East Bay Sanctuary Covenant v. Biden

Background

On July 25, 2023, the court vacated and remanded the Circumvention of Lawful Pathways rule, a final rule issued by the Department of Justice and the Department of Homeland Security. The court had held that the rule violated the Administrative Procedure Act because it was contrary to law, arbitrary and capricious, and adopted without an adequate opportunity for public comment. At the defendants’ unopposed request, the court stayed that ruling for 14 days.

The defendants then filed an emergency motion asking the court to stay its ruling pending appeal. The court denied the motion because the defendants did not meet their burden to show that a stay was justified.

Legal standard

A stay pending appeal is discretionary rather than automatic. The party requesting one must show: a strong likelihood of success on appeal, likely irreparable injury without a stay, the effect on other interested parties, and where the public interest lies. The likelihood-of-success factor is the most important.

Court’s analysis

The defendants did not explain in detail why they were likely to succeed on appeal. They relied on their earlier arguments that the rule was consistent with the asylum statute, was not arbitrary and capricious, and satisfied procedural requirements. For the reasons stated in its summary-judgment order, the court concluded that the defendants had not made a strong showing of likely success or shown a substantial case for relief on the merits.

The court also rejected the defendants’ arguments about irreparable harm. The defendants said vacating the rule could damage the government’s foreign-policy efforts with Mexico and other countries concerning irregular migration. The court found those assertions speculative. The defendants also argued that the rule deterred unauthorized border crossings and that vacatur could increase encounters, staffing and transportation costs, resource demands, and related economic costs. The court assumed that encounters would likely increase but held that resulting expenditures of money, time, and energy were not irreparable harm.

The court rejected the argument that its ruling improperly intruded on executive authority over foreign affairs and border management. It stated that foreign-relations and national-security concerns do not eliminate the judicial role, and that Congress had limited the agencies’ authority to impose additional conditions on asylum eligibility. The court also noted that vacating the rule did not eliminate the agencies’ authority to deny individual asylum applications or the other lawful tools available to address irregular migration and manage the border.

The court considered harm to other interested parties, including asylum seekers. It stated that the rule exposed asylum seekers to a serious risk of violence and could cause some people with otherwise meritorious claims to be denied access to asylum. Those unable to meet the higher evidentiary burden for other protection could be deported to countries where they faced further violence. The court also concluded that the public interest did not favor a stay because, although the public has an interest in preventing unauthorized entry, it also has an interest in ensuring that executive agencies comply with statutes enacted by Congress.

Disposition

The court denied the defendants’ emergency motion for a stay pending appeal. The previously issued 14-day stay remained in effect.