Case 1:18-cv-01853-EGS Document 107 Filed 12/19/18 Page 1 of 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

GRACE, et al.
Plaintiffs,
v.
JEFFERSON BEAUREGARD
SESSIONS III, in his official
capacity as Attorney General of
the United States, et al.,
Defendants.

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Civil Action No. 1:18-cv-01853-EGS

DEFENDANTS’ MOTION FOR STAY
JOSEPH H. HUNT
Assistant Attorney General
WILLIAM C. PEACHEY
Director
EREZ REUVENI
Assistant Director, Office of Immigration Litigation
U.S. Department of Justice, Civil Division
450 5th Street NW
Washington, DC 20530
Tel. (202) 307-4293
Erez.R.Reuveni@usdoj.gov
JOSEPH DARROW
CHRISTINA P. GREER
JOSHUA S. PRESS
Trial Attorneys
Dated: December 19, 2018

Attorneys for Defendants

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DISCUSSION
Defendants respectfully request that, to the extent the Court issues injunctive relief that
reaches beyond the Plaintiffs and concerns the five aspects of Matter of A-B- and the Policy
Memorandum that the Court declares unlawful, the Court should stay that injunction pending a
decision by the government whether to appeal, and if there is such an appeal, through the
duration of the appeal. “To assess the propriety of a stay of an injunction pending appeal, the
Court looks to four factors: ‘(1) the likelihood that the party seeking the stay will prevail on the
merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a
stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public
interest in granting the stay.’” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, Civ. A.
No. 16-1534 (JEB), 2017 WL 1402139, at *1 (D.D.C. Mar. 14, 2017) (quoting Cuomo v.
Nuclear Regulatory Comm’n, 772 F.2d 972, 974 (D.C. Cir. 1985)); see also Wash. Metro. Area
Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 842-44 (D.C. Cir. 1977). The Court
should apply each of these factors “flexibly according to the unique circumstances of each case.”
McSurley v. McClellan, 697 F.2d 309, 317 (D.C. Cir. 1982). Accordingly, “the necessary ‘level’
or ‘degree’ of possibility of success will vary according to the court’s assessment of the other
factors.” Wash. Metro., 559 F.2d at 843-44 (rejecting “a wooden ‘probability’ requirement” in
favor of “an analysis under which the necessary showing on the merits is governed by the
balance of equities as revealed through an examination of the other three factors”).
Here, all factors support a stay of any injunction other than as applied to Plaintiffs pending
a decision by the government whether to appeal, and if there is such an appeal, through the duration
of the appeal in the unique circumstances of this case.
First, as the Court itself recognized, the Court is not issuing the equivalent of “[c]lass-wide

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relief,” which “would entail an Order requiring new credible fear interviews for all similarly
situated individuals, and for the government to return to the United States all deported individuals
who were affected by the policies at issue in this case. Plaintiffs do not request, and the Court will
not order, such relief.” Order at 100, n. 31. Rather, the Court is “declar[ing] an action unlawful”
and issuing an order “to prevent that action from violating the rights of the very people”—i.e. the
Plaintiffs—that “it affects.” Id. at 100.
That conclusion is consistent with the statutory scheme. Congress did not contemplate an
order issued under 8 U.S.C. § 1252(e)(3) would enjoin operation of any expedited removal
procedure or policy beyond its application to plaintiffs seeking relief. Rather, Congress made clear
that any order would be limited to “judicial review of determinations under section 1225(b) and
its implementation.” 8 U.S.C. § 1252(e)(3)(A). A “determination under section 1225(b) and its
implementation” is an individual “determin[ation] that an alien . . . is inadmissible” and “order[ed]
. . . removed” or subject to expedited credible-fear screening and the implementation of those
statutory provisions. Id. § 1225(b)(1)(A)(i) & (ii). In other words, this Court reviews—and should
issue relief that extends only so far as—the expedited removal determinations of the individuals
before the court. Am. Immigration Lawyers Ass’n v. Reno (AILA), 199 F.3d 1352, 1360 (D.C. Cir.
2000) (claim may be brought “by, and only by, aliens against whom the new procedures ha[ve]
been applied”). It is in the context of those “determinations under section 1225(b) and its
implementation” that this Court “determin[es] . . . whether . . . a regulation, or a written policy . .
. issued . . . to implement such section . . . is . . . in violation of law.” 8 U.S.C. § 1252(e)(3)(A)(ii).
Thus, once the Court finds that a regulation or policy violates the law, the appropriate relief is to
vacate the expedited removal determination that was issued based on that erroneous policy. Such
an order is then subject to expedited appeal. Id. § 1252(e)(3)(C) & (E). As the D.C. Circuit has

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explained, Congress imposed these limits “in order to cabin judicial review,” and “Congress,
having barred class actions,” did not “intend[] to permit actions on behalf of a still wider group of
aliens, actions in which no class representative appears as a party and the plaintiffs are
unconstrained by the requirements of Federal Rule of Civil Procedure 23.” AILA, 199 F.3d at
1359, 1364.
Relief should therefore be limited under § 1252(e)(3) to the individual Plaintiffs before this
Court, pending a possible appeal by the government. It would only make sense to consider
implementing this Court’s decision more broadly to the expedited removal system as a whole after
a higher court reviews this Court’s decision, or the government foregoes the opportunity to seek
such review. One reason for this is the importance of applying consistent and readily discernable
policies within the expedited removal system—should this Court’s decision not hold up on appeal,
it would result in changing and confusing alterations of the policies needed to screen tens of
thousands of aliens arriving at our borders.
Apprehensions

by

Sector

FY2018,

See U.S. Border Patrol Southwest Border

https://www.cbp.gov/newsroom/stats/usbp-sw-border-

apprehensions (396,579 apprehensions on Southwest border in FY 2018) (last modified Oct. 23,
2018). Indeed, the legislative history of the 1996 amendments to the Immigration and Nationality
Act—which this court relied on extensively in its decision, see Order at 2, 9, 89, 91, makes clear
Congress’s intent that new procedures should be able to remain in force during review by a higher
court. See H.R. Rep. No. 104-469(I), “Immigration in the National Interest Act of 1995” (Mar. 4,
1996) (explaining that the limitations on relief “do not preclude challenges to . . . new procedures,
but the procedures will remain in force while such lawsuits are pending,” that “single district courts
or courts of appeal do not have authority to enjoin” such procedures, and that only “the Supreme
Court [has the authority] to enjoin the operation” of new expedited removal procedures).

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Second, Article III and equitable principles similarly warrant a stay of any injunction as to
any aliens other than Plaintiffs here because both Article III and equitable principles require that
relief be no broader than necessary to redress the plaintiffs’ injuries. Under Article III, “[a]
plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” Gill v. Whitford,
138 S. Ct. 1916, 1934 (2018). And the rule in equity is that injunctions “be no more burdensome
to the defendant than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s
Health Ctr., Inc., 512 U.S. 753, 765 (1994). Indeed, nationwide injunctions “did not emerge until
a century and a half after the founding,” and they “take a toll on the federal court system—
preventing legal questions from percolating through the federal courts, encouraging forum
shopping, and making every case a national emergency for the courts and for the Executive
Branch.” Trump v. Hawaii, 138 S. Ct. 2392, 2408, 2425 (2018), (Thomas, J., concurring). While
Congress intended challenges to the expedited removal system to be brought in a single Court, it
also evidenced an intent that those challenges be limited to individual claims, and that as explained
the policies remain in force during appellate review.
Third, the D.C. Circuit itself has indicated that in section 1252(e)(3) cases, relief should be
limited to the actual aliens before the Court. As that Court explained in AILA, “[o]ne cannot come
away from reading [8 U.S.C. § 1252(e), (f), and (g)] without having the distinct impression that
Congress meant to allow litigation challenging the new system by, and only by, aliens against
whom the new procedures had been applied.” 199 F.3d 1352, 1359–60 (D.C. Cir. 2000) (emphasis
added). The Court explicitly rejected the argument that relief in such cases should “sweep in
nearly all aliens anywhere in the world who have tried or will try to enter the United States,” id. at
1359, which is the effect of an injunction immediately barring the government from implementing
the portions of Matter of A-B- and the Policy Memorandum with respect to all aliens not before

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the court and without appellate consideration of these issues. Moreover, although this Court
suggested section 1252(f) does not limit the proper scope of any injunction, the D.C. Circuit
disagreed, noting that section 1252(f) does govern section 1252(e)(3) challenges, including
challenges to implementing regulations, and noting that “no court (other than the Supreme Court)
shall have jurisdiction or authority to enjoin or restrain the operation of [the expedited secondary
inspection provisions] other than with respect to the application of such provisions to an individual
alien against whom the proceedings under such chapter have been initiated.” Id. (emphasis
added). Thus, any suggestion that this Court may enter broad injunctive relief beyond the Plaintiffs
in this case is in tension with the D.C. Circuit’s decision in AILA. That tension further warrants a
stay to allow the government to determine whether to appeal and, if it does appeal, during the
pendency of that appeal.
Fourth, no party will be harmed by a stay of any injunction pending a decision by the
government to appeal, and if there is such an appeal, through the duration of such an appeal. Given
this Court’s ruling, the Government agrees that Plaintiffs themselves are entitled to relief
consistent with the Court’s opinion and as outlined in the proposed order submitted by the
government. But Plaintiffs may not invoke harm to third-party aliens who may seek to enter the
country in the future, and certainly have no Article III standing to raise claims on their behalf. See,
e.g., Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (no “judicially cognizable interest” in
preventing the Government from enforcing the law against third parties).
The Government, however, will be irreparably harmed by the absence of any stay of an
injunction. Importantly, the number of expedited removals in a year are in the hundreds of
thousands, there is no right under the Constitution to obtain court consideration of a request to
enter the country, and the rights conferred by Section 1252(e)(3) are highly circumscribed to

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individual claims. In this context, Congress did not intend for relief, based on equitable factors,
to be obtained by individual persons subject to expedited removal or for relief to extend beyond
that individual case. Instead, as discussed, challenges and the opportunity for appellate review
would go forward without interfering with expedited removal. See id. § 1252(e)(3)(D); id. §
1252(f)(1). Any injunction that enjoins operation of some aspect of the expedited removal system
beyond these Plaintiffs by definition harms the government, with no corresponding harm to the
Plaintiffs. See, e.g., Landon v. Plasencia, 459 U.S. 21, 34 (1982). And order that enjoins a
governmental entity from enforcing actions taken pursuant to statutes enacted by the duly elected
representatives of the people constitutes an irreparable injury that weighs heavily against the entry
of broad injunctive relief. See New Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351
(1977).
CONCLUSION
Accordingly, given the statutory text and its legislative history, the potential conflict with
Circuit precedent a systemic injunction may pose, the irreparable harm to the government a broad
injunction would pose, and the absence of any harm to the Plaintiffs, the government respectfully
requests that the Court stay any order entering an injunction with respect to any aliens other than
Plaintiffs pending a decision by the government to appeal and, if there is an appeal, pending appeal.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
WILLIAM C. PEACHEY
Director
By:

/s/ Erez Reuveni
EREZ REUVENI
Assistant Director, Office of Immigration Litigation
U.S. Department of Justice, Civil Division

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450 5th Street NW
Washington, DC 20530
Tel. (202) 307-4293
Erez.R.Reuveni@usdoj.gov
JOSEPH DARROW
CHRISTINA P. GREER
JOSHUA S. PRESS
Trial Attorneys
Dated: December 19, 2018

Attorneys for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on December 19, 2018, I electronically filed the foregoing document
with the Clerk of the Court for the United States Court of for the District of Columbia by using the
appellate CM/ECF system. Counsel in the case are registered CM/ECF users and service will be
accomplished by the appellate CM/ECF system.
By:

/s/ Christina P. Greer
CHRISTINA P. GREER
Trial Attorney
United States Department of Justice
Civil Division