Al Otro Lado v. Chad Wolf, 952 F.3d 999

Background

Al Otro Lado (a legal-services org.) and individual plaintiffs sued challenging CBP "metering" at southern ports of entry — practices that turned asylum seekers away and put them on waitlists rather than admitting and processing them.
While that litigation proceeded, DHS/DOJ promulgated the "Third Country Transit Rule" (the Rule) effective July 16, 2019, generally barring asylum for noncitizens who transited a third country without first applying for protection there.
The district court provisionally certified a subclass of ~26,000 non‑Mexican asylum seekers who attempted to present themselves before July 16, 2019 but were turned away by metering, and preliminarily enjoined application of the Rule to that subclass.
The government moved for a stay of that injunction pending appeal; this Ninth Circuit motions panel denied the stay.
The panel applied the Nken four‑factor stay test, finding the government’s evidence of irreparable harm weak and that it had not made the requisite strong showing of likelihood of success given the district court’s plausible statutory interpretation that an asylum right attaches when an alien is "arriving in" the United States.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a stay pending appeal should issue	Al Otro Lado: injunction should remain because enforcement of the Rule against the metered subclass would irreparably harm class members who relied on government representations and lost ability to seek protection in Mexico.	Government: a stay is necessary because applying the injunction will impose administrative chaos, irreparable operational harms, and the Rule plainly applies to later arrivals.	Denied stay — gov’t failed to show likely irreparable harm and did not make the strong showing of likelihood of success required under sliding‑scale analysis.
Irreparable harm to government from injunction	Harm minimal: plaintiffs point to equitable injury to class, while administrative burdens are manageable.	Harm significant: identifying 26,000 metered persons across many POEs without reliable records will substantially disrupt border operations and credible‑fear processing.	Court found gov’t evidence of irreparable harm weak/marginal and in large part self‑inflicted (lack of gov’t records), so factor favors plaintiffs.
Likelihood of success on merits — statutory meaning of "arrives/arriving in the United States"	Al Otro Lado: "arrives/arriving" includes aliens in the process of arriving at a POE (i.e., those turned back by metering), so their entitlement to asylum rights attached before July 16, 2019.	Government: statutory text and presumption against extraterritoriality mean asylum rights require being within the U.S.; the Rule applies to later actual entries/arrivals.	The panel found the district court’s linguistic/contextual analysis "has considerable force" and that the gov’t did not show a particularly strong likelihood of prevailing on appeal.
Whether the district court could enjoin application of the Rule to the subclass (jurisdiction/All Writs Act)	Al Otro Lado: injunction necessary to preserve class members’ access to asylum process and to prevent the Rule from effectively mooting their claims; equitable relief in aid of jurisdiction is proper.	Government (dissent): the Rule was not challenged in this case; enjoining it here exceeded equitable power and conflicts with the Supreme Court’s stay in East Bay.	Majority upheld district court’s remedy for stay‑motion purposes (did not reach ultimate merits), concluding injunction was not shown to warrant a stay pending appeal. The dissent vigorously disagreed.

Key Cases Cited

Nken v. Holder, 556 U.S. 418 (stay‑pending‑appeal four‑factor test governs stay requests)
Virginian Ry. Co. v. United States, 272 U.S. 658 (stay is discretionary, not of right)
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (sliding‑scale balancing for preliminary injunction factors)
Leiva‑Perez v. Holder, 640 F.3d 962 (applying sliding‑scale to stay context)
Sampson v. Murray, 415 U.S. 61 (irreparable injury requires more than monetary/time burdens)
Hernandez v. Sessions, 872 F.3d 976 (agency diversion of resources found minimal harm for stay analysis)
INS v. Cardoza‑Fonseca, 480 U.S. 421 (distinguishing asylum procedure for those within the U.S.)
Pacific Radiation Oncology, LLC v. Queen’s Medical Ctr., 810 F.3d 631 (injunction relief must relate to claims in complaint)
Landon v. Plasencia, 459 U.S. 21 (government interest in efficient immigration administration at border)
Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (Supreme Court stayed district injunction of the Third Country Transit Rule pending appeal)