Barr v. East Bay Sanctuary Covenant
140 S. Ct. 3
| SCOTUS | 2019Background
- In July 2019 the Attorney General and DHS promulgated a rule barring most noncitizens who transit through a third country (e.g., Mexico) from applying for asylum in the U.S. unless they were denied asylum in that third country. 84 Fed. Reg. 33829.
- Several immigrant-advocacy organizations sued; the district court preliminarily enjoined the rule nationwide on July 24, 2019.
- The district court found plaintiffs likely to succeed on three grounds: the rule conflicts with 8 U.S.C. §1158, the agency violated notice-and-comment rulemaking requirements, and the rule was arbitrary and capricious under the APA.
- The Ninth Circuit narrowed the injunction to the Ninth Circuit, denied a full stay, and expedited the Government’s appeal.
- The Government sought a stay from the Supreme Court; the Court granted a stay of the district court’s July 24 and the September 9 nationwide injunction orders pending appeal. Justice Sotomayor (joined by Justice Ginsburg) dissented from the stay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the rule is consistent with the asylum statute (8 U.S.C. §1158) | Rule unlawfully rewrites §1158 by barring asylum based on transit rather than safety/resettlement in a third country | Rule is a permissible regulation of asylum eligibility and consistent with statutory text and objectives | District Court: plaintiffs likely to prevail; injunction entered. Ninth Circuit: denied complete stay (narrowed injunction). Supreme Court: stayed injunction pending appeal. |
| Whether the Government complied with APA notice-and-comment requirements | Agency unlawfully bypassed notice-and-comment for a major change to longstanding asylum policy | Agency invoked procedural exceptions/justifications for expedited action | District Court: likely violation of notice-and-comment; favors injunction. Ninth Circuit: did not grant full stay. |
| Whether the rule is arbitrary and capricious (APA §706) | Rule fails to grapple with record evidence and offers inadequate reasoning — arbitrary and capricious | Rule rests on reasons (deterrence, feasibility of third-country protection) sufficient for agency action | District Court: likely arbitrary and capricious; injunction supported. |
| Whether a stay of the preliminary injunction should issue pending appeal | Plaintiffs: stay not warranted because government hasn’t made the required strong showing of likelihood of success and irreparable harm favors plaintiffs | Government: stay appropriate to allow rule to take effect during expedited appellate review | Supreme Court: grant stay pending Ninth Circuit appeal and any cert petition; Sotomayor dissent would deny stay. |
Key Cases Cited
- Hilton v. Braunskill, 481 U.S. 770 (1987) (stay/temporary relief standards)
- Williams v. Zbaraz, 442 U.S. 1309 (1979) (in-chambers stay practice described as extraordinary)
- Maryland v. King, 567 U.S. 1301 (2012) (considerations for in-chambers stays)
- Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319 (1994) (applicant’s heavy burden for emergency relief)