FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 5 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT AL OTRO LADO, a California corporation; No. 19-56417 ABIGAIL DOE; BEATRICE DOE; CAROLINA DOE; DINORA DOE; D.C. No. INGRID DOE; JOSE DOE; URSULA DOE; 3:17-cv-02366-BAS-KSC VICTORIA DOE; BIANCA DOE; JUAN Southern District of California, DOE; ROBERTO DOE; CESAR DOE; San Diego MARIA DOE; EMILIANA DOE, individually and on behalf of all others ORDER similarly situated, Plaintiffs-Appellees, v. CHAD F. WOLF, Acting Secretary, US Department of Homeland Security; MARK A. MORGAN, Acting Commissioner of U.S. Customs and Border Protection; TODD C. OWEN, Executive Assistant Commissioner, Office of Field Operations, United States Customs and Border Protection, in his official capacity, Defendants-Appellants. Before: THOMAS, Chief Judge, and BERZON and BRESS, Circuit Judges. BERZON, Circuit Judge: Plaintiff Al Otro Lado is an organization dedicated to helping individuals seek asylum in the United States. Along with thirteen Individual Plaintiffs (collectively, “Al Otro Lado”), Al Otro Lado originally challenged in this case the government’s policy of turning back asylum seekers at ports of entry on the southern border and telling them to return later to file for asylum, a policy the government refers to as “metering.” Al Otro Lado’s complaint alleges that asylum seekers are turned back to deter and discourage individuals from seeking access to the asylum process, and not, as the government maintains, because each port of entry lacks capacity to process additional asylum seekers. The current motion does not directly concern the validity of the policy requiring asylum seekers to wait at or near the border for some time before their asylum applications can be filed and processed. Rather, this motion stems from the impact of a separate regulation, promulgated while this litigation was pending, on a subgroup of metered asylum seekers. That regulation, known variously as the “Third Country Transit Rule,” “transit rule,” and “asylum ban,” (“the Rule”), provides, subject to narrow exceptions, that a noncitizen who “enters, attempts to enter, or arrives in the United States” at the southern border on or after July 16, 2019 is not eligible for asylum in the United States unless they applied for asylum in another country, such as Mexico, that they passed through on their way to the southern border. 8 C.F.R. § 208.13(c)(4). The district court granted a preliminary injunction enjoining enforcement of the Rule against a provisionally certified class of plaintiffs who arrived at the 2 southern border seeking asylum before July 16, 2019 but were denied entry and prevented from making an asylum claim under the metering policy. The government appealed and moved this court for a stay of the injunction pending appeal. Because the government has not carried its burden of showing that a stay is warranted, we deny the motion. I. Al Otro Lado’s putative class action complaint alleges that Customs and Border Protection (“CBP”) uses various unlawful tactics systematically to deny asylum seekers access to the asylum process at Ports of Entry (“POEs”) on the ...
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