No. 19A230

In the

Supreme Court of the United States
_______________________________

WILLIAM BARR, ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
Applicants,
v.

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

Katrina Eiland
Cody Wofsy
Morgan Russell
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
1101 17th Street, NW Suite 705
Washington, D.C. 20036

Lee Gelernt
Counsel of Record
Omar C. Jadwat
Anand Balakrishnan
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
Angélica Salceda
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 is the Administration’s second asylum ban.

The first one, denying

asylum to individuals who entered the country between ports of entry, was enjoined,
and both the Ninth Circuit and this Court refused to grant a stay. Trump v. East
Bay Sanctuary Covenant, 139 S. Ct. 782 (2018) (denying stay). The Court should
again deny the government’s request for the extraordinary remedy of a stay pending
appeal. Like the first ban, this second ban would upend a forty-year unbroken
status quo established when Congress first enacted the asylum laws in 1980. But
this second ban is far more extreme than the first. The first one at least allowed
individuals who presented themselves at a port of entry to apply for asylum. The
current ban would eliminate virtually all asylum at the southern border, even at
ports of entry, for everyone except Mexicans (who do not need to transit through a
third country to reach the United States).

The Court should not permit such a

tectonic change to U.S. asylum law, especially at the stay stage.
Allowing the ban to go into effect would not only upend four decades of
unbroken practice, it would place countless people, including families and
unaccompanied children, at grave risk.

On the other side of the ledger, the

government offers only the same harm it offered in seeking a stay of the first ban:
that in its view there is a “crisis” at the border. But that cannot justify ignoring the
laws Congress passed. As Judge Bybee stated in denying a stay on the first ban,

1

 this is ultimately a case about the separation of powers.

East Bay Sanctuary

Covenant v. Trump, 932 F.3d 742, 774 (9th Cir. 2018). 1
Nor has the government shown that it is likely to succeed on the merits here.
The ban is a blatant end-run around the scheme Congress created.

Congress

specifically addressed when an applicant can be denied asylum based on possible
protection in a third country: when the applicant has been “firmly resettled” in a
third country or when the United States has signed a formal safe-third-country
agreement with another country that provides access to a full and fair process for
the individuals we turn away. These are the only two exceptions permitted by the
statute and neither is met here; indeed, the government itself appears to know that
a safe-third-country agreement is necessary and for that reason has been seeking
such an agreement with Guatemala and Mexico. Yet the government asserts that it
can jettison the clear judgment of Congress on this specific issue—and any other
specific judgment reflected in the asylum statute—so long as no provision explicitly
and specifically commands otherwise. That expansive view of Executive authority
to rewrite the statute is squarely contrary to bedrock administrative law principles.

Despite the government telling this Court that a stay was essential in the first
asylum ban case, the government proceeded to slow-walk the appeal on the merits
after this Court denied the stay. Not only did the government decline to seek to
expedite the merits appeal, but it sought and received two briefing extensions—and
asked that the case be placed in abeyance during the 30-plus days in which the
government was shut down, even though its attorneys were permitted to work on
important cases affecting the national interest. As a result of the government’s
delay, the merits argument in the appeal of the first asylum ban is not scheduled
until October, ten months after the government sought an emergency stay from this
Court.
1

2

 The

government’s

justification

for

evading

the

APA’s

procedural

requirements fares no better. As with the first asylum ban, the government claims
that a notice and comment period would have created a surge to the border and
would have undermined negotiations with other countries. But the government
offers absolutely no evidence to support that claim. Its position is that it can skip
over the APA’s procedures by simply asserting that it fears a surge of migrants.
The Ninth Circuit was thus correct in this case—and the first asylum ban case—to
require more from the government, lest the narrow exceptions in the APA swallow
the rule.
The ban is also arbitrary and capricious. The premise of this second ban is
that individuals would apply for asylum in other countries along their journeys if
they genuinely had a pressing need for protection. Yet not only is there no evidence
in the government’s own administrative record to support that premise, but the
record flatly refutes it, showing that it would be futile and life-threatening for
individuals to prolong their passage through Guatemala or Mexico in the hope of
receiving a full and fair process. In imposing the ban, the agencies failed to even
acknowledge the extensive evidence undermining it.
In short, the government has not made the strong showing required to permit
it, at the stay stage, to discard—through unilateral Executive action—the asylum
system that Congress created forty years ago.

3

 STATEMENT
1.

Since enactment of the Refugee Act in 1980, the law has been clear: A

refugee’s transit through a third country while in flight is not a bar to securing
asylum in the United States. Congress has specifically identified only two narrow
circumstances in which a noncitizen can be barred from asylum because of possible
protections in a third country: if she (1) “was firmly resettled in another country
prior to arriving in the United States” and thus had already secured a haven from
persecution; or (2) is subject to a formal safe-third-country agreement, which
requires that the third country be both willing to receive the asylum seeker and
able to ensure her safety as well as a full and fair asylum process (or other
comparable protection). See 8 U.S.C. §§ 1158(a)(2)(A), (b)(2)(A)(vi). Together, these
provisions illustrate the careful and considered balance Congress struck between
our nation’s commitment to protect vulnerable refugees fleeing persecution and the
desire to share the burdens of protection with other countries in which a refugee’s
safety and access to fair process can be assured.
2.

On July 16, 2019, the Attorney General and Acting Secretary of

Homeland Security promulgated the interim final rule at issue here (the “Rule”),
providing that any noncitizen who transits through another country prior to
reaching the southern land border of the United States is ineligible for asylum.
App. 64a-80a (Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829
(July 16, 2019)). The Rule has only three narrow exceptions: those who applied for,
and were finally denied, protection elsewhere; those who meet the definition of a
4

 “victim of a severe form of trafficking in persons” as set forth in 8 C.F.R. § 214.11;
and those who transited only through countries that are not parties to the 1951
Refugee Convention, the 1967 Refugee Protocol, or the Convention Against Torture
(“CAT”). App. 70a. The Rule contains no exception for unaccompanied children,
App. 74a, irrespective of their age, knowledge of or ability to understand the Rule’s
requirements, or particular barriers to accessing the asylum system in a transit
country. The Rule thus bars virtually every non-Mexican asylum seeker who enters
through the southern land border, no matter the length, conditions, or purpose of
the asylum seeker’s presence in the third country; whether she practically or legally
could have sought asylum there; whether she would have been safe there; or the
degree of danger she would face if removed to her home country.
Individuals found ineligible for asylum under the Rule face a high burden to
obtain lesser protection in the form of withholding of removal or relief under the
CAT. App. 23a-24a. Rather than receiving the credible fear assessment for asylum
provided for in the statute establishing the expedited removal system, see 8 U.S.C.
§ 1225(b)(1)(B), individuals in expedited removal subject to the Rule are referred for
full removal proceedings only if they can meet the more stringent standard of
“reasonable fear of persecution or torture.” App.78-79a. If they fail to do so, they
will be removed expeditiously, even if they would have met the lower asylum
screening threshold. Both alternative forms of relief (withholding of removal and
CAT) also impose a higher burden to prevail on the claims in full removal
proceedings. As such, individuals who may have been able to meet the asylum
5

 standard but cannot establish entitlement to withholding or CAT will be removed.
Compare App. 23-24a (explaining that withholding of removal and CAT require that
an applicant demonstrate it is “more likely than not” she will be persecuted or
tortured), with 8 U.S.C. §§ 1101(a)(42), 1158 (asylum requires only a “well-founded
fear of persecution”).
Moreover, because only immigration judges in removal proceedings have
authority to grant withholding or CAT, certain refugees subject to the Rule will lose
the opportunity to apply for relief affirmatively before an asylum office in a setting
that

(unlike

removal

proceedings)

is

non-adversarial.

And

critically,

unaccompanied minors, who are also subject to the new asylum ban, will lose their
statutory right to have their asylum applications automatically adjudicated in the
first instance by an asylum officer in a non-adversarial setting. See 8 U.S.C. §
1158(b)(3)(C).
Moreover, withholding protection and CAT relief are far more limited than
asylum. “Unlike an application for asylum, . . . a grant of an alien’s application for
withholding is not a basis for adjustment to legal permanent resident status, family
members are not granted derivative status, and [the relief] only prohibits removal
of the petitioner to the country of risk, but does not prohibit removal to a non-risk
country.” App. 24a (quoting Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004))
(internal quotation marks omitted).
3.

The agencies justified the new asylum ban on the premise that those

affected—individuals who transit through a third country but do not apply for
6

 protection and await a final determination there—generally lack meritorious
asylum claims.

See App. 74a.

According to the Rule, choosing “not to seek

protection at the earliest possible opportunity . . . raises questions about the validity
and urgency of the alien’s claim” and indicates that the claim “is less likely to be
successful.” 74a; see also id. at 66a (signals a lack of “urgent or genuine need for
asylum”). The Rule’s categorical bar will thus supposedly identify those “aliens who
are misusing the asylum system to enter and remain in the United States rather
than legitimately seeking urgent protection from persecution or torture.” Id. The
Rule generally assumes that every migrant who passes through any country en
route to the United States “could have obtained protection” there, such that not
doing so generally reflects a lack of merit or urgent need for asylum. App. 66a
(assuming that any transit country is one “where protection was available”); see also
App. 74a It also reasons that the categorical bar will deter migrants without a
genuine need for asylum from crossing the border. App. 75a. The agencies claim
that, by “de-prioritizing the applications of individuals” subject to the Rule, the
asylum system will be more available for meritorious applicants with nowhere else
to turn. App. 74a. Finally, the agencies assert that the Rule “will facilitate ongoing
diplomatic negotiations with Mexico and the Northern Triangle countries regarding
general migration issues.” App. 75a.
4.

Plaintiffs, four nonprofit organizations that represent and serve

thousands of asylum seekers around the country and in Mexico, sued to enjoin the
Rule. The district court granted a preliminary injunction, holding that Plaintiffs
7

 were likely to succeed on their claims that the Rule conflicts with the asylum
statute and is arbitrary and capricious; and that there were “serious questions”
about the failure to provide for notice and comment. App. 19a-21a, 29a-58a. The
court further held that Plaintiffs had demonstrated standing to sue and irreparable
injury, and that the public interest factors favored a preliminary injunction. App.
29a-31a, 59a-62a.
5.

Five days after the preliminary injunction issued, the government

noticed an appeal and sought a stay in the district court. District Ct. Doc. Nos. 46,
47. In denying the government’s stay request, the district court found that the
government’s arguments on the equities were, “to the greatest extent possible,
carbon copies of the ones that it made in seeking a stay of” the court’s order blocking
the administration’s first asylum ban. App. 17a.
The government then sought a stay from the Ninth Circuit, which was denied
in part and granted in part.

App. 3a.

The court of appeals concluded that

Defendants had “not made the required ‘strong showing’ that they are likely to
succeed on the merits” of Plaintiffs’ claim that the government failed to comply with
the APA’s “notice-and-comment and 30-day grace period requirements.” App. 2a-3a.
Because it found the government unlikely to succeed based on the APA procedural
violations, the court did not address Plaintiffs’ other claims. App. 3a n.3.
The court of appeals denied the motion for stay pending appeal, but only
“insofar as the injunction applies within the Ninth Circuit.” App. 3a. The court
stayed the injunction outside the Ninth Circuit, concluding that “the nationwide
8

 scope of the injunction” was not supported by the existing record and reasoning
articulated by the district court. App. 3-4a. Following the Ninth Circuit’s decision,
the Rule went into effect outside of the Ninth Circuit. The government waited ten
days before filing its stay application in this Court.
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

9

 stay despite view that lower court decisions were “inconsistent” with Supreme
Court precedent).
I.

THE COURT IS UNLIKELY TO GRANT CERTIORARI AND
REVERSE.
Under textbook principles of administrative law and separation of powers,

the Rule is unlawful and must be set aside. 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.
A.

The Government’s Standing Arguments Are Identical To Those
It Made In The First Asylum Ban Case And Likewise Do Not
Warrant A Stay.

The government offers the same standing arguments that it made in
unsuccessfully seeking a stay from every court in the litigation regarding the first
asylum ban, including this Court.

Indeed, the government acknowledged below

that its standing arguments mirror those that were made in the earlier litigation.
See App. 29a-30a.
The government asserts that Plaintiffs have no “cognizable interest in the
grant or denial of asylum to third parties”—namely Plaintiffs’ potential clients.
Stay App. 21. It made the same argument last time. See, e.g., Stay App. at 22, East
Bay Sanctuary Covenant v. Trump, No. 18A615 (contending that Plaintiffs “do not
have any ‘legally protected interest,’ in whether non-parties . . . may be granted the
discretionary benefit of asylum”) (quoting Gill v. Whitford, 138 S. Ct. 1916, 1929

10

 (2018)) (internal quotation marks and citation omitted). 2 As was true of the prior
rule, this new ban’s attempt to sweepingly eliminate asylum directly threatens a
significant portion of Plaintiffs’ budgets, see App. 30a (citing evidence), and impairs
“[their] ability to provide the services [they were] formed to provide,” establishing “a
diversion-of-resources injury,” East Bay, 932 F.3d at 765 (alterations in original);
see also App. 30a (citing evidence). As Judge Bybee explained in the first asylum
ban case, these injuries establish standing under this Court’s precedents. See East
Bay, 932 F.3d at 765-67 (citing Czyzewski v. Jevic Holding Corp., 137 S. Ct. 973, 983
(2017), and Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)).
The government also rehashes its prior arguments that Plaintiffs fall outside
the zone of interests, albeit in a single conclusory sentence. Stay App. 21; see Stay
App. at 26-27, East Bay, No. 18A615. This Court, however, has adopted a “lenient
approach” to the zone-of-interests test, and Plaintiffs must show only that they are
“arguably” within the statute’s zone of interests.

Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118, 130 (2014); see also, e.g., Nat’l Credit Union
Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 492-93 (1998). Under this
test, the government has again not made out the necessary showing for a stay. See
East Bay, 932 F.3d at 767-69.

Plaintiffs plainly are “arguably” within the

Immigration and Nationality Act’s zone of interests. Lexmark, 572 U.S. at 130.

The additional cases the government cites are inapposite, as those cases rest on
the longstanding principle of prosecutorial discretion, and this case challenges an
unlawful rule rather than any exercise of prosecutorial discretion. See Linda R.S. v.
Richard D., 410 U.S. 614, 619 (1973); Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897
(1984).
11
2

 B.

The Rule Violates The Immigration And Nationality Act.

Congress has long been aware that most asylum seekers must pass through
other countries before they find a safe place to apply for asylum. Indeed, except for
Mexicans, all asylum seekers entering the United States at or between ports of
entry along the southern land border have necessarily transited through at least
one other country (namely Mexico itself and frequently Guatemala). Congress chose
not to bar asylum based on such transit.
In lieu of barring all who transit through another country, Congress instead
set out precise circumstances under which asylum can be denied based on the
possible protection available in a third country: if the noncitizen was “firmly
resettled” in a transit country or is subject to a safe-third-country agreement
providing for a “full and fair” asylum procedure elsewhere.

See 8 U.S.C.

§§ 1158(a)(2)(A), (b)(2)(A)(vi). Recognizing the many barriers to protection in other
countries, Congress required, through these provisions, an assessment of whether
the asylum seeker would be safe in the third country and have access to an
adequate procedure for seeking asylum or comparable protection. And in contrast
to those two narrow exceptions, Congress established a notably expansive general
rule: Noncitizens who arrive at our border, “whether or not at a designated port of
arrival” and “irrespective of such alien’s status,” are entitled to seek asylum. Id.
§ 1158(a)(1).
The new rule upends Congress’s careful balance. Under the new scheme, it is
irrelevant whether a noncitizen was firmly resettled, or temporarily resettled, or
12

 simply rode through a third country on a bus or train. Likewise, the Rule provides
for no assessment of a third country’s safety, or whether its asylum procedure is full
or fair—all required by the statute. Mere transit, under the government’s rule, is
enough.

And, unlike in the case of firm resettlement or a safe-third-country

agreement, where a denial of asylum by the United States would return an
individual to a safe country where she would have full and fair access to protection,
under this Rule an individual would be sent back to her country of origin, even if
she faces persecution there.
But the reality that refugees generally transit through one or more countries
while seeking protection and safety has been clear to Congress for decades. See
Rosenberg v. Woo, 402 U.S. 49, 57 n.6 (1971); App. 34a-36a, 40a. There is thus no
question that when Congress enacted provisions barring asylum for certain
individuals based on the availability of protection in third countries, it well
understood and intended that others who had likewise transited through third
countries would not be barred. Congress did foreclose asylum based on presence in
a third country, but did so only when the noncitizen is firmly resettled in another
country or a formal safe-third-country agreement is in place.
The government asserts that, under 8 U.S.C. § 1158(b)(2)(C), it remains free
to impose any “tighter bars” to asylum. Stay App. 28. That assertion flouts bedrock
principles of separation of powers and administrative law. As § 1158(b)(2)(C) itself
underscores, any new bar must be “consistent with” Congress’s scheme. The new

13

 asylum ban simply substitutes the Executive’s policy judgment regarding the
significance of transit for that of Congress.
The Firm Resettlement Bar. Asylum can be denied when the noncitizen “was
firmly resettled in another country prior to arriving in the United States.” 8 U.S.C.
§ 1158(a)(2)(A)(vi). The plain text of that provision underscores its limits: Congress
did not bar asylum based on transit, relocation, safe repose, or even just
“resettlement.”

Rather, it required firm resettlement, the ordinary meaning of

which requires a high degree of stability and permanence.
That plain meaning is reinforced by the regulatory backdrop against which
Congress legislated. When Congress codified this bar in 1996, it incorporated the
long-standing regulatory definition of “firm resettlement.” See 8 C.F.R. § 208.15
(1991); Air Wisconsin Airlines Corp. v. Hoeper, 571 U.S. 237, 248 (2014) (term-of-art
canon); Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 133 n.4 (2002)
(Congress’s decision to amend statute without rejecting settled administrative
construction indicates acceptance of that construction).
That definition provides that a noncitizen will not be considered firmly
resettled, and so will not be categorically barred from asylum, merely for having
transited through another country. Asylum remains available where transit “was a
necessary consequence of his or her flight from persecution,” lasted “only as long as
was necessary to arrange onward travel,” and the person “did not establish
significant ties in that country.”

8 C.F.R. § 208.15 (1991).

And the regulation

provided (and provides) that applying the bar required an individualized inquiry
14

 into whether a noncitizen will be safe and have access to things like housing,
employment, property rights, and naturalization.

See 8 C.F.R. § 208.15(b); id.

§ 208.15(b) (1991); id. § 208.14 (1981). Indeed, our immigration system has never
barred asylum based on mere transit, because it has always been clear that “many
refugees make their escape to freedom from persecution in successive stages and
come to this country only after stops along the way.” Rosenberg, 402 U.S. at 57 n.6.
Shortly before the 1996 legislation, Congress considered a blanket ban,
which, similar to the Rule, would have barred asylum for those who transited
through another country that the Secretary of State identified as providing asylum.
See H.R. 2182, 104th Cong. (1995), https://bit.ly/337CeYB. 3

Congress chose a

different path, enacting the firm resettlement bar and thereby providing that mere
transit would not bar asylum.
The Rule is flatly inconsistent with Congress’s choice. Congress drew the line
at firm resettlement; the Rule disagrees. Indeed, its effect is to cut the text “firmly
resettled” right out of the statute, barring asylum simply because a person “was
firmly resettled in another country prior to arriving.” Instead of undertaking the
statute’s individualized inquiry into whether a person was firmly resettled in the
course of transit—including Congress’s paramount concern for safety and rights in
the third country—the agencies can simply bar asylum if the person passed through
Section 1 of the Bill, entitled “LIMITATION ON ASYLUM FOR ALIENS WHO
PASS THROUGH THIRD COUNTRIES,” provided that, with limited exceptions,
“an alien may not apply for asylum in the United States (or be granted asylum) if
the alien, after departing from the country of the alien’s nationality . . . and before
arriving at the United States, passed through another country . . . which the
Secretary of State has identified as providing asylum or safe haven to refugees.”
15

3

 another country without securing a formal judgment denying protection. The rule
is thus “inconsisten[t] with the design and structure of the statute as a whole.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013).
Safe-Third-Country Agreements. The government characterizes the Rule as
“channeling asylum claims” to foreign countries. Stay App. 13. But in this regard,
the Rule is inconsistent with the safe-third-country provision. Congress provided
that asylum can be denied if the United States has a formal agreement with a
country under which the country agrees to receive the asylum seeker and provide
safety and “access to a full and fair” asylum procedure. 8 U.S.C. § 1158(a)(2)(A).
Like the firm-resettlement provision, safety and meaningful access to asylum are
key. See Matter of B-R-, 26 I&N Dec. 119, 122 (BIA 2013) (these provisions “limit
an alien’s ability to claim asylum in the United States when other safe options are
available”) (emphasis added); App. 40a.
The Rule bypasses these safeguards.

It forces a person to seek asylum

abroad even if she will be subject to harm there; even if the country’s asylum system
is corrupt, inaccessible, or insufficiently protective; and even if the country has
refused to sign the agreement required by § 1158(a)(2)(A). The Rule is a classic
“end run” around the standards Congress created for appropriate reliance on
another government’s asylum system. Ragsdale v. Wolverine World Wide, Inc., 535
U.S. 81, 91 (2002). 4
The government claims that the Rule “is similar to a requirement in effect in the
European Union.” Stay App. 3; see also id. at 13-14. But Rule does not remotely
resemble the European arrangement, because the European arrangement is
16

4

 At bottom, as to both provisions, the government really offers just one
defense before this Court: that it can enact “tighter bans” on asylum so long as there
is no statutory provision that specifically and in so many words forbids the
government’s Rule. Stay App. 28a-29a. That assertion is indefensible as a matter
of administrative law and statutory construction.
It is, of course, 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, 573 U.S. 302, 328 (2014). That rule
reflects agencies’ role within “our system of government,” in which “Congress makes
laws and the President, acting at times through agencies, . . . ‘faithfully execute[s]’
them.” Id. at 327 (final alteration in original) (quoting U.S. Const., Art. II, § 3); see
City of Arlington, Tex. v. FCC, 569 U.S. 290, 317 (2013) (Roberts, C.J., dissenting)
(“Agencies are creatures of Congress”).
The new Rule cannot be understood as a “faithful” implementation of the
statute Congress enacted. That is best illustrated by imagining that Congress had
enacted the new Rule alongside the rest of § 1158. The resulting statute would
make no sense. The firm resettlement bar would be superfluous, as anyone who is
firmly resettled in a third country has also by definition transited through that
essentially a “safe third country” pact that safeguards the rights of asylum
seekers. See Dublin Regulation III, Arts. 7(3), 8(4), 10 (June 29, 2013),
https://bit.ly/2lZ5ccd.
And UNHCR has publicly stated that the Rule here
jeopardizes the right to non-refoulement and ignores the lack of effective
international protection in transit countries. See UNHCR Deeply Concerned About
New U.S. Asylum Restrictions (July 15, 2019), https://bit.ly/2kr8Bjq.
17

 country on the way to the United States. Likewise, there would be no need for the
government to obtain a safe-third-country agreement if it could simply enact a
“transit” bar.

The safe-third-country provision represents a clear congressional

choice that the theoretical availability of refugee protection elsewhere is insufficient
to deny protection in this country, but the Rule elects an entirely different and
much lower bar for the sufficiency of another country’s protections. In short, with
respect to the effect of transit on asylum, “the necessary judgment has already been
made by Congress,” Util. Air Regulatory Grp., 573 U.S. at 332, and the agencies are
not free to “nullify this congressional choice,” Sullivan v. Zebley, 493 U.S. 521, 537
(1990).
The government asserts that the agencies should be free to establish this
Rule so long as there is no explicit statement in the statute prohibiting it. Indeed,
under the government’s view, it could, for example, decide that Congress’
determination that asylum claims are timely if submitted within one year, 8 U.S.C.
§ 1158(a)(2)(B), was too generous, and impose a “tighter” deadline of six months,
Stay App. 28. It has all but acknowledged as much. See Gov’t Br., CAIR v. Trump,
No. 1:19-cv-2117 (D.D.C.), Doc. No. 20 at 25 n.6 (arguing in response that the
statutory one-year deadline “does not say . . . that the government must afford a
specific minimum time period”).
“This Court has firmly rejected the suggestion that a regulation is to be
sustained simply because it is not ‘technically inconsistent’ with the statutory
language, when that regulation is fundamentally at odds with the manifest
18

 congressional design.” United States v. Vogel Fertilizer Co., 455 U.S. 16, 26 (1982).
Thus, even in the absence of an explicit prohibition, agencies may not issue rules
that are “incompatible with the substance of Congress’ regulatory scheme.’” Util.
Air Regulatory Grp., 573 U.S. at 322 (internal quotation marks omitted).
The government suggests that because § 1158(b)(2)(C) permits the agencies
to “establish additional limitations and conditions” on asylum, these ordinary
principles of administrative law do not apply.

But quite the opposite is true.

Congress went out of its way to underscore that only bars “consistent with” the
entirety of the asylum laws in § 1158 were permitted. Indeed, an earlier version of
the Bill had not included that phrase, but it was added before enactment. Compare
H.R. Rep. No. 104-469 at 80 (1996), with H.R. Rep. No. 104-828 at 164 (1996) (Conf.
Rep.).
The government also claims that because asylum is ultimately a
discretionary benefit, it has unlimited authority to rewrite the terms of the asylum
statute as it sees fit. It made the same argument with respect to the first asylum
ban. Stay App. at 31-32, East Bay, No. 18A615. Discretion is not limitless, and
must be exercised within the parameters Congress creates; and here “Congress
itself has significantly limited executive discretion” by making clear that mere
transit is not a sufficient basis to deny asylum. East Bay, 932 F.3d at 774; see also
Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 427 (2011) (“The use of the word
‘judgment,’ . . . is not a roving license to ignore the statutory text. It is but a

19

 direction to exercise discretion within defined statutory limits.”) (some internal
quotation marks, citation, and alteration omitted).
The government’s attempt to distinguish the prior asylum ban litigation
founders as well. While a regulation contrary to an express and specific thou-shaltnot statutory command is surely unlawful, a regulation incompatible in other ways
with the statute Congress enacted is no less so. See, e.g., Util. Air Regulatory Grp.,
573 U.S. at 325-27 (holding regulation unlawful where it sought to replace statutory
pollution standard with one the agency deemed better policy); Ragsdale, 535 U.S. at
93-94 (regulation providing additional weeks of leave from work as a penalty was
incompatible with Congress’ mandate of fewer weeks of leave).
And unlike Trump v. Hawaii, which involved an invocation of the President’s
proclamation authority under 8 U.S.C. § 1182(f), this is “a situation where Congress
has stepped into the space and solved the exact problem” of how to handle asylum
seekers’ transit through third countries. 138 S. Ct. 2392, 2412 (2018) (internal
quotation marks omitted). To uphold a regulation so inconsistent with Congress’s
judgment on the question of transiting asylum seekers would “deal a severe blow to
the Constitution’s separation of powers.” Util. Air Regulatory Grp., 573 U.S. at 327;
cf. Talk Am., Inc. v. Michigan Bell Tel. Co., 564 U.S. 50, 69 (2011) (Scalia, J.,
concurring) (noting that agency had “repeatedly been rebuked in its attempts to
expand the statute beyond its text, and has repeatedly sought new means to the
same ends”).

20

 C.

No Exception Justified Bypassing The APA’s Procedural
Requirements.

The court of appeals held that the government was unlikely to succeed on the
merits of its argument that either the foreign affairs or good cause exception
excused its failure to comply with the APA’s procedural requirements, including
notice and comment.

App. 2a-3a.

That holding was in accord with the Ninth

Circuit’s analysis in the first asylum ban litigation. East Bay, 932 F.3d at 775-78.
The government again fails to show likelihood of success on this issue.
The government contends, as to both exceptions, that courts are required to
accept the government’s assertions and rationales at face value, without “secondguessing” the representations made in the Rule’s preamble. Stay App. 24, 25; see
id. at 23 (asserting government need not show that abiding by procedures would
actually impact foreign affairs).

It made the same arguments in its last stay

application before this Court. Stay App. at 36, East Bay, No. 18A615 (offering the
same argument regarding good cause nearly verbatim); id. at 37 (contending court
“was in no position to second-guess the Executive Branch’s determination that the
rule would facilitate negotiations and support the President’s foreign policy”).
The government’s arguments for extreme deference in the notice-andcomment context are at odds with the goals of the APA. Congress viewed notice and
comment as an important procedure “to assure fairness and mature consideration of
rules of general application.”
(1969)

(plurality

opinion).

NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764
Accordingly,

as

Plaintiffs

previously

explained,

“exceptions to notice-and-comment rulemaking under the APA are ‘narrowly
21

 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. Dep’t of Energy, 728 F.2d 1477, 1490 (Temp. Emer. Ct. App. 1983)
(cited in Stay App.)); N.J. Dep’t of Envtl. Prot. 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”).
Agencies “must overcome a high bar” to invoke the “essentially . . . emergency
procedure” of the good cause exception. United States v. Valverde, 628 F.3d 1159,
1164-65 (9th Cir. 2010); accord Mid Continent Nail Corp., 846 F.3d at 1380 & n.12;
N.J. Dep’t of Envtl. Prot., 626 F.2d at 1045. But the government’s contention that
courts must defer so long as there is some “predictive judgment[]” involved, Stay
App. 25, would “swallow” the notice-and-comment rule, Buschmann v. Schweiker,
676 F.2d 352, 357 (9th Cir. 1982). Likewise, with regard to the foreign affairs
exception, 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).

American Association of

Exporters and Importers v. United States, on which the government relies,
22

 accordingly required that the government establish that the ordinary procedures
“would ‘provoke definitely undesirable international consequences.’” 751 F.2d 1239,
1249 (Fed. Cir. 1985) (quoting H. Rep. No. 1980, 69th Cong., 2d Sess. 23 (1946)). As
in the last litigation, the government’s claims to blanket judicial deference are at
odds with the APA’s limited procedural exceptions.
As in the first ban litigation, the government again rests its good cause
argument on the possibility that abiding by the APA’s notice-and-comment
procedures “could cause aliens to surge to the border.” Stay App. 24 (emphasis
added, internal quotation marks omitted); see 83 Fed. Reg. at 55,935, 55,950 (Nov.
9, 2018).
As before, the government’s assertion is unsupported speculation. For notice
and comment to prompt a surge of migrants to head to the border, large numbers of
Central Americans would have to learn of the notice, decide to uproot and leave
their homes, travel thousands of miles through Mexico, and cross the U.S. border—
all during the brief comment period. Such a speculative chain of events is simply
“too difficult to credit,” particularly because the government has already conceded
that “it cannot ‘determine how’” announcements of policies “‘involving the southern
border could affect the decision calculus for various categories of aliens planning to
enter.’” East Bay, 932 F.3d at 777 (quoting 83 Fed. Reg. at 55,948). Indeed, given
how many different border policies are now in place, many in various stages of
litigation, there would be virtually no way to know how notice and comment on yet

23

 another policy change would impact migration flows, much less how they would be
affected by a 30-day comment period.
The Rule mentions the agencies’ “experience” with surges in response to
“public announcements,” App. 76a, but the record is devoid of any evidence of such a
pattern—or even a single example. As the district court observed, the government’s
“failure to produce more robust evidence” is striking. App. 49a. Under its theory,
the injunction of the first asylum ban should have caused a new wave of migrants to
rush the U.S. border before the injunction could be stayed on appeal. The same
thing should have happened during prior notice-and-comment periods.

Yet the

government has failed to document any immediate surge that has ever occurred
during a temporary pause in an announced policy.
The only “evidence” the Rule cites is “[a] single, progressively more stale
[newspaper] article.” App. 49a; see App. 76a. The article contains two sentences
stating that smugglers told migrants about a policy change last year (a change
having nothing to do with an asylum ban). AR439. It does not say whether anyone
heeded the smugglers’ “sales pitch,” and if so how quickly, or in what numbers. Id.
These two sentences do not justify ignoring the congressional command for notice
and cutting the public out of such a momentous rule change. If such thin evidence
sufficed, the government could always skip notice and comment for “every
immigration regulation imposing more stringent requirements” “ad infinitum,”

24

 simply by speculating about a surge. App. 49a. The APA’s procedural requirements
demand more. 5
The government’s invocation of the foreign affairs exception is similarly
flawed.

The government contends that the new rule implicates foreign affairs

because it relates to immigration and the border. Stay App. 21-22. It said the same
of the prior ban. App. 46a-47a (noting last Rule’s preamble also cited the “flow of
aliens across the southern border”) (quoting 83 Fed. Reg. at 55,950); see also East
Bay, 932 F.3d at 775 (observing that “the foreign affairs exception would become
distended if applied to an immigration enforcement agency’s actions generally”)
(internal quotation marks and alterations omitted). The government claims that
this Rule would “facilitate,” “strengthen,” and provide “leverage” in negotiations.
App. 76a-77a; Stay App. 22. Again, the last Rule asserted the same. App. 46a-47a
(“this rule would be an integral part of ongoing negotiations”) (quoting 83 Fed. Reg.
at 55,950).
The government asserts that this time the administrative record supports
these claims.

That is not the case.

The district court carefully examined the

administrative record and correctly determined that it does not support the
The government’s stay application (but not the Rule) also cites a few other “news
articles,” but they are even further afield. Stay App. 25; see, e.g., AR452-53
(describing concerns Mexico would quickly deport migrants despite their asylum
claims); AR662-63 (noting that individuals migrated to Mexico after it offered them
visas); AR683 (reporting that unnamed U.S. officials “suspect” the Mexican visas
“may have influenced” migrants’ plans). The government also cites increased
apprehensions at the border, Stay App. 24-25, but migrant numbers ebb and flow,
and the government offers nothing to indicate that increases or decreases are in
response to announcements of new rules.

5

25

 government’s assertions about the present negotiations.

Id.

In particular, the

government cites a recent agreement with Mexico, suggesting it was attributable to
a new policy.

Stay App. 23.

But as the record and the government’s public

statements make clear, that agreement in fact resulted from the threat of tariffs.
See AR675; Ana Swanson & Jeanna Smialek, Trump Says Mexico Tariffs Worked,
Emboldening Trade Fight With China, N.Y. Times, June 10, 2019.
And, even if a change in policy might sometimes affect negotiations, Judge
Bybee correctly explained in the last asylum ban litigation that the relevant
question is whether the record contains evidence that “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. 47a (quoting
East Bay, 932 F.3d at 776) (internal quotation marks omitted). The government
cites its own prediction that a notice and comment period would prompt a “surge of
asylum seekers,” Stay App. 22—a premise that, as explained above, is itself
unsupported by the administrative record. But even if there were some increase in
migration attributable to the policy, the government’s further assertions that the
change would “provoke a disturbance in domestic politics” of other countries, id., is
sheer unsupported speculation. Indeed, the government has announced a string of
asylum-related policies over the last two years, but documents no disturbance in
other countries’ domestic politics, however that would be measured. It offers no
reason to think that notice of this policy would have a dramatic destabilizing effect
when, for example, the injunction of the last asylum ban did not.
26

If all the

 government had to do to avoid notice and comment was spin out a possible scenario,
no matter how fanciful and unsupported by evidence, the exception would indeed
swallow the rule. 6
D.

The Rule Is Arbitrary And Capricious.

The Rule violates the APA’s basic mandate that agencies engage in “reasoned
decisionmaking.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 52 (1983). The district court correctly concluded that the Rule
and administrative record utterly failed to support the Rule’s foundational
premises: that transiting through a third country indicates a “meritless” asylum
claim, App. 66a, 74a, and that the class of people subject to the Rule “could have
obtained protection in” any country through which they transited, App. 66a, such
that the government may assume they had somewhere else safe to go even if they
did not apply for asylum there, see App. 50a-58a. The Rule, moreover, does not even
acknowledge, much less address, the “mountain of evidence” in the record that those
who transit to the southern border face rampant violence, illegal deportation to
their home countries, and inadequate asylum procedures—all of which directly
undermines the Rule’s principal justifications. See App. 42a-43a. 50a-58a; AR286317, 533-36, 638-57, 702-727, 756-66, 771-76.

That is a quintessential APA

violation. See State Farm, 463 U.S. at 43 (stressing that the explanation for a
decision may not “run[] counter to the evidence before the agency”).
Chicago & S. Air Lines v. Waterman S. S. Corp., addressed the very different
question of whether courts could “review and perhaps nullify” an order issued by
the President regarding foreign air travel. 333 U.S. 103, 111 (1948). Here, there is
no danger courts would substantively review, much less nullify, negotiations.
27

6

 First, the Rule fails to provide “any reasoned explanation” for its core
assumption “that the failure to seek asylum” in a third country “casts doubt on the
validity of an applicant’s claim.” App. 33a. The government “cites nothing in the
administrative record to support” this assumption, App. 43a, and “[a] conclusory
statement, of course, does not in itself provide the ‘satisfactory explanation’
required in rulemaking,” Int’l Fabricare Inst. v. EPA, 972 F.2d 384, 392 (D.C. Cir.
1992). Far from screening out weak claims, the Rule indiscriminately bars wholly
meritorious claims from non-Mexicans at the southern border—a reality the
government itself now acknowledges. Stay App. 32 (admitting that “meritorious
claims” will be barred); see Nat’l Min. Ass’n v. Babbitt, 172 F.3d 906, 913 (D.C. Cir.
1999) (explaining that, if an agency decision applies in a sufficiently greater number
of cases than its justification warrants, it is overbroad and therefore arbitrary and
capricious). In fact, there “is no basis for th[e] assumption” that transit undermines
the credibility of a persecution claim, because, for example, “it is quite reasonable”
for persecuted individuals “to seek a new homeland that is insulated from the
instability” of their home countries. Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th
Cir. 1986). But the countries through which most Central American asylum seekers
will travel are not insulated from the persecution in the countries from which they
fled.
Second, the Rule fails to address, or even acknowledge, copious record
evidence contradicting its very premises.

The record contains “an unbroken

succession” of evidence, App. 53a, that Mexico—the country through which all non28

 Mexican asylum seekers at the southern border transit—is “repeatedly violating the
non-refoulement principle,” by illegally returning asylum seekers to countries where
they face persecution, AR708; that “migrants face acute risks of kidnapping,
disappearance, sexual assault, trafficking, and other grave harms” there, AR703;
and that Mexico’s asylum system has serious deficiencies in both access and
capacity, see, e.g., AR683, 688, 699, 700 (describing grave budgetary and other
capacity issues crippling Mexico’s asylum system); AR772 (“Adult and child
migrants in need of international protection are not routinely informed about their
rights or screened for” protection as required by Mexican law); AR703 (migrants
face “an untenable 30-day filing deadline” for asylum); see also App. 51a-56a
(reviewing unrebutted evidence in human rights reports). This evidence directly
undermines the Rule, because it shows exactly why people with valid claims would
not linger in transit countries like Mexico. And yet the Rule does not even mention
this evidence, much less explain why the Rule nonetheless remains justified. App.
56a & n.23; see also State Farm, 463 U.S. at 43 (offering “an explanation for its
decision that runs counter to the evidence before the agency” is arbitrary and
capricious); Butte Cty. v. Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010) (“an agency
cannot ignore evidence contradicting its position”). 7

Any evidence that Mexico is “improving” its asylum system, Stay App. 33, cannot
justify the Rule’s sweeping assumptions about failure to apply for protection there,
App. 52a. That evidence says nothing about the system’s current capacity or
accessibility, nor does it account for the severe ongoing obstacles to asylum and
grave dangers migrants face in Mexico that the very same reports amply document.
Moreover, although the government asserts that the agencies weighed the
mountain of information contradicting its position, the Rule does not reflect any
29

7

 The government tries to pivot away from its own deficient administrative
record, and suggests that the Rule is adequately supported simply by virtue of
Mexico being a signatory to international refugee agreements. Stay App. 33. But
any country can sign the Refugee Convention without any showing that it in fact
offers a safe and fair process, see District Ct. Doc. No. 3-7 (Anker & Hathaway Decl.)
¶¶ 7, 11; indeed, even volatile countries like Afghanistan, the Democratic Republic
of Congo, and Sudan are signatories, see AR560-65; see also District Ct. Doc. No. 3-1
at 11 (discussing State Department reports recognizing that some signatories lack
functioning asylum systems).

The Rule’s requirement only that a country be a

party to one of various refugee treaties is thus meaningless when it comes to
assessing the actual availability of protection for refugees. App. 40a-41a.
The government asserts that the district court was wrong to find the Rule
arbitrary and capricious based on these shortcomings because it articulates several
different rationales.

Stay App. 29-30.

But the rationales are interrelated and

bound up with the flawed assumption that the Rule furthers the asylum law’s
humanitarian purpose and is well-tailored to achieve those ends. See App. 66a, 74a75a (asserting that the Rule will identify and deter claims of those without a
genuine need for asylum, thereby preserving the system for those with meritorious
claims). 8

such consideration. Counsel’s after-the-fact assertions cannot substitute for agency
reasoning. See Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 539 (1981).
Relatedly, the government’s assertion that the Rule better allocates resources by
“de-prioritizing the applications of individuals” subject to it, App. 74a, simply
30

8

 Finally, the district court correctly found that the Rule’s failure to consider
the unique rights and needs of unaccompanied children is arbitrary and capricious.
Congress exempted unaccompanied children from various asylum requirements,
including the safe-third-country provision, in recognition of their special
vulnerabilities. App. 57a-58a. The government argues it was not required by these
statutes to exempt unaccompanied children. Stay App. 34. But even assuming that
were correct, the Rule fails to even address whether such children should be
exempted for the same reasons Congress carved them out of the safe-third-country
provision and other asylum requirements applicable to adults. Indeed, the Rule
even fails to grapple with whether vulnerable unaccompanied children can possibly
access fledgling asylum systems like Mexico’s. App. 58a (Rule’s factual premises
apply with even less force to children traveling alone).
II.

THE GOVERNMENT WILL SUFFER NO IRREPARABLE INJURY
ABSENT A STAY AND THE EQUITIES AND PUBLIC INTEREST TIP
DECIDEDLY IN PLAINTIFFS’ FAVOR.
1.

As the district court noted, the government’s arguments regarding its

alleged harms are “to the greatest extent possible, carbon copies” of those that the
government unsuccessfully made in seeking a stay of the injunction blocking the
previous asylum ban. App. 17a. As before, the government fails to identify any
irreparable injury from maintaining the forty-year-long status quo while this case is
heard on an expedited basis in the court of appeals. See East Bay, 932 F.3d at 778
(noting stay would “upend” the status quo).

As noted above, in the litigation

misrepresents how it operates. The Rule does not place affected claims on hold or
on a slower, low priority track; it denies them outright, forever.
31

 concerning the prior ban, although the government told the Ninth Circuit and this
Court that an emergency stay was needed to address a national crisis, it has slowwalked the appeal at every turn. Supra n.1.
The government again asserts that the injunction “frustrates the ‘public
interest in effective measures to prevent the entry of illegal aliens’ at the Nation’s
borders.” Stay App. 34. But, as the court of appeals found in the first asylum ban
case, “[t]he [injunction] does not prohibit the Government from combating illegal
entry into the United States, and vague assertions that the Rule may ‘deter’”
certain asylum seekers from seeking to enter the United States is “insufficient.”
East Bay, 932 F.3d at 778.
The government further argues that a recent increase in apprehensions of
unlawful entrants also supports a stay, Stay App. 35, and notes that asylum seekers
represent a higher proportion of those apprehended than in the past, id. at 9. But
this Court declined to stay the first asylum ban despite the government’s similar
invocations of high apprehension numbers of asylum seekers—numbers that,
notably, have decreased significantly in June and July 2019, further undermining
the government’s claims of urgency. 9

Moreover, the total number of people

See U.S. Customs and Border Protection, Southwest Border Migration
FY2019, https://www.cbp.gov/newsroom/stats/sw-border-migration
(last
visited
Sept. 3, 2019) (showing that apprehensions are down by nearly half in July 2019
from the May 2019 numbers the government cites). Data for August 2019 is not yet
publicly available.
32
9

 apprehended annually is still comparatively small, with fewer than 400,000 in both
2017 and 2018, 10 compared 1.6 million per year in 2000, App. 73a.
As the district court explained, “shortcutting the law, or weakening the
boundary between Congress and the Executive, are not the solutions” to addressing
the “administrative burdens imposed by the influx of persons seeking asylum.”
App. 61a. Changing the asylum law is an issue for Congress, which is well aware of
border crossing numbers and the number of asylum seekers.
The Ninth Circuit and this Court also previously rejected the government’s
contention that a stay is warranted because the Rule involves core Executive
concerns. See Stay App. 36. As the Ninth Circuit explained in declining to stay the
order blocking the first asylum ban, any such injury is not irreparable: The
government “may pursue and vindicate its interests in the full course of this
litigation.” East Bay, 932 F.3d at 778 (internal quotation marks omitted).
Finally, and critically, a stay of the injunction would not preserve the status
quo. Rather, it would upend it, as the injunction temporarily restores, in the Ninth
Circuit, the law in place for decades prior to July 16, 2019. For almost forty years,
Congress has kept in place the fundamental rule that an individual fleeing
persecution can apply for asylum even if she passed through a third country in
flight—even when the number of apprehensions of unlawful entrants was
significantly higher.

See U.S. Customs and Border Protection, Southwest Border Migration FY2018,
https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2018 (last visited Sept.
3, 2019).
33
10

 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 where it is stayed.
There is no merit to the government’s suggestion that Plaintiffs would not
suffer irreparable injuries if the government were free to implement the Rule.
Indeed, Plaintiffs have established that the Rule would force the “diversion of
resources and the non-speculative loss of substantial funding from other sources.”
App. 59a (quoting East Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094,
1116 (N.D. Cal. 2018)) (internal quotation marks omitted). Particularly in light of
the dramatic changes the Rule would work to the asylum system, such harm is
irreparable.
Moreover, as with the first asylum ban, Plaintiffs’ clients and thousands of
other noncitizens who could meet the asylum standard will be deported to danger. 11

As it did in the first asylum ban case, the government cites to rates of asylum
applications and grants, asserting that “[o]nly a small minority” of individuals who
apply for asylum are ultimately granted. Stay App. 9 (quoting App. 66a) (internal
quotation marks omitted). But those types of figures tell a wholly incomplete story,
as most credible-fear origin cases 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 (last visited Sept. 3,
2019) (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 often issue removal orders quickly but
34
11

 See East Bay Sanctuary Covenant v. Trump, 349 F. Supp. 3d 838, 864 (N.D. Cal.
2018) (explaining that the “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).

The government asserts, as it did with the first

asylum ban, that the availability of other forms of relief—withholding of removal
and relief under CAT—mitigates the harm to asylum seekers. Stay App. 35-36.
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.
Second, as explained above, those other forms of relief impose a much higher
standard.

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
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).” East Bay, 349 F. Supp. 3d. at 864-65.
The agencies “ignore these very real harms.” Id. at 865. Moreover, the government
ignores the grave dangers that asylum seekers—particularly unaccompanied
children—face while forced to wait in transit countries like Mexico and Guatemala.
See AR286-317, 533-36, 638-57, 702-727, 756-66, 771-76; District Ct. Doc. No. 3-6
(Frydman Decl.) ¶¶ 7-24.

take more time 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.
35

 The Executive’s disagreement is thus again addressed to the wrong branch of
government. It should make its case to Congress rather than seeking emergency
intervention once again from this Court.
III.

THE COURT SHOULD NOT NARROW THE SCOPE OF THE
INJUNCTION.
The district court enjoined the first asylum ban nationwide. Judge Bybee,

writing for the Ninth Circuit motions panel, declined to stay that decision, because
enjoining the ban nationwide was “necessary to provide the plaintiffs . . . with
complete redress.” East Bay, 932 F.3d at 779. The government then asked this
Court to stay that injunction in full, or in the alternative, to narrow its scope to the
current clients of the Plaintiffs. Stay App. at 40, East Bay, No. 18A615. This Court
properly declined to do so.

It should again reject the government’s request to

narrow the injunction—particularly because, as this case comes before the Court,
there is no nationwide injunction, but rather one limited to the Ninth Circuit. 12
On the scope question, the record here is virtually identical to the one before
this Court in the first asylum ban case. If that record supported the nationwide
injunction of the first asylum ban, it certainly supports the far narrower injunction
approved by the Ninth Circuit currently in place as to this Rule.

It is thus premature for the Court to consider arguments about nationwide
injunctions. The court of appeals narrowed the scope of the injunction to the Ninth
Circuit on the ground that the district court’s order failed to adequately support a
nationwide scope. App. 3a, 5a. Although the Ninth Circuit remanded to the district
court with permission to make additional findings, there is no reason for this Court
to consider these questions now, before the district court and Ninth Circuit have
ruled and without the benefit of a full record.
36
12

 The government argues, as it did in the first asylum ban case, that the
injunction should be limited to those individuals whom Plaintiffs “identify as actual
clients in the United States.”

Stay App. 38. But the government fails to explain

how that would be remotely workable or provide full relief to the Plaintiff
organizations. See East Bay, 932 F.3d at 779 (noting similar failure in the last
litigation).
As set forth in the record, Plaintiffs not only directly represent clients all over
the country and in Mexico, but also routinely provide written materials and inperson pro se trainings for asylum seekers, many of which are conducted in Mexico.
See, e.g., District Ct. Doc. Nos. 3-3, 3-4. Many, if not most, of the individuals who
receive these materials and attend the trainings are not “actual clients.” Yet the
assistance Plaintiffs provide to these individuals is an integral part of the
organizations’ work.

For desperate individuals trying to understand the U.S.

asylum process, these trainings are critical. But it is impossible for Plaintiffs to
know in advance which of these individuals will ultimately become one of the
Plaintiffs’ “actual clients in the United States,” nor are the trainings intended only
for the limited number of individuals the organizations can actually represent.
Plaintiffs would therefore have to ensure that the individuals who attend these
trainings and receive the written materials—nearly all of whom have no legal
background—understand the Rule’s impact if they become clients and if they do not
become clients, requiring them to overhaul their workshops and training materials,
and spend more time assessing asylum seekers’ claims. And even as to those clients
37

 Plaintiffs directly represent, the injunction proposed by the government would
create a perverse dynamic, leading every potential asylum seeker to seek
representation from the four Plaintiffs, thereby disrupting existing legal service
networks and overwhelming the operations of these relatively small and
underfunded organizations.
CONCLUSION
The application should be denied.
Respectfully submitted,

Katrina Eiland
Cody Wofsy
Morgan Russell
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
1101 17th Street, NW Suite 705
Washington, D.C. 20036
Mary Bauer
SOUTHERN POVERTY LAW CENTER
1000 Preston Avenue
Charlottesville, VA 22903
Attorneys for Respondents East Bay
Sanctuary Covenant, et al.
Dated: September 4, 2019

/s/ Lee Gelernt
Lee Gelernt
Counsel of Record
Omar C. Jadwat
Anand Balakrishnan
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
Angélica Salceda
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN
CALIFORNIA, INC.
39 Drumm Street
San Francisco, CA 94111
38