On November 9, 2018, the nonprofit organization East Bay Sanctuary Covenant (EBSC) challenged the federal government's latest asylum policy prohibiting people who enter the U.S. along the southern border somewhere other than a designated port of entry from obtaining asylum. Specifically, EBSC challenged an interim final rule promulgated on November 8, 2018 declaring all those subject to a presidential proclamation concerning the southern border ineligible for asylum, as well as the “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States” signed the next day blocking the entry of all people entering the U.S. without inspection at the southern border. EBSC claimed violations of the Immigration and Nationality Act (INA) and Administrative Procedure Act (APA) and sought declaratory and injunctive relief. The case was filed in the U.S. District Court for the Northern District of California and assigned to Magistrate Judge Donna M. Ryu.

The complaint stated that EBSC assisted refugees fleeing political persecution, terror, war, intolerance, exploitation, and other violence by providing sanctuary, support, community organizing assistance, advocacy, and legal services. Crucial to its efforts was EBSC's aid to such individuals in applying for asylum and other humanitarian relief in the U.S. In its complaint, EBSC argued that under existing federal law, "manner of entry cannot constitute a categorical asylum bar." The complaint stated that federal law expressly provides that "[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival...),...may apply for asylum.” EBSC further argued that in proclaiming its new policy, DHS did not follow necessary procedural steps - like providing a notice and comment period - nor did it have good cause for failing to do so.

The case was reassigned to Judge Jon S. Tigar on November 13, 2018. On Nov. 19, 2018, the court granted EBSC's motion for temporary restraining order and ordered the government to show cause why it should not be permanently enjoined from putting in place its latest asylum policy. Judge Tigar held that the government's new rule and proclamation "irreconcilably conflict[ed] with the INA and the expressed intent of Congress" and that "[w]hatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden." The court concluded that EBSC and the immigrants it represented would suffer irreparable injury without the TRO because asylum seekers would face greater risk of violence and other harms at the border, and many would be unable to make meritorious asylum claims. The court ordered the TRO to remain in effect until Dec. 19, 2018, at which point the government was to show cause why the government should not be permanently enjoined from implementing the new rule and proclamation.

On November 27, 2018, defendants appealed the TRO to the United States Court of Appeals for the Ninth Circuit and moved that the court stay the TRO pending the Ninth Circuit’s decision. This motion was denied and on December 19, 2018, the court granted a preliminary injunction, ordering defendants to return to pre-rule practices for processing asylum applications and preventing them from taking any action continuing to implement the rule pending further decisions. On February 11, 2019, the defendants filed a motion to stay the proceedings pending the interlocutory appeal, and on March 5, 2019, that motion was granted.

The case remains open.

Virginia Weeks - 11/24/2018
Anna Brito - 03/20/2019


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