On November 9, 2018, several nonprofit organizations filed this lawsuit in the U.S. District Court for the Northern District of California, challenging 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, East Bay Sanctuary Covenant (EBSC), Al Otro Lado, Innovation Law Lab, and Central American Resource Center (CARECEN), 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. The proclamation, “Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States,” blocked the entry of all people entering the U.S. without inspection at the southern border. The plaintiffs claimed violations of the Immigration and Nationality Act (INA) and Administrative Procedure Act (APA) and sought declaratory and injunctive relief. The case was assigned to Magistrate Judge Donna M. Ryu.

The complaint stated that the plaintiff organizations assisted refugees fleeing political persecution, terror, war, intolerance, exploitation, and other violence by providing sanctuary, support, community organizing assistance, advocacy, and legal services. The plaintiffs 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.” The plaintiffs further argued that in proclaiming its new policy, the Department of Homeland Security 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 the plaintiffs' motion for a 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. 349 F.Supp.3d 838. 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 the plaintiff organizations and the immigrants they represented would suffer irreparable injury without the TRO because asylum seekers would face a 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 it should not be permanently enjoined from implementing the new rule and proclamation.

On November 27, 2018, the defendants appealed the TRO to the Ninth Circuit Court of Appeals and requested a stay of the TRO pending the Ninth Circuit’s decision. The district court denied the government's request for a stay pending appeal on November 30, 2018. 354 F.Supp.3d 1085. The defendants also filed an emergency motion in the Ninth Circuit for stay of the TRO pending appeal.

On December 7, 2018, the Ninth Circuit denied the government's emergency stay request, agreeing with the district court that the new asylum rule was likely inconsistent with existing federal law. 932 F.3d 742. The defendants also sought a stay from the U.S. Supreme Court, but that request was denied on December 21, 2018. 139 S.Ct. 782.

Meanwhile, on December 4, 2018, the plaintiffs filed a motion for a preliminary injunction in the district court.

On December 19, 2018, the district court granted the plaintiffs' preliminary injunction, ordering the 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. 354 F.Supp.3d 1094. Judge Tigar found that the plaintiff organizations had organizational standing, were likely to succeed on the merits of their INA claim, and that a nationwide injunction was warranted. The defendants again appealed to the Ninth Circuit. The appeal of the preliminary injunction was consolidated with the defendants' appeal of the TRO.

On February 11, 2019, the defendants filed a motion to stay the district court proceedings pending the Ninth Circuit appeal, and on March 5, 2019, that motion was granted.

On February 28, 2020, the Ninth Circuit upheld the district court's nationwide injunction. 2020 WL 962336. The Court found that the rule violated the INA, which supports eligibility for asylum seekers regardless of where they enter the U.S. Thus, the Court also found that the rule was an arbitrary and capricious interpretation of the relevant INA provisions, and ran afoul of the U.S.'s non-refoulement obligations under the International Refugee Convention.

The case is ongoing.

Virginia Weeks - 11/24/2018
Anna Brito - 03/20/2019
Sam Kulhanek - 03/07/2020


compress summary