FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EAST BAY SANCTUARY COVENANT; No. 19-16487 AL OTRO LADO; INNOVATION LAW LAB; CENTRAL AMERICAN D.C. No. 3:19-cv-04073-JST RESOURCE CENTER, Northern District of California, San Francisco Plaintiffs-Appellees, ORDER v. WILLIAM P. BARR, Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; JAMES MCHENRY, Director of the Executive Office for Immigration Review, in his official capacity; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; KEVIN K. MCALEENAN, Acting Secretary of Homeland Security, in his official capacity; U.S. DEPARTMENT OF HOMELAND SECURITY; KENNETH T. CUCCINELLI, Acting Director of the U.S. Citizenship and Immigration Services, in his official capacity; JOHN P. SANDERS, Acting Commissioner of U.S. Customs and Border Protection, in his official capacity; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; U.S. CUSTOMS AND BORDER PROTECTION; MATTHEW ALBENCE, Acting Director of Immigration and Customs Enforcement, in his official capacity; IMMIGRATION AND CUSTOMS ENFORCEMENT, Defendants-Appellants. Before: TASHIMA, M. SMITH, and BENNETT, Circuit Judges. Appellants seek a stay pending appeal of the district court’s July 24, 2019 order preliminarily enjoining the Department of Justice and Department of Homeland Security’s joint interim final rule, “Asylum Eligibility and Procedural Modifications” (the “Rule”), 84 Fed. Reg. 33,829 (July 16, 2019).1 The district court found that the Rule likely did not comply with the Administrative Procedure Act’s (APA) notice-and-comment and 30-day grace period requirements because Appellants did not adequately support invocation of the “good cause” and “foreign affairs” exemptions under the APA. See 5 U.S.C. § 553(a)(1), (b)(1)(B), (d)(3); Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982) (good cause exemption “should be interpreted narrowly so that the exception will not swallow the rule” (internal citations omitted)); Yassini v. Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980) (foreign affairs exemption “would become distended” if applied to immigration rules generally and requires showing that ordinary public noticing would “provoke definitely undesirable 1 The State of Arizona’s amicus brief in support of Appellants’ motion has been filed. The Professors of Immigration Law’s motion for leave to file an amicus brief in opposition to Appellants’ motion (Docket Entry No. 28) is granted, and the brief is filed. 2 19-16487 international consequences”). We conclude that Appellants have not made the required “strong showing” that they are likely to succeed on the merits on this issue. Hilton v. Braunskill, 481 U.S. 770, 776 (1987).2 Consequently, we deny the motion for stay pending appeal (Docket Entry No. 3) insofar as the injunction applies within the Ninth Circuit.3 We grant the motion for stay pending appeal insofar as the injunction applies outside the Ninth Circuit, because the nationwide scope of the injunction is not 2 Our finding that Appellants have not made a “strong showing” does not bind the merits panel in reviewing this aspect of the merits, as that is not the standard the merits panel will apply. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 3 We do not assess Appellants’ ...
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