The opinion
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6 UNITED STATES DISTRICT COURT
7 FOR THE SOUTHERN DISTRICT OF CALIFORNIA
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AL OTRO LADO, et al., Case No. 17-cv-02366-BAS-KSC
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10 Petitioners, TEMPORARY RESTRAINING
ORDER
v.
11
PETER T. GAYNOR, Acting Secretary
12 of Homeland Security, et al.,
13 Respondents.
14
15 Before the Court is Plaintiffs’ Motion for a Temporary Restraining Order (“Motion”)
16 requesting that the Court prohibit Defendants from applying yet another regulation— titled
17 Asylum Eligibility and Procedural Modification, 85 Fed. Reg. 82,260 (Dec. 17, 2020)
18 (“Final Transit Rule”)—to members of the provisional class previously certified by this
19 Court. (ECF No. 658.) Defendants oppose the Motion and Plaintiffs reply. (ECF Nos.
20 667, 670.) For the reasons stated below, the Court GRANTS Plaintiffs’ Motion and
21 temporarily restrains Defendants from applying this regulation to provisional class
22 members.
23 I. BACKGROUND
24 Plaintiffs’ underlying claims in this case concern Defendants’ purported “Turnback
25 Policy,” which included a “metering” or “waitlist” system in which asylum-seekers at the
26 southern border were instructed “to wait on the bridge [at a port of entry], in the pre-
27 inspection area, or at a shelter”—or were simply told that “they [could not] be processed
28 because the ports of entry [were] ‘full’ or ‘at capacity[.]’” (Second Am. Compl. ¶ 3, ECF
1 No. 189.) Plaintiffs allege that this policy was intended to deter individuals from seeking
2 asylum in the United States, in violation of constitutional, statutory, and international law.
3 (Id. ¶¶ 3, 5, 72–83.) The Court has certified the class in this underlying dispute. (ECF No.
4 513.) The parties have also filed and briefed cross motions for summary judgment that
5 await resolution. (ECF Nos. 535, 563.)
6 During the pendency of this action, Defendants have promulgated new asylum
7 eligibility regulations—including the Final Transit Rule—that have threatened the
8 preservation of the underlying class of metered asylum-seekers. This has led to a morass
9 of litigation ancillary to the primary case regarding the lawfulness of Defendants’ metering
10 practices. The Court summarizes this byzantine procedural history below.
11 A. Asylum Ban
12 On July 16, 2019, Defendants promulgated a regulation entitled “Asylum Eligibility
13 and Procedural Modifications”—also known as the “Asylum Ban” or the “Interim Final
14 Rule” (“IFR”).1 84 Fed. Reg. 33,829 (July 16, 2019), codified at 8 C.F.R. §§ 208.13(c)(4),
15 1208.13(c)(4). Among other things, the rule renders asylum seekers who enter, attempt to
16 enter, or arrive at the United States-Mexico border after July 16, 2019 ineligible for asylum
17 if they transit through at least one country, other than their country of origin, and fail to
18 apply for any available humanitarian protection in that country.
19 Plaintiffs moved for a preliminary injunction and provisional class certification to
20 partially enjoin the application of the IFR to asylum-seekers from countries other than
21 Mexico who were metered before its effective date. (ECF Nos. 293, 294.) They argued
22 that: (1) the provisional class was prevented from accessing the asylum process before the
23 effective date of the IFR only because they were subject to Defendants’ unlawful metering
24 practices; and (2) the IFR, if applied to this class, would preclude these individuals from
25 obtaining any form of humanitarian protection, since they their 30-day window to apply for
26 asylum in Mexico—a country through which they transited—had already expired.
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1 Because the Final Transit Rule refers to this initial regulation as the IFR, the Court does the same in this
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1 On November 19, 2019, the Court granted Plaintiffs’ Motions. (Prelim. Inj., ECF
2 No. 330.) The Court’s order was partly based on its previous finding that Plaintiffs located
3 on Mexican soil at the time they were metered were “arriving in” the United States for
4 purposes of asylum under the plain language of the Immigration and Nationality Act
5 (“INA”). (See id. at 4–5 (citing Al Otro Lado v. McAleenan, 394 F. Supp. 3d 1168, 1199–
6 1201 (S.D. Cal. 2019)).) In its concluding paragraph, the Court issued the following order:
7 The Court provisionally certifies a class consisting of “all non-Mexican
asylum seekers who were unable to make a direct asylum claim at a U.S. POE
8 before July 16, 2019 because of the U.S. Government’s metering policy, and
who continue to seek access to the U.S. asylum process.”
9
…
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Defendants are hereby ENJOINED from applying the Asylum Ban to
members of the aforementioned provisionally certified class and ORDERED
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to return to the pre-Asylum Ban practices for processing the asylum
applications of members of the certified class.
12
13 (Id. at 36.)
14 Defendants appealed the Preliminary Injunction to the Ninth Circuit. (ECF No. 335.)
15 After granting an administrative stay on December 20, 2019, the Ninth Circuit denied
16 Defendants’ motion to stay the Preliminary Injunction on March 5, 2020. (ECF Nos. 369,
17 418.) The court heard oral argument on July 10, 2020 on the merits of the appeal but issued
18 an order on December 2, 2020 holding the proceedings in abeyance pending issuance of
19 the mandates in two related cases. (ECF No. 636.)
20 B. Subsequent Litigation
21 While this underlying appeal of the Preliminary Injunction has been pending, several
22 disputes related to the Preliminary Injunction or the provisionally certified class have arisen
23 between the parties.
24 First, Plaintiffs moved for a temporary restraining order similar to the instant motion
25 but concerning a different regulation, “Implementing Bilateral and Multilateral Asylum
26 Cooperative Agreements Under the Immigration and Nationality Act” (the “ACA Rule”).
27 (ECF Nos. 344, 352.) Plaintiffs claimed Defendants intended to impose the ACA Rule on
28 members of the provisional class to extinguish their underlying metering claims and bar
1 them from accessing the asylum process. (Id.) The Court denied the motion without
2 prejudice, finding that Plaintiffs had not established a likelihood that Defendants would
3 apply the new regulation to class members. (ECF No. 382.) The Court also based its
4 decision on the fact that the terms of the Preliminary Injunction, if affirmed on appeal,
5 would require Defendants to “return to the pre-Asylum Ban practices” for asylum-seekers
6 metered before July 16, 2019 and therefore “necessarily prohibit[ed]” the application of the
7 more recently promulgated ACA Rule. (Id. at 5–6.) The Court stated that it assumed
8 Defendants would act in good faith by “avoid[ing] taking steps that could complicate or
9 preclude its compliance with a court order.” (Id. at 6.)
10 Second, on July 17, 2020, Plaintiffs filed a Motion for Clarification of the
11 Preliminary Injunction after the parties failed to resolve disputes about the scope of the
12 order and Defendants’ attendant obligations. (ECF No. 494.) The Court then issued an
13 order on October 30, 2020 (the “Clarification Order”) clarifying that the Preliminary
14 Injunction: (1) applied to individuals denied asylum before the order issued and during the
15 administrative stay; (2) bound the Executive Office of Immigration Review to the terms of
16 the order; and (3) required Defendants to take affirmative steps to reopen or reconsider past
17 asylum denials for class members, make reasonable efforts to identify class members and
18 inform them of their class membership, and share identifying information with Plaintiffs.
19 (ECF No. 605.)
20 Defendants appealed the Clarification Order and moved to stay the order in this
21 Court. (ECF Nos. 636, 637.) The briefing on the motion to stay is ongoing. (ECF No.
22 641.) On December 18, 2020, the Ninth Circuit granted in part and denied in part
23 Defendants’ request for an administrative stay. (ECF No. 652.) The stay applies to the
24 Clarification Order’s requirement that Defendants take affirmative steps to find and reopen
25 or reconsider the asylum denials of provisional class members that became final before the
26 Preliminary Injunction was entered or during the period of the administrative stay, but was
27 denied in all other respects. (Id.)
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1 Lastly, Plaintiffs have filed another Motion to Enforce the Preliminary Injunction on
2 December 15, 2020, citing continued conflicts over the implementation measures required
3 by the Clarification Order. (See ECF Nos. 644, 657, 665.)
4 C. New Regulation
5 The regulation that is the subject of the instant Motion, referred to by Defendants as
6 the “Final Transit Rule,” purports to “respond[] to comments received on the [IFR],”
7 “make[] minor changes to regulations implemented or affected by the IFR for clarity and
8 correction of typographical errors,” and “adopt[] ‘as final’ certain of the IFR’s amendments
9 to the Code of Federal Regulations.” (Defs.’ Opp’n to Pls.’ Mot. (“Opp’n”) at 6 (citing
10 Asylum Eligibility and Procedural Modification, 85 Fed. Reg. 82,260, 82,289 (Dec. 17,
11 2020)).)
12 Relevant here is the Final Transit Rule’s response to a comment that the IFR conflicts
13 with the language of the INA establishing that “[a]ny alien who . . . arrives in the United
14 States (whether or not at a designated port of arrival . . . ) . . . may apply for asylum.” 8
15 U.S.C. § 1158(a)(1). In response, the rule clarifies that the IFR
16 applies to all aliens who enter, attempt to enter, or arrive in the United States
across the southern land border on or after July 16, 2019. These three terms .
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. . require physical presence in the United States, and, as a result, any aliens
18 who did not physically enter the United States before July 16, 2019, are
subject to this rule. This includes, for example, aliens who may have
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approached the U.S. border but were subject to metering by DHS at a land
20 border port of entry and did not physically cross the border into the United
States before July 16, 2019.
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22 (85 Fed. Reg. at 82,268 (emphasis added).) In a footnote immediately following this
23 paragraph, the rule further explains:
24 The Departments note that this result is different from the district court’s
reasoning in granting a preliminary injunction in Al Otro Lado, Inc. v.
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McAleenan, 423 F. Supp. 3d 848, 875–76 (S.D. Cal. 2019), which included
26 aliens who approached a U.S. port of entry but were not immediately
permitted to cross the border as within the class of aliens who had “attempted
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to enter or arrived in” the United States. See Al Otro Lado v. McAleenan, 394
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1 interpretation is contrary to the Departments’ intent, as explained below. The
Departments also note that, even if aliens subject to metering prior to July 16,
2 2019, were exempt from this rule, they would nevertheless become subject to
the rule upon any subsequent entry into the United States.
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4 (Id. n.22.) The Final Transit Rule then explains that agencies intend the terms “entry,”
5 “attempted entry,” and “arrival” to require physical presence in the United States, excluding
6 asylum-seekers whom CBP “encounter[s] at the physical border line of the United States
7 and Mexico, who have not crossed the border line at the time of that encounter[.]” Id. at
8 82,269. The rule takes effect on January 19, 2021.
9 II. LEGAL STANDARD2
10 The purpose of a temporary restraining order is to “preserv[e] the status quo and
11 prevent[] irreparable harm just so long as is necessary to hold a hearing, and no longer.”
12 Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S.
13 423, 439 (1974) (footnote omitted). If the nonmovant has received notice of a motion for
14 a temporary restraining order, the standard for issuing such order is the same as that for
15 issuing a preliminary injunction. See Brown Jordan Int’l, Inc. v. Mind’s Eye Interiors, Inc.,
16 236 F. Supp. 2d 1152, 1154 (D. Haw. 2002); Lockheed Missile & Space Co., Inc. v. Hughes
17 Aircraft Co., 887 F. Supp. 1320, 1323 (N.D. Cal. 1995). Here, Defendants have received
18 notice of the Motion and have had the opportunity to be heard in opposition. Therefore,
19 the preliminary injunction standard applies.
20 To obtain preliminary injunctive relief, a movant must “meet one of two variants of
21 the same standard.” All for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017).
22 Under the first standard, the movant must show “that he is likely to succeed on the merits,
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24 2 The parties dispute whether this Court must issue another injunction to enjoin the Final Transit Rule or
whether prohibiting the application of this rule requires only that the Court enforce its initial Preliminary
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Injunction. Defendants claim that the Final Transit Rule is a “new agency action” requiring a new
26 injunction. (Opp’n at 12–13.) Plaintiffs argue nothing prevents the Court from modifying or enforcing
its earlier Preliminary Injunction against the Final Transit Rule. (Mot. at 7–12; Reply at 3.) The parties
27 provide little by way of citation to supporting authorities for their arguments. In any event, solely for
purposes of this Order, the Court assumes without deciding that separate injunctive relief is required to
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1 that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
2 balance of equities tips in his favor, and that an injunction is in the public interest.” Id.
3 (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). Under the
4 second standard, the movant must show “that there are serious questions going to the
5 merits—a lesser showing than likelihood of success on the merits,” that the “balance of
6 hardships tips sharply in the Plaintiff’s favor,” and that “the other two Winter factors are
7 satisfied.” Id. (quotation omitted). “Serious questions are substantial, difficult and
8 doubtful, as to make them a fair ground for litigation and thus for more deliberative
9 investigation.” Republic of the Philippines v. Marcos, 862 F.2d 1355, 1362 (9th Cir. 1988)
10 (quotations and citation omitted). The balance of equities and public interest factors merge
11 “[w]hen the government is a party.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092
12 (9th Cir. 2014) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)).
13 III. ANALYSIS
14 The Court finds that Plaintiffs have sufficiently shown that serious questions exist as
15 to the merits of this challenge, that class members are likely to suffer irreparable harm in
16 the absence of the requested relief, and that the balance of equities and public interest tip
17 strongly in their favor.
18 First, Defendants allege that it is lawful under the Executive’s rulemaking authority
19 to proceed with the issuance of a final rule despite the existence of the Preliminary
20 Injunction on the same topic. (Opp’n at 11–12.) However, this is an incomplete
21 characterization of the facts of this case. The Court previously interpreted the asylum
22 provisions of a statute, the INA, to apply to asylum-seekers metered at ports of entry, thus
23 concluding that these individuals could have requested asylum but for Defendants’
24 metering practices. Defendants now claim that their rulemaking authority can be used to
25 craft definitions in a regulation that run contrary to the Court’s interpretation of the same
26 language in the enabling statute, all for the explicit purpose of circumventing the Court’s
27 Preliminary Injunction. It is at least questionable, if not altogether doubtful, that
28 Defendants can redefine statutory terms in a regulation in direct contradiction to the Court’s
1 plain language interpretation, especially when their intention in doing so is to evade the
2 import of the Court’s previous rulings.3 See California Cosmetology Coal. v. Riley, 871
3 F. Supp. 1263, 1270 (C.D. Cal. 1994) (citing Koshland v. Helvering, 298 U.S. 441, 447
4 (1936)) (“A regulation may not serve to amend a statute or to add to the statute something
5 which is not there.” ), aff’d, 110 F.3d 1454 (9th Cir. 1997); see also Brown v. Gardner, 513
6 U.S. 115, 122 (1994) (“[T]he fact . . . that [a regulation] flies against the plain language of
7 the statutory text exempts courts from any obligation to defer to it.”). The Final Transit
8 Rule’s lengthy interpretive arguments to the contrary cannot preemptively resolve these
9 serious questions arising from this rather blatant evasive maneuvering around the Court’s
10 interpretation of the INA.
11 This action is especially legally dubious because the Court’s interpretation has not
12 been overturned or otherwise invalidated on appeal, which is still pending resolution.
13 Indeed, the Ninth Circuit expressed in its order denying Defendants’ motion for stay that
14 this Court’s “linguistic and contextual analysis has considerable force” and affirmed that
15 pursuant to this statutory interpretation, “a class member’s first arrival triggered a statutory
16 right to apply for asylum and have that application considered . . . . As the [IFR] was not in
17 place at the time each class member’s right to apply for asylum attached, it makes sense
18 that it would not apply.” Al Otro Lado, Inc. v. Wolf, 952 F.3d 999, 1013–14 (9th Cir. 2020).
19 This Court sees no reason why this rationale would not apply equally to the Final Transit
20 Rule, which will take effect 18 months after the IFR.
21 The remaining prongs of the preliminary injunctive standard are easily met,
22 considering the similarities between the Final Transit Rule and the IFR. It is clear that
23 irreparable injury would occur if this relief were not issued. Defendants are unambiguous,
24 both in the regulatory language of the Final Transit Rule and in their briefings, that one
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26 3 Further, as aforementioned, the Court previously denied Plaintiffs’ request for a temporary restraining
order regarding the ACA Rule on the basis that Defendants would comply in good faith with the
27 instructions in the Preliminary Injunction, which implicitly barred the ACA Rule’s implementation as to
the class. It follows that the Final Transit Rule—which simply modifies the previously enjoined IFR—
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1 purpose of the rule is to ensure that the asylum eligibility limitation applies to the asylum-
2 seekers metered at the border who form the specific provisional class certified in this case.
3 It is thus beyond doubt that Defendants seek to enforce the regulation against the class, and
4 that without injunctive relief, Plaintiffs will be permanently barred from seeking asylum in
5 the United States and could face physical danger if forced to return to their countries of
6 origin. Lastly, given that the Final Transit Rule is an extension of the IFR previously
7 enjoined, the Court finds that the balance of equities and public interest analysis stated in
8 its Preliminary Injunction applies here with the same force. (See Prelim. Inj. at 34–35.)
9 These factors favor Plaintiffs because Defendants’ metering practices were the root cause
10 of their inability to access the asylum process prior to the promulgation of the IFR. This
11 remains true for any regulation that seeks to limit asylum eligibility, including the Final
12 Transit Rule.
13 Lastly, Defendants raise several challenges to this Court’s jurisdiction to hear this
14 Motion under various jurisdiction-stripping provisions of the INA and under the All Writs
15 Act. (See Opp’n at 9–11.) It is well-settled that a court may issue the orders necessary to
16 determine its own jurisdiction. See United States v. United Mine Workers of Am., 330 U.S.
17 258, 290 (1947) (“[T]he District Court unquestionably had the power to issue a restraining
18 order for the purpose of preserving existing conditions pending a decision upon its own
19 jurisdiction.”); see also Derminer v. Kramer, 386 F. Supp. 2d 905, 906 (E.D. Mich. 2005)
20 (“A court always has jurisdiction to determine its jurisdiction.”).4
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4 The Court also notes that the way in which the Rule was authorized also raises questions as to its validity.
22 The Rule states:
23 The Acting Secretary of Homeland Security, Chad F. Wolf, having reviewed and approved
this document, is delegating the authority to electronically sign this document to Chad R.
24
Mizelle, who is the Senior Official Performing the Duties of the General Counsel for DHS,
25 for purposes of publication in the Federal Register.
26 85 Fed. Reg. at 82,289. Recently, the Northern District of California issued a preliminary injunction
regarding other regulations signed in a similar manner, finding that the plaintiffs had shown a likelihood
27 that DHS lacked authority through Wolf for the proposed rulemaking because he was not nominated by
the President and confirmed by the Senate. Pangea Legal Servs. v. U.S. Dep’t of Homeland Sec., No. 20-
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1 Because of complex issues raised in this Motion, the Court finds that it is necessary
2 |/to enjoin the application of the Final Transit Rule to the provisional class pending the
3 ||Court’s determination regarding the merits.
CONCLUSION
5 Accordingly, the Court GRANTS Plaintiffs’ Motion for a TRO (ECF No. 658)
6 || Defendants are TEMPORARILY ENJOINED from applying 85 Fed. Reg. 82,260 (Dec
7 2020) to all non-Mexican asylum seekers who were unable to make a direct asylurr
8 |j/claim at a U.S. Port of Entry (“POE”) before July 16, 2019 because of the U.S.
9 || government’s metering policy, and who continue to seek access to the U.S. asylum process
10 || This Order extends to Defendants and any other federal officials and personnel involved ir
11 asylum and/or removal process.
12 IT IS FURTHER ORDERED that a telephonic oral argument on the issues raisec
13 |}in the Motion is set for February 3, 2021 at 1:30 p.m. This temporary restraining ordet
14 || shall remain in effect until this date.
15 Information for calling into the teleconference is listed below. The parties and the
16 public may access the hearing by calling the Court’s teleconference number before □□□□
17 When prompted, enter the access code followed by the pound sign (#).
18 Teleconference number: (888) 557-8511
19 Access code: 6968297
20 |} Any members of the public that join the teleconference must mute their lines after joining.
21 IT IS SO ORDERED.
22 f
. Ci Wd A J Zphd AA
23 || DATED: January 18, 2021 Hout. thia Bashaat
A United States District Judge
5 Wolf’s action on the basis that he was not a duly authorized Acting Secretary. See Batalla Vidal v. Wolf,
No. 16-CV-4756 (NGG) (VMS), —— F. Supp. 3d ——, ——, 2020 WL 6695076, at *9 (E.D.N.Y. Nov.
26 || 14, 2020); Nw. Immigrant Rights Project v. United States Citizenship & Immigration Servs., No. CV 19-
3283 (RDM), —— F. Supp. 3d ——, ——, 2020 WL 5995206, at *24 (D.D.C. Oct. 8, 2020); Immigrant
27 || Legal Res. Ctr. v. Wolf, No. 20-CV-05883-JSW, —— F. Supp. 3d ——, ——, 2020 WL 5798269, at *7
(N.D. Cal. Sept. 29, 2020); Casa de Maryland, Inc. v. Chad F. Wolf, Case No. 8:20-cv-02118-PX, ——
28 |! F Supp.3d ——, ——, 2020 WL 5500165, at *23 (D. Md. Sept. 11, 2020).
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