East Bay Sanctuary Covenant v. Barr

Background

The case challenges an asylum rule that generally denied asylum to most people entering the United States at the southern border unless they first applied for asylum in Mexico or another third country. The district court had previously issued a preliminary injunction against the rule, and the Ninth Circuit later affirmed those preliminary injunction orders. A separate federal court vacated the rule under the Administrative Procedure Act, but the government appealed that decision.

The proposed intervenors were asylum seekers who had received expedited-removal orders after entering the United States. Because the rule applied to them, they were automatically found not to have a credible fear of persecution and faced expedited removal unless they met the higher standard for withholding of removal or protection under the Convention Against Torture. They sought permission to intervene in this case, a temporary restraining order, and a preliminary injunction.

Jurisdiction and legal standard

The court stated that a federal district court may issue an injunction preserving the status quo even when its subject-matter jurisdiction is disputed or unclear. It therefore concluded that it could issue emergency provisional relief while examining its jurisdiction further.

For a temporary restraining order or preliminary injunction, the movant must make a threshold showing of likely success on the merits, likely irreparable harm without relief, a balance of equities favoring relief, and consistency with the public interest. For an emergency order issued without giving the opposing party an opportunity to respond, Federal Rule of Civil Procedure 65(b) also requires facts showing that immediate and irreparable injury will occur before the opposing party can be heard.

Court’s analysis

The court found that the proposed intervenors had shown serious questions about both intervention as of right under Rule 24(a)(2) and whether vacating the rule made their removal orders unlawful. The court found the intervention request likely timely because the case had been stayed for most of the relevant period and the request responded to recent developments concerning the government’s position that the removal orders remained effective.

The court also found support for the proposed intervenors’ claimed interest in intervention. It distinguished a cited decision that treated vacatur as merely restoring the prior regulatory status quo and relied in part on another Ninth Circuit decision involving agency decisions made under an invalid rule. The court stated that the proposed intervenors sought not only to invalidate the rule but also to prevent their removal under the rule without a proper credible-fear process. Because the existing plaintiffs did not represent that separate interest, the court found that the proposed intervenors’ interests were likely inadequately represented.

The court found likely immediate and irreparable harm because the proposed intervenors faced effectively permanent removal. It noted that Immigration and Customs Enforcement had advised them that the people receiving them after removal should be immediately ready to do so. The court concluded that the balance of equities and public interest sharply favored temporary relief because the alternative harm to the government would be only a brief delay if the court later reached a contrary conclusion.

Disposition

The court granted the proposed intervenors’ motion for a temporary restraining order and declined to require security. It enjoined the defendants, their agents, and employees from removing the proposed intervenors from the United States. The order took effect immediately and remained in effect until October 31, 2020, or further order of the court.

The court also ordered the defendants to show cause at a hearing on October 29, 2020, why they should not be enjoined from removing the proposed intervenors while the action was pending. The opinion does not state that the court granted or denied the motion for leave to intervene, and it did not yet decide the motion for a preliminary injunction.