preliminary injunction.

The government has made no

showing as to why this Court’s intervention is necessary to halt a TRO that will
expire in 48 hours, even without the Court’s intervention.

If the government

prevails at the December 19 hearing, the government will have no need for this
Court to act. And if Plaintiffs prevail, the government would be obligated to seek a
stay of that new injunction, on a different record, from the lower courts before
seeking this Court’s intervention.
I.

THE COURT IS UNLIKELY TO GRANT CERTIORARI AND
REVERSE.
A. The Government Is Highly Unlikely To Prevail On The Merits.
As

the

court

of

appeals

recognized,

under

textbook

principles

of

administrative law and separation of powers, the asylum Rule is unlawful and must
be set aside.

And Plaintiffs’ standing is clear and grounded in this Court’s

precedents -- as the panel unanimously held. Because likelihood of success on the
merits is “critical,” Nken v. Holder, 556 U.S. 418, 434 (2009), the Court may reject
the stay application on this basis alone.
1. The Rule Squarely Violates The INA.
(a) The asylum statute emphatically provides that “[a]ny alien” who is
present in the United States may seek asylum “whether or not at a designated port
of arrival,” and “irrespective of such alien’s status.” 8 U.S.C. § 1158(a)(1) (emphasis
added).

Yet the Rule would foreclose asylum to those who arrive outside a

designated port of entry. The Rule thus forbids what the statute expressly allows.

12

 The court of appeals rightly rejected this “end-run around Congress.” App.
51a. Congress went out of its way to specify that the right to seek asylum does not
depend on how a person enters the country, in recognition of the many reasons
refugees fleeing persecution may enter outside a port of entry. Indeed, those fleeing
violence in their home countries are often desperate and unsophisticated, have no
understanding of the option to apply for asylum at a port, are forced by gangs to
enter between ports, or cannot realistically travel to a port because of distance or
danger.

See, e.g., Dist. Ct. ECF No. 8-4 ¶ 26; No. 8-6 ¶ 14.

And some, like

unaccompanied children, are not even allowed to apply at a port. See Dist. Ct. ECF
No. 35-8 ¶¶ 4-14, 17, 19; No. 71-2 (corrected declaration). The Executive disagrees
with this longstanding congressional policy decision, but its solution, as the court of
appeals correctly held, is impermissible. “[T]he Executive cannot . . . amend the
INA.” App. 51a.
The government’s primary defense is empty formalism.

It argues that

§ 1158(a)(1) only dictates who may submit an “application,” but does not affect who
may “be granted” asylum. Stay Mot. 29-30. In the government’s view, therefore,
Congress simply meant to ensure that asylum seekers retained the right to submit
a meaningless application. This “argument strains credulity.” App. 100a. As the
court of appeals put it, “[i]t is the hollowest of rights” that guarantees the right to
apply for asylum to one entering between ports if the application may then be
denied “based on precisely that fact.” App. 44a-45a.

13

 The government points out that “separate subsections” address “who may
apply for asylum” (subsection (a)) and “who is eligible to be granted asylum”
(subsection (b)).

Stay App. 29.

It argues, for example, that “Congress has

instructed that felons and terrorists have a right to apply for asylum,
notwithstanding a categorical denial of eligibility.” Stay App. 18 (quoting App. 68a
(Leavy, J., dissenting)). According to the government, that means that Congress
meant to allow certain individuals to apply for asylum, while simultaneously
allowing them to be ruled categorically ineligible. But unlike individuals who enter
between ports, Congress did not expressly state or instruct that “felons and
terrorists” have a right to apply for asylum.

The issue here is whether the

Executive can erect by regulation the very categorical bar that Congress expressly
rejected by statute.

The government’s example would be persuasive only if

Congress had specifically allowed “felons and terrorists” to apply for asylum but
then disqualified them from eligibility in the next subsection.

But none of the

categories Congress took pains to specifically define as eligible in § 1158(a)(1) is
barred from asylum in another provision.6
The court of appeals rightly rejected the “technical differences between
applying for and eligibility for asylum” as “of no consequence to a refugee when the
bottom line -- no possibility of asylum -- is the same.”

App. 45a.

Indeed, it

explained, “it is not clear” that the separation of the grounds for denying asylum
The government cites cases rejecting the asylum claims of individuals with
reinstated removal orders. See Stay App. 10 n.2, 33. Those cases are irrelevant
because they involved a separate statute providing that such individuals are “not
eligible and may not apply for any relief under this chapter.” 8 U.S.C. § 1231(a)(5).
14
6

 claims into two subparagraphs is actually “significant.”

App. 45a n.12 (giving

examples). As the court of appeals further observed, in practice the two steps will
often collapse into one. App. 45a n.12.
The government’s theory would do major violence to the statutory text,
because it would mean that Congress achieved nothing in any of § 1158(a)(1)’s
specific provisions. The government could categorically deny asylum based on a
person’s “status,” or because she arrived outside “a designated port,” or based on her
“having been interdicted” and brought to U.S. soil. 8 U.S.C. § 1158(a)(1). Indeed,
on the government’s theory it could eliminate asylum altogether, effectively writing
§ 1158 out of the books, so long as it permitted application forms to be submitted.
See App. 102a (observing that “the Rule itself actually gives the President the
ability . . . to halt asylum claims entirely along the southern border” by issuing a
Proclamation to that effect) (emphasis added).
The government also relies on the Attorney General’s authority under the
statute to impose additional asylum restrictions, but Congress made clear that
those restrictions must be “consistent with this section,” which includes
§ 1158(a)(1), the subparagraph stating that the applicant may apply “whether or
not” she entered at a port. 8 U.S.C. § 1158(b)(2)(C); see also id. § 1158(d)(5)(B)
(additional regulations may not be “inconsistent with this chapter”).

A ban on

asylum to those who enter between ports is clearly not “consistent” with the
requirement that asylum be available to such persons. “It would be illogical to
conclude that Congress, having” made asylum available in those circumstances,
15

 “would turn around and nullify its own choice” by authorizing the agencies to
disregard the enacted text. Dep’t of Rev. of Oregon v. ACF Indus., Inc., 510 U.S.
332, 343 (1994).
Congress’s word choice is also instructive. It did not simply require that
additional restrictions be consistent with the eligibility rules in subsection (b).
Instead, it required such restrictions to be consistent with all of “section” 1158 -which of course includes § 1158(a)(1).

If eligibility rules were categorically

incapable of conflicting with application rules, as the government suggests,
Congress could have simply required consistency with “subsection” (b), not the rest
of “section” 1158.

That word choice is especially significant because Congress

differentiated between a “paragraph,” “subparagraph,” and “subsection” elsewhere
in the same statute. 8 U.S.C. §§ 1158(a)(2)(C), (a)(3), (b)(3)(A); see Koons Buick
Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 60 (2004).
(b) Citing Lopez v. Davis, 531 U.S. 230 (2001), and Matter of Pula, 19 I&N
Dec. 467, 473 (BIA 1987), the government also seeks to support the categorical ban
on asylum eligibility by noting that asylum can be denied as a matter of discretion
at the end of the process. But in Lopez the agency’s categorical rule was permissible
only because Congress had not “enacted a law” that answered “the precise question
at issue.” 531 U.S. at 242 (internal quotation marks omitted). Here, it has. See
App. 46a n.13; 100a-101a.
And the Board of Immigration Appeals’ decision in Matter of Pula actually
squarely rejects the government’s reliance on the fact that an asylum application
16

 can be denied as a matter of discretion. As the court of appeals observed: “The BIA
[in Matter of Pula] recognized some thirty years ago that although ‘an alien’s
manner of entry or attempted entry is a proper and relevant discretionary factor to
consider in adjudicating asylum applications, . . . it should not be considered in such
a way that the practical effect is to deny relief in virtually all cases.’” App. 47a
(quoting Matter of Pula, 19 I&N Dec. at 473). Thus, it has been the agency’s own
consistent position for at least three decades that one’s manner of entry cannot be
determinative.

See also id. (applicant’s manner of entry “is worth little if any

weight in the balance of positive and negative factors”) (quoting Mamouzian v.
Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004)); Huang v. INS, 436 F.3d 89, 99 (2d
Cir. 2006) (“manner of entry cannot, as a matter of law, suffice as a basis” for
denying asylum); Hussam F. v. Sessions, 897 F.3d 707, 718 (6th Cir. 2018) (same);
Zuh v. Mukasey, 547 F.3d 504, 511 n.4 (4th Cir. 2008) (same).
(c) Nor can the Executive get any mileage out of the Proclamation, because it
concedes that “the Proclamation does not render any alien ineligible for asylum.”
App. 96a. That concession is understandable, because the President’s power under
8 U.S.C. § 1182(f) does not allow him to “override particular provisions of the INA,”
Hawaii, 138 S. Ct. at 2411, or to alter noncitizens’ rights once they are in the
United States, see 8 U.S.C. § 1182(f) (addressing “entry” only). Unlike in Hawaii,
the Proclamation here does no actual work with respect to entry, because it
“suspends entry” for people whose entry has already been prohibited for decades by
existing law. See 8 U.S.C. §§ 1182(a)(6)(A)(i), 1325; App. 51a.
17

 Thus, as the court of appeals observed, the “Proclamation by itself is a
precatory act.” App. 51a. To the extent the Proclamation does anything, it appears
designed simply to give the agencies an additional argument in defending the ban.
See Stay App. 32-33. That “illusion,” as the court of appeals described it, App. 51a
n.14, cannot obscure what the agencies are actually doing here: categorically
denying asylum to the precise people Congress categorically authorized to apply.
Neither the agency nor the President can separately enact the rule, and they gain
no additional authority by attempting to do it in concert.7
At bottom, the government’s statutory arguments boil down to the contention
that it would be more “rational” and “sensible” to deny asylum to people who enter
illegally. Stay App. 31-32. But Congress expressly rejected that argument, and for
good reason. Legitimate asylum seekers in fear for their lives will often, through no
fault of their own, enter between ports. Congress thus made the decision not to
send people back to persecution merely because they entered in the wrong manner.
It is a “core administrative-law principle that an agency may not rewrite
clear statutory terms to suit its own sense of how the statute should operate.” Util.
Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2446 (2014). “If a statute needs repair,
there’s a constitutionally prescribed way to do it. It’s called legislation.” Perry, 137
S. Ct. at 1990 (Gorsuch, J., dissenting).
Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 187-88 (1993) is inapposite, as
that case concerned the President’s “power to establish a naval blockade” -- not the
agencies’ authority to promulgate regulations barring asylum for those who already
entered, cf. id. at 173 (noting significance of statutory delegation of powers to the
President and the Attorney General, respectively); see also App. 102a (discussing
Sale).
18
7

 2. No Exception Justified Bypassing The APA’s Procedural
Requirements.
The court of appeals also correctly rejected the application of the foreign
affairs, 5 U.S.C. § 553(a)(1), and good cause, id. § 553(b)(B), exceptions to the APA’s
procedural rules. The government’s stay application provides no emergency basis to
disturb those holdings pending appeal in the circuit.
(a)

The court of appeals held that the government must “do more than

merely recite that the Rule ‘implicates’ foreign affairs.” App. 54a. The government
faults the court of appeals for asking for some actual evidence, asserting the court
was in “no position to second-guess” the government’s determination. Stay App. 37.
But this exception to the notice-and-comment provisions of the APA does not call for
wholesale deference -- even in contexts where some nexus to foreign affairs might be
considered “obvious,” id. It is not enough to invoke foreign affairs as a talisman,
without a specific showing of harm. See, e.g., Zhang v. Slattery, 55 F.3d 732, 744-45
(2d Cir. 1995); Jean v. Nelson, 711 F.2d 1455, 1477-78 (11th Cir. 1983), vacated in
relevant part as moot, 727 F.2d 957 (11th Cir. 1984) (en banc), aff’d 472 U.S. 846
(1985); Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980). Am. Ass’n of
Exps. & Imps. Textile & Apparel Grp. v. United States, 751 F.2d 1239 (Fed. Cir.
1985), on which the government relies, accordingly required that the government
establish that the ordinary procedures “would ‘provoke definitely undesirable
international consequences.’” Id. at 1249 (quoting H. Rep. No. 1980, 69th Cong., 2d
Sess. 23 (1946)).

19

 That is in keeping with Congress’s intent that “exceptions to notice-andcomment rulemaking under the APA are ‘narrowly construed and only reluctantly
countenanced.’” Mid Continent Nail Corp. v. United States, 846 F.3d 1364, 1380 &
n.12 (Fed. Cir. 2017) (collecting cases and quoting Mobil Oil Corp. v. Department of
Energy, 728 F.2d 1477, 1490 (Temp. Emer. Ct. App. 1983) (cited in Stay App.)); New
Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980) (“it should be clear beyond
contradiction or cavil that Congress expected . . . that the various exceptions” would
be so construed); see also Indep. Guard Ass’n of Nevada v. O’Leary, 57 F.3d 766, 769
(9th Cir. 1995) (concluding that “Congress intended” the “military function” prong of
same provision containing the foreign affairs exception “to have a narrow scope”).
The government still has offered no specifics about “how immediate
publication of the Rule, instead of announcement of a proposed rule followed by a
thirty-day period of notice and comment, is necessary for negotiations with Mexico.”
App. 56a-57a.

The Rule mentions a possible agreement with Mexico to permit

nationals of third countries to be quickly removed from the United States to Mexico.
See App. 133a (citing 8 U.S.C. 1158(a)(2)(A)). But under the Rule’s terms, nationals
of third countries who enter between ports will remain in the United States after
entry pending their removal, just as they did before the Rule. In any event, as the
court of appeals stressed, the government has not offered even a facially plausible
explanation for why the announcement of a notice-and-comment period would have

20

 an effect on negotiations in any way different from making the regulation effective
immediately.8
The government protests that it will be forced “to telegraph its negotiating
strategy in a public document.” Stay App. 37. But in the past it has submitted
evidence supporting the invocation of this exception, see, e.g., Yassini, 618 F.2d at
1361 (affidavits from Attorney General and Deputy Secretary of State), and it could
have done so under seal or protective order. Indeed, despite invitations from the
district court and court of appeals, App. 57a, 106a, the government has still offered
no such evidence below. The rule the government advances here -- that courts must
accept the mere invocation of the foreign affairs exception without question -- would
gut the APA’s procedural requirements.
(b) The government’s arguments in favor of the “good cause” exception fare
no better.

“[T]he good cause exception is essentially an emergency procedure.”

United States v. Valverde, 628 F.3d 1159, 1165 (9th Cir. 2010). And the agency
must “overcome a high bar,” as this exception must also be “narrowly construed and
only reluctantly countenanced.” Id. at 1164; accord Mid Continent Nail Corp., 846
F.3d at 1380 & n.12; New Jersey, 626 F.2d at 1045. That demanding standard is
consistent with Congress’s clear view that notice and comment is designed “to
assure fairness and mature consideration of rules of general application.” NLRB v.
Wyman-Gordon Co., 394 U.S. 759, 764 (1969) (plurality opinion).

The government also invokes negotiations with other countries, but provides even
less explanation as to those.
21
8

 The government demands essentially absolute deference regarding whether
good cause has been established.

As the case comes before this Court, the

government has adduced no actual evidence of anything -- only the statements that
accompanied the Rule and Proclamation.9

The “linchpin assumption” of the

government’s good cause argument, App. 108a, is that allowing notice and comment
“could lead to an increase in migration to the southern border to enter the United
States before the rule took effect,” App. 133a (emphasis added). But “even the
Government admits that it cannot ‘determine how . . . entry proclamations
involving the southern border could affect the decision calculus for various
categories of aliens planning to enter.’” App. 60a (quoting App. 131a).
Significantly, moreover, the government’s surge argument cannot be
reconciled with its decision in late October and early November to announce that
the Rule would be issued.10 The government has never explained why announcing

Since its notice of appeal, the government has produced the administrative record,
and the preliminary injunction motion currently pending before the district court
and scheduled to be heard on December 19 presents the question whether the
record supports the good cause invocation. Plaintiffs submit it does not. That
record is not before this Court.
9

See Julie Hirschfeld Davis and Gardiner Harris, Trump Considering Executive
Actions to Stop Asylum Seekers From Central America, N.Y. Times (Oct. 26, 2018)
(describing the administration’s plan, under which “the Homeland Security and
Justice Departments would jointly issue new rules that would disqualify migrants
who cross the border in between ports of entry from claiming asylum”),
https://www.nytimes.com/2018/10/26/us/politics/trump-mexico-border.html;
Remarks by President Trump on the Illegal Immigration Crisis and Border Security
(Nov. 1, 2018) (“Under this plan, . . . migrants seeking asylum will have to present
themselves lawfully at a port of entry . . . . Those who choose to break our laws and
enter illegally will no longer be able to use meritless claims to gain automatic
admission into our country.”), https://www.whitehouse.gov/briefings-statements/
22
10

 the Rule in the press weeks in advance would cause no harm, but a notice-andcomment period would.
The government argues that courts must defer so long as there is some
“predictive judgment[]” involved. Stay App. 36. But the government’s approach, if
accepted, would “swallow” the notice-and-comment rule.

App. 107a (quoting

Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982)).

The cases the

government cites do not remotely justify such boundless deference.

Hawaii

Helicopter Operators Ass’n v. FAA, 51 F.3d 212, 214 (9th Cir. 1995), found the
situation was “urgent” based on “specific facts” and “accident data” demonstrating a
very “recent escalation of fatal” helicopter crashes. And Mobil Oil Corp. warned
that agencies could “frequently assert that someone will take advantage of the
situation if advance notice is given,” so to avoid good cause becoming “an all purpose
escape-clause,” the government must demonstrate “a significant threat of serious
damage to important public interests,” 728 F.2d at 1492; see also Jifry v. FAA, 370
F.3d 1174, 1179 (D.C. Cir. 2004) (involving “threat of further terrorist acts involving
aircraft in the aftermath of September 11, 2001”).
The desire to bypass notice and comment is “a not-uncommon sentiment
among agencies.” Ivy Sports Med., LLC v. Burwell, 767 F.3d 81, 87 (D.C. Cir. 2014)
(Kavanaugh, J.).

“But notice and comment helps to prevent mistakes” and to

ensure “fair treatment, a value basic to American administrative law.” Id. at 87-88.
There was no good cause to cast aside the APA’s procedures in this case.

remarks-president-trump-illegal-immigration-crisis-border-security/.
23

 B. Plaintiffs Have Standing.
The district court correctly held that Plaintiffs have standing, and the court
of appeals unanimously agreed. App. 28a-35a; id. 66a (Leavy, J., dissenting in part)
(“I . . . concur in the majority’s standing analysis”). That conclusion was correct and
there is no basis to disturb it here.
Plaintiffs have Article III standing. The court of appeals unanimously held
that Plaintiffs identified two categories of cognizable Article III injuries, each
sufficient to support standing.
First, Plaintiffs demonstrated “organizational standing by showing that the
Rule will cause them to lose a substantial amount of funding.” App. 33a. “For
standing purposes, a loss of even a small amount of money is ordinarily an ‘injury.’”
Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983 (2017) (citing McGowan v.
Maryland, 366 U.S. 420, 430-431 (1961) (standing based on $5 fine plus costs)).
Here, the funding at immediate risk represents a significant portion of
Plaintiffs’ annual budgets. For example, East Bay Sanctuary Covenant (EBSC)
predominantly provides services for asylum seekers applying “affirmatively” (i.e.
who are not in removal proceedings), mostly individuals who have entered between
ports. App. 34a. As a direct result of the Rule, it faces a loss of $304,000 annually
that funds (on a per-case basis) its affirmative asylum program and the closure of
that program.

See Dist. Ct. ECF No. 8-7 ¶¶ 14-16; App. 91a (citing other

declarations).

24

 The government calls these existential risks “speculative.” Stay App. 22-23.
But it offered no evidence to contest Plaintiffs’ showing that the Rule would
eliminate that funding. And the alternatives it suggests ignore the record evidence
and the reality on the ground.
The government posits, for example, that the plaintiff organizations should
simply continue to submit affirmative asylum applications for people who entered
between ports, id. at 23 -- but those applications would be automatically denied
under the Rule.

Likewise, the ability to apply for other forms of relief, like

withholding of removal, is no answer. The government suggests such applications
are only “supposedly more expensive” for the organizations, Stay App. 23a, but
Plaintiffs’ clear and unrefuted record evidence shows that litigating other forms of
relief is more resource intensive, see Dist. Ct. ECF No. 8-3 ¶¶ 10, 12, 13; No. 8-7
¶ 17. And, as the court of appeals explained, “other forms of relief from removal . . .
do not allow a principal applicant to file a derivative application for family
members,” so Plaintiffs “will have to submit a greater number of applications for
family-unit clients who would have otherwise been eligible for asylum.” App. 32a;
Dist. Ct. ECF No. 8-3 ¶ 11 (describing resulting “enormous strain” on organization);
No. 8-4 ¶ 13.
Likewise, the government’s suggestion that Plaintiffs can simply reorient
their operations to serving those who enter at ports is legally and factually wrong.
Requiring an organization to rearrange its mission is itself a cognizable injury. And
as a factual matter, Plaintiffs cannot simply reinvent themselves as the government
25

 proposes. EBSC, for instance, has built a program specifically designed to represent
asylum seekers who apply affirmatively for asylum after entry. That program is a
key part of its mission and accounts for half its budget. EBSC’s program is not set
up to provide representation to people who seek asylum as a defense in removal
proceedings, and it does not have the capacity to do so. EBSC also cannot represent
asylum seekers at ports because it is located far from the southern border. See Dist.
Ct. ECF No. 8-7 ¶¶ 3, 8-13, 15-17.11
Second, Plaintiffs demonstrated that the rule “perceptibly impaired their
ability to provide the services they were formed to provide,” establishing “a
diversion-of-resources injury . . . sufficient to establish organizational standing for
purposes of Article III.”

App. 29a (internal quotation marks and alterations

omitted). In Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), this Court held
that an organization had standing to challenge practices that “perceptibly impaired”
the “organization’s activities,” with a “consequent drain on the organization’s
resources,” id. at 379. Indeed, the unanimous Court observed, there could “be no
question” but that such an organization suffered a “concrete and demonstrable
injury.” Id.; see also McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 488 n.8
(1991) (approvingly noting district court’s holding that organization had standing
where a government practice made its “work . . . more difficult and result[ed] in the
diversion of [its] limited resources”).

EBSC has filed nearly 5000 affirmative asylum applications since the program
began, with over 500 cases currently pending and approximately 20 intakes per
week. Dist. Ct. ECF No. 8-7 ¶ 8.
26
11

 Plaintiffs’ unrebutted standing evidence places this case firmly within the
heartland of Havens standing.

As the court of appeals detailed, the rule “has

frustrated [Plaintiffs’] mission” of representing asylum seekers and requires “a
diversion of resources” in a variety of respects. App. 31a-32a.
As noted, EBSC is overwhelmingly geared towards affirmative asylum
representation -- meaning the rule rendering its client base ineligible for asylum
would require a total “overhaul” of its operations. Id.; see also, e.g., Dist. Ct. ECF
No. 8-4 ¶ 9; No. 8-6, ¶ 11. The government brushes that dramatic harm aside as a
“setback” to EBSC’s “abstract social interests.” Stay App. 25 (quoting Havens, 455
U.S. at 379). But a policy that even “perceptibly impair[s]” an organization’s efforts
is sufficient. Havens, 455 U.S. at 379.12
The government points to cases rejecting standing predicated on an
organization’s litigation and advocacy against the challenged policy itself. See Nat’l
Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1431, 1434 (D.C. Cir. 1995)
(“An organization cannot, of course, manufacture the injury necessary to maintain a
To the extent the government seeks to cast doubt on or narrowly limit Havens, it
fails to grapple with the decades of case law in the lower courts faithfully applying
this Court’s holding. See Abigail All. for Better Access to Developmental Drugs v.
Eschenbach, 469 F.3d 129, 133 (D.C. Cir. 2006); see also, e.g., OCA-Greater Houston
v. Texas, 867 F.3d 604, 612 (5th Cir. 2017); Miami Valley Fair Hous. Ctr., Inc. v.
Connor Grp., 725 F.3d 571, 576-77 (6th Cir. 2013); Common Cause/Georgia v.
Billups, 554 F.3d 1340, 1350 (11th Cir. 2009); App. 88a-89a. It is telling that the
government does not claim a circuit split with regard to Havens, instead pointing
only to a single judge’s dubitante opinion -- which, as the court of appeals explained,
is inapposite. Stay App. 25 (citing PETA v. United States Dep’t of Agric., 797 F.3d
1087, 1100-1101 (D.C. Cir. 2015) (Millett, J., dubitante)); App. 33a (“[w]hatever the
force” of that opinion, the concerns it raised were specific to standing to challenge “a
defendant’s failure to take action against a third party,” which is not at issue here).
12

27

 suit from its expenditure of resources on that very suit.”). But, as the court of
appeals explained, Plaintiffs “offered uncontradicted evidence that enforcement of
the Rule has required, and will continue to require, a diversion of resources,
independent of expenses for this litigation, from their other initiatives.” App. 31a
(emphasis added).13
Plaintiffs are within the zone of interests.

The unanimous panel also

correctly held that Plaintiffs satisfy the APA’s zone-of-interests test. As the court of
appeals correctly recognized, that test “is not meant to be especially demanding,”
and does not require any “congressional purpose to benefit the would-be plaintiff.”
App. 37a (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399-400 & n.16 (1987)).
It “forecloses suit only when a plaintiff’s interests are so marginally related to or
inconsistent with” a statutory scheme that Congress could not have intended to
allow the suit. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
130 (2014) (internal quotation marks omitted).
Plaintiffs easily satisfy this “lenient approach.”

Id. They seek to protect

their interest in providing legal services to refugees and asylum seekers, which the
INA furthers and the challenged Rule directly imperils. See Dist. Ct. ECF No. 8-7
¶¶ 4-8, 14-15, 19; No. 8-6 ¶¶ 2, 7-8, 10, 12; No. 8-3 ¶ 4-6, 10; No. 8-4 ¶ 4. The
provision of such services is an interest the Refugee Act plainly protects, as it seeks
to provide asylum seekers and refugees with access to pro bono legal services at
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013), is likewise inapposite. The
harms in this case involve no “speculative chain of possibilities,” and Plaintiffs’
diversion of resources cannot be dismissed as “self-inflicted injuries.” Id. at 414,
418; see App. 92a (distinguishing Clapper).
28
13

 every turn. See 8 U.S.C. §§ 1158(d)(4)(A), 1158(d)(4)(B), 1229(a)(1)(E), 1229(b)(1)(2). Nothing more is required to satisfy the zone-of-interests test.
As this Court has repeatedly held, a plaintiff does not need to show any
“congressional purpose to benefit the . . . plaintiff,” only an asserted interest that
the statutory scheme “arguably” protects. Nat’l Credit Union Admin. v. First Nat’l
Bank & Trust Co., 522 U.S. 479, 492-93 (1998) (quotation marks omitted); see id. at
493 & n.6 (banks shared statute’s “interest in limiting the markets that federal
credit unions can serve,” even though Congress had no goal of helping banks);
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209,
226 (2012) (shared “concern with land use”).
As the court of appeals explained, the Refugee Act and INA “directly rely on
institutions like [Plaintiffs]” to facilitate “the statutory procedure for granting
asylum to refugees.” App. 38a (quotation marks omitted). The statutes direct the
government to advertise the organizations’ services and ensure that asylum seekers
can access them, see supra; to fund their operations, see 8 U.S.C. § 1522(b)(1)(A);
and to “consult regularly” with them, see 8 U.S.C. §§ 1522(a)(2)(A), 1154(f)(3)(A),
1522(c)(1)(A), 1522(d)(2)(A). Other parts of the INA rely on their participation in
different ways.

See App. 38a (collecting statutes).

And the government’s own

“regulations make this statutory concern with [Plaintiffs’ services] crystal clear.”
Patchak, 567 U.S. at 226; see, e.g., 8 C.F.R. §§ 1292.1, 1292.4, 1292.5, 1240.10(a)(2).
The government responds that the Act’s primary goal is protecting refugees.
Stay App. 27. But Plaintiffs share that goal; Congress has made Plaintiffs and
29

 similar organizations integral participants in achieving that goal; and, critically,
the test does not require that Plaintiffs be the “beneficiary” of the Act.14
In fact, Plaintiffs here are far more deeply embedded in the Refugee Act’s
scheme than other plaintiffs that have been held by this Court to fall within other
statutory zones of interest.

The government’s constricted view of the zone-of-

interests test is at odds with these cases. The Court has held, for instance, that a
nearby property owner could enforce the Indian Reorganization Act, even though he
was not regulated or even mentioned by the Act. Patchak, 567 U.S. at 226. It has
held that “nonprofit organizations” and local governments could enforce the Fair
Housing Act, even though they had not experienced housing discrimination
themselves. Bank of America Corp. v. City of Miami, 137 S. Ct. 1296, 1302-05
(2017). And it has long held that businesses may challenge regulations that affect
only their competitors. See Nat’l Credit Union Admin., 522 U.S. at 489-495. None
The government asserts that the INA’s provisions addressing review of removal
orders mean “review may be sought only by the affected alien.” Stay App. 26 (citing
Block v. Community Nutrition Inst., 467 U.S. 340, 344-345, 349-351 (1984)). Block
does not support that view; indeed, in that case the Court concluded that parties
other than those expressly granted review could sue. Block, 467 U.S. at 351-52.
Moreover, this case does not challenge any removal order; it challenges the
regulation facially as substantively unlawful and promulgated contrary to the
APA’s procedural requirements. This Court has already rejected an overbroad
reading of Block, declining to accept the government’s argument that
“in authorizing one person to bring one kind of suit seeking one form of relief,
Congress barred another person from bringing another kind of suit seeking another
form of relief.” Patchak, 567 U.S. at 223. “Any lingering doubt” is “dispelled” by
“the presumption favoring judicial review of administrative action,” which this
Court has “consistently applied . . . to legislation regarding immigration, and
particularly to questions concerning the preservation of federal-court jurisdiction.”
Kucana v. Holder, 558 U.S. 233, 251 (2010). And this case also has unique features
that undermines the government’s argument. See infra.
14

30

 of these types of plaintiffs were held to fall outside the zone of interests as
“bystanders to the statutory scheme.” Stay App. 27. Indeed, the Court has never
foreclosed suit by a party who shared a statute’s precise goals, and who was a
participant in its processes.15
Moreover, the government’s cramped view of the zone-of-interests test rings
particularly hollow in a case like this one, where the Executive Branch is
attempting abruptly and unilaterally to shut down an entire component of the
asylum system that has been in place by statutory mandate since the inception of
the process, and where the government’s very purpose is to prevent asylum seekers
from even entering the country. Its actions are “threatening [Plaintiffs’] ability . . .
to provide services” in a way that less sweeping and categorical actions might not.
Bank of Am., 137 S. Ct. at 1305 (test satisfied on this basis). In these unique
circumstances, Plaintiffs “are reasonable -- indeed, predictable -- challengers of the
[agencies’] decisions.” Patchak, 567 U.S. at 227.16

The government cites INS v. Legalization Assistance Project, 510 U.S. 1301 (1993)
(O’Connor, J., in chambers), but that single-Justice decision involved a different
statute, id. at 1304, and a different interest than here: serving “nonimmigrants,”
not asylum seekers, App. 39a n.10. Moreover, the decision came before this Court
clarified the lenient scope of the zone-of-interests rule in National Credit Union
Administration, Patchak, and Lexmark. Compare Legalization Assistance Project,
510 U.S. at 1305 (examining whether statute was “meant to protect the interests” of
plaintiffs) with Nat'l Credit Union Admin., 522 U.S. at 505 (O’Connor, J.,
dissenting) (“The Court adopts a quite different approach to the zone-of-interests
test today, eschewing any assessment of whether the [statute] was intended to
protect [plaintiffs’] interest.”). Fed'n for Am. Immigration Reform, Inc. v. Reno, 93
F.3d 897 (D.C. Cir. 1996), involved a very different, generalized interest in limiting
immigration.
15

Notably, the government has not squarely stated whether anyone is able to
immediately challenge the Rule. The government may contend that the only way to
31
16

 Finally, Plaintiffs are within the APA’s zone of interests for their procedural
notice-and-comment claim.

The APA is the relevant statute for these purposes

because it is the statute Plaintiffs “say[] was violated.” Patchak, 567 U.S. at 224;
see Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990) (zone-of-interests analysis
looks to “the statutory provision whose violation forms the legal basis for [the]
complaint”). Indeed, organizations form the main constituency that can realistically
comment on immigration regulations, because noncitizens (especially abroad) are
not likely to even know about the rulemaking, much less submit comments. See D.
Ct. ECF No. 35-6 ¶¶ 2-4; No. 35-10 ¶¶ 3-6. It would thus make little sense in the
immigration context to hold that organizations like Plaintiffs do not fall within the
APA’s zone of interests for its rulemaking requirements. Cf. Mountain States Legal
Found. v. Glickman, 92 F.3d 1228, 1237 (D.C. Cir. 1996) (rejecting zone-of-interests
argument that would leave a legal interest “with no conceivable champion in the
courts”). In any event, even if the relevant statute is the INA, and not the APA,
Plaintiffs are within the INA’s zone of interests, as explained above.
Plaintiffs have third party standing. As an alternative basis, Plaintiffs have
also established third party standing to assert the rights of their clients who wish to
apply for asylum, as the district court correctly concluded. App. 93a-94a. To assert
challenge the Rule is through a petition for review in the circuit court after full
immigration court removal proceedings by a claimant subject to the rule. But that
means a challenge is not only contingent on the government choosing to place an
individual into removal proceedings, but it would likely be years before a ruling. In
the meantime, thousands of people would be returned to danger with no
opportunity to obtain asylum, despite Congress’s express directive.

32

 a third party’s rights, (1) “[t]he litigant must have suffered an ‘injury in fact’”; (2)
“the litigant must have a close relationship to the third party”; and (3) “there must
exist some hindrance to the third party’s ability to protect his or her own interests.”
Powers v. Ohio, 499 U.S. 400, 410-11 (1991).
As described above, Plaintiffs have suffered Article III injuries in fact.
Plaintiffs also satisfy the second requirement because they have an undisputed
“existing attorney-client” relationship with unaccompanied children who are unable
to seek asylum. Kowalski v. Tesmer, 543 U.S. 125, 131 (2004) (emphasis omitted).
As this Court has explained, the attorney-client relationship is “one of special
consequence” that is sufficient to support third party standing. Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 623 n.3 (1989); see App. 93a.
Plaintiffs also satisfy the third requirement because their clients are
hindered in their ability to assert their own rights. The “hindrance” factor is not a
high bar. The third party need not face an “insurmountable” barrier to asserting
her rights; it is enough that there is a “genuine obstacle.” Singleton v. Wulff, 428
U.S. 106, 116-17 (1976).
Here, Plaintiffs’ clients include unaccompanied children, and courts have
repeatedly recognized that being a minor is a hindrance to asserting one’s own
rights. App. 74a (collecting cases); see also Smith v. Org. of Foster Families For
Equal. & Reform, 431 U.S. 816, 841 n.44 (1977) (observing that “children usually
lack the capacity” to decide “how best to protect [their] interests”). And because

33

 these children are unaccompanied, their attorneys -- Plaintiffs -- are the best
proponents for asserting their rights.
These children are also uniquely vulnerable given that they are fleeing
persecution. See, e.g., Exodus Refugee Immigration, Inc. v. Pence, 165 F. Supp. 3d
718, 732-33 (S.D. Ind. 2016), aff’d 838 F.3d 902, 904 (7th Cir. 2016). In addition,
the children are trapped in dangerous border towns in Mexico without any
opportunity to apply for asylum at a port or otherwise, because, as noted, they are
not permitted to apply even at a port of entry. See App. 74a-75a; id. at 93a-94a;
Dist. Ct. ECF No. 8-4 ¶¶ 38-39; No. 35-8 ¶¶ 4-6, 10, 13-15. Under this Court’s
decisions, non-legal hindrances are sufficient. Singleton, 428 U.S. at 117-18.
The court of appeals did not disagree with any of these points. Instead, it
rejected third party standing based on its view that Plaintiffs’ clients themselves
had no right to vindicate, because they “would not have standing to assert a right to
cross the border illegally, to seek asylum or otherwise.” App. 28a. In that respect,
the court was mistaken. It may be that “a person complaining that government
action will make his criminal activity more difficult lacks standing.” Id. (quoting
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir. 2006) (en
banc) (dicta)). But that is not the nature of Plaintiffs’ clients’ claim. They do not
here contest the ability of the government to enforce the criminal entry prohibition,
8 U.S.C. § 1325. Nor do they complain that the ban makes “criminal activity more
difficult,” or that they have a right in general to “cross the border illegally.”

34

 Rather, the claim is that Congress has enshrined a right to apply for asylum
even if they break the law by crossing the border between ports. The Rule strips
them of that right. And the practical reality on the ground is that these children
are unable to avoid the Rule by presenting at a port of entry, due to enormous
backlogs and a waiting list to which they, as unaccompanied children, are not
permitted access. See Dist. Ct. ECF No. 35-8 ¶¶ 4-14, 17, 19-21; No. 71-2 (corrected
declaration); see also No. 8-4 ¶¶ 30-40. Thus the Rule traps them in danger in
Mexico by foreclosing asylum if they take the one available route into the country.17
Nor is it any answer to say the clients should just enter between ports while
the Rule is in effect and hope for the best. This Court does not “require a plaintiff to
expose himself to liability before bringing suit to challenge the basis for the threat.”
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007); see id. (plaintiff need
not “bet the farm, so to speak”). The reality on the ground is that, prior to the Rule,
many desperate people would cross over the border a short distance and ask the
first officer they encounter for asylum, or sit on the ground just across the border
waiting for an officer so they could ask for asylum. Now, taking this action exposes

The court of appeals indicated that these problems were not traceable to the Rule.
App. 27a-28a.
But even if that were true, it is beside the point: These
circumstances make clear that Plaintiffs’ clients have no practical choice to seek
asylum other than crossing between ports, meaning the Rule harms them right now
by blocking that path to asylum.
17

35

 them to criminal sanctions without the corresponding benefit provided by Congress:
the opportunity to seek asylum despite entering between ports.18
C. There Is No Basis To Narrow The Injunction.
The district court did not abuse its discretion by enjoining the Rule in full,
and the Ninth Circuit correctly declined to narrow the scope of the injunction. Such
relief “is commonplace in APA cases,” App. 64a, because the APA instructs courts to
“set aside” unlawful agency action in its entirety, 5 U.S.C. § 706(2). That rule
ensures that “today’s vast and varied federal bureaucracy” stays within the bounds
of the laws as Congress has written them. City of Arlington v. FCC, 569 U.S. 290,
313 (2013) (Roberts, C.J., dissenting) (internal quotation marks omitted).
The lower courts, accordingly, have long vacated unlawful agency actions
nationwide. See, e.g., Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399,
1409-10 (D.C. Cir. 1998); Owner-Operator Indep. Drivers Ass’n v. Fed. Motor Carrier
Safety Admin., 656 F.3d 580, 589 (7th Cir. 2011); Earth Island Inst. v. Ruthenbeck,
490 F.3d 687, 699 (9th Cir. 2007), rev’d on other grounds, Summers v. Earth Island
Inst., 555 U.S. 488 (2009). There is no reason to disturb this established practice,
especially in an emergency stay posture.
Indeed, when an agency’s illegal policy would irreparably injure thousands of
parties at once, it is entirely appropriate to enjoin the policy as to “those similarly
situated” to Plaintiffs and their clients. Trump v. Int’l Refugee Assistance Project,

Plaintiffs also satisfy the zone-of-interests test based on the interests of their
clients, who the government concedes come within the Refugee Act’s zone of
interests. See Stay App. 27.
36
18

 137 S. Ct. 2080, 2087 (2017) (explaining that the scope of an injunction requires “an
equitable judgment” that accounts for “the interests of the public at large”); Kansas
v. Nebraska, 135 S. Ct. 1042, 1053 (2015) (similar). That is especially true when an
agency imposes such a drastic rule immediately, without notice to the public or any
opportunity to comment. Were it otherwise, an agency could inflict irreversible
damage, despite a rule’s clear illegality, against anyone who could not sue in time.
There is no reason to unleash that kind of chaos and unfairness. A “systemwide
impact” demands a “systemwide remedy.” Lewis v. Casey, 518 U.S. 343, 359-60
(1996).
A partial stay is even less appropriate here than in the average case, because,
as the court of appeals noted, “the Government failed to explain how the district
court could have crafted a narrower remedy that would have provided complete
relief to the Organizations.” App. 64a-65a. Plaintiffs serve a constantly changing
set of clients across the country, so an effective remedy needs to cover any potential
client who seeks asylum outside a port of entry. App. 113a n.21; see, e.g., Dist. Ct.
ECF No. 8-6 ¶¶ 2, 7-9; No. 8-4 ¶¶ 5-8; No. 8-7 ¶¶ 6, 8-9; No. 8-3 ¶¶ 5-6. Moreover,
Plaintiffs prevailed below on their procedural APA claim, but the government has
given no indication of how a narrower injunction would afford them relief on that
claim.
II.

THE GOVERNMENT WILL SUFFER NO IRREPARABLE INJURY
ABSENT A STAY.
1. As both the lower courts held, the “Government has not shown that a stay

of the district court’s TRO is necessary to avoid a likely irreparable injury in this
37

 case.” App. 61a; see App. 76a-77a. Before this Court, the government repeats the
same arguments rejected below. It asserts a need to “re-establish sovereign control
over the southern border” and reduce border crossings. Stay App. 37. But as the
court of appeals found, “[t]he TRO does not prohibit the Government from
combating illegal entry into the United States, and vague assertions that the Rule
may ‘deter’ this conduct are insufficient.” App. 62a. “Moreover, there is evidence in
the record suggesting that the Government itself is undermining its own goal of
channeling asylum-seekers to lawful entry by turning them away upon their arrival
at our ports of entry.” Id.
The government’s reliance on Maryland v. King, 567 U.S. 1301 (2012)
(Roberts, C.J., in chambers), is misplaced. That case involved a challenge to a state
statute. By contrast, here, separation-of-powers principles strongly undercut the
government’s arguments. As the court of appeals observed, “the public . . . has an
interest in ensuring that ‘statutes enacted by [their] representatives’ are not
imperiled by executive fiat.” App. 62a-63a (quoting King, 567 U.S. at 1301).
Likewise, the district court underscored that “where the agency’s discretion
has been clearly constrained by Congress, courts have concluded that there is an
overriding public interest . . . in the general importance of an agency’s faithful
adherence to its statutory mandate.” App. 78a (internal quotation marks omitted);
see also App. 111a (“The executive’s interest in deterring asylum seekers -- whether
or not their claims are meritorious -- on a basis that Congress did not authorize
carries drastically less weight, if any.”).
38

 The government argues that a “recent surge in illegal entries” warrants a
stay.

Stay App. 20.

But in reality the number of people being apprehended

between ports is comparatively small, with fewer than 400,000 last year, compared
to 700,000 to 1.6 million annually from 2000 to 2008. Dist. Ct. ECF No. 8-2 ¶¶ 34.19 And in any event this is an issue for Congress, which is well aware of border
crossing numbers and the number of asylum seekers. Notably, when Congress in
1996 reaffirmed that migrants can seek asylum “whether or not” they crossed at a
border, apprehensions between ports were significantly higher than they are now.
Id. (from 979,000 to 1.5 million apprehensions between ports annually from 1990 to
1996).20
The government notes that there are more asylum seekers now from Central
America, even if the total number of apprehensions are far fewer.

But the

government has not explained why that warrants an emergency stay. The harm the
government points to -- danger to CBP officers and to the migrants themselves -- is
not a result of seeking asylum. And processing an asylum application for one who
presents at a border takes no more time than processing one for someone who
https://www.cbp.gov/sites/default/files/assets/documents/2017Dec/BP%20Southwest%20Border%20Sector%20Apps%20FY1960%20%20FY2017.pdf.
19

The government’s own statements also undermine the assertion that there is an
emergency. See Nick Miroff & Missy Ryan, “Army assessment of migrant caravans
undermines
Trump’s
rhetoric,”
Washington
Post
(Nov.
2,
2018),
https://wapo.st/2JC2m4p (“Military planners anticipate that only a small
percentage of Central American migrants traveling in the caravans President
Trump characterizes as ‘an invasion’ will reach the U.S. border.”); Lolita C. Baldor,
“US starts to withdraw troops from Trump border mission,” AP (December 10,
2018), https://www.apnews.com/eea454ccb0004406b1382268802e34f0.
39
20

 enters between ports, as the unrebutted evidence in this case shows. See Dist. Ct.
ECF No. 35-9 ¶¶ 7-8.
Moreover, the government’s asserted concern for the “health and safety” of
noncitizens seeking refuge in this country is a particularly unpersuasive basis for
its stay request.

Stay App. 20.

The Rule denies asylum to people who would

otherwise be eligible for it -- those who have a well-founded fear of persecution in
their home countries on account of a statutorily protected ground. See 8 U.S.C.
§§ 1101(a)(42), 1158. These vulnerable refugees are fleeing violence and death in
the most dangerous countries on earth. A rule that would turn them away and send
them back to situations where they have a well-founded fear of persecution or death
will not promote their health and safety.
Additionally, because the government “has not been particularly expeditious
in seeking a stay,” its own conduct “blunt[s] [its] claim of urgency and counsels
against the grant of a stay.” Ruckelshaus v. Monsanto Co., 463 U.S. 1315, 1317-18
(1983) (Blackmun, J., in chambers). The district court judge entered the TRO on
November 19, the same day as the TRO hearing and just six days after the case was
assigned to him. Yet the Petitioners “waited eight days to file their [district court]
motion for a stay” or notice their appeal. D. Ct. ECF No. 54. They likewise waited
four days after the court of appeals ruled on December 7 to seek a stay in this
Court. That delay is particularly marked given the timing of this case. As noted
above, the TRO of which the government seeks review expires by its own terms on

40

 December 19, the day the district court is holding a preliminary injunction hearing.
App. 115a.
Finally and critically, a “stay of the district court’s order would not preserve
the status quo: it would upend it, as the TRO has temporarily restored the law to
what it had been for many years prior to November 9, 2018.” App. 62a. For almost
40 years, Congress has not disturbed the fundamental rule that an individual
fleeing persecution can apply for asylum between ports, even when the number of
apprehensions between ports was significantly higher.
2. Because the government fails to show either a likelihood of success or
irreparable injury, the Court need not “balance the equities and weigh the relative
harms to the applicant and to the respondent.” Hollingsworth, 558 U.S. at 190. In
any event, whatever harms the government may suffer are dramatically outweighed
by the harms the Rule will inflict on Plaintiffs and the public if it is allowed to go
back into effect.
There is no merit to the government’s suggestion that Plaintiffs have not
suffered and -- were the TRO stayed -- would not suffer irreparable injuries. The
lower courts held to the contrary, relying, for example, on record evidence
“indicating that, if a stay were issued, they would be forced to divert substantial
resources to its implementation.” App. 62a. Particularly in light of the dramatic
changes that will be required if the Rule is permitted to go into effect, such harm is
clearly irreparable.

41

 Moreover, as the district court explained, Plaintiffs’ clients and other
noncitizens trapped in Mexico will be “exposed to numerous harms . . . including not
only physical privations like physical assault but also the loss of valuable,
potentially meritorious claims for asylum.” App. 111a. “The Rule, when combined
with the enforced limits on processing claims at ports of entry, leaves those
individuals to choose between violence at the border, violence at home, or giving up
a pathway to refugee status.” Id. If permitted to go into effect, the result of the
Rule will be scores of deportations.
The government asserts that the availability of other forms of relief -withholding of removal and relief under the Convention Against Torture -- cures
any harm to asylum seekers. That argument is legally and factually flawed. First,
Congress determined that asylum is critical, regardless of whether one can seek
those other forms of relief.

The Executive is, again, simply disagreeing with

Congress’s policy judgements.
Moreover, those other forms of relief impose a much higher standard. “[T]he
application of the Rule will result in the denial of meritorious claims for asylum
that would otherwise have been granted” pursuant to the system Congress created.
App. 110a. “That means that persons who are being persecuted on the basis of their
religion, race, or other qualifying characteristic, to whom the United States would
otherwise have offered refuge, will be forced to return to the site of their
persecution.” Id. And “a grant of asylum confers additional important benefits not
provided by” these other forms of relief, “such as the ability to proceed through the
42

 process with immediate family members, see 8 U.S.C. § 1158(b)(3), and a path to
citizenship, see id. §§ 1159(b)-(c), 1427(a).” App. 110a. “The Defendants ignore
these very real harms.” Id.21
The government contends that “[a]ny putative harm to aliens crossing
between ports of entry should carry little weight in balancing the equities because
their conduct is already unlawful.” Stay App. 38. That cuts right to the point. The
Executive does not think it is important for such individuals to be able to apply for
asylum. But Congress thought it was. That is exactly why Congress enshrined the

The government offers statistics regarding the numbers and rates of asylum
applications and grants. But these statistics have nothing to do with the purpose of
the Rule, which was ostensibly to channel individuals to ports. As the former head
of U.S. Citizenship and Immigration Services explained, the passage rate reflects
the danger in each country, not the manner of entry, and the time to conduct a
screening interview is the same whether the individual applied at a port or was
apprehended between ports. Dist. Ct. ECF No. 35-9 ¶¶ 7-8. The Rule’s true
purpose appears, therefore, to be to deter Central American asylum seekers
altogether, regardless of where they apply.
21

In any event, those statistics are inaccurate and misleading. See Dist. Ct. ECF No.
35-2 ¶¶ 16-22. For example, the government asserts that “of the 34,158 cases [that
begin with a credible-fear referral] completed in 2018, 71% resulted in a removal
order, and asylum was granted in only 17%.” Stay App. 11. But those figures tell a
wholly incomplete story, as most credible-fear origin cases, even including all cases
begun over the last 10 years, are still pending. Compare EOIR Adjudication
Statistics, Rates of Asylum Filings in Cases Originating with a Credible Fear
Claim, https://www.justice.gov/eoir/page/file/1062971/download (354,356 CFI-origin
cases initiated in FY 2008-2018) with 83 Fed. Reg. 55945 (203,569 remained
pending as of November 2, 2018). The cases that have already been decided -- the
ones the government is relying on -- are disproportionately removals because the
immigration courts are able to issue removal orders quickly but often take years to
grant relief. That, in turn, is because removal orders can often be issued without
individual merits hearings, and also because detained cases move more quickly
than non-detained cases and are disproportionately more likely to result in removal
orders.
43

 right to seek asylum even for those whose “conduct is already unlawful.” Id. The
Executive’s disagreement is thus addressed to the wrong branch of government. It
should make its case to Congress rather than seeking emergency intervention from
this Court regarding an almost 40-year-old statute.

44

 CONCLUSION
The application for a stay should be denied.

Respectfully submitted,

Jennifer Chang Newell
Cody H. Wofsy
Spencer E. Amdur
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
39 Drumm Street
San Francisco, CA 94111
David Cole
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
915 15th Street NW
Washington, DC 20005
Melissa Crow
SOUTHERN POVERTY LAW CENTER
1666 Connecticut Avenue NW
Suite 100
Washington, D.C. 20009
Mary Bauer
SOUTHERN POVERTY LAW CENTER
1000 Preston Avenue
Charlottesville, VA 22903
Attorneys for Respondents East Bay
Sanctuary Covenant, et al.

/s/Lee Gelernt
Lee Gelernt
Counsel of Record
Omar Jadwat
Judy Rabinovitz
Daniel Galindo
Celso Perez
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street
New York, NY 10004
212-549-2660
lgelernt@aclu.org

Baher Azmy
Angelo Guisado
Ghita Schwarz
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, NY 10012
Christine P. Sun
Vasudha Talla
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111

Dated: December 17, 2018

45