FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EAST BAY SANCTUARY COVENANT; Nos. 18-17274 AL OTRO LADO; INNOVATION LAW 18-17436 LAB; CENTRAL AMERICAN RESOURCE CENTER, D.C. No. Plaintiffs-Appellees, 4:18-cv-06810- JST v. JOSEPH R. BIDEN, President of the ORDER AND United States; MERRICK B. AMENDED GARLAND, Attorney General; JEAN OPINION KING, Acting Director, Executive Office for Immigration Review (EOIR); ALEJANDRO MAYORKAS, Secretary, 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; TAE D. JOHNSON, Acting Director, U.S. Immigration and Customs Enforcement, Defendants-Appellants. 2 EAST BAY SANCTUARY COVENANT V. BIDEN Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding Argued and Submitted October 1, 2019 San Francisco, California Filed February 28, 2020 Amended March 24, 2021 Before: Ferdinand F. Fernandez, William A. Fletcher, and Richard A. Paez, Circuit Judges. Order; Opinion by Judge Paez; Concurrence by Judge Fernandez; Concurrence in Denial of Rehearing En Banc by Judge Paez; Dissent from Denial of Rehearing En Banc by Judge Bumatay; Dissent from Denial of Rehearing En Banc by Judge VanDyke EAST BAY SANCTUARY COVENANT V. BIDEN 3 SUMMARY * Immigration / Preliminary Injunctions The panel filed: 1) an order denying on behalf of the court a petition for rehearing en banc; 2) an amended opinion affirming the district court’s grant of a temporary restraining order and a subsequent grant of a preliminary injunction enjoining enforcement of a rule and presidential proclamation that, together, strip asylum eligibility from every migrant who crosses into the United States along the southern border of Mexico between designated ports of entry; and 3) an amended concurrence. Addressing briefing on the President’s revocation of the proclamation at issue, the panel agreed with the parties that this appeal was not moot, but declined to hold the case in abeyance while the government reviews the interim final rule at issue. The panel noted that the parties may address further developments and whether any such developments render the case moot on remand. In the amended opinion, the panel explained that the Department of Justice and Department of Homeland Security adopted an interim final rule in November 2018 (“the Rule”) that 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. The same day, President Trump issued a presidential proclamation (“the Proclamation”) that * 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. BIDEN suspended the entry of all migrants along the southern border of the United States for ninety days, except for any migrant who enters at a port of entry and properly presents for inspection. Legal services organizations …
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