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2021 Thomson Reuters. No Claim to Original US Government Works EAST BAY SANCTUARY COVENANT; AL OTRO LADO;..., --- F.3d ---- (2020) Department of Justice, Washington, D.C.; for Defendants- Appellants. 2020 WL 8970552 Only the Westlaw citation is currently available. Lee P. Gelernt (argued), Judy Rabinovitz, Omar C. Jadwat, United States Court of Appeals, Ninth Circuit. Anand Balakrishnan, Daniel Galindo, and Celso Perez, American Civil Liberties Union Foundation, Immigrants’ EAST BAY SANCTUARY COVENANT; Rights Project, New York, New York; Katrine Eiland, AL OTRO LADO; INNOVATION Jennifer Chang Newell, Cody Wofsy, and Spencer Amdur, LAW LAB; CENTRAL AMERICAN American Civil Liberties Union Foundation, Immigrants’ RESOURCE CENTER, Plaintiffs-Appellees, Rights Project, San Francisco, California; Melissa Crow, v. Southern Poverty Law Center, Washington, D.C.; Mary JOSEPH R. BIDEN, President of the United States; Bauer, Southern Poverty Law Center, Charlottesville, MERRICK B. GARLAND, Attorney General; Virginia; Gracie Willis, Southern Poverty Law Center, JEAN KING, Acting Director, Executive Office Decatur, Georgia; Baher Azmy, Angelo Guisado, and Ghita for Immigration Review (EOIR); ALEJANDRO Schwarz, Center for Constitutional Rights, New York, New MAYORKAS, Secretary, U.S. Department York; Christine P. Sun and Vasudha Talla, American Civil of Homeland Security; TRACY RENAUD, Liberties Union Foundation of Northern California Inc., San Francisco, California; for Plaintiffs-Appellees. Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Lawrence J. Joseph, Washington, D.C.; Christopher J. Hajec, Services; TROY MILLER, Senior Official Director of Litigation, Immigration Reform Law Institute, Performing the Duties of the Commissioner, Washington, D.C.; for Amicus Curiae Immigration Reform U.S. Customs and Border Protection; TAE D. Law Institute. JOHNSON, Acting Director, U.S. Immigration and Patrick W. Pearsall, Karthik P. Reddy, and Vaishalee V. Customs Enforcement, Defendants-Appellants. Yeldandi, Jenner & Block LLP, Washington, D.C.; Alice Nos. 18-17274 Farmer, Office of the United Nations High Commissioner for | Refugees, Washington, D.C.; for Amicus Curiae Office of the 18-17436 United Nations High Commissioner for Refugees. | Richard D. Bernstein, Washington, D.C.; Richard Mancino, Argued and Submitted October Willkie Farr & Gallagher LLP, New York, New York; for 1, 2019 San Francisco, California Amici Curiae Peter Keisler, Stuart Gerson, Carter Phillips, | John Bellinger III, Samuel Witten, Ray Lahood, Brackett Filed February 28, 2020 Denniston, Stanley Twardy, and Richard Bernstein. | Amended March 24, 2021 Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Alex Gazikas, Wilmer Cutler D.C. No. 4:18-cv-06810-JST Pickering Hale and Dorr LLP, Washington, D.C.; Peter S. Appeal from the United States District Court for the Northern Margulies, Bristol, Rhode Island; Shoba Sivaprasad Wadhia, District of California Jon S. Tigar, District Judge, Presiding University Park, Pennsylvania; for Amici Curiae Professors of Immigration Law. Attorneys and Law Firms Margaret L. Carter, Dmitiri D. Portnoi, and Daniel R. Suvor, COUNSEL Scott Grant Stewart (argued) and Sarah O'Melveny & Myers LLP, Los Angeles, California; Barbara Harrington, Deputy Assistant Attorneys General; Francesca J. Parker, City Attorney; Maria Bee, Erin Bernstein, Malia Genova and T. Benton York, Trial Attorneys; Erez Reuveni, McPherson, Zarah Rahman, and Suzanne Dershowitz; Office Assistant Director; William C. Peachey, Director; August E. of the City Attorney Oakland, California; Edward N. Siskel, Flentje, Special Counsel; Joseph H. Hunt, Assistant Attorney Corporation Counsel, City of Chicago Department of Law, General; Office of Immigration Litigation, United States Chicago, Illinois; Zachary W. Carter, Corporation Counsel, © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 EAST BAY SANCTUARY COVENANT; AL OTRO LADO;..., --- F.3d ---- (2020) New York City Law Department, New York, New York; for affirming the district court's grant of a temporary restraining Amici Curiae 21 Counties, Cities, and Local Officials. order and a subsequent grant of a preliminary injunction enjoining enforcement of a rule and presidential proclamation Xavier Becerra, Attorney General; Michael L. Newman, that, together, strip asylum eligibility from every migrant who Senior Assistant Attorney General; Christine Chuang, crosses into the United States along the southern border of Supervising Deputy Attorney General; Shubhra Shivpuri Mexico between designated ports of entry; and 3) an amended and James F. Zahradka II, Deputy Attorneys General; concurrence. Office of the Attorney General, Oakland, California; Philip J. Weiser, Attorney General, Denver, Colorado; Addressing briefing on the President's revocation of the William Tong, Attorney General, Hartford, Connecticut; proclamation at issue, the panel agreed with the parties that Kathleen Jennings, Attorney General, Wilmington, Delaware; this appeal was not moot, but declined to hold the case in Karl A. Racine, Attorney General, Washington, D.C.; abeyance while the government reviews the interim final rule Clare E. Connors, Attorney General, Honolulu, Hawaii; at issue. The panel noted that the parties may address further Kwame Raoul, Attorney General, Chicago, Illinois; Tom developments and whether any such developments render the Miller, Attorney General, Des Moines, Iowa; Brian E. case moot on remand. Frosh, Attorney General, Baltimore, Maryland; Maura Healey, Attorney General, Boston, Massachusetts; Dana In the amended opinion, the panel explained that the Nessel, Attorney General, Lansing, Michigan; Keith Ellison, Department of Justice and Department of Homeland Security Attorney General, St. Paul, Minnesota; Aaron D. Ford, adopted an interim final rule in November 2018 (“the Rule”) Attorney General, Carson City, Nevada; Gurbir S. Grewal, that makes migrants who enter the United States in violation Attorney General, Trenton, New Jersey; Hector Balderas, of a “presidential proclamation or other presidential order Attorney General, Santa Fe, New Mexico; Letitia James, suspending or limiting the entry of aliens along the southern Attorney General, New York, New York; Ellen F. Rosenblum, border with Mexico” categorically ineligible for asylum. The Attorney General, Salem, Oregon; Josh Shapiro, Attorney same day, President Trump issued a presidential proclamation General, Harrisburg, Pennsylvania; Peter F. Neronha, (“the Proclamation”) that suspended the entry of all migrants Attorney General, Providence, Rhode Island; Thomas J. along the southern border of the United States for ninety days, Donovan, Jr., Attorney General, Montpelier, Vermont; Mark except for any migrant who enters at a port of entry and R. Herring, Attorney General, Richmond, Virginia; Robert properly presents for inspection. W. Ferguson, Attorney General, Olympia, Washington; for Amici Curiae California, Colorado, Connecticut, Delaware, Legal services organizations representing asylum-seekers District of Columbia, Hawaii, Illinois, Iowa, Maryland, (“the Organizations”) sued to prevent enforcement of the Massachusetts, Michigan, Minnesota, Nevada, New Jersey, Rule. The district court entered a temporary restraining order New Mexico, New York, Oregon, Pennsylvania, Rhode enjoining the Rule, and the government appealed, seeking a Island, Vermont, Virginia, and Washington. stay in this court of the district court's order pending appeal. In a published order, a motions panel denied the stay, and Before: Ferdinand F. Fernandez, William A. Fletcher, and the Supreme Court denied a stay as well. The district court Richard A. Paez, Circuit Judges. issued an injunction barring enforcement of the Rule, the government appealed, and this court consolidated the two appeals. ORDER AND AMENDED OPINION Order; Opinion by Judge Paez; First, addressing the effect of the motions panel's order on the present panel's decision, the panel concluded that a published motions panel order may be binding as precedent for other SUMMARY * panels deciding the same issue, but it is not binding here. The panel explained that this is because the issues are different: in deciding whether to stay a preliminary injunction pending Immigration / Preliminary Injunctions appeal, the motions panel was predicting the likelihood of *1 The panel filed: 1) an order denying on behalf of the success of the appeal, meaning it was predicting rather than court a petition for rehearing en banc; 2) an amended opinion deciding what the merits panel will decide; however, in © 2021 Thomson Reuters. No claim to original U.S. Government Works. 2 EAST BAY SANCTUARY COVENANT; AL OTRO LADO;..., --- F.3d ---- (2020) resolving the merits of a preliminary injunction appeal, the Rule requires migrants to enter at ports of entry to preserve merits panel was deciding the likelihood of success of the their eligibility for asylum, the panel explained that it is actual litigation. The panel explained that such a predictive effectively a categorical ban on migrants who use a method analysis should not, and does not, forever decide the merits. of entry explicitly authorized by Congress in § 1158(a). The panel noted that there may be circumstances where a motions panel does answer the same legal question that The panel further concluded that, even if the text of § is presented to the merits panel, observing that this court 1158(a) were ambiguous, the Rule fails at the second step of Chevron because it is an arbitrary and capricious
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