FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EAST BAY SANCTUARY COVENANT; Nos. 19-16487 AL OTRO LADO; INNOVATION LAW 19-16773 LAB; CENTRAL AMERICAN RESOURCE CENTER, D.C. No. Plaintiffs-Appellees, 4:19-cv-04073- JST v. MERRICK B. GARLAND, Attorney ORDER AND General; UNITED STATES AMENDED DEPARTMENT OF JUSTICE; JEAN OPINION KING, Acting Director, Executive Office for Immigration Review (EOIR); EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; ALEJANDRO MAYORKAS, Secretary, U.S. Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY; TRACY RENAUD, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services; TROY MILLER, Senior Official Performing the Duties of the Commissioner, U.S. Customs and Border Protection; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; U.S. CUSTOMS AND BORDER PROTECTION; TAE D. JOHNSON, 2 EAST BAY SANCTUARY COVENANT V. GARLAND Acting Director, U.S. Immigration and Customs Enforcement; IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants-Appellants. Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding Argued and Submitted December 2, 2019 San Francisco, California Filed July 6, 2020 Amended April 8, 2021 Before: William A. Fletcher, Richard R. Clifton, and Eric D. Miller, Circuit Judges. Order; Opinion by Judge W. Fletcher; Concurrence by Judge Clifton; Partial Concurrence and Partial Dissent by Judge Miller EAST BAY SANCTUARY COVENANT V. GARLAND 3 SUMMARY* Immigration / Preliminary Injunction The panel filed: 1) an order denying on behalf of the court a petition for rehearing en banc and amending the opinion filed on July 6, 2020; and 2) an amended opinion affirming the district court’s grant of a preliminary injunction against enforcement, in the four states on the United States-Mexico border, of a Department of Justice and Department of Homeland Security joint interim final rule, entitled “Asylum Eligibility and Procedural Modifications” (the “Rule”), which—with limited exceptions—categorically denies asylum to aliens arriving at the border with Mexico unless they have first applied for, and have been denied, asylum in Mexico or another country through which they have traveled. Previously, a motions panel denied in part and granted in part the government’s request for an emergency stay pending appeal, staying the injunction only insofar as it applied to states outside the Ninth Circuit. The district court later reinstated its previous preliminary injunction, but the Supreme Court stayed the injunction pending disposition of the appeal in this court and disposition of the government’s petition for a writ of certiorari, if such a writ is filed. The panel concluded that plaintiffs—nonprofit organizations that represent asylum seekers—had established Article III standing, explaining that the Rule requires a diversion of resources from plaintiffs’ other initiatives, and * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 EAST BAY SANCTUARY COVENANT V. GARLAND that three of the plaintiffs showed they would lose significant funding due to the Rule. With respect to the likelihood of success on the merits, the government justified the Rule by relying on 8 U.S.C. § 1158(b)(2)(C), which provides …
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