E. Bay Sanctuary Covenant v. Trump

950 F.3d 1242

EAST BAY SANCTUARY COVENANT ; Al Otro Lado; Innovation Law Lab; Central American Resource Center, Plaintiffs-Appellees,

v.Donald J. TRUMP, President of the 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.

Nos. 18-17274

18-17436

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 1, 2019 San Francisco, California

Filed February 28, 2020

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.

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).

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 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 , ––– U.S. ––––, 139 S. Ct. 782, 202 L.Ed.2d 510 (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 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 , ––– U.S. ––––, 135 S. Ct. 2401, 2409, 192 L.Ed.2d 463 (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 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...