E. Bay Sanctuary Covenant v. Barr
385 F. Supp. 3d 922
N.D. Cal.2019Background
- On July 16, 2019 DOJ and DHS promulgated an interim final rule (the "third country transit bar" or "Rule") that categorically bars asylum for most noncitizens who crossed the southern land border after transiting any third country without first applying for protection there. The Rule contains narrow exceptions (prior final denial, severe trafficking victim, transit only through countries not party to Refugee Convention/Protocol/CAT).
- Plaintiffs (several immigrant-advocacy organizations) challenged the Rule immediately and sought injunctive relief; the court converted the TRO to a preliminary injunction motion on the administrative record. The court applied the Winter four-factor test and related Ninth Circuit East Bay decisions.
- Statutory context: asylum is generally available under 8 U.S.C. §1158, but Congress created specific third-country bars — the "safe third country" bar and the codified "firm resettlement" bar — each of which requires case‑specific findings to ensure the third country is a safe alternative. The Attorney General may by regulation add limitations consistent with §1158.
- The agencies invoked exceptions to APA notice-and-comment (foreign affairs and good cause) and made the Rule effective immediately; they also relied on asserted policy rationales (deterring "forum shopping," incentivizing protection-seeking elsewhere, and relieving border system pressure).
- The administrative record contained substantial evidence (UNHCR, Amnesty, MSF, Human Rights First, etc.) documenting violence, refoulement, barriers to access, and systemic problems with Mexico’s asylum system — undermining the agencies’ core factual premise that Mexico (the principal transit country) is a safe, feasible alternative.
- The court concluded plaintiffs were likely to succeed on the merits (statutory inconsistency under Chevron and arbitrary-and-capricious review under State Farm), raised serious APA notice-and-comment problems (foreign affairs and good-cause defenses), and that the balance of equities and public interest favored injunctive relief; it enjoined implementation of the Rule nationwide pending final judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Rule is substantively authorized by statute (Chevron step one/step two) | Rule conflicts with Congress’s existing third-country bars (safe-third-country and firm-resettlement) because Congress required individualized and country-specific safety determinations; the Rule categorically treats many countries as "safe." | Agencies may promulgate additional categorical bars under §1158(b)(2)(C) to deny asylum to those who forewent applying in third countries to deter misuse. | Court: Likely plaintiffs prevail — Rule inconsistent with statutory scheme and unmoored from statute’s purpose; fails Chevron step two. |
| Whether agencies complied with APA notice-and-comment (foreign affairs exception) | Agencies failed to show that notice-and-comment would cause definitely undesirable international consequences; inviting comment while claiming foreign‑affairs urgency is inconsistent. | Rule implicates foreign affairs/ongoing negotiations; immediate implementation necessary to avoid harms (surge, diplomatic effects). | Court: Plaintiffs raised serious questions; government did not meet narrow foreign-affairs exception. |
| Whether good‑cause exception and immediate effective date were justified (APA §553) | Good‑cause requires strong, specific evidence that delay would do real harm; government relied on stale/newspaper article and speculation about surges, insufficient to justify bypassing comment and 30-day wait. | Immediate effect needed to prevent surge and preserve policy efficacy; prior similar invocations support good cause. | Court: Serious questions exist as government failed to meet the high good‑cause bar. |
| Whether the Rule is arbitrary and capricious (State Farm) | Agencies ignored substantial contrary evidence (Mexico unsafe), failed to explain why failure to apply in transit country is categorically probative, ignored special needs of children, and relied on post‑hoc rationalizations. | Agencies claim Mexico and other transit countries are parties to relevant instruments and have expanded capacity; Rule incentivizes proper exhaustion. | Court: Rule arbitrary and capricious — agency failed to consider record evidence, relied on unsupported categorical inferences, and offered inadequate reasoning. |
Key Cases Cited
- E. Bay Sanctuary Covenant v. Trump, 909 F.3d 1219 (9th Cir. 2018) (Ninth Circuit guidance on similar asylum‑eligibility rule and APA exceptions)
- E. Bay Sanctuary Covenant v. Trump, 349 F. Supp. 3d 838 (N.D. Cal. 2018) (district court TRO decision in related challenge)
- E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094 (N.D. Cal. 2018) (district court preliminary injunction decision in related challenge)
- Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) (framework for agency statutory interpretation deferential review)
- Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary-and-capricious review; requirement of reasoned decisionmaking)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits and guidance on deference to agency interpretations)
- Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) (agencies must provide adequate reasons for decisions)
- Thuraissigiam v. U.S. Dep't of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019) (limitations and risks of expedited removal/credible-fear screening)
- Yang v. INS, 79 F.3d 932 (9th Cir. 1996) (firm resettlement concept and its effect on asylum eligibility)