Amicus Curiae Brief — Alejandro N. Mayorkas, Secretary of Homeland Security, et al., Petitioners v. Innovation Law Lab, et al.

Supreme Court briefMar 9, 2020

Ask Donna

What actually matters in this document.

Text

No. 19A960

In the Supreme Court of the United States

___________________________________________

CHAD WOLF, ACTING SECRETARY OF HOMELAND SECURITY, ET. AL.,

Applicants,

INNOVATION LAW LAB, ET AL.,

Respondents.

___________________________________________

On Application for a Stay of the Injunction Issued by the

United States District Court for the Northern District of California

and for an Administrative Stay

___________________________________________

To the Honorable Elena Kagan,

Associate Justice of the United States and

Circuit Justice for the Ninth Circuit

___________________________________________

MOTION FOR LEAVE TO FILE AMICUS BRIEF, MOTION FOR

LEAVE TO FILE BRIEF IN COMPLIANCE WITH RULE 33.2,

AMICUS CURIAE BRIEF OF IMMIGRATION REFORM LAW

INSTITUTE IN SUPPORT OF APPLICANTS

___________________________________________

CHRISTOPHER J. HAJEC

Immigration Reform Law Institute

25 Massachusetts Ave. NW, Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Ave. NW, Suite 700-1A

Washington, DC 20036

(202) 355-9452

lj@larryjoseph.com

Counsel for Movant and Amicus Curiae

TABLE OF CONTENTS

Table of Authorities ...................................................................................................... iii

Motion for Leave to File Amicus Brief .......................................................................... 1

Motion for Leave to File under Rule 33.2 ..................................................................... 4

Amicus Curiae Brief in Support of Applicants ............................................................. 6

Introduction ................................................................................................................... 6

Standard of Review ........................................................................................................ 7

Summary of Argument .................................................................................................. 8

Argument ....................................................................................................................... 9

The grant of a writ of certiorari is likely. ........................................................... 9

II.

The Government is likely to prevail. ................................................................ 10

The courts below lacked jurisdiction. .................................................... 10

Plaintiffs lack standing for the relief they seek. ........................ 10

Plaintiffs’ alleged injuries lack both

causation and redressability. ........................................... 11

Alien Plaintiffs lack a legally protected right

for the relief they seek. ..................................................... 13

Institutional Plaintiffs cannot premise

standing on diverted resources......................................... 14

Institutional Plaintiffs’ lost funding from

California does not provide standing. .............................. 17

Institutional Plaintiffs lack third-party

standing for future clients. ............................................... 18

Institutional Plaintiffs’ interests fall outside

the relevant zones of interests. ........................................ 19

Sovereign immunity bars Plaintiffs’ challenge. ......................... 20

Plaintiffs cannot sue under the APA. .............................. 20

Plaintiffs cannot bring a pre-APA suit in

equity. ................................................................................ 22

The Government is likely to prevail on the merits. .............................. 23

The MPP is consistent with the INA. ......................................... 23

The MPP is consistent with the non-refoulment

obligations. ................................................................................... 26

The MPP satisfies the APA’s requirement for

reasoned decisionmaking. ........................................................... 28

The MPP satisfied the APA’s procedural

requirements. ............................................................................... 29

This type of litigation undermines the essential

flexibility that the APA and the INA provide to

address emergencies and foreign-affairs functions. ................... 30

III.

The other stay criteria tip in the Government’s favor. .................................... 33

The Government’s harm is weighty and irreparable. ........................... 33

Plaintiffs’ alleged harms are not cognizable. ........................................ 34

The balance of equities and the public interest favor the

Government. ........................................................................................... 36

Conclusion .................................................................................................................... 37

TABLE OF AUTHORITIES

CASES

Action Alliance of Senior Citizens v. Heckler,

789 F.2d 931 (D.C. Cir. 1986) .............................................................................. 16

Air Courier Conference v. Am. Postal Workers Union,

498 U.S. 517 (1991) .............................................................................................. 19

Alabama Power Co. v. Ickes,

302 U.S. 464 (1938) ......................................................................................... 22-23

Alfred L. Snapp & Son v. Puerto Rico ex rel. Barez,

458 U.S. 592 (1982) .............................................................................................. 18

Am. Mining Cong. v. Mine Safety & Health Admin.,

995 F.2d 1106 (D.C. Cir. 1993) ............................................................................ 31

Arizona v. United States,

567 U.S. 387 (2012) ........................................................................................ 30, 32

Ass’n of Data Processing Serv. Orgs., Inc. v. Camp,

397 U.S. 150 (1970) .............................................................................................. 20

Barr v. E. Bay Sanctuary Covenant,

140 S.Ct. 3 (2019) ................................................................................................. 11

Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534 (1986) .............................................................................................. 10

Burford v. Sun Oil Co.,

319 U.S. 315 (1943) .............................................................................................. 37

Chevron U.S.A., Inc. v. NRDC,

467 U.S. 837 (1984) .............................................................................................. 31

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) .............................................................................................. 15

Cooper Indus., Inc. v. Aviall Serv., Inc.,

543 U.S. 157 (2004) .............................................................................................. 24

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) .............................................................................................. 12

Davis v. Mineta,

302 F.3d 1104 (10th Cir. 2002) ............................................................................ 35

Dep’t of Army v. Blue Fox, Inc.,

525 U.S. 255 (1999) .............................................................................................. 20

Diamond v. Charles,

476 U.S. 54 (1986) .......................................................................................... 14, 34

iii

East Bay Sanctuary Covenant v. Trump,

909 F.3d 1219 (9th Cir. 2018) ........................................................................ 10, 17

East Bay Sanctuary Covenant v. Trump,

932 F.3d 742 (9th Cir. 2018) ................................................................................ 11

Ecosystem Inv., Partners v. Crosby Dredging, L.L.C.,

729 F.App’x 287 (5th Cir. 2018) ........................................................................... 16

Elrod v. Burns,

427 U.S. 347 (1976) .............................................................................................. 34

Ex parte Young,

209 U.S. 123 (1908) .............................................................................................. 22

Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC,

666 F.3d 1216 (9th Cir. 2012) .............................................................................. 15

FCC v. ITT World Commc’ns, Inc.,

466 U.S. 463 (1984) .............................................................................................. 21

FDIC v. Meyer,

510 U.S. 471 (1994) .............................................................................................. 20

FERC v. Elec. Power Supply Ass’n,

136 S.Ct. 760 (2016) ............................................................................................. 28

Flast v. Cohen,

392 U.S. 83 (1968) ................................................................................................ 14

Gladstone, Realtors v. Bellwood,

441 U.S. 91 (1979) ................................................................................................ 16

Graddick v. Newman,

453 U.S. 928 (1981) .............................................................................................. 34

Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982) ..................................................................................... 8, 15-16

Heckler v. Lopez,

464 U.S. 879 (1983) .............................................................................................. 35

Hernandez v. Sessions,

872 F.3d 976 (9th Cir. 2017) ................................................................................ 34

Hollingsworth v. Perry,

558 U.S. 183 (2010) .......................................................................................... 8, 23

Immigration & Naturalization Serv. v. Stevic,

467 U.S. 407 (1984) .............................................................................................. 26

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) .............................................................................................. 28

Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee,

456 U.S. 694 (1982) .............................................................................................. 10

Jennings v. Rodriguez,

138 S.Ct. 830 (2018) ............................................................................................. 24

Kleindienst v. Mandel,

408 U.S. 753 (1972) .............................................................................................. 33

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994) .............................................................................................. 10

Kowalski v. Tesmer,

543 U.S. 125 (2004) .............................................................................................. 18

Landon v. Plasencia,

459 U.S. 21 (1982) ................................................................................................ 13

Lane v. Pena,

518 U.S. 187 (1996) .............................................................................................. 20

Lewis v. Casey,

518 U.S. 343 (1996) .............................................................................................. 12

Linda R.S. v. Richard D.,

410 U.S. 614 (1973) .............................................................................................. 14

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ........................................................................................ 11, 13

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) .............................................................................................. 19

Mathews v. Diaz,

426 U.S. 67 (1976) ................................................................................................ 33

Matter of Sanchez-Avila,

21 I. & N. Dec. 444 (BIA 1996) ............................................................................ 24

McConnell v. FEC,

540 U.S. 93 (2003) ........................................................................................... 13-14

Medellin v. Texas,

552 U.S. 491 (2008) .............................................................................................. 26

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) .............................................................................................. 35

Mountain States Legal Found. v. Glickman,

92 F.3d 1228 (D.C. Cir. 1996) .............................................................................. 16

Nader v. Saxbe,

497 F.2d 676 (D.C. Cir. 1974) .............................................................................. 14

Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer

Pharm. Co., 290 F.3d 578 (3d Cir. 2002) ............................................................. 35

Office of Personnel Mgmt. v. Richmond,

496 U.S. 414 (1990) .............................................................................................. 29

Pennsylvania v. New Jersey,

426 U.S. 660 (1976) .............................................................................................. 15

People for the Ethical Treatment of Animals v. U.S. Dept. of Agriculture,

797 F.3d 1087 (D.C. Cir. 2015) ............................................................................ 15

Russello v. United States,

464 U.S. 16 (1983) .......................................................................................... 25, 27

Sea-Land Serv., Inc. v. Alaska R.R.,

659 F.2d 243 (D.C. Cir. 1982) ......................................................................... 20-21

SEC v. McCarthy,

322 F.3d 650 (9th Cir. 2003) ........................................................................... 25-26

Second City Music, Inc. v. City of Chicago,

333 F.3d 846 (7th Cir. 2003) ................................................................................ 35

Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206 (1953) .............................................................................................. 13

Sierra Club v. Morton,

405 U.S. 727 (1972) .............................................................................................. 15

Sprint Communs. Co., L.P. v. APCC Servs.,

554 U.S. 269 (2008) .............................................................................................. 18

Steel Co. v. Citizens for a Better Env’t.,

523 U.S. 83 (1998) ................................................................................................ 10

Trump v. Hawaii,

138 S.Ct. 2392 (2018) ..................................................................................... 30, 32

Trump v. Int’l Refugee Assistance Project,

137 S.Ct. 2080 (2017) ........................................................................................... 36

United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537 (1950) .............................................................................................. 32

United States v. Lee,

106 U.S. 196 (1882) .............................................................................................. 22

United States v. Sherwood,

312 U.S. 584 (1941) .............................................................................................. 20

Vt. Agency of Nat. Res. v. United States ex rel. Stevens,

529 U.S. 765 (2000) .............................................................................. 13-14, 16-18

Wadley S. R. Co. v. Georgia,

235 U.S. 651 (1915) .............................................................................................. 22

Warth v. Seldin,

422 U.S. 490 (1975) .............................................................................................. 15

Washington v. Reno,

35 F.3d 1093 (6th Cir. 1994) ................................................................................ 36

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) .............................................................................................. 37

Winter v. NRDC, Inc.,

555 U.S. 7 (2008) .................................................................................................. 37

Yakus v. United States,

321 U.S. 414 (1944) .............................................................................................. 37

Youngberg v. Romeo,

457 U.S. 307 (1982) .............................................................................................. 22

STATUTES

U.S. CONST. art. III .................................................................... 11-14, 16, 18, 22, 34-35

Administrative Procedure Act,

5 U.S.C. §§ 551-706 .................................................................... 7-8, 20-22, 28-32

5 U.S.C. § 553(a)(1) ................................................................................................ 30, 32

5 U.S.C. § 553(b)(A) ............................................................................................... 22, 29

5 U.S.C. § 553(b)(B) ................................................................................................ 30-31

5 U.S.C. § 553(d)(3) ................................................................................................. 30-31

5 U.S.C. § 701(a)(1) ...................................................................................................... 21

5 U.S.C. § 701(a)(2) ...................................................................................................... 21

5 U.S.C. § 702 .......................................................................................................... 20-21

5 U.S.C. § 703 ............................................................................................................... 21

Immigration and Nationality Act,

8 U.S.C. §§ 1101-1537 ............................... 7-8, 12-14, 16-17, 21, 23-27, 30, 32-33

8 U.S.C. § 1158 ............................................................................................................. 17

8 U.S.C. § 1225(b)(1) ........................................................................................... 8, 23-26

8 U.S.C. § 1225(b)(2) ............................................................................................... 24-26

8 U.S.C. § 1225(b)(2)(A) .......................................................................................... 25-26

8 U.S.C. § 1225(b)(2)(B) .......................................................................................... 25-26

8 U.S.C. § 1225(b)(2)(B)(ii) ..................................................................................... 23-26

vii

8 U.S.C. § 1225(b)(2)(C) .......................................................................... 9. 12. 14. 23-27

8 U.S.C. § 1229a ........................................................................................................... 25

8 U.S.C. § 1231 ............................................................................................................. 27

8 U.S.C. § 1231(b) ....................................................................................................... 27

8 U.S.C. § 1231(b)(3)(A) ......................................................................................... 26, 28

8 U.S.C. § 1231(h) .............................................................................................. 9, 14, 27

8 U.S.C. § 1252(a)(5) .................................................................................................... 21

8 U.S.C. § 1252(b)(9) .................................................................................................... 21

8 U.S.C. § 1252(e)(3) .................................................................................................... 21

8 U.S.C. § 1253(h) (1994) ............................................................................................. 27

Fair Housing Act,

PUB. L. NO. 90-284, Title VIII, 82 Stat. 83 (1968)............................................ 16

PUB. L. NO. 94-574, § 1,

90 Stat. 2721 (1976) .......................................................................................... 20

Illegal Immigration Reform and Immigrant Responsibility Act,

PUB. L. NO. 104-208, Div. C, 110 Stat. 3009-546 (1996) .................................. 27

PUB. L. NO. 104-208, Div. C, § 302(a),

110 Stat. 3009, 3009-579 to 3009-598 (1996) ................................................... 27

PUB. L. NO. 104-208, Div. C, § 305(a)(3),

110 Stat. 3009, 3009-598 to 3009-606 (1996) ................................................... 27

RULES AND REGULATIONS

84 Fed. Reg. 33,829 (2019) .................................................................................... 31, 34

Kirstjen M. Nielsen, Secretary, Dep’t of Homeland Security, Policy

Guidance of the Implementation of Migrant Protection Protocols

(Jan. 25, 2019) ..................................................................................................... 7

viii

No. 19A960

In the Supreme Court of the United States

___________________________________________

CHAD WOLF, ACTING SECRETARY OF HOMELAND SECURITY, ET. AL.,

Applicants,

INNOVATION LAW LAB, ET AL.,

Respondents.

___________________________________________

On Application for a Stay of the Injunction Issued by the

United States District Court for the Northern District of California

and for an Administrative Stay

___________________________________________

MOTION FOR LEAVE TO FILE AMICUS BRIEF

Movant Immigration Reform Law Institute respectfully requests leave to file

the accompanying brief as amicus curiae in support of the application to stay the

injunctive relief entered by the District Court and modified by the Court of Appeals

in this matter.* Movant’s counsel contacted the parties’ counsel of record, who each

indicated that their clients take no position on IRLI’s motion for leave to file.

IDENTITY AND INTERESTS OF MOVANT

The Immigration Reform Law Institute (“IRLI”) is a nonprofit 501(c)(3) public

interest law firm dedicated both to litigating immigration-related cases in the

interests of United States citizens and to assisting courts in understanding federal

Consistent with FED. R. APP. P. 29(a)(4)(E) and this Court’s Rule 37.6, counsel

for movant and amicus curiae authored these motions and brief in whole, and no

counsel for a party authored the motions and brief in whole or in part, nor did any

person or entity, other than the movant/amicus and its counsel, make a monetary

contribution to preparation or submission of the motions and brief.

immigration law. IRLI has litigated or filed amicus curiae briefs in a wide variety of

immigration-related cases, including an amicus brief in the district court proceedings

in this litigation. For more than twenty years the Board of Immigration Appeals has

solicited supplementary briefing, drafted by IRLI staff, from the Federation for

American Immigration Reform, of which IRLI is a supporting organization.

REASONS TO GRANT LEAVE TO FILE

By analogy to this Court’s Rule 37.2(b), movant respectfully seeks leave to file

the accompanying amici curiae brief in support of the stay applicants. Because this

motion is filed before the respondents’ deadline to file an opposition, this filing should

not disturb the accelerated briefing schedule ordered in this matter.

Movant respectfully submits that its proffered amicus brief brings several

relevant matters to the Court’s attention, beyond the issues in the application:

•

First, on the issue of standing, the amicus brief demonstrates that plaintiffs

fail to meet the core Article III requirements for causation, redressability, and

a legally protected interest. See Amicus Br. at 11-14.

•

Second, on the issue of standing, the amicus brief rebuts Plaintiffs’ and the

lower courts’ reliance on Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).

See Amicus Br. at 14-18.

•

Third, the amicus brief demonstrates that Plaintiffs lack third-party standing

to assert the rights of future clients. See Amicus Br. at 18.

•

Fourth, the amicus brief addresses the absence of either a cause of action in

equity or a waiver of sovereign immunity under the Administrative Procedure

Act. See Amicus Br. at 20-23.

•

Fifth, on the merits regarding the statutory provisions for returns to

contiguous countries pending removal, the amicus brief analyzes additional

aspects of the statute that support the Government’s position. See Amicus Br.

at 23-26.

•

Sixth, on the merits regarding refoulment, the amicus brief highlights that the

statutory non-refoulment provisions — by their terms — are not enforceable

and do not reach returns pending removal. See Amicus Br. at 26-28.

•

Seventh, on the balance of the equities, the amicus brief evaluates the parties’

respective claims of irreparable harm, with an emphasis on the plaintiffs’ lack

of cognizable injuries. See Amicus Br. at 34-36.

These issues are all relevant to deciding the stay application, and the jurisdictional

issues that predominate in IRLI’s amicus brief concern matters that this Court has

an obligation to consider sua sponte. For these reasons, movant IRLI respectfully

submits that the filing of the brief might aid the Court.

Dated: March 9, 2020

Respectfully submitted,

/s/ Lawrence J. Joseph

_____________________________________

Christopher J. Hajec

Lawrence J. Joseph

Immigration Reform Law Institute

Counsel of Record

25 Massachusetts Ave. NW, Suite 335 1250 Connecticut Av NW Suite 700-1A

Washington, DC 20001

Washington, DC 20036

Telephone: (202) 232-5590

Telephone: (202) 355-9452

chajec@irli.org

Facsimile: (202) 318-2254

lj@larryjoseph.com

Counsel for Movant Immigration Reform

Law Institute

No. 19A960

In the Supreme Court of the United States

___________________________________________

CHAD WOLF, ACTING SECRETARY OF HOMELAND SECURITY, ET. AL.,

Applicants,

INNOVATION LAW LAB, ET AL.,

Respondents.

___________________________________________

On Application for a Stay of the Injunction Issued by the

United States District Court for the Northern District of California

and for an Administrative Stay

___________________________________________

MOTION FOR LEAVE TO FILE UNDER RULE 33.2

Movant Immigration Reform Law Institute (“IRLI”) respectfully submits that

the Court’s rules require those moving or applying to a single Justice to file in 8½-by

11-inch format pursuant to Rule 22.2, as IRLI does here. If Rule 21.2(b)’s

requirements for motions to the Court for leave to file an amicus brief applied here,

however, IRLI would need to file 40 copies in booklet format, even though the Circuit

Justice may not refer this matter to the full Court. Due to the expedited briefing

schedule, the expense and especially the delay of booklet-format printing, and the

rules’ ambiguity on the appropriate procedure, IRLI has elected to file pursuant to

Rule 22.2. To address the possibility that the Circuit Justice may refer this matter to

the full Court, however, movant files an original plus ten copies, rather than Rule

22.2’s required original plus two copies.

Should the Clerk’s Office, the Circuit Justice, or the Court so require, IRLI

commits to re-filing expeditiously in booklet format. See S.Ct. Rule 21.2(c) (Court may

direct the re-filing of documents in booklet-format). Movant respectfully requests

leave to file the accompanying brief as amicus curiae — at least initially — in 8½-by

11-inch format pursuant to Rules 22 and 33.2, rather than booklet format pursuant

to Rule 21.2(b) and 33.1.

For the foregoing reasons, the motion for leave to file in 8½-by 11-inch format

should be granted.

Dated: March 9, 2020

Respectfully submitted,

/s/ Lawrence J. Joseph

_____________________________________

Christopher J. Hajec

Lawrence J. Joseph

Immigration Reform Law Institute

Counsel of Record

25 Massachusetts Ave. NW, Suite 335 1250 Connecticut Av NW Suite 700-1A

Washington, DC 20001

Washington, DC 20036

Telephone: (202) 232-5590

Telephone: (202) 355-9452

chajec@irli.org

Facsimile: (202) 318-2254

lj@larryjoseph.com

Counsel for Movant Immigration Reform

Law Institute

No. 19A960

In the Supreme Court of the United States

___________________________________________

CHAD WOLF, ACTING SECRETARY OF HOMELAND SECURITY, ET. AL.,

Applicants,

INNOVATION LAW LAB, ET AL.,

Respondents.

___________________________________________

On Application for a Stay of the Injunction Issued by the

United States District Court for the Northern District of California

and for an Administrative Stay

___________________________________________

AMICUS CURIAE BRIEF IN SUPPORT OF APPLICANTS

Amicus Curiae Immigration Reform Law Institute (“IRLI” or “Amicus”)

respectfully submits that the Circuit Justice — or the full Court, if this matter is

referred to the full Court — should stay the injunctive relief entered in the District

Court and modified in the Court of Appeals in this action until the federal applicants

timely file and this Court duly resolves a petition for a writ of certiorari.

Alternatively, because jurisdiction is lacking here, the Court could notice that defect

and remand with instructions to dismiss. IRLI’s interests are set out in the

accompanying motion for leave to file.

INTRODUCTION

Several aliens seeking admission into the United States (the “Alien Plaintiffs”)

and entities concerned about immigration issues (the “Institutional Plaintiffs”) have

sued various federal Executive officers (collectively, the “Government”) to challenge

a series of immigration policies. These policies — collected at pages 139-56 of the

Government’s appendix of record excepts in the Court of Appeals — were announced

by the Secretary of the Department of Homeland Security (“DHS”) in a memorandum

issued on January 25, 2019, entitled Policy Guidance of the Implementation of

Migrant Protection Protocols (collectively, the “MPP”). The MPP concerns aliens

seeking asylum in the United States after transiting through a third country without

seeking asylum there. Plaintiffs challenge not only the substantive merits under the

Immigration and Nationality Act, 8 U.S.C. §§ 1101-1537 (“INA”), but also the MPP’s

promulgation without notice-and-comment rulemaking under the Administrative

Procedure Act, 5 U.S.C. §§ 551-706 (“APA”). The District Court issued a preliminary

injunction, finding Plaintiffs likely to prevail on the INA merits and, without fully

explaining a basis, also that Plaintiffs had “shown a likelihood of success on the

refoulement issue, whether that is best characterized as a claim under their second,

third, or fourth claims for relief, or some combination thereof.” Appl. App. at 128a.1

The Court of Appeals did not address procedural issues under the APA and affirmed

only on the substantive INA merits and refoulment.

STANDARD OF REVIEW

A stay pending the timely filing and ultimate resolution of a petition for a writ

of certiorari is appropriate when there is “(1) a reasonable probability that four

Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair

Plaintiffs’ second claim for relief raises an APA notice-and-comment challenge,

their third claim for relief raises an APA arbitrary-and-capricious challenge, and

their fourth claim for relief invokes the 1951 Convention Relating to the Status of

Refugees and the implementing regulations. See id. 126a-128a.

prospect that a majority of the Court will vote to reverse the judgment below; and

(3) a likelihood that irreparable harm will result from the denial of a stay.”

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). For “close cases,” the Court “will

balance the equities and weigh the relative harms to the applicant and to the

respondent.” Id.

SUMMARY OF ARGUMENT

Before reaching the merits of a dispute, federal appellate courts first must

evaluate the jurisdiction of the courts below. Plaintiffs’ ultimate harm — remaining

is Mexico — is neither caused by the MPP nor redressable by vacating the MPP

because the INA gives the Government independent statutory authority to return

aliens to Mexico (Section II.A.1.a). Further, because the INA sets forth the process

that is due for recent entrants, Alien Plaintiffs and Institutional Plaintiffs’ clients

lack a cognizable right to remain in this country (Section II.A.1.b). The INA,

moreover, differs from the statute at issue in Havens Realty Corp. v. Coleman, 455

U.S. 363 (1982), in a way that precludes reliance on Institutional Plaintiffs’ divertedresources injury (Sections II.A.1.c-II.A.1.d). Also, Institutional Plaintiffs cannot

assert the rights — if any — of third-party asylum seekers that Plaintiffs hope to

represent in the future (Section II.A.1.e). Further, Institutional Plaintiffs’ injuries lie

outside the INA’s zone of interests (Section II.A.1.f). Plaintiffs also lack both a cause

of action under the APA and the APA’s waiver of sovereign immunity (Section

II.A.2.a), and cannot state a claim for pre-APA equity review (Section II.A.2.b).

On the INA merits, the Government has discretion to place aliens eligible for

expedited removal under 8 U.S.C. § 1225(b)(1) into normal removal proceedings, to

which the return-pending-removal provisions of 8 U.S.C. § 1225(b)(2)(C) apply

(Section II.B.1); the INA’s non-refoulment provisions are expressly not enforceable, 8

U.S.C. § 1231(h), and — in any event — apply only to removal, not to return pending

removal (Section II.B.2). The APA’s narrow requirement for reasoned decisionmaking

does not give a reviewing court power to set agency policy on the court’s terms

(Section II.B.3), and the APA’s notice-and-comment requirements do not apply to

exercises of discretion or general enforcement policies that merely implement

statutory criteria (Section II.B.4).

While the foregoing jurisdictional and merits issues suggest that the

Government is likely to prevail, the other stay factors also support the Government.

Injunctions in favor of plaintiffs who lack standing inflict a separation-of-powers

injury on the Executive Branch that constitutes irreparable harm, in addition to the

injunction’s negative impact on the Executive Branch’s ability to conduct foreign

affairs and protect national security and public safety (Section III.A). By contrast,

Plaintiffs’ countervailing injuries are not cognizable (Section III.B). Finally, the

public interest merges with the merits (which favor the Government) and — in publicinjury cases such as this — does not allow private plaintiffs to obtain injunctions

against the government as easily as they could against private defendants in like

circumstances. Because both the public interest and the balance of equities favor the

Government, a stay of the preliminary injunction is appropriate (Section III.C).

ARGUMENT

THE GRANT OF A WRIT OF CERTIORARI IS LIKELY.

There is a reasonable possibility that this Court will grant the Government’s

eventual petition for a writ of certiorari in this matter. See Appl. at 20-22.

II.

THE GOVERNMENT IS LIKELY TO PREVAIL.

The Government is likely to prevail on the merits not only because it is correct

on the substantive merits, but also because Plaintiffs have neither standing nor a

cause of action for judicial review of governmental action.

The courts below lacked jurisdiction.

Federal courts are courts of limited jurisdiction. Bender v. Williamsport Area

Sch. Dist., 475 U.S. 534, 541 (1986). “It is to be presumed that a cause lies outside

this limited jurisdiction, and the burden of establishing the contrary rests upon the

party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 377 (1994). The parties cannot confer jurisdiction by consent or waiver,

Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702

(1982), and federal courts instead have the obligation to assure themselves of

jurisdiction before reaching the merits. Steel Co. v. Citizens for a Better Env’t., 523

U.S. 83, 95 (1998). As explained below, Plaintiffs lack not only standing, but also a

waiver of the Government’s sovereign immunity. See Sections II.A.1-II.A.2, infra.

Accordingly, as an alternative to the stay that the Government requests, this Court

should fulfill its “special obligation to” determine jurisdiction, id., find a lack of

jurisdiction, and remand with instructions to dismiss the case.

Plaintiffs lack standing for the relief they seek.

The District Court confined its standing analysis to Institutional Plaintiffs,

finding they had standing on the diverted-resource-rationale of East Bay Sanctuary

Covenant v. Trump, 909 F.3d 1219, 1240 (9th Cir. 2018). See Appl. App. at 115a-116a.

The Court of Appeals also found that Institutional Plaintiffs had diverted-resource

standing under East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 765-67 (9th

Cir. 2018), id. 26a-27a, and summarily found that Alien Plaintiffs, “all of whom have

been returned to Mexico under the MPP, obviously have Article III standing.” Id. at

26a. In fact, however, the Article III premise is dubious for two primary reasons.

First, this Court has stayed — without stating its rationale — the East Bay

Sanctuary Covenant injunctions on which the lower courts relied to shore up

Institutional Plaintiffs’ standing, Barr v. E. Bay Sanctuary Covenant, 140 S.Ct. 3

(2019), which leaves Institutional Plaintiffs here open to the same deficiencies that

undermine the East Bay Sanctuary Covenant injunctions. Second, the Court of

Appeals unexplained “holding” that Alien Plaintiffs “obviously have Article III

standing” is by no means obvious.

Plaintiffs’ alleged injuries lack both causation and

redressability.

The tripartite test for standing under the Constitution is whether the party

invoking a court’s jurisdiction alleges a sufficient “injury in fact” under Article III,

viz., (a) a legally cognizable injury that is (b) caused by the challenged action and

While IRLI doubts that Plaintiffs have suffered legally cognizable injuries, see Section

II.A.1.b, infra, it would be enough to warrant dismissal if Plaintiffs failed to prove

causation or redressability. Plaintiffs fail on both counts.

With respect to causation, some of the DHS conduct that the Ninth Circuit

found actionable violates the MPP. Compare Appl. at 30-31 with Appl. App. at 59a-

60a. If — for example — an immigration officer’s ignoring an alien’s stated fears of

return to Mexico violates the MPP,2 those officers’ actions cannot form the basis for

enjoining or vacating the MPP: the MPP obviously cannot have caused the alleged

action. First, plaintiffs must establish standing separately for each form of relief they

request. Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996) (“standing is not dispensed in

gross”); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 & n.5 (2006). If DHS

officers are violating the MPP, that might form the basis for relief in an appropriate

forum, but it has nothing to do with the MPP itself. Second, even without the MPP,

DHS could return Alien Plaintiffs or Institutional Plaintiffs’ current or future clients

to Mexico under the INA itself, without the MPP’s administrative gloss. See 8 U.S.C.

§ 1225(b)(2)(C) (authorizing return of aliens to Mexico or Canada pending removal

proceedings). For both reasons, the MPP has not caused injury within the meaning of

Article III.

Likewise, with respect to redressability, vacating the MPP would not

terminate the Government’s ability to send Alien Plaintiffs or Institutional Plaintiffs’

current or future clients to Mexico under the INA itself, without any administrative

overlay. See id. If vacating the MPP would not help, Plaintiffs lack a redressable

injury, even on the assumption that they have an otherwise cognizable injury at all.

As a class, asylum seekers at the southern border often make false or noncredible claims to justify asylum, compare Pls.’ Memo. at 19 (25% of claims have

merit) (ECF #20-1) with Gov’t Memo. at 20 (17% of claims have merit) (EFCF #42).

But even assuming arguendo the veracity of Plaintiffs’ anonymous declarations, the

two declarations do not support causation for the reasons set out in the text.

Alien Plaintiffs lack a legally protected right to the

relief they seek.

This Court has made it clear that “an alien seeking initial admission to the

United States requests a privilege and has no constitutional rights regarding his

application.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). Excluding an alien seeking

admission is an act of sovereignty. Id. Accordingly, “[w]hatever the procedure

authorized by Congress is, it is due process as far as an alien denied entry is

concerned.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)

(interior quotation marks omitted). Here, the INA (that is, “the procedure authorized

by Congress”) provides for the very injury that Alien Plaintiffs seek to avoid.

An Article III “injury in fact” requires “an invasion of a legally protected interest

which is … concrete and particularized” to that plaintiff. Defenders of Wildlife, 504

U.S. at 560 (emphasis added). As this Court recently explained in rejecting standing

for qui tam relators based on their financial stake in a False Claims Act penalty, not

all interests are legally protected interests:

There is no doubt, of course, that as to this portion of the

recovery — the bounty he will receive if the suit is

successful — a qui tam relator has a concrete private

interest in the outcome of the suit. But the same might be

said of someone who has placed a wager upon the outcome.

An interest unrelated to injury in fact is insufficient to give

a plaintiff standing. The interest must consist of obtaining

compensation for, or preventing, the violation of a legally

protected right. A qui tam relator has suffered no such

invasion[.]

Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 772-73 (2000)

(emphasis added, interior quotation marks, citations, and alterations omitted);

accord McConnell v. FEC, 540 U.S. 93, 226-27 (2003). Thus, even pecuniary losses do

not necessarily qualify as an injury in fact.

Additionally, “Art. III standing requires an injury with a nexus to the

substantive character of the statute or regulation at issue.” Diamond v. Charles, 476

U.S. 54, 70 (1986).3 The INA has no nexus to Plaintiffs’ alleged injuries because the

INA itself expressly allows the Government to return aliens to Mexico. See 8 U.S.C.

§ 1225(b)(2)(C). Further, the INA non-refoulment provision expressly creates no

enforceable rights. 8 U.S.C. § 1231(h). Accordingly, Plaintiffs lack a legally protected

interest to enforce against the MPP.4

Institutional Plaintiffs cannot premise standing on

diverted resources.

Institutional Plaintiffs base their standing on their voluntarily diverted

resources and the MPP’s impact on their fundraising. Because the diverted-resource

injuries are self-inflicted and outside the relevant statutory zone of interests, Amicus

respectfully submits that such injuries do not suffice to support standing.

After rejecting standing based on an interest in a qui tam bounty, Stevens held

that qui tam relators have standing on an assignee theory (i.e., the government has

an Article III case or controversy and assigns a portion of it to the qui tam relator).

Stevens, 529 U.S. at 771-73. Outside of taxpayer-standing cases that implicate the

Establishment Clause, the nexus test of Flast v. Cohen, 392 U.S. 83 (1968), typically

arises in cases challenging a failure to prosecute. See, e.g., Nader v. Saxbe, 497 F.2d

676, 680-82 (D.C. Cir. 1974); Linda R.S. v. Richard D., 410 U.S. 614, 617-18 (1973)

(“in the unique context of a challenge to a criminal statute, appellant has failed to

allege a sufficient nexus between her injury and the government action which she

attacks”). Even without the Flast nexus test, Article III nonetheless requires that the

claimed interest qualify as a “legally protected right.” Stevens, 529 U.S. at 772-73.

Although analogous to the prudential zone-of-interests test, Stevens and

McConnell make clear that the need for a legally protected interest is an element of

the threshold inquiry under Article III of the Constitution, not a merely prudential

inquiry that a party could waive.

This type of diverted-resource standing derives from Havens. As Judge Millett

of the U.S. Court of Appeals for the District of Columbia Circuit has explained, “[t]he

problem is not Havens[; the] problem is what our precedent has done with Havens.”

People for the Ethical Treatment of Animals v. U.S. Dept. of Agriculture, 797 F.3d

1087, 1100-01 (D.C. Cir. 2015) (Millett, J., dubitante); accord Fair Hous. Council of

San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1225-26 (9th Cir. 2012)

(Ikuta, J., dissenting). Under the unique statutory and factual situation in Havens, a

housing-rights organization’s diverted resources provided it standing, but in most

other settings such diverted resources are mere self-inflicted injuries. Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 417-18 (2013) (self-censorship due to fear of

surveillance insufficient for standing); Pennsylvania v. New Jersey, 426 U.S. 660, 664

(1976) (financial losses state parties could have avoided insufficient for standing).

Indeed, if mere spending could manufacture standing, any private advocacy group

could establish standing against any government action merely by spending money

to oppose it. But that clearly is not the law. Sierra Club v. Morton, 405 U.S. 727, 739

(1972) (mere advocacy by an organization does not confer standing to defend “abstract

social interests”).

The typical organizational plaintiff and typical statute lack several critical

criteria from Havens. First, the Havens organization had a statutory right (backed by

a statutory cause of action) to truthful information that the defendants denied to it.

Because “Congress may create a statutory right[,] … the alleged deprivation of [such

rights] can confer standing.” Warth v. Seldin, 422 U.S. 490, 514 (1975). Under a

typical statute, by contrast, a typical organizational plaintiff has no claim to any

rights related to its own voluntarily diverted resources. So too under the INA.

Second, and related to the first issue, the injury that an organizational plaintiff

claims must align with the other components of its standing, Stevens, 529 U.S. at 772;

Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996);

Ecosystem Inv., Partners v. Crosby Dredging, L.L.C., 729 F.App’x 287, 299 (5th Cir.

2018) (collecting cases), including the allegedly cognizable right. In Havens, the

statutorily protected right to truthful housing information aligned with the alleged

injury (costs to counteract false information given in violation of the statute). By

contrast, under the INA (or any typical statute), there will be no rights even remotely

related to — much less aligned with — a third-party organization’s discretionary

spending.

Third, relying on Gladstone, Realtors v. Bellwood, 441 U.S. 91, 102-09 (1979),

Havens held that the Fair Housing Act at issue there extends “standing under § 812

… to the full limits of Art. III,” so that “courts accordingly lack the authority to create

prudential barriers to standing in suits brought under that section.” 455 U.S. at 372.

The Havens statute thus eliminated prudential standing. When a plaintiff — whether

individual or organizational — sues under a statute that does not eliminate

prudential standing, that plaintiff cannot bypass the zone-of-interests test or other

prudential limits on standing.5 Typically, it would be fanciful to suggest that a statute

For example, applying Havens to diverted resources in Action Alliance of

Senior Citizens v. Heckler, 789 F.2d 931, 939 (D.C. Cir. 1986) (R.B. Ginsburg, J.),

then-Judge Ginsburg correctly recognized the need to ask whether those diverted

has private, third-party spending in its zone of interests. Certainly, that is the case

for the INA.6

Institutional Plaintiffs’ lost funding from California

does not provide standing.

In East Bay Sanctuary Covenant, the Ninth Circuit also considered it relevant

that the institutional plaintiffs there received funding from the State of California

that depended in part on the volume of refugees processed, which provided

institutional plaintiffs standing to challenge any threat to their funding stream. East

Bay Sanctuary Covenant, 909 F.3d at 1243. But such a loss of funding is analogous

to the loss of a wager, and cannot establish standing to sue the federal government

over federal immigration policy:

There is no doubt, of course, that as to this portion of the

recovery — the bounty he will receive if the suit is

successful — a qui tam relator has a concrete private

interest in the outcome of the suit. But the same might be

said of someone who has placed a wager upon the outcome.

An interest unrelated to injury in fact is insufficient to give

a plaintiff standing.

Stevens, 529 U.S. at 772 (interior quotation marks, alterations, and citations

omitted). Just like the bounty or hypothetical wager in Stevens, an interest in third-

resources fell within the zone of interests of the Age Discrimination Act. 789 F.2d at

939.

East Bay Sanctuary Covenant found the entities’ diverted-funding injuries

within the INA’s and 8 U.S.C. § 1158’s zone of interests because various INA

provisions recognize the right to counsel, including pro bono counsel. 909 F.3d at

1244-45. But the challenged agency action here does not impose any burden on the

right of counsel, and Institutional Plaintiffs’ diverted-resource injuries do not relate

in any legal way to aliens’ right to counsel.

party funding here is insufficiently related to Institutional Plaintiffs’ asserted injury

from the Government’s actions. California cannot create standing against the federal

government merely by subsidy.7

Institutional Plaintiffs lack third-party standing for

future clients.

Institutional Plaintiffs lack third-party standing to assert the rights of absent

asylum seekers whom Institutional Plaintiffs hope to meet someday and represent.

While some relationships might support third-party standing, the same is simply not

true of all hypothetical relationships, including those between Institutional Plaintiffs

and any asylum seekers whom Institutional Plaintiffs might meet in the future: an

“existing attorney-client relationship is, of course, quite distinct from the hypothetical

attorney-client relationship posited here.” Kowalski v. Tesmer, 543 U.S. 125, 131

(2004) (emphasis in original). Future asylum-seeking aliens do not have regular,

ongoing relationships with Institutional Plaintiffs analogous to existing attorneyclient relationships.

To be sure, Stevens found standing for qui tam relators, albeit not based on the

bounty per se; instead, Stevens found the United States to have assigned a portion of

its Article III claim to the private qui tam relator and premised the relator’s standing

on that assignment of rights. See Sprint Communs. Co., L.P. v. APCC Servs., 554 U.S.

269, 285 (2008) (discussing assignee standing under Stevens). California has done

nothing of the kind here, but even if California wanted to do so, California lacks an

Article III claim against the federal government to assign here. Alfred L. Snapp &

Son v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982). Consequently,

California’s payments to Institutional Plaintiffs are no more consequential here than

the hypothetical wager in Stevens.

Institutional Plaintiffs’ interests fall outside the

relevant zones of interests.

Assuming arguendo that Institutional Plaintiffs had constitutional standing

based on their injuries, but see Sections II.A.1.a, II.A.1.c-II.A.1.e, supra, they would

remain subject to the zone-of-interests test, which defeats their claims for standing

to sue under the statutes that they invoke. Quite simply, nothing in those statutes

supports an intent to protect private pecuniary interests in future fundraising or

budget allocations.

To satisfy the zone-of-interests test, a “plaintiff must establish that the injury

he complains of (his aggrievement, or the adverse effect upon him) falls within the

‘zone of interests’ sought to be protected by the statutory provision whose violation

forms the legal basis for his complaint.” Air Courier Conference v. Am. Postal Workers

Union, 498 U.S. 517, 523-24 (1991) (interior quotation marks omitted, emphasis in

original). Not every frustrated interest meets the test:

[F]or example, the failure of an agency to comply with a

statutory provision requiring “on the record” hearings

would assuredly have an adverse effect upon the company

that has the contract to record and transcribe the agency’s

proceedings; but since the provision was obviously enacted

to protect the interests of the parties to the proceedings and

not those of the reporters, that company would not be

“adversely affected within the meaning” of the statute.

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990). Amicus respectfully submits

that Plaintiffs’ pecuniary interests here are no more relevant than court reporters’

fees are to a statute requiring hearings on the record. Not every adverse effect on a

private interest falls within the zone of interests that Congress sought to protect in a

tangentially related statute.

Sovereign immunity bars Plaintiffs’ challenge.

In addition to lacking standing for this litigation, Plaintiffs also fall outside the

scope of the APA’s waiver of sovereign immunity, and thus are subject to an

independent jurisdictional bar. See FDIC v. Meyer, 510 U.S. 471, 475 (1994)

(“Sovereign immunity is jurisdictional in nature”). “The United States, as sovereign,

is immune from suit save as it consents to be sued.” United States v. Sherwood, 312

U.S. 584, 586 (1941). “Absent a waiver, sovereign immunity shields the Federal

Government and its agencies from suit,” without regard to any perceived unfairness,

inefficiency, or inequity. Dep’t of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999). The

scope of such waivers, moreover, is strictly construed in favor of the sovereign. Lane

v. Pena, 518 U.S. 187, 192 (1996). Here, Plaintiffs lack a waiver of sovereign immunity

for an APA action. Similarly, Plaintiffs lack the type of enforceable right needed to

bring a pre-APA suit in equity.

Plaintiffs cannot sue under the APA.

Subject to certain limitations, the APA provides a cause of action for judicial

review to those “aggrieved by agency action within the meaning of a relevant statute,”

5 U.S.C. § 702, a formulation that implicates the same zone-of-interests test used for

prudential standing. See Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S.

150, 153-54 (1970). In the 1976 APA amendments to 5 U.S.C. § 702,8 Congress

“eliminat[ed] the sovereign immunity defense in all equitable actions for specific relief

against a Federal agency or officer acting in an official capacity.” Sea-Land Serv., Inc.

PUB. L. NO. 94-574, § 1, 90 Stat. 2721 (1976).

v. Alaska R.R., 659 F.2d 243, 244 (D.C. Cir. 1982) (quoting S. REP. NO. 996, 94th

Cong., 2d Sess. 8 (1976); H.R. REP. NO. 1656, 94th Cong., 2d Sess. 9 (1976), 1976 U.S.

Code Cong. & Admin. News 6121, 6129) (R.B. Ginsburg, J.). But that waiver has

several restrictions that preclude review in this action. Specifically, the APA excludes

review for “statutes [that] preclude judicial review” and those that provide “special

statutory review.” 5 U.S.C. §§ 701(a)(1), 703. When a statute provides special

statutory review, APA review is unavailable. FCC v. ITT World Commc’ns, Inc., 466

U.S. 463, 469 (1984). In addition, 5 U.S.C. § 701(a)(2) exempts “agency action …

committed to agency discretion by law” from APA review. This exception is available

when a reviewing court has “no law to apply.” Citizens to Preserve Overton Park, Inc.

v. Volpe, 401 U.S. 402, 410 (1971). With that background, APA review is barred here

on several bases:

•

Plaintiffs do not meet the zone-of-interests test, see Section II.A.1.f, supra, and

so are not aggrieved within the meaning of the APA. See 5 U.S.C. § 702.

•

The INA provides special — and exclusive — statutory review for both

expedited removal, 8 U.S.C. § 1252(e)(3) (exclusive review for individuals in

expedited removal), and administrative removal proceedings followed by

petitions for review for other removal proceedings, 8 U.S.C. § 1252(a)(5),

§ 1252(b)(9), and this special review displaces APA review, 5 U.S.C.

§§ 701(a)(1), 703.

•

As relevant here, the Government’s discretion on the type removal proceeding

in which to place Plaintiffs is committed to agency discretion, 5 U.S.C.

§ 701(a)(2), and the Government’s decision to issue a general statement of

policy on discretionary returns pending removal is exempt from APA noticeand-comment rulemaking as a “general statement[ ] of policy.” 5 U.S.C.

§ 553(b)(A).

Collectively, these limits on APA review preclude, narrow, or channel all the review

that Plaintiffs seek and deny district courts the authority to issue any relief here.

Plaintiffs cannot bring a pre-APA suit in equity.

In order to sue in equity, Plaintiffs need more than Article III standing and an

injury within the relevant zone of interests. Instead, an equity plaintiff or petitioner

must invoke a statutory or constitutional right for equity to enforce, such as life,

liberty, or property under the Due Process Clause or equal protection under the Equal

Protection Clause or its federal equivalent in the Fifth Amendment. See, e.g., United

States v. Lee, 106 U.S. 196, 220-21 (1882) (property); Ex parte Young, 209 U.S. 123,

149 (1908) (property); Youngberg v. Romeo, 457 U.S. 307, 316 (1982) (liberty); cf.

Wadley S. R. Co. v. Georgia, 235 U.S. 651, 661 (1915) (“any party affected by

[government] action is entitled, by the due process clause, to a judicial review of the

question as to whether he has been thereby deprived of a right protected by the

Constitution”). Plaintiffs’ claimed injuries here fall short of what equity requires,

even assuming arguendo that those claimed injuries could satisfy Article III. Put

another way, equity review requires “direct injury,” which means “a wrong which

directly results in the violation of a legal right.” Alabama Power Co. v. Ickes, 302 U.S.

464, 479 (1938). Without that elevated level of direct injury, there is no review:

It is an ancient maxim, that a damage to one, without an

injury in this sense, (damnum absque injuria), does not lay

the foundation of an action; because, if the act complained

of does not violate any of his legal rights, it is obvious, that

he has no cause to complain. Want of right and want of

remedy are justly said to be reciprocal. Where therefore

there has been a violation of a right, the person injured is

entitled to an action. The converse is equally true, that

where, although there is damage, there is no violation of a

right no action can be maintained.

Id. (alterations, citations, and interior quotation marks omitted). As explained

throughout this brief, Plaintiffs cannot claim a violation of any rights under the INA,

see Section II.A.1.b, supra; Sections II.B.1-II.B.2, infra, and they thus lack an action

in equity.

The Government is likely to prevail on the merits.

In order to warrant a stay, there must be a “fair prospect” of the Government’s

prevailing. Hollingsworth, 558 U.S. at 190. As explained in the prior subsection, the

Government is likely to prevail because federal courts lack jurisdiction over Plaintiffs’

claims. See Section II.A, supra. As explained in this subsection, the Government

likely would prevail on the merits, assuming arguendo that federal jurisdiction

existed.

The MPP is consistent with the INA.

Plaintiffs and the Ninth Circuit majority argue that the MPP cannot apply to

Alien Plaintiffs because those Plaintiffs are eligible for expedited removal under 8

U.S.C. § 1225(b)(1), and the Government’s authority to send aliens back to Mexico

under 8 U.S.C. § 1225(b)(2)(C) does not apply to “an alien … to whom [§ 1225(b)(1)]

applies.” See 8 U.S.C. § 1225(b)(2)(B)(ii). The Ninth Circuit held the MPP inconsistent

with § 1225(b) for three reasons: (1) the purported holding in Jennings v. Rodriguez,

138 S.Ct. 830 (2018), that § 1225(b)(1) and § 1225(b)(2) refer to distinct categories of

aliens, (2) a rejection of the Government’s argument that the INA vests the

Government with discretion to process § 1225(b)(1) aliens under § 1225(b)(2) based

on the two uses of the verb “apply” in 8 U.S.C. § 1225(b)(2)(B)(ii); and (3) the court’s

reasoning that § 1225(b)(1) aliens are less culpable as a class than § 1225(b)(2) aliens

(e.g., “spies, terrorists, alien smugglers, and drug traffickers”). Appl. App. 43a-45a.

Only the second argument requires an extended response: can the Government use

§ 1225(b)(2) to process a § 1225(b)(1)-eligible alien?9

With respect to that second argument, the answer is “yes.” As the Government

explains, it has prosecutorial discretion under § 1225(b)(1) not to apply expedited

The first argument is simply false: Jennings used the language that the panel

quotes, but did not hold anything remotely relevant to the issue that the panel seeks

to prove: “Questions which merely lurk in the record, neither brought to the attention

of the court nor ruled upon, are not to be considered as having been so decided as to

constitute precedents.” Cooper Indus., Inc. v. Aviall Serv., Inc., 543 U.S. 157, 170

(2004) (interior quotation marks omitted). The third argument about spies, terrorists,

and criminals is preposterous. Both categories — § 1225(b)(1) and § 1225(b)(2) — no

doubt include spies, terrorists, and criminals. Indeed, presenting false documents to

DHS under § 1225(b)(1) would be a crime itself. The point is that § 1225(b)(2) is the

“catchall” category while § 1225(b)(1) includes only those with false or no documents.

Jennings, 138 S.Ct. at 837. Nothing in the legislative record — and nothing in the

panel majority’s citation-free discussion of the legislative history — demonstrates

congressional intent to confine § 1225(b)(2)(C) to “undesirable § (b)(2) applicants like

Sanchez-Avila” and not to purportedly “bona fide asylum seekers” like Plaintiffs.

Compare 8 U.S.C. § 1225(b)(2)(C) with Appl. App. 47a (citing Matter of Sanchez-Avila,

21 I. & N. Dec. 444 (BIA 1996)). To the contrary, the Government invoked its plenary

authority — applicable to all aliens — to support the pre-1996 policy that Congress

ratified in enacting § 1225(b)(2)(C). See Sanchez-Avila, 21 I. & N. Dec. at 450. The

third argument is makeweight if the Government loses the second argument, but it

is simply wrong if the Government wins the second argument.

removal to a given alien, thus taking that alien out of the class of aliens to whom

§ 1225(b)(1) is applied. Appl. at 22-27. While amicus IRLI accepts the Government’s

distinction, the dispute is also easily resolved by focusing on the verbs that Congress

used in § 1225(b)(2). The panel majority saw “a fatal syntactical problem” for the

Government in § 1225(b)(2)(B)(ii)’s two uses of the verb “apply,” Appl. App. 44a, but

missed a far-worse problem for Plaintiffs in § 1225(b)(2)(C)’s alternate use of the verb

“describe.”

As indicated, the Government’s authority to return an alien to Mexico resides

in § 1225(b)(2)(C), and it applies to “an alien described in subparagraph

[§ 1225(b)(2)(A)].” 8 U.S.C. § 1225(b)(2)(C) (emphasis added). In turn, § 1225(b)(2)(A)

describes the following type of alien: “an alien seeking admission [who] is not clearly

and beyond a doubt entitled to be admitted.” 8 U.S.C. § 1225(b)(2)(A). The actionable

part of § 1225(b)(2)(A) provides that “the alien shall be detained for a proceeding

under [§ 1229a],” id., qualified as being “[s]ubject to subparagraphs [§ 1225(b)(2)(B)]

and [§ 1225(b)(2)(C)].” Id. But the qualifier modifies the aliens “detained for a

proceeding under [§ 1229a],” id., not the “alien[s] described in subparagraph

[§ 1225(b)(2)(A)].” 8 U.S.C. § 1225(b)(2)(C) (emphasis added). Significantly, Congress

choose two different verbs — “applies” and “apply” in § 1225(b)(2)(B) and “described”

in § 1225(b)(2)(C) — and these words have different meanings. Russello v. United

States, 464 U.S. 16, 23 (1983) (“[w]e refrain from concluding here that the differing

language in the two subsections has the same meaning in each”); SEC v. McCarthy,

322 F.3d 650, 656 (9th Cir. 2003) (“different words appearing in the same statute are

presumed to have different meanings”). Congress purposely choose not to say “an

alien to whom subparagraph (A) applies,” which potentially could have incorporated

the exceptions in § 1225(b)(2)(B). Nothing in the way that Congress framed

§ 1225(b)(2)(A) suggests that the two caveats — § 1225(b)(2)(B) and § 1225(b)(2)(C) —

could not work independently, such that § 1225(b)(2)(B)’s exceptions do not limit the

independent authority provided in § 1225(b)(2)(C) for the type of alien described in

§ 1225(b)(2)(A). While an alien subject to expedited removal under § 1225(b)(1) is not

detained for removal proceedings under § 1225(b)(2), see 8 U.S.C. § 1225(b)(2)(B)(ii),

that does not limit the application of § 1225(b)(2)(C) to any alien subject to removal

under § 1225(b)(2). Alien Plaintiffs remain that type of alien — namely, ones “not

clearly and beyond a doubt entitled to be admitted” — whether they are processed in

expedited or normal removal proceedings.

The MPP is consistent with the non-refoulment

obligations.

Plaintiffs’ non-refoulment arguments under international law also must fail.

Insofar as the United States’s partial ratification of 1951 Refugee Convention through

its 1967 Protocol is not self-executing, Appl. at 27; Immigration & Naturalization

Serv. v. Stevic, 467 U.S. 407, 428 n.22 (1984), Plaintiffs must rely on the INA for

enforceable rights. Medellin v. Texas, 552 U.S. 491, 505 (2008). As the Government

explains, the INA non-refoulment provision applies only to removal, not to mere

return pending removal proceedings under § 1225(b)(2)(C). See Appl. at 28; 8 U.S.C.

§ 1231(b)(3)(A) (“the Attorney General may not remove an alien to a country if the

Attorney General decides that the alien’s life or freedom would be threatened in that

country because of the alien’s race, religion, nationality, membership in a particular

social group, or political opinion”) (emphasis added). The panel majority’s contrary

holding lacks merit.

At the outset, by its express terms, § 1231 itself is unenforceable against the

Government: “Nothing in this section shall be construed to create any substantive or

procedural right or benefit that is legally enforceable by any party against the United

States or its agencies or officers or any other person.” 8 U.S.C. § 1231(h). If Plaintiffs

could surmount that obstacle, the Government is certainly correct that § 1231(b) does

not protect return pending removal.

As the panel majority acknowledged, the 1996 INA amendments replaced

various forms of exclusion with removal. Appl. App. 49a (“‘removal’ became the new

all-purpose word”). Although the panel majority would include “return” with prior

INA words like “exclusion” and “deportation,” id., that is inaccurate. The 1996 INA

amendments added “return” in § 1225(b)(2)(C) and struck it from the non-refoulment

provision simultaneously with replacing other instances throughout the INA.

Compare id. with PUB. L. NO. 104-208, Div. C, § 302(a), 110 Stat. 3009, 3009-579 to

3009-584 (1996) (codified at 8 U.S.C. § 1225) and id. § 305(a)(3), 110 Stat. at 3009598 to 3009-606 (codified at 8 U.S.C. § 1231). As indicated, the use of different words

in the same statute implies different meanings. Russello, 464 U.S. at 23. While it is

true that the INA’s pre-1996 non-refoulment provision included returns, today they

do not. Compare 8 U.S.C. § 1253(h) (1994) (“Attorney General shall not deport or

return any alien … to a country if the Attorney General determines that such alien’s

life or freedom would be threatened in such country on account of race, religion,

nationality, membership in a particular social group, or political opinion”) (emphasis

added) with 8 U.S.C. § 1231(b)(3)(A) (quoted supra). “Few principles of statutory

construction are more compelling than the proposition that Congress does not intend

sub silentio to enact statutory language that it has earlier discarded in favor of other

language.” INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987) (citation omitted).

Plaintiffs’ non-refoulment argument cannot prevail.

The MPP satisfies the APA’s requirement for reasoned

decisionmaking.

In the District Court, Plaintiffs argued that the MPP does not qualify as

reasoned decisionmaking under the APA arbitrary-and-capricious standard on the

ground that it is not rationally related to its proffered justifications and instead relies

of false premises. Pls.’ Memo. at 16-19 (ECF #20-1).

This APA mode of judicial review is quite narrow:

The scope of review under the arbitrary and capricious

standard is narrow. A court is not to ask whether a

regulatory decision is the best one possible or even whether

it is better than the alternatives.

FERC v. Elec. Power Supply Ass’n, 136 S.Ct. 760, 782 (2016) (internal quotations,

alterations, and citations omitted). An agency action meets this narrow review if “the

agency … examined the relevant considerations and articulated a satisfactory

explanation for its action.” Id.

Here, the MPP will not only aid legitimate asylum seekers in the long run but

also address the crisis at the southern border. Even Plaintiffs admit that considerably

fewer than half of asylum seekers have valid claims. Compare Pls.’ Memo. at 19 (25%)

(ECF #20-1) with Gov’t Memo. at 20 (17%) (EFCF #42). Too many would-be asylum

seekers crowd the border — creating delays for bona fide asylum seekers — in the

hope that they will be paroled into the interior, then skip an immigration hearing.

The MPP seeks to end that sort of opportunistic “gaming” of the asylum system, a

result that ultimately will improve the asylum process for bona fide asylum seekers.

While this might not be the choice that Plaintiffs or even this Court would make, that

is not the test.

The MPP satisfied the APA’s procedural requirements.

The APA exempts general statements of policy and interpretive rules from

notice-and-comment rulemaking. 5 U.S.C. § 553(b)(A). Although Plaintiffs suggested

otherwise below, Pls.’ Memo. at 15 (ECF #20-1), the question of whether a rule is

“legislative” (i.e., of the type that requires notice-and-comment rulemaking) does not

depend on the number of interested parties. Plaintiffs also argue that the MPP

amends existing legislative rules on non-refoulement, an assertion that has the same

flaw as Plaintiffs’ refoulement claims themselves. See Section II.B.2, supra.10 But

even if the APA’s notice-and-comment provisions applied generally to an agency

action like the MPP, the MPP still would nonetheless qualify for several specific APA

exemptions. Because the MPP addresses not only a public-safety and humanitarian

Plaintiffs argued in the District Court that the Government previously had

published plans to undergo notice-and-comment in this area, Pls.’ Memo. at 14 (ECF

#20-1), but that is irrelevant because the Government permissibly decided to proceed

via a guidance document instead of a rulemaking. Plaintiffs cannot estop the Government to carry out its prior plans. Office of Personnel Mgmt. v. Richmond, 496 U.S.

414, 419-20 (1990) (“equitable estoppel will not lie against the Government”).

emergency, but also issues of national security and foreign relations, it easily meets

the APA’s exceptions for notice-and-comment rulemaking and for suspending the 30day grace period for a rule’s taking effect. 5 U.S.C. § 553(a)(1), (b)(B), (d)(3). This

Court has found it imperative that the United States speak with one national voice —

not 50 states’ voices or 94 district courts’ voices — on issues, such as immigration,

that touch foreign relations. Arizona v. United States, 567 U.S. 387, 395 (2012). Given

the APA’s foreign-affairs exception, 5 U.S.C. § 553(a)(1), the 94 federal district courts

do not have authority, vis-à-vis APA procedural issues, to interfere in these aspects

of sovereignty, which the Constitution commits to the political branches. Trump v.

Hawaii, 138 S.Ct. 2392, 2419 (2018). The APA poses no procedural barrier to the

MPP.

This type of litigation undermines the essential flexibility

that the APA and the INA provide to address emergencies

and foreign-affairs functions.

Although a stay would be justified solely because Plaintiffs’ APA and INA

claims lack merit, see Sections II.B.1-II.B.4, supra, amicus IRLI respectfully submits

that this Court should also consider the “flip-side.” Denying a stay and allowing the

preliminary injunction to stand would impair the flexibility that the APA and the

INA provide the Government.

Before addressing the legal issues of APA and INA flexibility, amicus IRLI

respectfully submits that the Government has correctly recognized a real emergency

that the MPP addresses. Prior to the MPP, aliens were crossing the southern border

at unprecedented levels, far exceeding the ability of the immigration system to

process them in an orderly manner. Most asylum claims are deemed to lack merit,

and many valid claims could continue under the MPP. See Appl. at 12. In addition to

the public-safety and humanitarian concerns about harm to both federal enforcement

officers and aliens, the magnetic pull of near-automatic parole into the United States

while awaiting the orderly processing of baseless asylum claims injures bona fide

asylum seekers, whose claims are slowed by the mass of baseless claims. See 84 Fed.

Reg. 33,829, 33,839 (2019).

The APA provides all federal agencies broad discretion to set policy in the

interstitial areas that their enabling statutes do not address specifically. Chevron

U.S.A., Inc. v. NRDC, 467 U.S. 837, 844 (1984). As the District of Columbia Circuit

has recognized, agency guidance benefits the regulated community by providing

notice of how the agency interprets a statute that the agency is free to enforce without

prior notice:

Where a statute or legislative rule has created a legal basis

for enforcement, an agency can simply let its interpretation

evolve ad hoc in the process of enforcement or other

applications (e.g., grants). The protection that Congress

sought to secure by requiring notice and comment for

legislative rules is not advanced by reading the exemption

for “interpretive rule” so narrowly as to drive agencies into

pure ad hocery — an ad hocery, moreover, that affords less

notice, or less convenient notice, to affected parties.

Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1111-12 (D.C. Cir.

1993). Furthermore, in the specific context of emergencies, the APA goes further in

loosening

the

otherwise-applicable

requirements

for

notice-and-comment

rulemaking. 5 U.S.C. § 553(b)(B), 553(d)(3). Finally, “to the extent that there is

involved … a … foreign affairs function of the United States,” the APA provides still

more flexibility by outright exempting federal agencies from those rulemaking

requirements. Id. § 553(a)(1); Decl. of Ambassador Christopher Landau, at 1 (¶ 3)

(“panel’s decision, unless stayed, will have an immediate and severely prejudicial

impact on the bilateral relationship between the United States and Mexico”). This

Court should not decrease the flexibility that the APA gives the Government to

address the humanitarian and public-safety emergencies here or to interfere with the

Government’s negotiations with Mexico over illegal aliens crossing through Mexico

to the United States.

In addition to the general flexibility that the APA provides, the INA provides

even more flexibility to the political branches to address immigration:

Thus the decision to admit or to exclude an alien may be

lawfully placed with the President, who may in turn

delegate the carrying out of this function to a responsible

executive officer of the sovereign, such as the Attorney

General. … It is not necessary that Congress supply

administrative officials with a specific formula for their

guidance in a field where flexibility and the adaptation of

the congressional policy to infinitely variable conditions

constitute the essence of the program.

United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543-44 (1950) (internal

quotation marks omitted, emphasis added); Arizona, 567 U.S. at 396 (“principal

feature of the removal system is the broad discretion exercised by immigration

officials”); Hawaii, 138 S.Ct. at 2420 (even under the Constitution, courts should

avoid “inhibit[ing] the flexibility of the President to respond to changing world

conditions”) (interior quotation marks omitted). Significantly, we deal here not with

a constitutional limit but with perceived statutory limits.

Finally, the “exclusion of aliens is a fundamental act of sovereignty by the

political branches.” Hawaii, 138 S.Ct. at 2407 (interior quotation marks omitted).

Because “decisions in these matters may implicate our relations with foreign powers”

and implicate “changing political and economic circumstances,” these “decisions are

frequently of a character more appropriate to either the Legislature or the Executive

than to the Judiciary.” Mathews v. Diaz, 426 U.S. 67, 81 (1976). Thus, the

Government’s flexibility here — while clearly present in the INA itself — also arises

from the nature of sovereignty and the separation of powers: “In accord with ancient

principles of the international law of nation-states, … the power to exclude aliens is

inherent in sovereignty, necessary for maintaining normal international relations

and defending the country against foreign encroachments and dangers — a power to

be exercised exclusively by the political branches of government.’” Kleindienst v.

Mandel, 408 U.S. 753, 765 (1972) (citations, internal alterations, and quotation

marks omitted). Federal courts should not attempt to set federal immigration policy.

III.

THE OTHER STAY CRITERIA TIP IN THE GOVERNMENT’S FAVOR.

Although the likelihood of this Court’s granting a writ of certiorari and ruling

for the Government on the merits would alone justify granting a stay, IRLI addresses

the balance of the equities. The Government has significant public-health and publicsafety concerns at stake as well as the need to present a unified national position in

negotiations with foreign countries over those underlying health and safety issues.

In addition, the public interest favors a stay. Against those considerations, Plaintiffs’

proffered interests are not even cognizable. In short, the balances of equities tip

decidedly in the Government’s favor.

The Government’s harm is weighty and irreparable.

For stays, the question of irreparable injury requires a two-part “showing of a

threat of irreparable injury to interests that [the applicant] properly represents.”

Graddick v. Newman, 453 U.S. 928, 933 (1981) (Powell, J., for the Court11). “The first,

embraced by the concept of ‘standing,’ looks to the status of the party to redress the

injury of which he complains.” Id. “The second aspect of the inquiry involves the

nature and severity of the actual or threatened harm alleged by the applicant.” Id.

The Government meet both tests.

As for standing, the Government clearly has standing to defend its laws and

regulatory actions. Diamond, 476 U.S. at 62-63. When it comes to irreparable harm,

the Government’s application explains the serious and irreparable harms that

delaying this emergency action would cause. See Appl. at 2-3; 84 Fed. Reg. at 33,831.

Additionally, a district court’s enjoining the federal sovereign without Article III

jurisdiction violates the separation of powers, inflicting a separation-of-powers injury

on the Executive Branch. “[T]he deprivation of constitutional rights unquestionably

constitutes irreparable injury.” Hernandez v. Sessions, 872 F.3d 976, 994-95 (9th Cir.

2017) (interior quotation marks omitted).12 The Government will suffer irreparable

injury unless this Court stays the injunction.

Plaintiffs’ alleged harms are not cognizable.

With respect to Plaintiffs’ claims of irreparable harm, a stay would not

Although Graddick began as an application to a circuit justice, the Chief

Justice referred the application to the full Court. Graddick, 453 U.S. at 929.

The Ninth Circuit’s Hernandez line of cases derives from Elrod v. Burns, 427

U.S. 347, 373 (1976), but arguably removes Elrod from its First Amendment mooring.

That line of cases nonetheless remains Circuit precedent.

prejudice Plaintiffs’ legally protected interests at all. See Sections II.A.1.a-II.A.1.b,

supra. Indeed, Plaintiffs lack both standing and a waiver of sovereign immunity, each

of which is an independent perquisite to a lawsuit against the Government. See

Section II.A, supra. That absence of jurisdiction “negates giving controlling

consideration to the irreparable harm” they claim. Heckler v. Lopez, 464 U.S. 879, 886

(1983) (Brennan, J., dissenting from the denial of motion to vacate the Circuit

Justice’s stay). Moreover, a lack of standing necessarily implies a lack of irreparable

harm, the test for which sets a higher bar for injury than Article III. Monsanto Co. v.

Geertson Seed Farms, 561 U.S. 139, 149-50, 162 (2010). And even if Plaintiffs had

standing, irreparable harm would require more than Article III standing, which

Plaintiffs have not shown.

The lack of irreparable harm is especially true for self-inflicted injuries such

as Institutional Plaintiffs’ diverted resources: “self-inflicted wounds are not

irreparable injury.” Second City Music, Inc. v. City of Chicago, 333 F.3d 846, 850 (7th

Cir. 2003); accord Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck

Consumer Pharm. Co., 290 F.3d 578, 596 (3d Cir. 2002) (“injury … may be discounted

by the fact that [a party] brought that injury upon itself”); Davis v. Mineta, 302 F.3d

1104, 1116 (10th Cir. 2002). Similarly, with respect to Alien Plaintiffs, this Court can

draw an inference that their failure to apply for asylum in the countries through

which they transited to get here that their allegedly irreparable harm is not as

significant as they claim. Instead, with the help of immigrant advocacy groups,

economic migrants (that is, those seeking to immigrate to the United States because

the standard of living is higher here than in their home countries) have abused the

asylum process by making false claims of persecution or other baseless asylum claims

in order to gain entry into this country, only to disappear into the country without

appearing at future hearings. Federal courts have no legitimate basis from which to

restrict the Executive’s efforts to put an end to the endless cycle of meritless economic

migrants’ successfully gaming the system and thereby attracting still more economic

migrants to attempt the same.

The balance of equities and the public interest favor the

Government.

In assessing whether to stay a preliminary injunction, this Court considers the

balance of the equities and the public interest. Trump v. Int’l Refugee Assistance

Project, 137 S.Ct. 2080, 2087 (2017). The Government defends and asserts the public

interest here, see Section III.A, supra, and the balance of equities tips in the

Government’s favor for two reasons. First, the Government’s advantage on the

substantive merits — see Section II.B, supra — tips the equities in the Government’s

favor. Second, Plaintiffs’ tenuous interest — if even cognizable, see Sections II.A.1.a

(all Plaintiffs), II.A.1.b (Alien Plaintiffs), II.A.1.c-II.A.1.e (Institutional Plaintiffs),

supra — undercuts Plaintiffs’ ability to assert a countervailing form of irreparable

harm. See Section III.B, supra. Consequently, the balance of equities tips decidedly

in the Government’s favor.

Where the parties dispute the lawfulness of government programs, this public

interest can collapse into the merits. Washington v. Reno, 35 F.3d 1093, 1103 (6th

Cir. 1994). But even a plaintiff likely to prevail on the merits is not automatically

entitled to an injunction against the Government. Winter v. NRDC, Inc., 555 U.S. 7,

32-33 (2008); Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982). “It is in the

public interest that federal courts of equity should exercise their discretionary power

with proper regard for the rightful independence of state governments in carrying out

their domestic policy.” Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943). In publicinjury cases, equitable relief that affects competing public interests “has never been

regarded as strictly a matter of right, even though irreparable injury may otherwise

result to the plaintiff” because courts also consider adverse effects on the public

interest. Yakus v. United States, 321 U.S. 414, 440 (1944). Federal courts should not

attempt to set immigration policy for the Nation.

CONCLUSION

This Court should stay the preliminary injunction, pending the timely filing

and resolution of a petition for a writ of certiorari. Alternatively, the Court should

remand to the District Court with instructions to dismiss this action.

Dated: March 9, 2020

Respectfully submitted,

/s/ Lawrence J. Joseph

_____________________________________

Christopher J. Hajec

Lawrence J. Joseph

Immigration Reform Law Institute

Counsel of Record

25 Massachusetts Ave. NW, Suite 335 1250 Connecticut Av NW Suite 700-1A

Washington, DC 20001

Washington, DC 20036

Telephone: (202) 232-5590

Telephone: (202) 355-9452

chajec@irli.org

Facsimile: (202) 318-2254

lj@larryjoseph.com

Counsel for Amicus Curiae Immigration

Reform Law Institute

CERTIFICATE AS TO FORM

Pursuant to Sup. Ct. Rules 22 and 33, I certify that the foregoing motion for

leave to file, motion for leave to file in compliance with Rule 33.2, and the

accompanying amicus brief are proportionately spaced, have a typeface of Century

Schoolbook, 12 points, and contain 3, 2, and 32 pages (and 583, 236, and 8,773 words)

respectively, excluding this Certificate as to Form, the Table of Authorities, the Table

of Contents, and the Certificate of Service.

Dated: March 9, 2020

Respectfully submitted,

/s/ Lawrence J. Joseph

_____________________________________

Lawrence J. Joseph

Counsel of Record

1250 Connecticut Av NW Suite 700-1A

Washington, DC 20036

Telephone: (202) 355-9452

Facsimile: (202) 318-2254

lj@larryjoseph.com

Counsel for Amicus Curiae Immigration

Reform Law Institute

CERTIFICATE OF SERVICE

The undersigned certifies that, on this 9th day of March 2020, in addition to

filing the foregoing document via the Court’s electronic filing system, one true and

correct copy of the foregoing document was served by Federal Express, postage prepaid, with a PDF courtesy copy served via electronic mail on the following counsel:

Hon. Noel J. Francisco

Solicitor General

United States Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Email: SupremeCtBriefs@USDOJ.gov

Judy Rabinovitz

Michael Tan

Omar Jadwat

Lee Gelernt

ACLU Foundation

Immigrants’ Rights Project

125 Broad St., 18th Floor

New York, NY 10004

Email: JRabinovitz@aclu.org

The undersigned further certifies that, on this 9th day of March 2020, an

original and ten true and correct copies of the foregoing document were served on the

Court by hand delivery.

Executed March 9, 2020, at Washington, DC,

Lawrence J. Joseph

________________________________

Lawrence J. Joseph

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.