E. Bay Sanctuary Covenant v. Barr

Background

The Department of Justice and Department of Homeland Security issued an interim final rule called the “third country transit bar.” The rule generally made people entering the United States at the southern border ineligible for asylum if they had not first applied for asylum in Mexico or another country.

The plaintiffs—East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center—are legal and social service organizations that assist, advocate for, and provide legal services to undocumented persons. They previously obtained a preliminary injunction, which is a court order issued before final judgment to prevent ongoing harm while a case proceeds. That injunction barred the defendants from continuing to implement the rule and required a return to earlier asylum-processing practices.

The defendants appealed. The Ninth Circuit denied a stay of the injunction within the Ninth Circuit but stayed it outside that circuit, concluding that the nationwide scope was not supported by the record as it then stood. The Ninth Circuit stated that the district court retained jurisdiction to develop the record supporting an injunction extending beyond the Ninth Circuit.

Jurisdiction and authority

The court held that it had authority to decide the organizations’ motion. Ordinarily, filing a notice of appeal transfers control over the matters being appealed to the court of appeals. But the court explained that this is a judge-made rule designed to avoid simultaneous consideration of the same issues by two courts, and that exceptions apply when the court of appeals sends an issue back for further proceedings or when the district court acts to preserve the status quo.

The court relied on Federal Rule of Civil Procedure 62(d), which permits a district court to suspend, modify, restore, or grant an injunction while an appeal from an earlier injunction is pending, so long as the action does not materially alter the case on appeal. The court reasoned that restoring the original nationwide injunction would preserve the status quo that existed when the government appealed. It would not create a new injunction or change the core appellate questions concerning the propriety and scope of the original nationwide injunction.

The court added that, even if the Ninth Circuit later concluded that the district court lacked authority to restore the injunction directly, the court would grant the motion as an indicative ruling under Federal Rule of Civil Procedure 62.1. An indicative ruling is a ruling by a district court that explains how it would decide a motion when an appeal has otherwise limited its authority to act.

Nationwide scope

The court applied the principle that an injunction should be no broader than necessary to give plaintiffs complete relief. It also recognized that, in exceptional cases, an injunction may protect people who are not parties when that breadth is necessary to remedy the plaintiffs’ own injuries. The court noted that nationwide injunctions have been repeatedly recognized in immigration cases, although courts have also expressed concerns about their effect on legal development, nonparties’ ability to litigate elsewhere, and forum selection.

The court found that the organizations had shown organizational injuries and diversion-of-resources harms if the rule applied outside the Ninth Circuit. Innovation Law Lab operates and provides services in multiple states, offers workshops and support to noncitizens and volunteer attorneys, and directly represents people whose asylum cases may move between jurisdictions. The organization stated that the rule would require it to redesign workshops and templates, retrain volunteers, devote more time to direct representation, and serve fewer people overall because some cases would require more time-consuming applications for withholding of removal or protection under the Convention Against Torture.

Al Otro Lado provides information and legal assistance through its office in Tijuana, Mexico, and serves people who may enter the United States in Texas or New Mexico or later relocate or be detained outside the Ninth Circuit. The court found that limiting the injunction would require Al Otro Lado to give more complicated advice to people seeking asylum before entering the United States and would require significant organizational resources for training materials, staff time, and capacity.

The court concluded that a nationwide injunction was the only way to provide the organizations complete relief from the resource-diversion harms previously identified. It also cited the need for uniform immigration policy, the Administrative Procedure Act’s provision for setting aside unlawful agency action, and administrative problems created by applying different rules in different circuits. The court found that government guidance for applying the limited injunction left ambiguities about where an applicant’s apprehension, detention, interview, or adjudication occurred and how the rule would apply if an applicant moved between circuits.

Disposition

Judge Jon S. Tigar granted the organizations’ motion to consider supplemental evidence and restore the nationwide scope of the injunction. The order restored the injunction’s nationwide application; it did not decide the separate issue of whether the rule should be vacated.