East Bay Sanctuary Covenant v. Donald Trump

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EAST BAY SANCTUARY COVENANT; No. 18-17274

AL OTRO LADO; INNOVATION LAW 18-17436

LAB; CENTRAL AMERICAN

RESOURCE CENTER, D.C. No.

Plaintiffs-Appellees, 4:18-cv-06810-

JST

v.

DONALD J. TRUMP, President of the OPINION

United States; WILLIAM P. BARR,

Attorney General; JAMES MCHENRY,

Director, Executive Office for

Immigration Review (EOIR); CHAD

WOLF, Acting Secretary, U.S.

Department of Homeland Security;

KENNETH T. CUCCINELLI, Acting

Director, U.S. Citizenship and

Immigration Services; MARK A.

MORGAN, Acting Commissioner,

U.S. Customs and Border Protection;

MATTHEW T. ALBENCE, Acting

Director, U.S. Immigration and

Customs Enforcement,

Defendants-Appellants.

Appeal from the United States District Court

for the Northern District of California

Jon S. Tigar, District Judge, Presiding

2 EAST BAY SANCTUARY COVENANT V. TRUMP

Argued and Submitted October 1, 2019

San Francisco, California

Filed February 28, 2020

Before: Ferdinand F. Fernandez, William A. Fletcher,

and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez;

Concurrence by Judge Fernandez

EAST BAY SANCTUARY COVENANT V. TRUMP 3

SUMMARY *

Immigration / Preliminary Injunctions

The panel affirmed the district court’s grant of a

temporary restraining order and a subsequent grant of a

preliminary injunction enjoining enforcement of a rule and

presidential proclamation that, together, strip asylum

eligibility from every migrant who crosses into the United

States along the southern border of Mexico between

designated ports of entry.

In November 2018, the Department of Justice and

Department of Homeland Security adopted an interim final

rule (“the Rule”) that makes migrants who enter the United

States in violation of a “a presidential proclamation or other

presidential order suspending or limiting the entry of aliens

along the southern border with Mexico” categorically

ineligible for asylum. The same day, President Trump

issued a presidential proclamation (“the Proclamation”) that

suspends the entry of all migrants along the southern border

of the United States for ninety days, except for any migrant

who enters at a port of entry and properly presents for

inspection.

Legal services organizations that represent asylum-

seekers (“the Organizations”) sued to prevent enforcement

of the Rule. The district court entered a temporary

restraining order enjoining the Rule, concluding that it

irreconcilably conflicted with the Immigration and

Nationality Act (“INA”). The government appealed and

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 EAST BAY SANCTUARY COVENANT V. TRUMP

sought an immediate stay in this court of the district court’s

order pending appeal. In a published order, a motions panel

of this court denied the government’s request for a stay, and

the government’s application for a stay from the Supreme

Court was also denied. The district court issued an

injunction barring enforcement of the Rule, the government

appealed, and this court consolidated the two appeals.

First, the panel held that—given the preliminary stage of

the appellate process at which the motions panel issued its

order—the motions panel’s decision did not bind the present

panel. The panel explained that, under the law-of-the-case

doctrine, courts—at their own discretion—will generally

refuse to reconsider an issue that has already been decided

by the same court or a higher court in the same case. The

panel noted, however, that the court sometimes exercises its

discretion to reconsider issues within the same case and that

merits panels tend not to extend the doctrine to a prior

motions panel’s decision in the same case. Further, the panel

explained that a decision by a motions panel is a probabilistic

endeavor, doctrinally distinct from the question considered

by the later merits panel and issued without oral argument

on limited briefing. Addressing the court’s recent statement,

in Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015), that “a

motions panel’s published opinion binds future panels the

same as does a merits panel’s published opinion,” the panel

concluded that the language was dicta.

The panel also noted that its holding was consistent with

the court’s general rules governing law of the circuit, which

provide that the first panel to consider an issue sets the law

for all inferior courts and future panels of the court.

Specifically, the panel explained that tentative conclusions

that are not law of the case do not bind later panels in the

same case as law of the circuit, and that any other rule would

EAST BAY SANCTUARY COVENANT V. TRUMP 5

paradoxically provide that a merits panel would be bound by

a motions panel’s opinion—because it is law of the circuit—

and not bound by the same opinion—because it is not law of

the case.

Next, the panel re-evaluated the government’s challenge

to the court’s jurisdiction. First, the panel held that the

Organizations had established organizational standing by

showing that their ability to perform services had been

impaired by the Rule. Second, the panel rejected the

government’s argument that the court should avoid

interfering with the Rule on the ground that the power to

expel or exclude aliens is a fundamental sovereign attribute

exercised by the government’s political departments largely

immune from judicial control. The panel explained it was

responsible for reviewing whether the government has

overstepped its delegated authority under the INA and

encroached upon Congress’s legislative prerogative. Third,

the panel rejected the government’s argument that three

statutory provisions, 8 U.S.C. §§ 1252(e)(3), 1252(a)(5), and

1252(b)(9), divested this court of jurisdiction. The panel

explained that none of these provisions have any bearing on

the Rule because they govern judicial review of removal

orders or challenges inextricably linked with actions taken

to remove migrants from the country. The panel also

concluded that the Organizations continued to fall within the

zones of interests of the INA.

The panel next addressed the Organizations’ likelihood

of success on the merits of their claims, under the

Administrative Procedure Act (“APA”). Applying the

framework established in Chevron, U.S.A., Inc. v. Nat. Res.

Def. Council, Inc., 467 U.S. 837 (1984), the panel held that

the Rule conflicts with the INA’s section on asylum, which

begins by stating that an undocumented migrant may apply

6 EAST BAY SANCTUARY COVENANT V. TRUMP

for asylum when she is “physically present in the United

States” or “arrives in the United States (whether or not at a

designated port of arrival . . . )[.]” 8 U.S.C. § 1158(a)(1).

The panel explained that, because the Rule requires migrants

to enter the United States at ports of entry to preserve their

eligibility for asylum, it is effectively a categorical ban on

migrants who use a method of entry explicitly authorized by

Congress in § 1158(a).

The panel further concluded that, even if the text of

section 1158(a) were ambiguous, the Rule fails at the second

step of Chevron because it is an arbitrary and capricious

interpretation of that statutory provision. The panel

explained that the BIA and this court have long recognized

that a refugee’s method of entering the country is a

discretionary factor in determining whether the migrant

should be granted humanitarian relief, but that the method of

entry should be carefully evaluated in light of the harsh

consequences that may befall an alien. Thus, the panel

concluded that, given the Rule’s effect of conditioning

asylum eligibility on a factor that has long been understood

as worth little if any weight in adjudicating whether a

migrant should be granted asylum, it is an arbitrary and

capricious interpretation of § 1158(a).

The panel also concluded that the Rule is unreasonable

in light of the United States’s treaty obligations under the

1951 United Nations Convention Relating to the Status of

Refugees (“1951 Convention”) and the 1967 United Nations

Protocol Relating to the Status of Refugees. Specifically, the

panel concluded that the Rule runs afoul of three codified

rules: 1) the right to seek asylum; 2) the prohibition against

penalties for irregular entry; and 3) principles of non-

refoulement, which prohibit signatories to the 1951

EAST BAY SANCTUARY COVENANT V. TRUMP 7

Convention from returning a refugee to the frontiers of

territories where his life or freedom would be threatened.

The panel briefly addressed the procedural arguments

raised by the parties regarding whether the Rule was invalid

because it was issued without public notice and comment or

complying with the thirty-day grace period required by the

APA. The panel concluded that the Rule likely does not

properly fall under the good-cause exception or the foreign-

affairs exception to these procedural requirements.

Next, the panel concluded that the Organizations had

demonstrated a sufficient likelihood of irreparable injury to

warrant injunctive relief, explaining that the Organizations

had shown that they will suffer a significant change in their

programs and a concomitant loss of funding absent a

preliminary injunction.

The panel next concluded that the public interest weights

sharply in the Organizations’ favor, noting that: 1) the public

interest is served by compliance with the APA; 2) the public

has an interest in ensuring that this country does not deliver

aliens into the hands of their persecutors; 3) the public has

an interest in ensuring that the statutes enacted by their

representatives are not imperiled by executive fiat; and 4)

while the government and the public have an interest in the

efficient administration of the immigration laws at the

border, this factor was not entitled to much weight because

the Organizations had established that the Rule is invalid.

Finally, addressing the scope of the remedy, the panel

concluded that the district court did not abuse its discretion

in issuing an injunction preventing any action to implement

the Rule. The panel noted that the Organizations do not limit

their potential clients to refugees who enter only at the

Mexican border with California and Arizona, and that the

8 EAST BAY SANCTUARY COVENANT V. TRUMP

government had not proposed an alternative form of the

injunction that accounts for the scope of the Organizations’

harms, but applies only within the Ninth Circuit. The panel

also noted that two other factors supported the scope of the

district court’s injunction: 1) when a regulation is found

unlawful, the typical result is to vacate and remand, not to

attempt to fashion a valid regulation from the remnants of

the old rule; and 2) there is an important need for uniformity

in immigration policy—which supports the authority of

district courts to enjoin unlawful policies on a universal

basis.

Concurring, Judge Fernandez wrote that he concurred in

the majority opinion because, and for the most part only

because, he believes that this panel is bound by the motions

panel’s published decision in this case. Judge Fernandez

wrote that the panel is bound by the law of the circuit, which

binds all courts within a particular circuit, including the court

of appeals itself, and remains binding unless overruled by

the court sitting en banc, or by the Supreme Court. Further,

Judge Fernandez wrote that, insofar as factual differences

might allow precedent to be distinguished on a principled

basis, in this case, the situation before this panel was in every

material way the same as that before the motions panel.

Judge Fernandez also stated that, in Lair v. Bullock, this

court held that a motions panel’s published opinion binds

future panels the same as does a merits panel’s published

opinion, disagreeing with the majority’s characterization of

this language as dicta. Judge Fernandez also concluded that

the law of the case doctrine binds this panel, noting that he

did not perceive any of the exceptions to the doctrine to be

involved here.

Applying those doctrines, Judge Fernandez concluded

that: 1) the Organizations have standing; 2) the

EAST BAY SANCTUARY COVENANT V. TRUMP 9

Organizations are likely to succeed on the substantive

merits; 3) the motions panel’s decisions on harm and balance

of hardship are also binding; and 4) the scope of the

injunction is not overly broad.

COUNSEL

Scott Grant Stewart (argued), Deputy Assistant Attorney

General; Francesca Genova and T. Benton York, Trial

Attorneys; Erez Reuveni, Assistant Director; William C.

Peachey, Director; August E. Flentje, Special Counsel;

Joseph H. Hunt, Assistant Attorney General; Office of

Immigration Litigation, United States Department of Justice,

Washington, D.C.; for Defendants-Appellants.

Lee P. Gelernt (argued), Judy Rabinovitz, Omar C. Jadwat,

Anand Balakrishnan, Daniel Galindo, and Celso Perez,

American Civil Liberties Union Foundation, Immigrants’

Rights Project, New York, New York; Jennifer Chang

Newell, Cody Wofsy, Spencer Amdur, and Julie Veroff,

American Civil Liberties Union Foundation, Immigrants’

Rights Project, San Francisco, California; Melissa Crow,

Southern Poverty Law Center, Washington, D.C.; Mary

Bauer, Southern Poverty Law Center, Charlottesville,

Virginia; Gracie Willis, Southern Poverty Law Center,

Decatur, Georgia; Baher Azmy, Angelo Guisado, and Ghita

Schwarz, Center for Constitutional Rights, New York, New

York; Christine P. Sun and Vasudha Talla, American Civil

Liberties Union Foundation of Northern California Inc., San

Francisco, California; for Plaintiffs-Appellees.

Lawrence J. Joseph, Washington, D.C.; Christopher J.

Hajec, Director of Litigation, Immigration Reform Law

10 EAST BAY SANCTUARY COVENANT V. TRUMP

Institute, Washington, D.C.; for Amicus Curiae Immigration

Reform Law Institute.

Patrick W. Pearsall, Karthik P. Reddy, and Vaishalee V.

Yeldandi, Jenner & Block LLP, Washington, D.C.; Alice

Farmer, Office of the United Nations High Commissioner

for Refugees, Washington, D.C.; for Amicus Curiae Office

of the United Nations High Commissioner for Refugees.

Richard D. Bernstein, Washington, D.C.; Richard Mancino,

Willkie Farr & Gallagher LLP, New York, New York; for

Amici Curiae Peter Keisler, Stuart Gerson, Carter Phillips,

John Bellinger III, Samuel Witten, Ray Lahood, Brackett

Denniston, Stanley Twardy, and Richard Bernstein.

Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr

LLP, New York, New York; Alex Gazikas, Wilmer Cutler

Pickering Hale and Dorr LLP, Washington, D.C.; Peter S.

Margulies, Bristol, Rhode Island; Shoba Sivaprasad Wadhia,

University Park, Pennsylvania; for Amici Curiae Professors

of Immigration Law.

Margaret L. Carter, Dmitiri D. Portnoi, and Daniel R. Suvor,

O’Melveny & Myers LLP, Los Angeles, California; Barbara

J. Parker, City Attorney; Maria Bee, Erin Bernstein, Malia

McPherson, Zarah Rahman, and Suzanne Dershowitz;

Office of the City Attorney Oakland, California; Edward N.

Siskel, Corporation Counsel, City of Chicago Department of

Law, Chicago, Illinois; Zachary W. Carter, Corporation

Counsel, New York City Law Department, New York, New

York; for Amici Curiae 21 Counties, Cities, and Local

Officials.

Xavier Becerra, Attorney General; Michael L. Newman,

Senior Assistant Attorney General; Christine Chuang,

EAST BAY SANCTUARY COVENANT V. TRUMP 11

Supervising Deputy Attorney General; Shubhra Shivpuri

and James F. Zahradka II, Deputy Attorneys General; Office

of the Attorney General, Oakland, California; Philip J.

Weiser, Attorney General, Denver, Colorado; William

Tong, Attorney General, Hartford, Connecticut; Kathleen

Jennings, Attorney General, Wilmington, Delaware; Karl A.

Racine, Attorney General, Washington, D.C.; Clare E.

Connors, Attorney General, Honolulu, Hawaii; Kwame

Raoul, Attorney General, Chicago, Illinois; Tom Miller,

Attorney General, Des Moines, Iowa; Brian E. Frosh,

Attorney General, Baltimore, Maryland; Maura Healey,

Attorney General, Boston, Massachusetts; Dana Nessel,

Attorney General, Lansing, Michigan; Keith Ellison,

Attorney General, St. Paul, Minnesota; Aaron D. Ford,

Attorney General, Carson City, Nevada; Gurbir S. Grewal,

Attorney General, Trenton, New Jersey; Hector Balderas,

Attorney General, Santa Fe, New Mexico; Letitia James,

Attorney General, New York, New York; Ellen F.

Rosenblum, Attorney General, Salem, Oregon; Josh

Shapiro, Attorney General, Harrisburg, Pennsylvania;

Peter F. Neronha, Attorney General, Providence, Rhode

Island; Thomas J. Donovan, Jr., Attorney General,

Montpelier, Vermont; Mark R. Herring, Attorney General,

Richmond, Virginia; Robert W. Ferguson, Attorney

General, Olympia, Washington; for Amici Curiae

California, Colorado, Connecticut, Delaware, District of

Columbia, Hawaii, Illinois, Iowa, Maryland, Massachusetts,

Michigan, Minnesota, Nevada, New Jersey, New Mexico,

New York, Oregon, Pennsylvania, Rhode Island, Vermont,

Virginia, and Washington.

12 EAST BAY SANCTUARY COVENANT V. TRUMP

OPINION

PAEZ, Circuit Judge:

Forty years ago, Congress recognized that refugees

fleeing imminent persecution do not have the luxury of

choosing their escape route into the United States. It

mandated equity in its treatment of all refugees, however

they arrived. 1

This principle is embedded in the Refugee Act of 1980,

which established an asylum procedure available to any

migrant, “irrespective of such alien’s status,” and

irrespective of whether the migrant arrived “at a land border

or port of entry.” Pub. L. No. 96-212, § 208(a), 94 Stat. 102,

105 (1980). Today’s Immigration and Nationality Act

(“INA”) preserves that principle. It states that a migrant who

arrives in the United States—“whether or not at a designated

port of arrival”—may apply for asylum. See 8 U.S.C.

§ 1158(a).

In November 2018, the Departments of Justice and

Homeland Security jointly adopted an interim final rule (“the

Rule”) which, coupled with a presidential proclamation

issued the same day (“the Proclamation”), strips asylum

eligibility from every migrant who crosses into the United

States between designated ports of entry. In this appeal, we

consider whether, among other matters, the Rule unlawfully

conflicts with the text and congressional purpose of the INA.

We conclude that it does.

1

See 125 Cong. Rec. 35,813–14 (1979) (statement of Rep.

Holtzman).

EAST BAY SANCTUARY COVENANT V. TRUMP 13

I.

The Rule announces a new bar to asylum eligibility. It

makes migrants who enter the United States in violation of

“a presidential proclamation or other presidential order

suspending or limiting the entry of aliens along the southern

border with Mexico” categorically ineligible for asylum.

See Aliens Subject to a Bar on Entry Under Certain

Presidential Proclamations; Procedures for Protection

Claims, 83 Fed. Reg. 55,934, 55,952 (Nov. 9, 2018)

(codified at 8 C.F.R. §§ 208.13, 208.30). Migrants who are

ineligible for asylum under the Rule will also automatically

receive negative credible-fear determinations in expedited-

removal proceedings. See id. at 55,935, 55,952. Typically,

a migrant in expedited-removal proceedings who

demonstrates a “credible fear” of persecution must be

allowed to present her asylum claim before an immigration

judge. See 8 U.S.C. § 1225(b)(1)(A)(ii), (B)(v). A migrant

who enters the United States in contravention of a

proclamation will instead need to demonstrate a “reasonable

fear” of persecution or torture—which is more difficult than

establishing a credible fear of persecution—to obtain other

forms of relief. See 83 Fed. Reg. at 55,936, 55,952; see also

8 C.F.R. § 208.31(c); 8 U.S.C. § 1225(b)(1)(B)(v).

The same day the Departments of Justice (“DHS”) and

Homeland Security (“DHS”) adopted the Rule, President

Trump issued the Proclamation. The Proclamation suspends

the entry of all migrants along the southern border of the

United States for ninety days, except for any migrant who

“enters the United States at a port of entry and properly

presents for inspection.” See Presidential Proclamation No.

9,822, Addressing Mass Migration Through the Southern

Border of the United States, 83 Fed. Reg. 57,661, 57,663

(Nov. 9, 2018).

14 EAST BAY SANCTUARY COVENANT V. TRUMP

Individually, the Rule and Proclamation have little

effect. The Proclamation does not have the force of law, and

the Rule only effectuates proclamations. But together, the

Rule and Proclamation make asylum entirely unavailable to

migrants who enter the country between ports of entry. The

magnitude of the Rule’s effect is staggering: its most direct

consequence falls on “the more than approximately 70,000

aliens a year (as of FY 2018) estimated to enter between the

ports of entry [who] then assert a credible fear in expedited-

removal proceedings.” 83 Fed. Reg. at 55,948. These

migrants would typically proceed to an asylum hearing

before an immigration judge but will now be unable to do so

because they have entered the country at a place other than a

port of entry.

The day the Proclamation and Rule issued, four legal

services organizations that represent current and future

asylum-seekers sued to prevent enforcement of the Rule.

East Bay Sanctuary Covenant, Al Otro Lado, Innovation

Law Lab, and Central American Resource Center of Los

Angeles (collectively, “the Organizations”) argued that the

Rule was likely unlawful because it was issued without

public notice and comment or complying with the thirty-day

grace period required by the Administrative Procedure Act

(“APA”), see 5 U.S.C. § 553(b)–(d). The Organizations also

argued that the Rule conflicts with the plain text of the INA

and is arbitrary and capricious because it constitutes a severe

departure from the Board of Immigration Appeals’s and the

Ninth Circuit’s interpretation of asylum practices in the

United States.

The district court agreed that the Rule “irreconcilably

conflicts with the INA and the expressed intent of Congress”

and entered a temporary restraining order enjoining the

Rule’s enforcement and ordering the government “to return

EAST BAY SANCTUARY COVENANT V. TRUMP 15

to the pre-Rule practices for processing asylum

applications.” See E. Bay Sanctuary Covenant v. Trump

(EBSC I), 349 F. Supp. 3d 838, 844, 868–69 (N.D. Cal.

2018). Eight days after the court’s order, the government

filed an appeal and an emergency motion in the district court

to stay the temporary restraining order pending appeal. The

court denied the stay motion three days later.

The following day, the government sought an immediate

stay in our court of the district court’s order pending appeal.

In a lengthy published order, a motions panel of this court

denied the government’s request to stay enforcement of the

court’s order. See E. Bay Sanctuary Covenant v. Trump

(EBSC II), 932 F.3d 742, 755, 762 (9th Cir. 2018). Although

temporary restraining orders are typically not appealable, the

panel concluded that appellate jurisdiction existed under

28 U.S.C. § 1292(a)(1) because the temporary restraining

order was effective for thirty days, well beyond the fourteen-

day limit imposed by Federal Rule of Civil Procedure 65(b).

Id. at 762–63. The government’s application for a stay from

the Supreme Court was also denied. See Trump v. E. Bay

Sanctuary Covenant, 139 S. Ct. 782 (2018).

While the government’s stay application was pending

before the Supreme Court, the Organizations filed a motion

for a preliminary injunction in the district court. The

arguments presented during the second round of litigation

were “nearly identical” to those made during the first. See

E. Bay Sanctuary Covenant v. Trump (EBSC III), 354 F.

Supp. 3d 1094, 1102 (N.D. Cal. 2018). Relying heavily on

the motions panel’s published order, the district court again

issued an injunction barring enforcement of the Rule. See

id. at 1121.

The government again appeals, arguing that the district

court erred when it entered the injunction or that the

16 EAST BAY SANCTUARY COVENANT V. TRUMP

injunction should at least be narrowed. We consolidated the

government’s appeal from the temporary restraining order

with the appeal from the preliminary injunction. 2 For the

reasons explained below, we agree with the district court that

the Rule is inconsistent with the INA, and we affirm the

district court’s orders granting preliminary injunctive relief.

II.

We first consider the effect of the motions panel’s order

on the present panel’s decision. How strictly the order binds

this court depends on whether it is law of the case, law of the

circuit, or both.

Law of the circuit is stare decisis, by another name. The

doctrine requires that we “stand by yesterday’s decisions”—

even when doing so “means sticking to some wrong

decisions.” Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401,

2409 (2015). Published decisions of this court become law

of the circuit, which is binding authority that we and district

courts must follow until overruled. Gonzalez v. Arizona,

677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc).

Controlling, overruling authority includes only intervening

statutes or Supreme Court opinions that create “clearly

2

Although the Proclamation expired by its terms in February 2019,

the President issued a new Proclamation, which did not substantially

change the terms of the original Proclamation and extended its effect for

an additional ninety days. When that Proclamation expired in May, the

President again re-issued it and extended the effect of the initial

Proclamation “for an additional 90 days beyond the date when the United

States obtains relief from the preliminary injunction of the interim final

rule[.]” See Presidential Proclamation No. 9,880, Addressing Mass

Migration Through the Southern Border of the United States, 84 Fed.

Reg. 21,229, 21,229 (May 8, 2019).

EAST BAY SANCTUARY COVENANT V. TRUMP 17

irreconcilable” conflicts with our caselaw. Miller v.

Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) (en banc).

Under the law-of-the-case doctrine, instead, courts—at

their own discretion—“will generally refuse to reconsider an

issue that has already been decided by the same court or a

higher court in the same case.” Gonzalez, 677 F.3d at 389

n.4; see also United States v. Houser, 804 F.2d 565, 567 (9th

Cir. 1986). The doctrine encourages the conservation of

limited judicial resources and promotes consistency by

allowing court decisions to govern the same issues in

subsequent stages of the same case. See Am. Civil Liberties

Union v. F.C.C., 523 F.2d 1344, 1346 (9th Cir. 1975).

We do sometimes exercise our discretion to reconsider

issues within the same case. Most often, we recognize

exceptions to the law-of-the-case doctrine where the prior

decision is “clearly erroneous” and enforcing it would create

“manifest injustice”; intervening, controlling authority

encourages reconsideration; or substantially different

evidence is produced at a later merits trial. See In Re

Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir. 1996).

This list is narrow but nonexhaustive. The legal context of

the prior decision also affects whether and to what extent it

may be treated as law of the case. We generally do not, for

example, apply the doctrine to administrative proceedings

because agencies are sometimes vested with explicit

authority to reconsider their own decisions. See, e.g., Silva-

Pereira v. Lynch, 827 F.3d 1176, 1190 (9th Cir. 2016). Our

review of district court orders denying or granting

preliminary-injunction requests also does not typically

become law of the case; the record before a later panel may

materially differ from the record before the first panel, such

that the first panel’s decision eventually provides “little

guidance as to the appropriate disposition on the merits.”

18 EAST BAY SANCTUARY COVENANT V. TRUMP

Sports Form, Inc. v. United Press Intern., Inc., 686 F.2d 750,

753 (9th Cir. 1982).

Merits panels also tend not to extend the doctrine to a

prior motions panel’s decision in the same case. See, e.g.,

United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th

Cir. 2005) (explaining that a prior motions panel’s denial of

a motion to dismiss did not “preclude [the panel] from

reaching a contrary decision”); In re Castro, 919 F.2d 107,

108 (9th Cir. 1990) (per curiam) (holding that a motions

panel’s denial of a dispositive motion without an opinion

was not binding on a later merits panel); Stifel, Nicolaus &

Co., Inc. v. Woolsey & Co., Inc., 81 F.3d 1540, 1543–44

(10th Cir. 1996) (concluding that the law-of-the-case

doctrine did not prevent the panel from reconsidering a

motions panel’s application of res judicata to a relevant

state-court decision). A later merits panel should not “lightly

overturn a decision made by a motions panel,” but “we do

not apply the law of the case doctrine as strictly in that

instance as we do when a second merits panel is asked to

reconsider a decision reached by the first merits panel on an

earlier appeal.” Houser, 804 F.2d at 568.

Our caselaw interpreting the relationship between

motions and merits panels’ opinions has not always been

clear. Citing to Miller v. Gammie, 335 F.3d 889 (9th Cir.

2003), we recently stated that “a motions panel’s published

opinion binds future panels the same as does a merits panel’s

published opinion.” Lair v. Bullock, 798 F.3d 736, 747 (9th

Cir. 2015). But this observation was not germane to the

eventual resolution of Lair; the panel noted that the effect of

the motions panel’s decision was not necessary to its

holding, see id., and it was not reached after “reasoned

consideration,” so its law-of-the-case discussion is dicta and

EAST BAY SANCTUARY COVENANT V. TRUMP 19

not binding on subsequent cases. See United States v.

McAdory, 935 F.3d 838, 843 (9th Cir. 2019).

Gammie encouraged a “pragmatic” approach to “an

evolving body of common law.” 335 F.3d at 899–900. Our

own practice has frequently indicated that we have not, and

do not, follow the summary language in Lair: merits panels

of this court frequently depart from published decisions

issued by motions panels in the same case. See, e.g., Nat.

Res. Def. Council, Inc. v. Winter, 508 F.3d 885, 886–87 (9th

Cir. 2007) (vacating a stay of a preliminary injunction issued

in an opinion by a motions panel); Golden Gate Rest. Ass’n

v. City and Cty. of San Francisco, 546 F.3d 639, 643–61 (9th

Cir. 2008) (reaching the merits of an appeal without reliance

on a previous motions panel’s order entering a stay of a

district court judgment pending appeal); see also Nelson v.

Nat’l Aeronautics & Space Admin., 530 F.3d 865, 873 (9th

Cir. 2008), rev’d on other grounds by 562 U.S. 134 (re-

reviewing the merits of the case and generally treating a

motions panel’s opinion as nonbinding); Innovation Law

Lab v. McAleenan, 924 F.3d 503, 518 (9th Cir. 2019)

(Fletcher, J., concurring in the judgment) (stating that a later

merits panel may, “with the benefit of full briefing and

regularly scheduled oral argument,” depart from the legal

conclusions reached by the motions panel). At least four

other circuits have agreed that later panels may review the

merits of a case “uninhibited” by a motions panel’s earlier

decision in the same case. Stifel, Nicolaus & Co., Inc.,

81 F.3d at 1544 (10th Cir. 1996); see also Rezzonico v. H&R

Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999); Cimino v.

Raymark Indus., Inc., 151 F.3d 297, 311 n.26 (5th Cir.

1998); Vann v. Citicorp Sav. of Illinois, 891 F.2d 1507, 1509

n.2 (11th Cir. 1990). Two others have held that

jurisdictional determinations by motions panels do not bind

later merits panels. See Council Tree Commc’ns, Inc. v.

20 EAST BAY SANCTUARY COVENANT V. TRUMP

F.C.C., 503 F.3d 284, 291–92 (3d Cir. 2007); United States

v. Henderson, 536 F.3d 776, 778 (7th Cir. 2008).

There are good policy and practical reasons for departing

from Lair’s dicta. Motions panels’ orders are generally

issued without oral argument, on limited timelines, and in

reliance on limited briefing. See Fed. R. App. P. 27(e)

(motions are decided without oral argument unless the court

orders otherwise); compare also Rule 27(a)(3)–(4)

(responses to motions and replies to responses must be filed

within ten days of service of the motion) and 27(d)(2)

(motions or responses to motions are limited to 5,200 words;

replies are limited to 2,600 words) with Ninth Circuit Rule 3-

3 (in preliminary injunction appeal, opening brief must be

filed within 28 days of notice of appeal; response must be

filed 28 days thereafter; reply may be filed 21 days

thereafter) and Ninth Circuit Rule 32-1 (opening and

response briefs limited to 14,000 words). The record before

a motions panel, much like the record before a district court

deciding a preliminary injunction, is often incomplete. Cf.

Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“In

light of these considerations, it is generally inappropriate for

a federal court at the preliminary-injunction stage to give a

final judgment on the merits.”). Constrained by timing

demands, motions panels’ decisions are often issued without

opinions and explanations. See, e.g., Haggard v. Curry,

631 F.3d 931, 933 n.1 (9th Cir. 2010) (per curiam). A panel

operating with the benefit of a complete record and

additional time to consider the merits of the case may

“conclude that the motions decision was improvident and

should be reconsidered.” Houser, 804 F.2d at 568 (citing

E.E.O.C. v. Neches Butane Prod. Co., 704 F.2d 144, 147 (5th

Cir. 1983)).

EAST BAY SANCTUARY COVENANT V. TRUMP 21

Reconsideration of a motions panel’s decision by a

merits panel also “differs in a significant way” from

reconsideration of a merits panel’s decision. Id. A party that

receives an unfavorable decision by a merits panel will have

the opportunity to file a petition for panel rehearing,

rehearing en banc, or petition for certiorari. Motions for

reconsideration or modification of a motions panel’s order

are “discouraged,” “disfavored by the court[,] and rarely

granted.” Ninth Circuit Rule 27-1 advisory committee note.

For this reason, motions panel decisions are “rarely

subjected” to a thorough reconsideration process; “[f]ull

review of a motions panel decision will more likely occur

only after the merits panel has acted.” Houser, 804 F.2d at

568. Unilaterally binding later merits panels to the

preliminary decisions made by motions panels prevents

litigants from fully vindicating their appellate rights. 3

These concerns are particularly heightened here, where

the motions panel considered whether to grant the

government’s request for a stay of the district court’s

preliminary injunction. The decision whether to grant a

3

Our holding is consistent with our general rules governing law of

the circuit. “[T]he first panel to consider an issue sets the law . . . for all

the inferior courts in the circuit” and “future panels of the court of

appeals,” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001), but

motions panels’ conclusions do not “set the law” for later merits panels

in the same case, see, e.g., Askins v. U.S. Dep’t of Homeland Sec.,

899 F.3d 1035, 1042 (9th Cir. 2018) (“The law of the case doctrine does

not preclude a court from reassessing its own legal rulings in the same

case.”). Tentative conclusions that are not law of the case do not bind

later panels in the same case as law of the circuit. Any other rule would

paradoxically require that a merits panel treat a motions panel’s

published decision that does not constitute law of the case as binding. A

merits panel cannot be simultaneously bound by the motions panel’s

opinion—because it is law of the circuit—and not bound by the

opinion—because it is not law of the case.

22 EAST BAY SANCTUARY COVENANT V. TRUMP

stay—much like the decision whether to grant a preliminary

injunction—is a “probabilistic” endeavor. Sierra Club v.

Trump, 929 F.3d 670, 688 (9th Cir. 2019). We discuss the

merits of a stay request in “likelihood terms,” and exercise a

“restrained approach to assessing the merits.” Id.

(quotations omitted). Such a predictive analysis should not,

and does not, forever bind the merits of the parties’ claims.

This sort of “pre-adjudication adjudication would defeat the

purpose of a stay, which is to give the reviewing court the

time to ‘act responsibly,’ rather than doling out ‘justice on

the fly.’” Leiva-Perez v. Holder, 640 F.3d 962, 967 (9th Cir.

2011) (quoting Nken v. Holder, 556 U.S. 418, 427 (2009)).

Notably, when acting on the government’s stay motion

in this case, the motions panel acknowledged the preliminary

nature of the stay proceedings. The panel issued a lengthy

opinion with detailed analysis, but repeatedly “stress[ed]”

that the case was still “at a very preliminary stage of the

proceedings,” and expected that “[f]urther development of

the record as the case progresses may alter [their]

conclusions.” EBSC II, 932 F.3d at 780. The panel also left

open various mixed questions of law and fact for a later

court—pointing out, for example, that if “facts develop in

the district court that cast doubt on the Organizations’

standing, the district court is, of course, free to revisit this

question,” id. at 763 n.6, and reiterating that its conclusions

were reached “at [the current] stage of the proceedings,” see

id. at 763, 767, 778, 779.

The question before us now is also doctrinally distinct

from the question considered by the motions panel. A stay

does have “some functional overlap with an injunction,

particularly a preliminary one”; both “can have the practical

effect of preventing some action before the legality of that

action has been conclusively determined.” Nken, 556 U.S.

EAST BAY SANCTUARY COVENANT V. TRUMP 23

at 428. But, as we have noted, “there are important

differences between a preliminary injunction and a stay

pending review.” Leiva-Perez, 640 F.3d at 966 (citing Nken,

556 U.S. at 425–30). A stay “operates upon the judicial

proceeding itself,” while a preliminary injunction “direct[s]

an actor’s conduct.” Nken, 556 U.S. at 428, 429. In the

government’s appeal, we are charged with determining

whether the district court abused its discretion in granting the

preliminary injunction, see All. for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011); the motions

panel, instead, considered whether the government raised

serious questions relating to the propriety of the district

court’s preliminary injunction and whether the government

would likely prevail on appeal, see Leiva-Perez, 640 F.3d

at 965–66. The question presented to the motions panel is

an additional step removed from the underlying merits of the

district court’s preliminary injunction. We exercise restraint

in assessing the merits of either question, see Sierra Club,

929 F.3d at 688, but particularly so when considering the

“extraordinary request” to stay a preliminary injunction

granted by a district court. Barr v. E. Bay Sanctuary

Covenant, No. 19A230, 2019 WL 4292781, at *1 (Sept. 11,

2019) (Sotomayor, J., dissenting from grant of a stay).

Given the preliminary stage of the appellate process at

which the motions panel issued the order denying the

government’s stay motion and the panel’s stated

reservations, we treat the motions panel’s decision as

persuasive, but not binding.

III.

We next re-evaluate the government’s challenge to our

jurisdiction. The government argues, as it did previously

before the district court and before the motions panel, that

the Organizations lack Article III standing because they have

24 EAST BAY SANCTUARY COVENANT V. TRUMP

not suffered a cognizable injury and are outside the zone of

interests protected by the INA. The government also renews

three arguments before this court: (1) the Organizations lack

a “legally protected interest in maintaining their current

organizational structure or in the [R]ule’s application to third

parties,” Op. Br. of Gov’t at 29, 4 (2) the “immigration

context” of the Rule counsels against judicial intrusion, and

(3) various portions of the INA divest this court of

jurisdiction to entertain this appeal. We address each

argument in turn.

A.

The Article III standing inquiry serves a single purpose:

to maintain the limited role of courts by ensuring they protect

against only concrete, non-speculative injuries. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 583 (1992). Parties

must have a “personal stake in the outcome” sufficient to

ensure the court that, absent judicial review, they will suffer

or have suffered some direct injury. See id.

Organizations can assert standing on behalf of their own

members, see Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 181 (2000), or in their own

right, Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–

79 (1982). To determine whether organizational standing

requirements have been satisfied, we “conduct the same

inquiry as in the case of an individual: Has the plaintiff

‘alleged such a personal stake in the outcome of the

controversy as to warrant his invocation of federal-court

jurisdiction?’” Havens, 455 U.S. at 378–79. The

Organizations therefore have the burden of demonstrating

4

We refer to the government’s opening brief as “Op. Br. of Gov’t,”

and to the government’s reply brief as “Reply Br. of Gov’t.”

EAST BAY SANCTUARY COVENANT V. TRUMP 25

that (1) they have suffered an injury-in-fact, meaning an

injury that is “concrete and particularized” and “actual and

imminent,” (2) the alleged injury is “fairly traceable” to the

defendants’ conduct, and (3) it is “more than speculative”

that the injury is judicially redressable. Lujan, 504 U.S.

at 560–61.

In Havens, the Supreme Court held that a fair housing

organization had standing under the Fair Housing Act where

the defendants’ allegedly racial steering practices had

frustrated the organization’s ability to assist equal access to

housing, and it had to devote “significant resources” to

identify and counteract those practices. 455 U.S. at 379.

Because the defendants’ practices had “perceptibly

impaired” the organization’s ability to provide its services,

the Court explained, “there can be no question that the

organization has suffered injury in fact.” Id.

We have read Havens to hold that an organization has

direct standing to sue where it establishes that the

defendant’s behavior has frustrated its mission and caused it

to divert resources in response to that frustration of purpose.

See Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th

Cir. 2002). Of course, organizations cannot “manufacture

the injury by incurring litigation costs or simply choosing to

spend money fixing a problem that otherwise would not

affect the organization at all,” but they can show they “would

have suffered some other injury” had they “not diverted

resources to counteracting the problem.” La Asociacion de

Trabajadores de Lake Forest v. Lake Forest, 624 F.3d 1083,

1088 (9th Cir. 2010); see also, e.g., El Rescate Legal Servs.,

Inc. v. Exec. Office of Immigration Review, 959 F.2d 742,

745, 748 (9th Cir. 1991).

We agree with the motions panel and the district court

that the Organizations have established that the Rule has

26 EAST BAY SANCTUARY COVENANT V. TRUMP

“perceptibly impaired” their ability to perform the services

they were formed to provide. EBSC II, 932 F.3d at 765. This

is sufficient for organizational standing. See Combs,

285 F.3d at 904–05.

The Organizations share the same mission of assisting

migrants seeking asylum. “[B]ecause the Rule significantly

discourages a large number of [asylum-seekers] from

seeking asylum given their ineligibility,” the Rule frustrates

their mission. EBSC II, 932 F.3d at 766. The Rule has also

caused the Organizations to divert their already limited

resources in response to the collateral obstacles it introduces

for asylum-seekers. East Bay Sanctuary Covenant

(“EBSC”) and Innovation Law Lab (“ILL”), for example,

are located near Berkeley, California, and in Oregon,

respectively, and because most asylum-seekers who enter at

a designated port of entry will “remain detained in detention

facilities near the border hundreds of miles away,” EBSC III,

354 F. Supp. 3d at 1109 (internal quotation marks omitted),

those organizations “cannot represent asylum seekers.”

Decl. of Michael Smith at ¶ 6. Unaccompanied minors are

now often unable to seek asylum alone, and “[s]ince the new

rule was announced, Al Otro Lado [(“AOL”)] has been

overwhelmed with children who traveled to the southern

border of the United States to apply for asylum but now

cannot do so.” Supp. Decl. of Erika Pinheiro at ¶¶ 4, 15.

Caring for the often nonlegal needs of these unaccompanied

children is not part of AOL’s core mission and is “causing a

near complete diversion of [AOL’s] resources.” Id. ¶ 16. It

has “expended significant resources to send staff to the

border as it attempts to shift its programs.” EBSC III, 354 F.

Supp. 3d at 1109.

The funding on which the Organizations critically

depend is also jeopardized by the Rule. EBSC only “rarely”

EAST BAY SANCTUARY COVENANT V. TRUMP 27

represents people in removal proceedings. Decl. of Michael

Smith at ¶ 8. Because 80 percent of its clients have entered

without stopping at a port of entry in the past, EBSC stands

to “lose a significant amount of business and suffer a

concomitant loss of funding” if these individuals are deemed

categorically ineligible for asylum. EBSC III, 354 F. Supp.

3d at 1109 (citing EBSC II, 932 F.3d at 767). AOL and

CARECEN explain that the Rule decreases the funding they

stand to receive from the California Department of Social

Services. AOL often represents detained immigrants in their

bond proceedings, and “[s]ince the [R]ule went into effect,”

AOL has “not received a single referral for a bond case, as

persons who enter without inspection are ostensibly being

put into ‘Withholding-only’ proceedings and no longer

initially eligible for bond.” Supp. Decl. of Erika Pinheiro

at ¶ 22. CARECEN receives from the Department a flat

amount of funding per client it assists, and because more of

its clients are being put into more time- and resource-

intensive withholding proceedings, it will assist less clients

and receive less funding. Decl. of Daniel Sharp at ¶ 7.

Each organization would have lost clients seeking refuge

in the United States had it not diverted resources toward

counteracting the effect of the Rule. La Asociacion de

Trabajadores de Lake Forest, 624 F.3d at 1088. The

Organizations are not required to demonstrate some

threshold magnitude of their injuries; 5 one less client that

5

The government notes that “East Bay Sanctuary Covenant has only

‘around 35 clients who have entered without inspection and [who] expect

to file for affirmative asylum in the upcoming months,’” while, “[b]y

comparison, the ‘current backlog of asylum cases exceeds 200,000’ and

more than 200,000 inadmissible aliens present themselves for inspection

at ports of entry annually (even without the additional incentive to do so

that the Rule will create).” Op. Br. of Gov’t at 27 n.4.

28 EAST BAY SANCTUARY COVENANT V. TRUMP

they may have had but-for the Rule’s issuance is enough. In

other words, plaintiffs who suffer concrete, redressable

harms that amount to pennies are still entitled to relief.

The government advances three additional justiciability

arguments. First, the government argues that the

Organizations have “no legally protected interest in

maintaining their current organizational structure or in the

Rule’s application to third parties, which the motions panel

did not consider in its analysis.” Op. Br. of Gov’t at 28. This

position misunderstands the injury-in-fact inquiry and

conflates organizational standing with third-party standing,

which the Organizations have conceded is not at issue. 6 An

injury-in-fact is “an invasion of a legally protected interest,”

see Lujan, 504 U.S. at 560, but this means an interest that is

only concrete and particularized and actual or imminent—

The comparative magnitude of the harms alleged by the parties,

however, is not relevant for standing purposes; “a loss of even a small

amount of money is ordinarily an ‘injury.’” Czyzewski v. Jevic Holding

Corp., 137 S. Ct. 973, 983 (2017); see also Wallace v. ConAgra Foods,

Inc., 747 F.3d 1025, 1029 (8th Cir. 2014) (“The consumers’ alleged

economic harm—even if only a few pennies each—is a concrete, non-

speculative injury.”); Carpenters Indus. Council v. Zinke, 854 F.3d 1, 5

(D.C. Cir. 2017) (“A dollar of economic harm is still an injury-in-fact for

standing purposes.”).

6

Many of the cases cited by the government in support of this

proposition do not concern organizational standing under Article III. In

O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), the

Court addressed whether nursing home residents have a right to an

administrative hearing before a state or federal agency hearing before the

agency revokes the home’s authority to provide them with nursing care

at government expense. Linda R.S. v. Richard D., 410 U.S. 614 (1973),

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), Arpaio v. Obama,

797 F.3d 11 (D.C. Cir. 2015), and Sure-Tan, Inc. v. N.L.R.B., 467 U.S.

883 (1984) all describe limitations on third-party, not organizational,

standing.

EAST BAY SANCTUARY COVENANT V. TRUMP 29

not an interest protected by statute. This distinction prevents

Article III standing requirements from collapsing into the

merits of a plaintiff’s claim; “a petitioner’s ‘legally protected

interest’ need not be a statutorily created interest,” Ass’n of

Pub. Agency Customers v. Bonneville Power Admin.,

733 F.3d 939, 950 (9th Cir. 2013), and a plaintiff can have

standing despite losing on the merits. See also In re Special

Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir. 2006)

(citing Warth v. Seldin, 422 U.S. 490, 500 (1975)

(“[S]tanding in no way depends on the merits of the

plaintiff’s contention that particular conduct is illegal

. . . .”)).

More recent Supreme Court opinions have described

injury-in-fact as “a judicially cognizable interest”—

implying that “an interest can support standing even if it is

not protected by law . . . so long as it is the sort of interest

that courts think to be of sufficient moment to justify judicial

intervention.” In re Special Grand Jury 89-2, 450 F.3d

at 1172 (citing Bennett v. Spear, 520 U.S. 154, 167 (1997));

see also, e.g., Hollingsworth v. Perry, 570 U.S. 693, 707

(2013). Whether the Organizations have a sufficient

statutory or otherwise legal basis for their claims is irrelevant

at this threshold stage.

The government next argues that we should avoid

interfering with DOJ’s and DHS’s decision to adopt the Rule

because “[t]he Supreme Court has ‘long recognized the

power to expel or exclude aliens as a fundamental sovereign

attribute exercised by the Government’s political

departments largely immune from judicial control.’” See

Op. Br. of Gov’t at 30 (quoting Fiallo v. Bell, 430 U.S. 787,

792 (1977)).

We do not conduct independent policy analyses of

executive decisions. But we do “police the separation of

30 EAST BAY SANCTUARY COVENANT V. TRUMP

powers in litigation involving the executive[.]” In re

Cheney, 334 F.3d 1096, 1106 (D.C. Cir. 2003), vacated and

remanded on other grounds, 542 U.S. 367 (2004). For this

reason, there is a strong presumption favoring judicial

review of administrative action, see Bowen v. Mich. Acad. of

Family Phys., 476 U.S. 667, 670 (1986); non-reviewability

is an exception that must be clearly evidenced in the statute,

see Barlow v. Collins, 397 U.S. 159, 166–67 (1970).

Without such review, “statutes would in effect be blank

checks drawn to the credit of some administrative officer or

board.” Bowen, 476 U.S. at 671 (citing S. Rep. No. 752,

79th Cong., 1st Sess., 26 (1945)). Efficient agency

administration always requires some authority and

responsibility to resolve questions left unanswered by

Congress. It does not include the “power to revise clear

statutory terms.” 7 Utility Air Reg. Grp. v. E.P.A., 573 U.S.

302, 327 (2014).

We are therefore responsible for reviewing whether the

government has overstepped its delegated authority under

the INA and encroached upon Congress’s legislative

prerogative. See 5 U.S.C. § 706(2)(A).

Finally, the government argues that three provisions of

the Illegal Immigration Reform and Immigration

Responsibility Act (“IIRIRA”), 8 U.S.C. §§ 1252(e)(3),

7

The irony of the government’s position is that

section 1158(b)(2)(C)—the INA rule-making delegation upon which it

relies—is based on a congressional mandate that was intended, at least

in part, to curtail “unfettered executive discretion” and assure Congress’s

“proper and substantial role in refugee admissions, given [its] plenary

power over immigration.” 125 Cong. Rec. 35,814–15 (1979) (statement

of Rep. Holtzman) (emphasis added). “[I]f there is a separation-of-

powers concern here, it is between the President and Congress.”

EBSC II, 932 F.3d at 774.

EAST BAY SANCTUARY COVENANT V. TRUMP 31

1252(a)(5), and 1252(b)(9), divest this court of jurisdiction

to entertain this appeal. These statutes, in the government’s

view, require the Organizations to bring their claims in

individual-removal proceedings or in the District Court for

the District of Columbia.

Section 1252(e)(3) authorizes a limited court review of

expedited-removal proceedings. The statute requires that

judicial review of such administrative decisions be initiated

in the District Court for the District of Columbia, and limits

review to “determinations of (i) whether such section, or any

regulation issued to implement such section, is

constitutional; or (ii) whether such a regulation . . . is not

consistent with applicable provisions of this subchapter or is

otherwise in violation of law.” 8 Section 1252(e)(3), in short,

limits jurisdiction over challenges to regulations

implementing expedited-removal orders. See Barajas-

Alvarado, 655 F.3d at 1086 n.10.

Section 1252(a)(5) operates in conjunction with section

1252(e). It limits review of expedited-removal orders to

habeas review under 1252(e) and further restricts any

appellate habeas review to considering only whether the

migrant is lawfully in the country. See id. at 1082; 8 U.S.C.

§ 1252(e)(2). Section 1252(b)(9) also applies only to

removal orders, but instead channels “[j]udicial review of all

questions of law and fact . . . arising from any action taken

or proceeding brought to remove an alien from the United

8

Migrants can be placed in expedited removal proceedings when

they arrive at ports of entry without documents, misrepresent their

identities, or present fraudulent documents. See United States v.

Barajas-Alvarado, 655 F.3d 1077, 1081 (9th Cir. 2011). Undocumented

migrants who receive removal orders but indicate an intention to apply

for asylum or a fear of persecution may still be considered for asylum.

See id. (citing 8 U.S.C. § 1225(b)(1)(A)(i)).

32 EAST BAY SANCTUARY COVENANT V. TRUMP

States[,]” to the courts of appeals. 8 U.S.C. § 1252(b)(9);

see also I.N.S. v. St. Cyr, 533 U.S. 289, 313 (2001).

In the APA context, these provisions prohibit “a claim

by an alien, however it is framed, [that] challenges the

procedure and substance of an agency determination that is

‘inextricably linked’ to the order of removal[.]” Martinez v.

Napolitano, 704 F.3d 620, 623 (9th Cir. 2012). “[C]laims

that are independent of or collateral to the removal process”

are not actions taken to “remove an alien from the United

States.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir.

2016); 8 U.S.C. § 1252(b)(9). The purpose of these claim-

channeling provisions is to “limit all aliens to one bite of the

apple with regard to challenging an order of removal.”

Martinez, 704 F.3d at 622.

None of these provisions have any bearing on the Rule.

Sections 1252(a)(5), (b)(9), and (e)(3) govern judicial

review of removal orders or challenges inextricably linked

with actions taken to remove migrants from the country. The

Rule “governs eligibility for asylum and screening

procedures for aliens subject to a presidential proclamation

or order restricting entry[.]” 83 Fed. Reg. at 55,934

(emphasis added). Bars to asylum eligibility may eventually

be relevant to removal proceedings, but they are not

“regulation[s] . . . to implement [removal orders]” or

otherwise entirely linked with removal orders. 9 8 U.S.C.

9

In another, strikingly similar context, the government appears to

agree with this interpretation of section 1252(e)(3). Before the District

Court for the District of Columbia, the government argued that section

1252(e)(3) divested the court of jurisdiction to hear an APA challenge to

an immigration decision issued by the Attorney General. See Grace v.

Whitaker, 344 F. Supp. 3d 96, 105 (D.D.C. 2018). The Attorney

General’s decision, and a policy memorandum that adopted the standards

in the decision, invoked the expedited-removal statute and required that

EAST BAY SANCTUARY COVENANT V. TRUMP 33

§ 1252(e)(3); see also Martinez, 704 F.3d at 623; O.A. v.

Trump, 404 F. Supp. 3d 109, 141 (D.D.C. 2019)

(Ҥ 1252(e)(3) is about challenges to expedited removal

orders and the implementation of the expedited removal

provisions that Congress enacted in IIRIRA.”). This is

consistent with the purposes of these jurisdictional

limitations: allowing collateral APA challenges to an

asylum-eligibility rule does not undermine Congress’s

desire to “limit all aliens to one bite of the apple with regard

to challenging” their removal orders. See Martinez, 704 F.3d

at 622.

At best, the law governing asylum is collateral to the

process of removal. Migrants in the country who file

affirmatively for asylum, or who are otherwise lawfully in

the country—such as those who have a valid visa, maintain

Temporary Protected Status, or are given parole, for

example—can apply and be eligible for asylum and never

encounter any of the statutory provisions governing

removal. See 8 C.F.R. § 208.4(a)(5)(iv). Other subsections

of the INA explicitly grant this court jurisdiction to review

denials of individual asylum applications, further reinforcing

that the jurisdiction-stripping provisions cited by the

government were not intended to apply at all to challenges

to asylum eligibility rules. See 8 U.S.C.

§§ 1252(a)(2)(B)(ii), (a)(2)(D); see also Morales v.

Gonzales, 478 F.3d 972, 978–79 (9th Cir. 2007).

“claims based on membership in a putative particular social group

defined by the members’ vulnerability to harm . . . will not establish the

basis for asylum, refugee status, or a credible or reasonable fear of

persecution.” Id. at 110. The government there argued that the policy

memorandum and the Attorney General’s decision did not “implement”

section 1225(b) because it “was a decision about petitions for asylum

under section 1158.” Id. at 115–16 (emphasis added).

34 EAST BAY SANCTUARY COVENANT V. TRUMP

We again hold that the Organizations’ claims are

justiciable and they have otherwise satisfied the Article III

standing requirements.

B.

We generally also require that plaintiffs fall within the

“zone of interests” protected by the statute in question to

bring their claims in federal court. Lexmark Int’l, Inc., v.

Static Control Components, Inc., 572 U.S. 118, 129 (2014).

The breadth of the zone-of-interests test varies, depending

on the provisions of law at issue. Id. Under the APA, the

test is not “especially demanding.” Id. at 130 (quotations

and citations omitted). The zone-of-interests analysis

forecloses suit “only when a plaintiff’s interests are so

marginally related to or inconsistent with the purposes

implicit in the statute that it cannot reasonably be assumed

that Congress authorized that plaintiff to sue.” Id.

(quotations and citations omitted).

The Organizations bring their claims under the APA, but

because the APA provides a cause of action only to those

“suffering legal wrong because of agency action . . . within

the meaning of a relevant statute,” 5 U.S.C. § 702, the

relevant zone of interest is that of the INA. EBSC II,

932 F.3d at 767–68. And the relevant purpose is not that of

the entire INA; it is “by reference to the particular provision

of law upon on which the plaintiff relies.” Bennett, 520 U.S.

at 175–76.

In our review, we are “not limited to considering the

[specific] statute under which [plaintiffs] sued, but may

consider any provision that helps us to understand Congress’

overall purposes” in enacting the statute. Clarke v. Sec.

Indus. Ass’n, 479 U.S. 388, 401 (1987); see also EBSC II,

932 F.3d at 768. This inquiry is intended only to help clarify

EAST BAY SANCTUARY COVENANT V. TRUMP 35

the act’s scope—not determine whether Congress intended a

cause of action to arise for the plaintiff in question. See

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians

v. Patchak, 567 U.S. 209, 225 (2012) (“We do not require

any indication of congressional purpose to benefit the

would-be plaintiff.”) (internal quotation marks omitted).

The Organizations’ claims continue to fall within the

zone of interests of the INA and of the regulatory

amendments implemented by the Rule. The Rule, much like

the scope of section 1158(b) of the INA, shapes asylum

eligibility requirements for migrants. The Organizations’

purpose is to help individuals apply for and obtain asylum,

provide low-cost immigration services, and carry out

community education programs with respect to those

services. EBSC III, 354 F. Supp. 3d at 1108–10. This is

sufficient for the Court’s lenient APA test: at the very least,

the Organizations’ interests are “marginally related to” and

“arguably within” the scope of the statute. See Patchak,

567 U.S. at 224, 225.

IV.

We turn to the merits of the preliminary injunction 10

entered by the district court. A plaintiff seeking a

preliminary injunction must establish that (1) he is likely to

succeed on the merits, (2) he is likely to suffer irreparable

harm in the absence of preliminary relief, (3) the balance of

equities tips in his favor, and (4) an injunction is in the public

interest. All. for the Wild Rockies, 632 F.3d at 1131 (citing

10

The terms of the temporary restraining order entered by the district

court in EBSC I technically differ from the terms of the preliminary

injunction entered by the court in EBSC III, but the difference has no

practical effect: both injunctions prevent enforcement of the Rule and are

identical in scope. Therefore, we review them together.

36 EAST BAY SANCTUARY COVENANT V. TRUMP

Winter v. National Res. Def. Council, 555 U.S. 7, 20 (2008)).

When the government is a party, the last two factors (equities

and public interest) merge. Nken, 556 U.S. at 435. These

factors are evaluated on a sliding scale. All. for the Wild

Rockies, 632 F.3d. at 1131–34.

We review for abuse of discretion the district court’s

grant of a preliminary injunction. Arc of Cal. v. Douglas,

757 F.3d 975, 983 (9th Cir. 2014). District courts abuse their

discretion when they rely on an erroneous legal standard or

clearly erroneous finding of fact. Id. (internal quotations

omitted).

A.

The likelihood of the Organizations’ success on the

merits depends on the substantive and procedural validity of

the Rule. See EBSC III, 354 F. Supp. 3d at 1111–12. They

must establish a likelihood that the Rule is either

substantively or procedurally invalid. See EBSC II, 932 F.3d

at 770. Because the record on appeal is now “fully

developed,” and the substantive validity of the Rule “rest[s]

primarily on interpretations of law, not the resolution of

factual issues, we may consider the merits of the case and

enter a final judgment to the extent appropriate.” Beno v.

Shalala, 30 F.3d 1057, 1063 (9th Cir. 1994) (internal

quotation marks omitted).

1.

The APA requires that we “hold unlawful and set aside

agency action, findings, and conclusions found to be . . . an

abuse of discretion, or otherwise not in accordance with

law.” 5 U.S.C. § 706(2)(A). Presidential action is not

ordinarily “agency action,” and is typically unreviewable

under the APA. Franklin v. Massachusetts, 505 U.S. 788,

EAST BAY SANCTUARY COVENANT V. TRUMP 37

796 (1992). But the Proclamation and Rule together create

an “operative rule of decision” for asylum eligibility that is

reviewable by this court. EBSC II, 932 F.3d at 770; see also

City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d

1142, 1166 (9th Cir. 1997) (holding that executive orders

with “specific statutory foundation[s]” that do not expressly

preclude judicial review are treated as agency action and

reviewed under the APA); Public Citizen v. U.S. Trade Rep.,

5 F.3d 549, 552 (D.C. Cir. 1993) (“Franklin is limited to

those cases in which the President has final constitutional or

statutory responsibility for the final step necessary for the

agency action directly to affect the parties.”).

To determine whether the Rule is “not in accordance

with law,” we apply the framework established in Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842

(1984). Under Chevron, we first consider “whether

Congress has directly spoken to the precise question at issue.

If the intent of Congress is clear, that is the end of the

matter.” Campos-Hernandez v. Sessions, 889 F.3d 564, 568

(9th Cir. 2018) (quoting Chevron, 467 U.S. at 842). Federal

courts are “the final authority on issues of statutory

construction and must reject administrative constructions

which are contrary to clear congressional intent.” Chevron,

467 U.S. at 843 n.9.

a.

We consider, then, whether the Rule conflicts with

Congress’s intent. The only section of the INA implicated

by the Rule is section 1158 (“Asylum”). That section begins

by stating that an undocumented migrant may apply for

asylum when she is “physically present in the United States”

or “arrives in the United States (whether or not at a

designated port of arrival . . . )[.]” 8 U.S.C. § 1158(a)(1).

DOJ and DHS adopted the Rule under section

38 EAST BAY SANCTUARY COVENANT V. TRUMP

1158(b)(2)(C)’s grant of authority to the Attorney General

to “establish additional limitations and conditions, consistent

with this section, under which an alien shall be ineligible for

asylum[.]” 11

We agree with the district court that the Rule is “not in

accordance with law.” 5 U.S.C. § 706(2)(A). Section

1158(a) provides that migrants arriving anywhere along the

United States’s borders may apply for asylum. The Rule

requires migrants to enter the United States at ports of entry

to preserve their eligibility for asylum. It is effectively a

categorical ban on migrants who use a method of entry

explicitly authorized by Congress in section 1158(a). As the

district court stated, “[i]t would be hard to imagine a more

direct conflict” than the one presented here. EBSC III,

354 F. Supp. 3d at 1112.

The government argues that the structure of section 1158

mandates a different result. Critical to the government’s

argument is that section 1158 splits asylum applications

(§ 1158(a)) and eligibility (§ 1158(b)) into two different

subsections; therefore, the government explains, Congress

intended to allow DOJ to promulgate limitations on asylum

eligibility without regard to the procedures and

authorizations governing asylum applications. The text in

section 1158(a) requires only that migrants arriving between

11

A separate subsection of section 1158, 1158(d)(5)(B), grants the

Attorney General authority to impose “conditions or limitations on the

consideration of an application for asylum not inconsistent with this

chapter.” As the motions panel observed, had the Rule explicitly

conditioned applications for asylum (instead of eligibility for asylum) on

arriving at a designated point of entry, the Rule would be “quite

obviously, ‘not in accordance with law,’” EBSC II, 932 F.3d at 770

(quoting 5 U.S.C. § 706(2)(A)), because 1158(a) directs migrants to

“apply for asylum” in accordance with section 1158.

EAST BAY SANCTUARY COVENANT V. TRUMP 39

ports of entry be permitted to “apply for asylum,” and the

Rule does not prevent migrants from submitting futile

asylum applications. (emphasis added).

This argument is unconvincing. We avoid absurd results

when interpreting statutes. Rowland v. Cal. Men’s Colony,

Unit II Men’s Adv. Council, 506 U.S. 194, 200–01 (1993).

Explicitly authorizing a refugee to file an asylum application

because he arrived between ports of entry and then

summarily denying the application for the same reason

borders on absurdity. The consequences of denial at the

application or eligibility stage are, to a refugee, the same.

See EBSC II, 932 F.3d at 771. Had Congress intended to

allow DOJ and DHS to override this provision, it could have

said so in its delegation of authority to the Attorney General

or in the statutory provisions governing asylum applications.

And Congress signaled its desire that any eligibility

limitations be consistent with application requirements;

limitations promulgated under the eligibility subsection of

the statute must be “consistent with this section”—meaning

the entirety of section 1158—not just consistent with this

subsection.

The other categorical bars to asylum in section 1158(b)

of the INA do not meaningfully inform our reading of the

statute and the Rule. See EBSC II, 932 F.3d at 771 n.12. The

INA contains various provisions making ineligible asylum

applicants who committed a serious, nonpolitical crime

outside the United States prior to arrival (8 U.S.C.

§ 1158(b)(2)(A)(iii)), assisted or otherwise participated in

the persecution of another person (8 U.S.C.

§ 1158(b)(2)(A(i)), or were firmly resettled in another

country prior to arriving in the United States (8 U.S.C.

§ 1158(b)(2)(A)(vi)), among other things. The government

again suggests that the existence of these eligibility bars in

40 EAST BAY SANCTUARY COVENANT V. TRUMP

the INA demonstrates that Congress intended certain

categories of migrants to be permitted to apply for asylum

even though they are categorically ineligible. A migrant

who was firmly resettled in another country, for example, is

still free to complete an asylum application, even though she

will be barred from seeking asylum under section

1158(b)(2)(A)(vi).

But—unlike the eligibility bar effected by the Rule—the

statutory asylum bars in the INA do not separately conflict

with explicit text in section 1158(a). There is no provision

in section 1158(a), for example, that affirmatively requires

that migrants who were firmly resettled in another country

be permitted to apply for asylum. The Rule creates the only

bar to eligibility under section 1158(b) that directly conflicts

with language in section 1158(a). The statutory eligibility

bars noted above do not suggest Congress intended that

migrants who are subject to them be permitted to apply for

asylum. See also EBSC II, 932 F.3d at 772 (“‘[t]o say that

one may apply for something that one has no right to receive

is to render the right to apply a dead letter.’”) (quoting EBSC

I, 349 F. Supp. 3d at 857). The district court correctly

concluded that the Rule is substantively invalid because it

conflicts with the plain congressional intent instilled in

8 U.S.C. § 1158(a), and is therefore “not in accordance with

law,” 5 U.S.C. § 706(2)(A).

b.

But even if the text of section 1158(a) were ambiguous,

the Rule fails at the second step of Chevron because it is an

arbitrary and capricious interpretation of that statutory

provision. If the statute is “silent or ambiguous with respect

to the specific issue, the question for the court is whether the

agency’s answer is based on a permissible construction of

the statute.” Campos-Hernandez, 889 F.3d at 568 (quoting

EAST BAY SANCTUARY COVENANT V. TRUMP 41

Chevron, 467 U.S. at 843). Under this standard, we must

give effect to an agency’s reasonable interpretation of a

statute, unless the interpretation is inconsistent with clearly

expressed congressional intent. See United States v. Fulton,

475 U.S. 657, 666–67 (1986).

The Board of Immigration Appeals (“BIA”) and this

court have long recognized that a refugee’s method of

entering the country is a discretionary factor in determining

whether the migrant should be granted humanitarian relief.

EBSC II, 932 F.3d at 772. More than thirty years ago, the

BIA stated that “an alien’s manner of entry or attempted

entry is a proper and relevant discretionary factor” to

adjudicating asylum applications under section 1158(a), but

“it should not be considered in such a way that the practical

effect is to deny relief in virtually all cases.” 12 Matter of

Pula, 19 I. & N. Dec. 467, 473 (B.I.A. 1987), superseded in

part by statute on other grounds as stated in Andriasian v.

I.N.S., 180 F.3d 1033, 1043–44 (9th Cir. 1999); see also

EBSC II, 932 F.3d at 772. The court explained that it would

instead evaluate “the totality of the circumstances and

actions of an alien in his flight from the country where he

fears persecution,” rather than deny asylum outright because

of a single procedural flaw in the migrant’s application.

Matter of Pula, 19 I. & N. Dec. at 473–74.

Especially where a migrant may be eligible only for

asylum and cannot establish the more stringent criteria for

12

The BIA in Pula interpreted section 1158(a) before it was

amended to include the particular phrase at issue (“whether or not at a

designated port of arrival”). At the time, the relevant sentence stated

“The Attorney General shall establish a procedure for an alien physically

present in the United States or at a land border or port of entry,

irrespective of such alien’s status, to apply for asylum[.]” 8 U.S.C.

§ 1158(a) (1980).

42 EAST BAY SANCTUARY COVENANT V. TRUMP

withholding-of-removal, the discretionary factors—

including method of entry—should be “carefully evaluated

in light of the unusually harsh consequences which may

befall an alien[.]” Id. at 474. Indeed, “the danger of

persecution should generally outweigh all but the most

egregious of adverse factors.” Id.

We have supported the BIA’s understanding of section

1158(a). The most vulnerable refugees are perhaps those

fleeing across the border through the point physically closest

to them. That a refugee crosses a land border instead of a

port-of-entry says little about the ultimate merits of her

asylum application; “if illegal manner of flight and entry

were enough independently to support a denial of asylum,

. . . virtually no persecuted refugee would obtain asylum.”

EBSC II, 932 F.3d at 773 (quoting Huang v. I.N.S., 436 F.3d

89, 100 (2d Cir. 2006)). Given the Rule’s effect of

conditioning asylum eligibility on a factor that has long been

understood as “worth little if any weight,” see Mamouzian v.

Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004), in

adjudicating whether a migrant should be granted asylum, it

is an arbitrary and capricious interpretation of section

1158(a).

The Attorney General’s interpretation of section 1158(a)

is also unreasonable, as the motions panel and district court

discussed, in light of the United States’s treaty obligations.

See EBSC II, 932 F.3d at 772–73; EBSC III, 354 F. Supp. 3d

at 1112–13. The United States agreed to comply with

Articles 2 through 34 of the 1951 United Nations

Convention Relating to the Status of Refugees (“1951

Convention”) and the 1967 United Nations Protocol

Relating to the Status of Refugees (“1967 Protocol”) in

1968. H.R. Rep. 96-781 (Conf. Rep.), at 19–20 (1980), as

reprinted in 1980 U.S.C.C.A.N. 160, 160–62; see also I.N.S.

EAST BAY SANCTUARY COVENANT V. TRUMP 43

v. Cardoza-Fonseca, 480 U.S. 421, 429, 436–37 (1987). To

streamline the United States’s refugee procedures and

implement the country’s new treaty commitments, Congress

passed the Refugee Act of 1980, which amended the INA

and created the country’s first codified rules governing

asylum. S. Rep. No. 96-256, at 1 (1979), as reprinted in

1980 U.S.C.C.A.N. 141, 141–42, 144; H.R. Doc. No. 96-

608, at 17–18 (1979); see also Negusie v. Holder, 555 U.S.

511, 535–36 (2009).

As the United Nations High Commissioner of Refugees

(“UNHCR”) explains, 13 the Rule runs afoul of three of these

codified rules: the right to seek asylum, the prohibition

against penalties for irregular entry, and the principle of non-

refoulement embodied in Article 31(1) of the 1951

Convention. Neither the 1967 Protocol nor the 1951

Convention require countries to accept refugees, but they do

ensure that refugees at each signatory’s borders have legal

and political rights and protections. See Cong. Research

Serv. S522-10, Review of U.S. Refugee Resettlement

Programs and Policies 15–16 (1980).

The definition of “refugee” used in the 1951 Convention

is “virtually identical” to the one adopted by Congress in the

INA. Cardoza-Fonseca, 480 U.S. at 437. Under both the

13

The arguments presented by the United Nations in its amicus brief

on how the 1951 Convention and 1967 Protocol should be construed are

not binding on this court. See Cardoza-Fonseca, 480 U.S. at 439 n.22.

But they do “provide[] significant guidance in construing the [1967]

Protocol, to which Congress sought to conform[,]” and are “useful in

giving content to the obligations that the Protocol establishes.” Id; see

also Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007) (“We

view the UNHCR Handbook as persuasive authority in interpreting the

scope of refugee status under domestic asylum law.”) (internal quotation

marks and citation omitted).

44 EAST BAY SANCTUARY COVENANT V. TRUMP

INA and the 1951 Convention, refugees are all individuals

who—because of a “well-founded fear of being persecuted

for reasons of race, religion, nationality, membership in a

particular social group or political opinion”—are “unable,”

or, because of such fear, “unwilling to return” to their home

countries. See 8 U.S.C. § 1101(a)(42); 1951 Convention,

Art. 1(A)(2). Once individuals meet the statutory definition

of a “refugee,” they may be granted asylum under the INA.

See 8 U.S.C. § 1158(b)(1)(A).

Both the INA and the 1951 Convention acknowledge

that individuals may be stripped of their refugee status even

when they meet the other eligibility criteria for asylum. The

refugee provisions of the 1951 Convention “shall not apply”

to “any person with respect to whom there are serious

reasons for considering” that such a person has committed a

crime against peace, a war crime, a crime against humanity,

a non-political crime outside of the country of refuge, prior

to their admission as a refugee, or has been “guilty of acts

contrary to the purposes and principles of the United

Nations.” 1951 Convention, Art. 1(F)(a)–(c). The statutory

bars for eligibility in the INA are similarly severe.

Individuals who are otherwise refugees may not apply for

asylum if the Attorney General determines that they

“ordered, incited, assisted, or otherwise participated” in the

persecution of another, based on a trait protected by the INA;

“constitute[] a danger to the community of the United

States”; committed a “serious nonpolitical crime” outside

the country; are a “danger to the security” of the country;

have engaged in terrorist activities; or were “firmly resettled

in another country prior to arriving in the United States.”

8 U.S.C. § 1158(b)(2)(A)(i)–(vi).

The exceptions listed in the 1951 Convention “require

individualized assessments and ‘must be [interpreted]

EAST BAY SANCTUARY COVENANT V. TRUMP 45

restrictive[ly].” Br. for UNHCR as Amicus Curiae at 14 n.6

(quoting Office of the United Nations High Commissioner

for Refugees, Handbook on Procedures and Criteria for

Determining Refugee Status ¶ 149 (Geneva, 1979)). So too

the categorical bars on eligibility in the INA are interpreted

with lenience toward migrants to avoid infringing on the

commitments set forth in the 1951 Convention and 1967

Protocol. See, e.g., Ali v. Ashcroft, 394 F.3d 780, 790 (9th

Cir. 2005) (A “narrow interpretation of the firm resettlement

bar would limit asylum to refugees from nations contiguous

to the United States or to those wealthy enough to afford to

fly here in search of refuge. The international obligation our

nation agreed to share when we enacted the Refugee

Convention into law knows no such limits.”); Cardoza-

Fonseca, 480 U.S. at 449.

The asylum bars in the INA and in the 1951 Convention

appear to serve either the safety of those already in the

United States or, in the case of the firm-resettlement bar, the

safety of refugees. The Rule ensures neither. Even a broad

interpretation of these eligibility bars does not naturally

encompass a refugee’s method of entry. Illegal entry is not

ordinarily considered a “serious crime.” See Pena-

Cabanillas v. United States, 394 F.2d 785, 788 (9th Cir.

1968) (stating that the statute criminalizing entry into the

United States “is not based on any common law crime, but

is a regulatory statute enacted to assist in the control of

unlawful immigration by aliens” and “is a typical mala

prohibita offense”). Nor does a migrant’s method of entry

per se create a danger to the United States, serve as a useful

proxy for terrorist activity, or suggest the persecution of

another.

And the Rule surely does not suggest that the migrant has

received protection in a third country. Many migrants enter

46 EAST BAY SANCTUARY COVENANT V. TRUMP

between ports of entry out of necessity: they “cannot satisfy

regular exit and entry requirements and have no choice but

to cross into a safe country irregularly prior to making an

asylum claim.” Br. for UNHCR as Amicus Curiae at 15

(citing Memorandum by the Secretary-General, Ad Hoc

Comm. on Statelessness, Status of Refugees & Stateless

Persons, at Annex Art. 24, cmt. ¶ 2, U.N. Doc. E/AC.32/2

(Jan. 3, 1950); UNHCR Executive Committee Conclusion

No. 58 (XL) ¶ (i) (Oct. 13, 1989)). This was well recognized

when the Refugee Act of 1980 was drafted. See Pub. L. No.

96-212, § 208(a), 94 Stat. 102, 105 (1980). Prior to the

passage of the Act, migrants who arrived at a port of entry

were “given an opportunity to have their [asylum]

applications heard in a hearing before an immigration

judge,” but refugees arriving “at a land border of the United

States [we]re not given this right.” Refugee Act of 1979:

Hearing on H.R. 2816 before the Subcomm. on Immigration,

Refugees, and Int’l Law of the Comm. on the Judiciary, 96th

Cong. 190 (1979) (testimony of David Carliner, American

Civil Liberties Union). In its attempt to streamline the

country’s refugee and asylum laws, Congress was urged to

consider that “persons who seek any benefits under [the

INA] should be entitled to a uniform procedure.” Id.

Congress heeded this consideration during the drafting of the

Refugee Act, eventually describing it as “establish[ing] a

more uniform basis for the provision of assistance to

refugees, and [] other purposes.” Refugee Act of 1980, Pub.

L. No. 96-212, 94 Stat. 102 (1980). The Rule defies this

desire for uniformity and denies refuge to those crossing a

land border. The effects of the Rule contravene the United

States’s commitments in the 1951 Convention.

Article 31(1) of the 1951 Convention also explains that

signatories “shall not impose penalties” on account of

refugees’ “illegal entry or presence,” 1951 Convention

EAST BAY SANCTUARY COVENANT V. TRUMP 47

Art 31(1). Notwithstanding the government’s

interpretations otherwise, “deportation is an integral part—

indeed, sometimes the most important part—of the penalty

that may be imposed” on migrants who are found guilty of

specified crimes, or for other reasons are barred from

seeking asylum. 14 See Padilla v. Kentucky, 559 U.S. 356,

364 (2010) (footnote omitted). The Rule imposes an

additional penalty on refugees because of their “illegal

entry” by risking the deportation of migrants who enter the

country at a land border. 1951 Convention Art. 31(1).

And by categorically denying refugees an opportunity to

seek asylum only because of their method of entry, the Rule

is also in tension with the United States’s commitment to

avoid refouling individuals to countries where their lives are

threatened. Article 31(1) of the 1951 Convention prohibits

signatories from “expel[ling] or return[ing] (‘refouler’) a

refugee in any manner whatsoever to the frontiers of

territories where his life or freedom would be threatened[.]”

The INA’s withholding-of-removal, 8 U.S.C. § 1231(b)(1),

and Convention Against Torture (“CAT”) protections,

8 C.F.R. § 1208.16–18, are not as great as those conferred

by the INA’s asylum provisions. The evidentiary standard

that applicants must meet for either withholding-of-removal

or CAT relief is higher than the evidentiary standard for

asylum. See, e.g., Ling Huang v. Holder, 744 F.3d 1149,

1152 (9th Cir. 2014). Applicants for withholding-of-

removal and CAT relief must establish a “clear probability”

that they would be persecuted or tortured, respectively, if

they were removed to their home countries. See Korablina

v. I.N.S., 158 F.3d 1038, 1045–46 (9th Cir. 1998); Wakkary

14

The UNHCR’s view is that “penalties” in Article 31(1)

“encompasses civil or administrative penalties as well as criminal ones.”

Br. for UNHCR as Amicus Curiae at 20.

48 EAST BAY SANCTUARY COVENANT V. TRUMP

v. Holder, 558 F.3d 1049, 1053 (9th Cir. 2009). A “clear

probability” of persecution or torture means that it is “more

likely than not” that applicants will be persecuted upon their

removal. I.N.S. v. Stevic, 467 U.S. 407, 424, 429–30 (1984).

Applicants for asylum instead must demonstrate only

that they are “unable or unwilling” to return to their home

countries “because of persecution or a well-founded fear of

persecution[.]” 8 U.S.C. § 1101(a)(42)(A). “One can

certainly have a well-founded fear of an event happening

when there is less than a 50% chance of the occurrence

taking place”; it would only be “too apparent,” for example,

for a refugee to have a “well-founded fear of being

persecuted” where “every tenth adult male person is either

put to death or sent to some remote labor camp” in the

applicant’s home country. Cardoza-Fonseca, 480 U.S.

at 431 (citing 1 A. Grahl-Madsen, The Status of Refugees in

International Law 180 (1966)). The Rule, then, risks the

removal of individuals with meritorious asylum claims who

cannot petition for withholding of removal or CAT relief.

By doing so, it is inconsistent with our treaty commitment to

non-refoulement.

The Rule is “arbitrary, capricious, or manifestly contrary

to the statute,” Chevron, 467 U.S. at 844, both because it is

contrary to plain congressional intent, and because it is an

arbitrary and capricious interpretation of section 1158(a).

Even if we agreed that the text of section 1158(a) is

ambiguous, the Rule flouts this court’s and the BIA’s

discretionary, individualized treatment of refugees’ methods

of entry, and infringes upon treaty commitments we have

stood by for over fifty years.

EAST BAY SANCTUARY COVENANT V. TRUMP 49

2.

Because we conclude that the Rule is substantively

invalid, we only briefly address the procedural arguments

raised by the parties. The APA requires public notice and

comment and a thirty-day grace period before a proposed

rule takes effect. 5 U.S.C. § 553(b)–(d). The notice-and-

comment requirements are exempted when “there is

involved a military or foreign affairs function of the United

States[,]” id. § 553(a), or when “the agency for good cause

finds . . . that notice and public procedure thereon are

impracticable, unnecessary or contrary to the public

interest.” Id. § 553(b)(B). The thirty-day lag in publication

can be waived where “good cause [is] found.” 15 Id.

§ 553(d)(3).

The Rule was issued without notice and comment or the

grace period. The government argues that the Rule was

properly issued because it falls under either the good-cause

or the foreign-affairs exceptions to these procedural

requirements.

a.

Proper invocation of the good-cause exception is

“sensitive to the totality of the factors at play.” United States

v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010). The

15

“Different policies” underlie the good-cause exception for the

thirty-day grace period and the good-cause exception for the notice-and-

comment requirement, and “they can be invoked for different reasons.”

Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992).

Notice-and-comment requirements are intended to ensure public

participation in rulemaking, and the thirty-day waiting period is

“intended to give affected parties time to adjust their behavior before the

final rule takes effect.” Id.

50 EAST BAY SANCTUARY COVENANT V. TRUMP

exception is a “high bar” because it is “essentially an

emergency procedure.” Id. at 1164, 1165. The government

must make a sufficient showing that “‘delay would do real

harm’ to life, property, or public safety,” EBSC II, 932 F.3d

at 777 (quoting Valverde, 628 F.3d at 1164–65), or that

“some exigency” interferes with its ability to carry out its

mission. Nat. Res. Def. Council, Inc. v. Evans, 316 F.3d 904,

911 (9th Cir. 2003).

In support of its reliance on the exception, the

government now cites a Washington Post article indicating

that when the United States stopped its policy of separating

migrant parents from their children, smugglers told asylum-

seekers that “the Americans do not jail parents who bring

children—and to hurry up before they might start doing so

again.” See Nick Miroff and Carolyn Van Houten, The

Border is Tougher to Cross Than Ever. But There’s Still One

Way into America, Wash. Post (Oct. 24, 2018). The district

court concluded that the article “at least supports the

inference” that the Rule might result in similar changes in

immigration policy, and held that the government had

“identified a ‘rational connection between the facts found

and the choice made’ to promulgate the interim Rule on an

emergency basis.” EBSC III, 354 F. Supp. 3d at 1115

(quoting Valverde, 628 F.3d at 1168).

A citation to this single article is not sufficient to

demonstrate that the delay caused by notice-and-comment or

the grace period might do harm to life, property, or public

safety. See EBSC II, 932 F.3d at 777. The government’s

reasoning continues to be largely speculative, see id. at 778;

no evidence has been offered to suggest that any of its

predictions are rationally likely to be true. The article does

not directly relate to the Rule, the consequences of the Rule,

or anything related to asylum eligibility.

EAST BAY SANCTUARY COVENANT V. TRUMP 51

Even if it did, that “the very announcement of [the]

proposed rule itself can be expected to precipitate activity by

affected parties that would harm the public welfare,” Reply

Br. of Gov’t at 21, is likely often, or even always true. The

lag period before any regulation, statute, or proposed piece

of legislation allows parties to change their behavior in

response. If we were to agree with the government’s

assertion that notice-and-comment procedures increase the

potential harm the Rule is intended to regulate, these

procedures would often cede to the good-cause exception.

Because the government has failed to demonstrate the

existence of an exigency justifying good cause, we hold that

the Rule likely does not properly fall under the good cause

exception.

b.

For the foreign affairs exception to apply, “the public

rulemaking provisions should provoke definitely

undesirable international consequences.” Yassini v.

Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980).

Otherwise, the exception “would become distended if

applied to INS actions generally, even though immigration

matters typically implicate foreign affairs.” Id. Use of the

exception is generally permissible where the international

consequences of the rule-making requirements are obvious

or thoroughly explained. We have rejected its use where the

government has failed to substantiate its reliance on the

exception or explain the detrimental effects of compliance

with the APA’s requirements. See EBSC II, 932 F.3d at 776–

77.

The government cites to four documents in support of its

renewed argument that the foreign-affairs exception is

justified: a Memorandum of Understanding (“MOU”)

between DHS and the Mexican government, the Washington

52 EAST BAY SANCTUARY COVENANT V. TRUMP

Post article, credible-fear origin data published by the

Executive Office of Immigration Review (“EOIR”), and a

speech by President Trump. The four documents appear to

demonstrate that the Rule and Proclamation are related to

ongoing changes in the national immigration landscape, but

still fail to establish that adhering to notice and comment and

a thirty-day grace period will “provoke definitely

undesirable international consequences.” Yassini, 618 F.3d

at 1360 n.4.

We agree with the government that the cited MOU does

broadly “show[] that [immigration] negotiations have

happened in the past,” Op. Br. of Gov’t at 49, but this is

insufficient to demonstrate that notice and comment will

provoke undesirable international consequences. Indeed,

the MOU’s substance seems to undermine the “broader

diplomatic program involving sensitive and ongoing

negotiations with Mexico.” Op. Br. of Gov’t at 47 (internal

quotations omitted). Article 3 of the MOU states that

“[l]ocal repatriation agreements should conform to mutually

established criteria and principles for the repatriation of

Mexican nationals being repatriated from the United States

to Mexico.” The unilateral repatriation of Mexican nationals

set forth by the Rule—without requesting public

participation—undermines these terms.

The cited Washington Post page discusses an increase in

the proportion of families that seek asylum and the EOIR

data lists the country of origin of credible-fear cases and

summarizes the number of people that attempt to enter the

United States with an asylum application, the number of

cases completed in 2018, and the outcome of credible fear

cases. It is unclear how these data “reflect[] motivations for

crossing the border illegally,” Op. Br. of Gov’t at 49, and

even less clear how they demonstrate the consequences of

EAST BAY SANCTUARY COVENANT V. TRUMP 53

requesting public notice-and-comment on foreign policy.

And the speech by President Trump, as the district court

noted, discusses the domestic consequences of foreign

immigration, not the foreign policy consequences of

immigration into the United States. See EBSC III, 354 F.

Supp. 3d at 1114. The speech—like the MOU, the article,

and the EOIR data—does not suggest that the APA’s

rulemaking provisions might trigger or even shape

immediate consequences in foreign affairs.

The evidence relied on by the government here is largely

the same as the evidence previously before the motions panel

and the district court. While we remain “sensitive to the fact

that the President has access to information not available to

the public, and . . . [are] cautious about demanding

confidential information,” the connection between

negotiations with Mexico and the immediate

implementation of the Rule is still “not apparent.” EBSC II,

932 F.3d at 776. Broadly citing to the Rule’s immigration

context is insufficient to invoke the foreign-affairs

exception. See Yassini, 618 F.2d at 1360 n.4. The

government has not made a “sufficient showing” that “the

public rulemaking provisions should provoke definitely

undesirable international consequences.” Id.; see also

Evans, 316 F.3d at 912.

In sum, we agree with the motions panel that the

government has not established that DOJ and DHS properly

invoked the foreign-affairs exception to the notice-and-

comment requirement and thirty-day grace period.

B.

We next consider whether the Organizations have

established that, in the absence of a preliminary injunction,

they are likely to suffer irreparable harm. See Arizona

54 EAST BAY SANCTUARY COVENANT V. TRUMP

Dream Act Coalition v. Brewer, 757 F.3d 1053, 1068 (9th

Cir. 2014). Irreparable harm is “harm for which there is no

adequate legal remedy, such as an award for damages.” Id.

For this reason, economic harm is not generally considered

irreparable. But where parties cannot typically recover

monetary damages flowing from their injury—as is often the

case in APA cases—economic harm can be considered

irreparable. See California v. Azar, 911 F.3d 558, 581 (9th

Cir. 2018). Intangible injuries may also qualify as

irreparable harm, because such injuries “generally lack an

adequate legal remedy.” Brewer, 757 F.3d at 1068.

We agree with the district court that the Organizations

have established that they will suffer a significant change in

their programs and a concomitant loss of funding absent a

preliminary injunction enjoining enforcement of the Rule.

EBSC II, 932 F.3d at 767. Both constitute irreparable

injuries: the first is an intangible injury, and the second is

economic harm for which the Organizations have no vehicle

for recovery.

The Rule has already prompted the Organizations to

change their core missions. Since the Rule issued, ILL has

placed programmatic expansions on hold and has “had to

lessen its caseload[.]” Supp. Decl. of Stephen W. Manning

at ¶ 14. CARECEN notes that it will “divert significant

resources,” including “staff time and organizational

resources” to respond to the Rule. Decl. of Daniel Sharp at

¶¶ 11–13. EBSC has had to “divert resources away from its

core programs to address the new policy.” Decl. of Michael

Smith at ¶ 15. And, as discussed in Part III, supra, the

Organizations each stand to lose funding because of their

core changes in mission.

Importantly, the Organizations also filed suit the same

day that the Rule and the first proclamation issued; while not

EAST BAY SANCTUARY COVENANT V. TRUMP 55

dispositive, this suggests urgency and impending irreparable

harm. See Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc.,

762 F.2d 1374, 1377 (9th Cir. 1985). We agree with the

district court that the Organizations have demonstrated a

sufficient likelihood of irreparable injury to warrant

injunctive relief. EBSC III, 354 F. Supp. 3d at 1116.

C.

The government next argues that the harms it will suffer

because of the preliminary injunction—namely, the harm

caused by the injunction “undermin[ing] the Executive

Branch’s constitutional and statutory authority to secure the

Nation’s borders,” and the “entry of illegal aliens”—

outweigh the benefit to the public and the Organizations

conferred by the injunction. Op. Br. of Gov’t at 51–52.

Relevant equitable factors include the value of complying

with the APA, the public interest in preventing the deaths

and wrongful removal of asylum-seekers, preserving

congressional intent, and promoting the efficient

administration of our immigration laws at the border.

First, “[t]he public interest is served by compliance with

the APA.” Azar, 911 F.3d at 581. Indeed, it “does not matter

that notice and comment could have changed the substantive

result; the public interest is served from the proper process

itself.” Id. at 581–82. The Organizations and various Amici

informed the district court that they would have submitted

comments explaining why the Rule disrupts their

organizational missions and fails to meet its intended

purpose, had they had the opportunity. The APA’s

requirements reflect “a judgment by Congress that the public

interest is served by a careful and open review of proposed

administrative rules and regulations.” Alcaraz v. Block,

746 F.2d 593, 610 (9th Cir. 1984) (citing Phil. Citizens in

Action v. Schweiker, 669 F.2d 877, 881 (9th Cir. 1982)). The

56 EAST BAY SANCTUARY COVENANT V. TRUMP

government’s failure to comply with the APA—particularly

given the strength of the Organizations’ procedural attack on

the Rule—weighs in favor of granting injunctive relief.

Second, the public has an interest in “ensuring that we

do not deliver aliens into the hands of their persecutors,”

Leiva-Perez, 640 F.3d at 971, and “preventing aliens from

being wrongfully removed, particularly to countries where

they are likely to face substantial harm,” Nken, 556 U.S. at

436. The Rule will likely result in some migrants being

wrongfully denied refugee status in this country. For

migrants affected by the Rule, withholding of removal and

CAT protection are the only forms of relief available. As

discussed, these forms of relief demand a higher burden of

proof than an asylum claim. At the initial screening

interview with an asylum officer, an applicant seeking

asylum need only present a “credible fear” of persecution,

while an applicant seeking withholding of removal of CAT

protection must demonstrate the higher “reasonable fear” of

persecution or torture.

The government’s opening brief notes that 17 percent of

the 34,158 migrants whose cases were completed in 2018

received asylum. See Op. Br. of Gov’t at 52. Assuming the

number of migrants remains constant, if even just 25 percent

of asylum-seekers with meritorious claims are denied

asylum because of their method of entry, over 1,000 people

will either be returned to home countries where they face

“persecution based on ‘race, religion, nationality,

membership in a political social group, or political

opinion,’” EBSC III, 354 F. Supp. 3d at 1117 n.15 (quoting

8 U.S.C. §§ 1101(a)(42), 1158(b)(1)), or forced to proceed

on limited-relief claims that demand more stringent

showings. If the rate of migration and the rate of migrants

claiming fear during the expedited removal process

EAST BAY SANCTUARY COVENANT V. TRUMP 57

continues to increase, see 84 Fed. Reg. at 21,229, the scale

of this wrongful removal will only worsen.

Third, the public has an interest in ensuring that the

“statutes enacted by [their] representatives are not imperiled

by executive fiat.” EBSC II, 932 F.3d at 779 (internal

quotation marks omitted). The INA, and the United States’s

signatory status to the 1951 Convention, “reflect the balance

Congress struck between the public interests in rendering

aliens who enter illegally inadmissible and subject to

criminal and civil penalties, and . . . preserving their ability

to seek asylum.” EBSC III, 354 F. Supp. 3d at 1117–18

(citations omitted). The Rule and Proclamation disrupt that

balance by overriding plain congressional intent.

Finally, the government and the public have an interest

in the “efficient administration of the immigration laws at

the border.” EBSC II, 932 F.3d at 779 (internal quotation

marks omitted). This interest is “weighty.” Landon v.

Plasencia, 459 U.S. 21, 34 (1982). “[C]ontrol over matters

of immigration is a sovereign prerogative, largely within the

control of the executive and the legislature.” Id. The

government has a compelling interest in ensuring that

injunctions—such as the one granted here—do not

undermine separation of powers by blocking the Executive’s

lawful ability to regulate immigration and rely on its

rulemaking to aid diplomacy.

The role of the judiciary in reviewing such policies is

narrow. It is merely to ensure that executive procedures do

not violate principles of due process or “displace

congressional choices of policy.” Id. at 35. This executive

deference, then, is closely linked with our determination on

the substantive validity of the Rule. Essentially, the weight

we ascribe to this factor depends on the extent to which we

agree that the Rule overrides plain congressional intent.

58 EAST BAY SANCTUARY COVENANT V. TRUMP

Because the Organizations have established that the Rule is

invalid, we do not place much weight on this factor. As the

motions panel noted: “[t]here surely are enforcement

measures that the President and the Attorney General can

take to ameliorate the [immigration] crisis, but continued

inaction by Congress is not a sufficient basis under our

Constitution for the Executive to rewrite our immigration

laws.” EBSC II, 932 F.3d at 774.

In sum, we agree with the district court that there is a

significant basis for concluding that the public interest

weighs “sharply” in the Organizations’ favor. See EBSC III,

354 F. Supp. 3d at 1111.

V.

Finally, we turn to the remedy entered by the district

court: an injunction preventing enforcement of the Rule.

The injunction enjoins the part of the Rule that removes

asylum eligibility from migrants who fail to follow a

presidential proclamation. EBSC III, 354 F. Supp. 3d

at 1121. It does not enjoin the credible-fear amendments,

but “they have no independent effect,” so they are effectively

enjoined as well. Id. at 1121 n.22. We conclude that the

district court did not abuse its discretion in enjoining

enforcement of the Rule.

Injunctive relief should be “no more burdensome to the

defendant than necessary to provide complete relief to the

plaintiffs before the court.” Univ. of Cal. v. U.S. Dep’t of

Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018) (internal

quotations omitted). “Where relief can be structured on an

individual basis, it must be narrowly tailored to remedy the

specific harm shown,” but there is “no general requirement

that an injunction affect only the parties in the suit.” Bresgal

v. Brock, 843 F.2d 1163, 1169–1170 (9th Cir. 1987). The

EAST BAY SANCTUARY COVENANT V. TRUMP 59

equitable relief granted by the district court is acceptable

where it is “necessary to give prevailing parties the relief to

which they are entitled.” Id. at 1170–71. District courts

have “considerable discretion” in crafting suitable equitable

relief; correspondingly, appellate review is “narrow.”

Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970,

974 (9th Cir. 1991).

As discussed, the harms caused to the Organizations as a

result of the Rule include a (1) loss of funding and

(2) disruption of organizational purpose. Adequate

equitable relief must remedy both harms. Bresgal, 843 F.2d

at 1170–71. Both harms are due, in part, to the Rule’s likely

consequence of preventing asylum-seekers with meritorious

claims from entering the country along our southern border

and successfully obtaining asylum. The stymied flow of

refugees will result in less funding for the Organizations, and

a shift (sometimes wholesale) in their organizational

missions.

The Organizations do not limit their potential clients to

refugees that enter the United States only at the California-

Mexico or Arizona-Mexico border; they represent “asylum

seekers” broadly. Unlike the plaintiffs in California v.

Azar—individual states seeking affirmance of an injunction

that applied past their borders—the Organizations here “do

not operate in a fashion that permits neat geographic

boundaries.” EBSC III, 354 F. Supp. 3d at 1120–21; see also

Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (The “scope

of injunctive relief is dictated by the extent of the violation

established, not by the geographical extent of the plaintiff

class.”). An injunction that, for example, limits the

application of the Rule to California, would not address the

harm that one of the Organizations suffers from losing

clients entering through the Texas-Mexico border. One

60 EAST BAY SANCTUARY COVENANT V. TRUMP

fewer asylum client, regardless of where the client entered

the United States, results in a frustration of purpose (by

preventing the organization from continuing to aid asylum

applicants who seek relief), and a loss of funding (by

decreasing the money it receives for completed cases).

The government suggests that plaintiffs “identify actual

aliens in the United States who would otherwise be subject

to the Rule,” Op. Br. of Gov’t at 57, but this suggestion fails

to redress the scope of the Organizations’ harms. Part of the

harm the Organizations have alleged is the difficulty posed

by the Rule in helping them reach migrants who will cross

the border; their missions are not limited to helping

individuals currently present in the United States. Even if

their missions were so limited, asking the Organizations to

seek and list every person in the country they might help in

the coming months is infeasible and impracticable. The

“Government has not proposed a workable alternative form

of the [injunction] that accounts” for the harm at issue but

“nevertheless appl[ies] only within the [] borders” of the

Ninth Circuit. Washington v. Trump, 847 F.3d 1151, 1167

(9th Cir. 2017); see also EBSC II, 932 F.3d at 779; EBSC III,

354 F. Supp. 3d at 1121.

Two other factors support the district court’s decision to

enjoin Defendants from taking any action to implement the

Rule. First, “[w]hen a reviewing court determines that

agency regulations are unlawful, the ordinary result is that

the rules are vacated—not that their application to the

individual petitioners is proscribed.” Univ. of Cal., 908 F.3d

at 511 (internal quotation marks omitted). Singular

equitable relief is “commonplace” in APA cases, and is often

“necessary to provide the plaintiffs” with “complete

redress.” Id. at 512. Our “typical response is to vacate the

rule and remand to the agency”; we “ordinarily do not

EAST BAY SANCTUARY COVENANT V. TRUMP 61

attempt, even with the assistance of agency counsel, to

fashion a valid regulation from the remnants of the old rule.”

Harmon v. Thornburgh, 878 F.2d 484, 494 (D.C. Cir. 1989).

Because of the broad equitable relief available in APA

challenges, a successful APA claim by a single individual

can affect an “entire” regulatory program. Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 890 n.2 (1990).

Second, as the district court noted, there is an important

“need for uniformity in immigration policy.” Id. at 511; see

also EBSC III, 354 F. Supp. 3d at 1120–21. We previously

have recognized that the “Constitution requires a uniform

Rule of Naturalization; Congress has instructed that the

immigration laws of the United States should be enforced

vigorously and uniformly; and the Supreme Court has

described immigration policy as a comprehensive and

unified system.” Univ. of Cal., 908 F.3d at 511 (quoting

United States v. Texas, 809 F.3d 134, 187–88 (5th Cir. 2014)

(emphases in original)). The INA itself “was designed to

implement a uniform federal policy, and the meaning of

concepts important to its application are not to be determined

according to the law of the forum, but rather require[] a

uniform federal definition.” Kahn v. I.N.S., 36 F.3d 1412,

1414 (9th Cir. 1994) (internal quotation marks omitted).

Different interpretations of executive policy across circuit or

state lines will needlessly complicate agency and individual

action in response to the United States’s changing

immigration requirements. For these reasons, in

immigration cases, we “consistently recognize[] the

authority of district courts to enjoin unlawful policies on a

universal basis.” EBSC II, 932 F.3d at 779 (citing Univ. of

Cal., 908 F.3d at 511).

The government again “raises no grounds on which to

distinguish this case from our uncontroverted line of

62 EAST BAY SANCTUARY COVENANT V. TRUMP

precedent.” Id. Given the context of this case and the harm

the district court sought to address, we find no error or abuse

of discretion in the terms or scope of the preliminary

injunction.

VI.

For the reasons discussed, the district court’s orders

granting preliminary injunctions are AFFIRMED.

FERNANDEZ, Circuit Judge, concurring in the result:

I concur in the majority opinion because, and for the

most part only because, I believe that we are bound by the

published decision in East Bay Sanctuary Covenant v.

Trump (East Bay I), 932 F.3d 742 (9th Cir. 2018).

More specifically, we are bound by both the law of the

circuit and the law of the case. Of course, the rules that

animate the former doctrine are not the same as those that

animate the latter. See Gonzalez v. Arizona, 677 F.3d 383,

389 n.4 (9th Cir. 2012) (en banc).

As we have said: “Circuit law . . . binds all courts within

a particular circuit, including the court of appeals itself.

Thus, the first panel to consider an issue sets the law not only

for all the inferior courts in the circuit, but also future panels

of the court of appeals.” Hart v. Massanari, 266 F.3d 1155,

1171 (9th Cir. 2001). Moreover: “Once a panel resolves an

issue in a precedential opinion, the matter is deemed

resolved, unless overruled by the court itself sitting en banc,

or by the Supreme Court.” Id. (footnote omitted). Published

opinions are precedential. See id. at 1177; see also

Gonzalez, 667 F.3d at 389 n.4. That remains true, even if

EAST BAY SANCTUARY COVENANT V. TRUMP 63

some later panel is satisfied that “arguments have been

characterized differently or more persuasively by a new

litigant,” 1 or even if a later panel is convinced that the earlier

decision was “incorrectly decided” and “needs

reexamination.” 2 And those rules are not mere formalities

to be nodded to and avoided. Rather, “[i]nsofar as there may

be factual differences between the current case and the

earlier one, the court must determine whether those

differences are material to the application of the rule or allow

the precedent to be distinguished on a principled basis.”

Hart, 266 F.3d at 1172. In this case, there are no material

differences—in fact, the situation before this panel is in

every material way the same as that before the motions

panel. Furthermore, there is no doubt that motions panels

can publish their opinions, 3 even though they do not

generally do so. 4 Once published, there is no difference

between motions panel opinions and other opinions; all are

entitled to be considered with the same principles of

deference by ensuing panels. Thus, any hesitation about

whether they should be precedential must necessarily come

before the panel decides to publish, not after. As we held in

Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015):

Lair contended at oral argument that a

motions panel’s decision cannot bind a merits

panel, and as a result we are not bound by the

motions panel’s analysis in this case. Not so.

1

United States v. Ramos-Medina, 706 F.3d 932, 939 (9th Cir. 2013).

2

Naruto v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018).

3

See 9th Cir. Gen. Order 6.3(g)(3)(ii); see also id. at 6.4(b).

4

See Haggard v. Curry, 631 F.3d 931, 933 n.1 (9th Cir. 2010) (per

curiam).

64 EAST BAY SANCTUARY COVENANT V. TRUMP

We have held that motions panels can issue

published decisions. . . . [W]e are bound by

a prior three-judge panel’s published

opinions, and a motions panel’s published

opinion binds future panels the same as does

a merits panel’s published opinion.

Id. at 747 (citations omitted). 5 Therefore, the legal

determinations in East Bay I are the law of the circuit.

We have explained the law of the case doctrine as “a

jurisprudential doctrine under which an appellate court does

not reconsider matters resolved on a prior appeal.” Jeffries

v. Wood, 114 F.3d 1484, 1488–89 (9th Cir. 1997) (en banc),

overruled on other grounds by Gonzalez, 677 F.3d at 389

n.4. While we do have discretion to decline application of

the doctrine, “[t]he prior decision should be followed unless:

(1) the decision is clearly erroneous and its enforcement

would work a manifest injustice, (2) intervening controlling

authority makes reconsideration appropriate, or

(3) substantially different evidence was adduced at a

subsequent trial.” Id. at 1489 (internal quotation marks and

5

The majority opines that in this respect Lair’s holding is dicta. Not

so. The court’s first basis for rejecting Lair’s contention was the basis

just quoted. Its second basis was then set forth. Id. It gave both of those

alternatives weight and attention. See Woods v. Interstate Realty Co.,

337 U.S. 535, 537, 69 S. Ct. 1235, 1237, 93 L. Ed. 1524 (1949) (holding

“where a decision rests on two or more grounds, none can be relegated

to the category of obiter dictum.”); see also United States v. Vidal-

Mendoza, 705 F.3d 1012, 1016 n.5 (9th Cir. 2013); Guadalupe-Cruz v.

INS, 240 F.3d 1209, 1211 & n.5 (9th Cir.), corrected, 250 F.3d 1271 (9th

Cir. 2001).

EAST BAY SANCTUARY COVENANT V. TRUMP 65

footnote omitted). 6 We have also indicated that, in general,

“our decisions at the preliminary injunction phase do not

constitute the law of the case,” 7 but that is principally

because the matter is at the preliminary injunction stage and

a further development of the factual record as the case

progresses to its conclusion may well require a change in the

result. 8 Even so, decisions “on pure issues of law . . . are

binding.” Ranchers Cattlemen, 499 F.3d at 1114. Of course,

the case at hand has not progressed beyond the preliminary

injunction stage. It is still at that stage, and the factual record

has not significantly changed between the record at the time

of the decision regarding the stay motion and the current

record. Therefore, as I see it, absent one of the listed

exceptions, which I do not perceive to be involved here, the

law of the case doctrine would also direct that we are bound

by much of the motions panel’s decision in East Bay I.

Applying those doctrines:

6

The majority seems to add a fourth exception, that is, motions

panel decisions never constitute the law of the case. That would be

strange if those decisions can constitute the law of the circuit, which they

can. Moreover, the case primarily cited for that proposition did not

indicate it was dealing with a published motions panel decision or one

that set forth its reasoning. See United States v. Lopez-Armenta,

400 F.3d 1173, 1175 (9th Cir. 2005). It also dealt with the unique area

of jurisdiction. See id.

7

Ranchers Cattlemen Action Legal Fund United Stockgrowers of

Am. v. U.S. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007); see

also Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1074, 1076 n.5 (9th Cir.

2015); Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1090 (9th

Cir. 2013).

8

See Ctr. for Biological Diversity, 706 F.3d at 1090.

66 EAST BAY SANCTUARY COVENANT V. TRUMP

(1) The Organizations have standing. East Bay I,

932 F.3d at 765–69.

(2) The Organizations are likely to succeed on the

substantive merits. See id. at 770–74. As to procedural

validity regarding adoption of the regulation, the motions

panel decision that the foreign affairs exception to the notice

and comment procedures does not apply is binding. Id.

at 775–77. In addition, while the motions panel decision

regarding the good cause exceptions is not fully binding,

what it did determine was that the information then brought

to the attention of the panel and the district court did not

suffice. Id. at 777–78. In light of that, I agree with the

majority that merely adding the twenty-five-word sentence

from a Washington Post article was insufficient to justify

changing the motions panel result.

(3) The decisions made by the motions panel regarding

harm to the Organizations and balance of hardships are also

binding decisions regarding the propriety of the preliminary

injunction. Id. at 767, 778–79.

(4) The scope of the injunction is not overly broad. Id.

at 779–80.

Thus, I respectfully concur in the result of the majority

opinion.