East Bay Sanctuary Covenant v. Donald Trump, 909 F.3d 1219

Background

In response to a large rise in asylum applications and a backlog, DHS and DOJ issued an interim final Rule (Nov. 9, 2018) that makes aliens ineligible for asylum if they are “subject to a presidential proclamation . . . suspending or limiting the entry of aliens along the southern border with Mexico” and entered contrary to that proclamation.
On the same day the President issued a Proclamation (invoking 8 U.S.C. § 1182(f)) suspending entry across the U.S.–Mexico land border for 90 days but exempting those who present at ports of entry.
Plaintiffs (nonprofit organizations providing legal services to asylum seekers) sued, seeking a TRO to enjoin the Rule; the district court granted a TRO. The government appealed and sought a stay pending appeal.
Plaintiffs challenged the Rule on two grounds: (1) it was promulgated in violation of the APA’s notice-and-comment and 30-day delay requirements, and (2) it is substantively inconsistent with the INA’s asylum provisions (8 U.S.C. § 1158(a)(1)).
The Ninth Circuit treated the TRO as appealable, found the organizations had organizational standing, and denied the government’s stay request because the government was unlikely to succeed on the merits and had not shown irreparable harm.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Rule (plus Proclamation) is consistent with INA § 1158(a)(1)	Rule unlawfully negates the statutory grant that “any alien…whether or not at a designated port of arrival…may apply for asylum” by making entry outside ports a categorical bar	Rule is a valid exercise of AG’s § 1158(b)(2)(C) authority to add additional limitations on eligibility and does not prevent application	Court held government unlikely to succeed: the Rule’s practical effect is to nullify § 1158(a)(1) and thus is likely not “in accordance with law” and is arbitrary and capricious because it conditions asylum on irrelevant criteria (manner/place of entry) beyond statute
Whether the Rule’s subject matter was exempt from APA notice-and-comment and 30-day delay as foreign affairs or good cause	Plaintiffs: exemptions inapplicable; government failed to show immediate international consequences or necessity; good-cause showing speculative	Government: foreign affairs and good cause exceptions apply because immediate action was needed to support ongoing negotiations and to avert a border surge and attendant harms	Court held government unlikely to succeed on exemptions: record does not show immediate, definite international consequences nor adequate, non-speculative good-cause to bypass notice/comment and delay
Whether plaintiffs have Article III standing and fall within the INA’s zone of interests	Plaintiffs: organizational and third-party standing; injuries include diversion of resources and funding loss	Government: plaintiffs lack standing and are outside statutory zone of interests	Court: denied third-party standing but found organizational standing (diversion of resources and funding risk) and that their interests are within the INA’s zone of interests
Whether a nationwide TRO/stay should issue pending appeal	Plaintiffs: nationwide relief necessary to restore long-standing practice and prevent irreparable diversion	Government: TRO is an undue intrusion on executive foreign-affairs and immigration authority and should be stayed	Court denied stay; affirmed TRO’s universal scope as appropriate to provide complete relief and preserve the status quo pending fuller review

Key Cases Cited

Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (discussing foreign affairs implications of state action)
Harisiades v. Shaughnessy, 342 U.S. 580 (Congressional control over immigration policy)
Fiallo v. Bell, 430 U.S. 787 (Congressional power over alien admission)
United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (executive exclusion power over aliens)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (executive power and limits)
Kleindienst v. Mandel, 408 U.S. 753 (judicial deference in exclusion of aliens)
Mathews v. Diaz, 426 U.S. 67 (immigration decisions are for political branches; narrow judicial review)
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (agency interpretation and limits)
Nken v. Holder, 556 U.S. 418 (standard for stays pending appeal)
Bennett v. Spear, 520 U.S. 154 (what constitutes final agency action under APA)
Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (agency may not rewrite clear statutory terms)
INS v. Chadha, 462 U.S. 919 (separation of powers in immigration context)
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189 (executive/congressional boundary in foreign affairs)