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

southern border. The complaint challenges the Government’s so-called “Turnback

Policy,” which includes a “metering” or “waitlist” system. Under that system, the

complaint alleges, asylum seekers who arrive at or near the southern border of the

United States are instructed “to wait on the bridge, in the pre-inspection area, or at

a shelter,” or are simply told that “they [could not] be processed because the POE

is ‘full’ or ‘at capacity.’” According to the complaint and Al Otro Lado’s expert,

under the government’s current metering practices, “[w]hen a pedestrian

approaches the U.S.-Mexico dividing line” without valid entry documents, CBP

officers standing on the international line “often physically block their passage into

U.S. territory by standing in the center of the pedestrian walkway.”

Al Otro Lado introduced declarations in which asylum seekers from a

3 diverse set of countries and circumstances reported that they were turned away

from the border under this metering policy and told to wait for an opportunity to

submit their applications for asylum. Members of the provisionally certified class

include Roberto Doe, who fled Nicaragua after the police threatened to kill him

and burn down his business for participating in a strike against the government;

M.G., a Cuban citizen seeking asylum because he was threatened and punched in

the mouth by a political official for calling his government corrupt; and Jordan

Doe, who fled Cameroon after his father was burned to death and he was

imprisoned and tortured by military officers who accused him of being a separatist.

They and the approximately 26,000 other members of the provisionally certified

class approached the border to present themselves before July 16, 2019 because

they “wanted to do things the right way,” but were turned away.

The government does not now keep records of the people CPB officers turn

back.1 But other groups, with the United States government’s knowledge and

cooperation, have created waitlists. The district court determined that “[d]efendants

do not . . . challenge[] that Grupo Beta, a service run by the Mexican

1 Under the initial metering practices instituted around the end of 2016, CBP officials at one POE were instructed “to provide the alien with a piece of paper identifying a date and time for an appointment” “if possible.” Although there were several documented instances of migrants being turned back at that time, “[n]one of the asylum seekers turned back from these ports of entry were provided with appointments.”

4 Government’s National Institute of Migration, maintains a formalized list of

asylum-seekers, communicates with CBP regarding POE capacity, and transports

asylum-seekers from the top of the list to CBP.” The record also shows that non-

profit groups, shelters, and small groups of asylum seekers maintain informal

waitlists in different locations. At each POE, CBP asks the list-keeper in the area

for a certain number of people each day based on the POE’s alleged capacity, and

the group then calls the appropriate number of people from the top of its list. The

district court concluded that “CBP relied on these lists to facilitate the process of

metering,” and the record supports that conclusion.

On July 16, 2019, the Department of Homeland Security and the Department

of Justice issued a joint interim final rule entitled “Asylum Eligibility and

Procedural Modifications.” 84 Fed. Reg. 33,829 (July 16, 2019), codified at 8

C.F.R. § 208.13(c)(4). In relevant part, the Rule provides:

(c) Mandatory denials— (4) Additional limitation on eligibility for asylum. Notwithstanding the provisions of § 208.15, any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States, shall be found ineligible for asylum unless: (i) The alien demonstrates that he or she applied for protection from persecution or torture in at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence through which the alien transited en route to the United States, and the alien received a final judgment denying the alien protection in such country.

5 8 C.F.R. § 208.13(c)(4).2

Al Otro Lado moved for a preliminary injunction to prevent enforcement of

the Rule against provisional class members. It argued that if the Rule is applied to

non-Mexican asylum seekers metered at the border before July 16, 2019, the Rule

will long delay their ability to apply for asylum in the United States and, for a large

proportion of the class members, could preclude them from accessing any asylum

process altogether. This assertion has support in the record. As the district court

recognized, “Mexico’s Commission to Assist Refugees, the administrative agency

responsible for processing asylum claims, requires that applicants for asylum

submit their petitions within 30 days of entering Mexico.” The district court then

summarized the bleak result for plaintiffs:

2 In separate litigation challenging the validity of the Rule, the Supreme Court on September 11, 2019 stayed a district court’s preliminary injunction precluding application of the Rule “pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’s petition for a writ of certiorari, if such a writ is sought.” Barr v. E. Bay Sanctuary Covenant, 140 S. Ct. 3 (2019) (mem.). This court heard argument on December 2, 2019 on the government’s appeal of the injunction; the case is presently pending in this court. E. Bay Sanctuary Covenant v. Barr, No. 19-16487. We note that the outcome of the East Bay appeal could affect whether the issue before us remains a live dispute. Contrary to the Dissent’s suggestion, see Dissent at 18–21, the district court’s injunction in this case is not precluded by the Supreme Court’s stay of the injunction pending appeal in East Bay. That stay order, like any other, is not a definitive resolution of the merits, and it involved the substantive validity of the Rule, not application of the Rule, if substantively valid, to the provisionally certified class in the particular circumstances of this case.

6 [B]ecause the [Rule] was not promulgated until after the time these individuals were subject to metering, none of the members of the putative class attempted to exhaust Mexico’s asylum procedures within the 30-day window. In short, should the [Rule] apply to these individuals, the situation would effectively be this: Based on representations of the Government they need only “wait in line” to access the asylum process in the United States, the members of the putative class may have not filed an asylum petition in Mexico within 30 days of entry, thus unintentionally and irrevocably relinquishing their right to claim asylum in Mexico and, due to the [Rule], their right to claim asylum in the United States.3

Although it is possible to seek a waiver of Mexico’s 30-day bar, Al Otro Lado

maintains that “it is nearly impossible to do so without legal counsel,” which most

asylum seekers cannot afford. Additionally, even if a waiver is granted, according

to evidence submitted by Al Otro Lado, it often takes two years for a Mexican

asylum claim to be fully adjudicated.

On November 19, 2019, the district court provisionally certified for purposes

of a preliminary injunction a class consisting of “all non-Mexican asylum-seekers

who were unable to make a direct asylum claim at a U.S. POE before July 16, 2019

because of the Government’s metering policy, and who continue to seek access to

3 Al Otro Lado asserts that “nearly all provisional class members are barred from even applying for asylum in Mexico.” The government argued in the district court that class members could present evidence of Mexico’s rejection of their asylum application, but made no representation that such a rejection would in its view satisfy the Rule, which requires a “final judgment” denying protection in another country. 8 C.F.R. § 2018.13(c)(4)(i). We do not decide whether Mexico’s rejection of an asylum application under its 30-day bar would be a “final judgment” satisfying the Rule.

7 the U.S. asylum process.”4 It granted a preliminary injunction, ordering that

“Defendants are hereby enjoined from applying the Asylum Ban to members of the

aforementioned provisionally certified class and ordered to return to the pre-

Asylum Ban practices for processing the asylum applications of members of the

certified class.”

On December 4, 2019, the government appealed the order granting the

injunction, and asked the district court to stay the preliminary injunction pending

appeal. The government simultaneously moved to expedite briefing on its stay

motion. The district court denied the motion to expedite briefing and set a hearing

on the briefing schedule for the stay motion for January 3, 2020, so the motion

would not be decided before then.

Rather than wait for the district court’s ruling on the stay motion, the

government moved this court for a stay pending appeal on December 12, 2019,

three weeks after the injunction issued.5 This panel granted a temporary stay on

4 The government does not challenge the district court’s provisional certification of the class for purposes of the preliminary injunction. We have approved provisional class certification for purposes of preliminary injunction proceedings. See Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1041–43 (9th Cir. 2012) (affirming provisional class certification for purposes of a preliminary injunction). 5 A party may move this court for a stay pending appeal if it first sought a stay in the district court, and the court “denied the motion or failed to afford the relief requested.” Fed. R. App. P. 8(a)(2)(A)(ii). We entertain the stay motion here even though the district court has not yet ruled on it, because the delay in the district court was sufficiently long to fall under Rule 8(a)(2)(A)(ii).

8 December 20, 2019, in an order that was “only intended to preserve the status quo

until the substantive motion for a stay pending appeal can be considered on the

merits.” The panel specified that the temporary stay “does not constitute in any

way a decision as to the merits of the motion for stay pending appeal.”

The appeal of the preliminary injunction has been expedited. The briefing

was completed on February 20, 2020. The case will be assigned to the next

available oral argument panel for a decision on the merits of the appeal.

II.

“A stay is not a matter of right, even if irreparable injury might otherwise

result.” Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926). “It is instead

‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon

the circumstances of the particular case.’”6 Nken v. Holder, 556 U.S. 418, 433

6 The Dissent questions the district court’s authority to grant the injunction in this case because the Rule is not challenged in Al Otro Lado’s operative complaint. See Dissent at 17–23. But it then acknowledges the answer. Id. at 21–22. Having concluded that it would interfere with the court’s jurisdiction for the Rule to extinguish some provisional class members’ asylum claims while they sought access to the asylum process through their metering challenge (even if other metered asylum seekers’ claims would survive), the district court properly issued an injunction under the All Writs Act. See 28 U.S.C. § 1651(a) (injunction may issue when “necessary or appropriate in aid of [the court’s] jurisdiction”); FTC v. Dean Foods Co., 384 U.S. 597, 604 (1966) (a court has “express authority under the All Writs Act to issue such temporary injunctions as may be necessary to protect its own jurisdiction”); Michael v. INS, 48 F.3d 657, 659 (2d Cir. 1995) (All Writs Act injunction of a prisoner’s deportation proper to preserve the court’s jurisdiction over the pending appeal). The district court also properly concluded

9 (2009) (quoting Virginian Ry. Co., 272 U. S. at 672–73) (alteration adopted). “The

party requesting a stay bears the burden of showing that the circumstances justify

an exercise of that discretion.” Id. at 433–34.

In deciding a motion to stay an order pending appeal, we consider: “(1)

whether the stay applicant has made a strong showing that he is likely to succeed

on the merits; (2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested

in the proceeding; and (4) where the public interest lies.” Nken, 556 U.S. at 434

(citation omitted). “The first two factors . . . are the most critical”; the last two are

reached only “[o]nce an applicant satisfies the first two factors.” Id. at 434–35.

Under the “sliding scale” approach we use, “the elements of the preliminary

injunction test are balanced, so that a stronger showing of one element may offset a

weaker showing of another.” Alliance for the Wild Rockies v. Cottrell, 632 F.3d

1127, 1131 (9th Cir. 2011). The same sliding scale approach applies to the

consideration of stays pending appeal. Leiva-Perez v. Holder, 640 F.3d 962, 966

(9th Cir. 2011) (per curiam). “If anything, a flexible approach is even more

that the operative complaint alleged an “unlawful, widespread pattern and practice of denying asylum seekers access to the asylum process.” Because the injunction sought to preserve class members’ access to the asylum process, there was a sufficient “relationship between the injury claimed in the motion for injunctive relief and the conduct asserted in the underlying complaint,” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015), that a preliminary injunction was a proper exercise of the court’s equitable powers.

10 appropriate in the stay context.” Id.

We first consider the government’s showing on irreparable harm, then

discuss the likelihood of success on the merits under the sliding scale approach,

and finally, address the third and fourth elements together.

A.

An applicant for a stay pending appeal must show that a stay is necessary to

avoid likely irreparable injury to the applicant while the appeal is pending. Nken,

556 U.S. at 434. “[S]imply showing some possibility of irreparable injury” is

insufficient. Id. (internal quotation marks omitted). The minimum threshold

showing for a stay pending appeal requires that irreparable injury is likely to occur

during the period before the appeal is likely to be decided. Leiva-Perez v. Holder,

640 F.3d at 968. Thus, under the sliding scale approach, a stay applicant’s “burden

with regard to irreparable harm is higher than it is on the likelihood of success

prong, as she must show that an irreparable injury is the more probable or likely

outcome.” Id.

The government has made a weak showing that it will suffer harm over the

requisite interim period. See Nken, 556 U.S. at 434. The injunction was in place for

over three weeks before the government sought a stay pending appeal. It thus had

available to it the best evidence of harms likely to occur because of the injunction:

evidence of harms that did occur because of the injunction. Rather than submitting

11 evidence of actual burdens and delays it has experienced since the injunction

issued, the government’s declarations contain only estimates, assumptions, and

projections.

The government estimates that identifying class members—that is,

noncitizens who arrived at the border before July 16, 2019 and whose entry into

the United States was refused by immigration officials—will burden the efficiency

of the asylum interview process overall. It submitted a declaration by the Deputy

Chief of the Asylum Division, Ashley Caudill-Mirillo, which projects that because

DHS itself does not maintain lists of noncitizens who were metered, the only way

to identify class members is for USCIS “to spend an additional estimated 15 to 30

minutes per person asking as many as 30 additional questions during each credible

fear screening interview.” The government asserts that the cumulative effect of an

additional fifteen to thirty minutes per interview “would have a significant negative

impact on credible fear processing times overall.” The government does not

represent that in any actual interview 15 to 30 minutes or 30 additional questions

were devoted to whether the individual asylum applicant sought entry at a POE

before July 16, 2019. Nor does it indicate what the “30 additional questions” might

be.

We are dubious that taking the time necessary to make fairly simple factual

determinations for a few months constitutes the sort of irreparable harm that can

12 support the grant of a stay pending appeal. “The key word in this consideration is

irreparable. Mere injuries, however substantial, in terms of money, time and energy

necessarily expended . . . are not enough.” Sampson v. Murray, 415 U.S. 61, 90

(1974) (quoting Virginia Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259

F.2d 921, 925 (D.C. Cir. 1958)). Applying this principle, we recently held that

“diversion of the [government] agencies’ time, resources, and personnel from other

pressing immigration adjudication and enforcement priorities” due to the need to

ask additional questions and possibly review documentary evidence at bond

hearings was “minimal” evidence of harm to the government. Hernandez v.

Sessions, 872 F.3d 976, 995 (9th Cir. 2017) (alterations adopted). The diversion of

resources projected here is no more persuasive as significant irreparable harm than

it was in Hernandez.

Even assuming that short term additional administrative delays can in some

circumstances constitute irreparable harm, the record here does not show

cognizable irreparable harm to the government over the relatively short period

before the appeal of the preliminary injunction is resolved.7 Any harm suffered is

largely the result of the government’s own failure to keep records of asylum

7 We deny Al Otro Lado’s motion to strike the Caudill-Mirillo and other declarations, Dkt. 23. Even including the challenged declarations, the government either does not show irreparable harm or makes a marginal showing, insufficient in light of the failure to make a particularly strong showing of likelihood of success on the merits. See section I.B., infra.

13 seekers who have been metered or to provide the asylum seekers with

documentation of their attempt to seek asylum. See n.1, supra. That the

government’s asserted harm is largely self-inflicted “severely undermines” its

claim for equitable relief. See Hirschfeld v. Bd. of Elections in City of New York,

984 F.2d 35, 39 (2d Cir. 1993). “[S]elf-inflicted wounds are not irreparable injury.”

Second City Music, Inc. v. City of Chicago, 333 F.3d 846, 850 (7th Cir. 2003);

Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 839 (3d Cir.

1995).

Al Otro Lado’s second amended complaint challenging the government’s

metering policy was filed in November 2018, nine months before the Rule was

issued in July 2019. The complaint alleged that the applicants arriving at the border

seeking to enter the POEs to file asylum applications had a statutory right to do so.

The government called in asylum seekers from the waitlists maintained by the

Mexican government and others. In doing so, the government recognized—as its

terms for the process, “metering” and “queue management,” imply—the practical

need to identify which applicants had appeared at the border and in what order

rather than choosing each day from amassed crowds which individuals to permit to

file asylum applications. But the government chose to implement the metering

policy in a way that, it maintains, could now cause administrative burdens, because

the government did not itself create or administer the waitlists and so cannot rely

14 on them definitively to identify class members. That deficiency was problematic

even before the new Rule, and was avoidable and so self-inflicted. Any delay

caused is therefore not irreparable harm that supports equitable relief.

In any event, the government’s guesses concerning the likely burden of

ascertaining class membership lack support in the record for several reasons. For

one thing, the government could use the waitlists maintained by the Mexican

government and others—waitlists it relied on to facilitate the metering policy—as a

starting point in determining whether a noncitizen is part of the provisional class,

even if the lists are “underinclusive.” See Dissent at 57–59. Yet the government

has declined to request copies of the waitlists or to use them. Those lists are, Al

Otro Lado acknowledges, not entirely reliable. But the record establishes that the

government has been using them in determining the order in which applicants for

asylum are allowed to enter, submit their asylum applications, and undergo

credible fear interviews. No reason appears why the lists are adequate for those

purposes but must be entirely disregarded in identifying who came to the border

when for purposes of complying with the district court’s injunction.

Further, even apart from the availability of existing lists, the additional time

it is likely to take during interviews to identify class members is almost surely

considerably less than the government supposes. The government provides no

basis, other than the supposition of some officials, for its estimation that such

15 interviews will take an additional fifteen to thirty minutes and require as many as

30 additional questions. Only Al Otro Lado submitted records from an actual

credible fear interview that occurred while the injunction was in place. During that

interview, USCIS determined that applicant was not a member of the provisional

class by asking two questions.8 More time may be needed to establish that someone

who claims to be a member of the class actually is. But it is far from clear the

degree to which that is so, and the total number of interviews likely to be affected

before the appeal is decided is circumscribed.

The injunction is also unlikely to cause major additional delays because,

once class members make it to the front of the line, they must be interviewed by an

asylum officer regardless of whether the Rule is applied. The Rule affects only an

applicant’s eligibility for asylum. See 8 C.F.R. § 208.13(c)(4). Because class

members fear persecution, they may still apply for withholding of removal or relief

under the Convention Against Torture (“CAT”). 8 U.S.C. § 1231(b)(3)(A); 8

C.F.R. § 208.16(c); see also 8 C.F.R. § 208.30 (if the applicant is ineligible for

asylum under the Rule, asylum officers must still refer the case to an IJ for

consideration of withholding and CAT relief “if the alien establishes, respectively,

8 Q: “What day did you cross the border from Mexico into the US?”

A: “10/27/2019.”

Q: “Did you ever seek to enter the United States before that time? When?” A: “No sir.”.

16 a reasonable fear of persecution or torture”). The standards differ for asylum,

withholding, and CAT relief, but they involve largely the same set of facts.9

Finally, the government offers only speculation that plaintiffs will cause

further delays by requesting to reschedule their interviews. It offers no support for

the statement in Caudill-Mirillo’s declaration that “individuals are likely to seek to

reschedule their credible fear interviews to obtain documentary evidence or to

consult with an attorney to draft a declaration to submit in support of their

assertion that they . . . are a member of the provisional class.” As class members

could gather this evidence in advance while they wait in Mexico if informed by

public announcements of the need for such evidence, this delay is avoidable.

In sum, the government offered at best weak evidence that it will suffer

significant overall delay in processing asylum applications at the border during the

short period of time at issue. The government could significantly mitigate the harm

created by its own recordkeeping practices by obtaining copies of the waitlists but

has declined to do so. Thus, any administrative burdens the government faces in

9 Because class members who have already had credible fear interviews should have been considered for withholding even if the Rule was applied to them, the government is unlikely to face an outsized additional burden in determining whether they are eligible for asylum with the preliminary injunction in place. These class members may still be in the process of having their claims reviewed, as an asylum officer’s negative fear determination is reviewable by an IJ, 8 C.F.R. § 1208.30(g), and the IJ’s determination is reviewable by the Ninth Circuit. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016).

17 implementing the injunction are either not irreparable harm of the kind that could

justify a stay pending appeal, or, “minimal” harm as in Hernandez. See 872 F.3d at

995. That the government’s irreparable harm showing is at best marginal affects

the level of likelihood of success on the merits it must demonstrate, as we next

discuss.

B.

Whether the government has failed to show any irreparable harm during the

pendency of the appeal or has made only a minimal showing, it has not carried its

burden to establish a sufficient likelihood of success on the merits.

An applicant for a stay pending appeal must make “a strong showing that he

is likely to succeed on the merits.” Nken, 556 U.S. at 434. Where, as here, the

showing of irreparable harm is weak at best, the government must make a

commensurately strong showing of a likelihood of success on the merits to prevail

under the sliding scale approach. Only “a stronger showing of one element may

offset a weaker showing of another.” Wild Rockies, 632 F.3d at 1131; Leiva-Perez,

640 F.3d at 966 (applying sliding scale approach in the stay context).

The issue on appeal concerns the following statutory framework. Section

1158 creates a right to apply for asylum: “Any alien who is physically present in

the Unites States or who arrives in the United States . . . irrespective of such alien’s

status, may apply for asylum in accordance with this section or, where applicable,

18 section 1225(b) of this title.” 8 U.S.C. § 1158(a)(1). Section 1225 imposes two key

mandatory duties on immigration officers with respect to potential asylum seekers.

First, immigration officers have a duty to inspect: “All aliens . . . who are

applicants for admission or otherwise seeking admission or readmission to or

transit through the United States shall be inspected by immigration officers.” 8

U.S.C. § 1225(a)(3) (emphasis added). Second, immigration officers have a duty to

refer arriving migrants seeking asylum to asylum officers for assessment of their

asylum applications:

If an immigration officer determines that an alien . . . who is arriving in the United States . . . is inadmissible under section 1182(a)(6)(C) or 1182(a)(7) of this title and the alien indicates either an intention to apply for asylum under section 1158 of this title or a fear of persecution, the officer shall refer the alien for an interview by an asylum officer under subparagraph (B).

8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added).

In its order denying the government’s motion to dismiss the metering

complaint, the district court observed that “arriv[ing] in the United States” triggers

a noncitizen’s right to be inspected, apply for asylum, and be referred to an asylum

officer. Al Otro Lado v. McAleenan, 394 F. Supp. 3d 1168, 1199–1205 (S.D. Cal.

2019). The district court concluded that “aliens in the process of arriving,” such as

class members—who approached the border, sought entry, but were turned away

from a POE—are covered by the statutory asylum referral obligation. Id.

19 In its order granting a preliminary injunction, the district court incorporated

its earlier legal ruling regarding the reach of the asylum referral obligation in

section 1225. On that basis, the court held that the provisional class of plaintiffs

did “arrive in the United States” before the effective date of the Rule, so the Rule

does not apply to the adjudication of rights triggered by that arrival. The district

court reached this conclusion without deciding the legality of the government’s

metering policy, which causes a delay between class members’ arrival and the

submission and determination of their asylum claim. Even if the asylum claim is

processed after July 16, 2019, the court concluded, its consideration is governed by

the law at the time the class member was originally “arriving in the United States.”

The government argues that because class members were in Mexico on the

effective date of the Rule, they will necessarily arrive in the United States after

July 16, 2019, and the Rule by its plain terms will then apply. For the government

to succeed on this argument, one of two things must be true: either the district

court must be wrong that class members were “arriving in the United States” when

they first attempted to enter and were turned back, or, if they were “arriving,” the

first arrival must no longer have any legal significance, so any second arrival—

governed by the Rule—will be the only one that matters.

The government has not made a strong showing—let alone the especially

strong showing required here in light of the weak irreparable harm

20 demonstration—that it is likely to succeed on either available theory. The district

court’s underlying statutory analysis is sufficiently sound and persuasive as to both

the meaning of “arriving in the United States” and the legal significance of an

arrival.

First, the district court’s interpretation of “arrives in the United States” is

likely correct. As the court observed, “[u]nder Section 1158(a)(1)’s plain language,

two classes of aliens may apply for asylum: (1) any alien ‘who is physically

present in the United States’ and (2) any alien ‘who arrives in the United States.’”

394 F. Supp. 3d at 1199. “Applying the rule against surplusage,” the court

reasoned, we “must presume that the phrases ‘mean different things.’” Id. (quoting

Duncan v. Walker, 533 U.S. 167, 174 (2001)). The district court also applied the

Dictionary Act’s provision that “[i]n determining the meaning of any Act of

Congress, unless the context indicates otherwise—words used in the present tense

include the future as well as the present.” Id. at 1200 (quoting 1 U.S.C. § 1). The

court went on to reason that “accounting for the rule against surplusage,

application of the Dictionary Act readily leads to the conclusion that Section

1158(a)(1)’s use of the present tense of ‘arrives’ plainly covers an alien who may

not yet be in the United States, but who is in the process of arriving in the United

States through a POE.” Id.

21 This conclusion is reinforced, the district court observed, by the language of

section 1225(b), the provision referenced in section 1158(a)(1). See id. Section

1225(b) requires an immigration officer to refer for an asylum interview any

inadmissible noncitizen “who is arriving in the United States” and expresses a fear

of persecution or the intention to apply for asylum. 8 U.S.C. § 1225(b)(1)(A)(ii)

(emphasis added). The district court recognized that “[t]he use of the present

progressive, like use of the present participle, denotes an ongoing process.” 394 F.

Supp. 3d at 1200 (citing United States v. Balint, 201 F.3d 928, 933 (7th Cir.

2000)).

The district court also noted that the legislative history is consistent with its

interpretation of “arrives in” as denoting an ongoing process.

Representative Lamar Smith, Chairman of the House Judiciary Committee’s Subcommittee on Immigration and Claims . . . observed that the term “was selected specifically by Congress in order to provide a flexible concept that would include all aliens who are in the process of physical entry past our borders[.] . . . ‘Arrival’ in this context should not be considered ephemeral or instantaneous but, consistent with common usage, as a process. An alien apprehended at any stage of this process, whether attempting to enter, at the point of entry, or just having made entry, should be considered an ‘arriving alien’ for the various purposes in which that term is used in the newly revised provisions of the INA.”

394 F. Supp. 3d at 1201 (quoting Implementation of Title III of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996: Hearing Before

22 the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 105th

Cong. 17–18 (1997)).10

Historical changes to the statutory language further support the distinction

between “physically present in” and “arrives in” the United States in section 1158.

The Refugee Act of 1980 originally provided that any alien who is “physically

present in the United States or at a land border or port of entry, irrespective of

such alien’s status,” could apply for asylum. See 8 U.S.C. § 1158(a) (1980)

(emphasis added). In 1996, Congress replaced “at a land border or port of entry”

with “who arrives in the United States (whether or not at a designated port of

arrival and including an alien who is brought to the United States after having been

interdicted in international or United States waters).” 8 U.S.C. § 1158(a); Pub. L.

No. 104-208, 110 Stat. 3009 (1996). As the Dissent recognizes, these “1996

amendments did not somehow work a major change in the law,” Dissent at 31;

both versions draw a distinction between an alien who is already “physically

10 The Dissent asserts that because Representative Smith, in language elided from the district court’s block quotation and ours, described a person who “penetrated several hundred yards or even further into United States territory” as an example of an “arriving alien,” the term must include only aliens within the United States. See Dissent at 37–38. But this reading is inconsistent with the comments themselves, which expressly recognize several “stage[s] of [the arriving] process,” and that one such stage includes aliens “attempting to enter.” See Implementation of Title III of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996: Hearing Before the Subcomm. on Immigration and Claims of the H. Comm. on the Judiciary, 105th Cong. 17–18 (1997).

23 present in the United States” on the one hand and arriving aliens on the other,

including, in the earlier version, aliens “at a land border,” in the process of

arriving.

A person standing at the border is not necessarily across it, so the original

statutory phrase, like the newer one, includes the penultimate stage in the process

of arriving in the United States. Under the metering policy, CBP officers stationed

just behind the limit line between Mexico and the United States interacted with

individuals standing at the border; travelers with documentation were permitted to

cross into the United States, while others without documentation—including

provisional class members—were turned back. Provisional class members were

both “at a land border” and “arriving” before being turned back.

The government’s central contention as to why the district court’s statutory

interpretation is wrong is that the “statute confers a right to apply for asylum only

on those who are within the United States.” “A present-tense phrase like ‘arrives

in’ speaks to the present moment of arrival, not some potential arrival in the

future,” the government argues. In support of its interpretation of “arrives in,” the

government relies principally on the presumption against extraterritoriality as

reason to disregard the rule against surplusage, the Dictionary Act, section 1225’s

“arriving in” language, and the legislative history, which collectively led the

district court to the opposite conclusion. The district court rejected application of

24 the presumption against extraterritoriality here, noting that “[i]t is natural to expect

that Congress intends for laws that regulate conduct that occurs near international

borders to apply to some activity that takes place on the foreign side of those

borders,” 394 F. Supp. 3d at 1202 (quoting United States v. Villanueva, 408 F.3d

193, 199 (5th Cir. 2005)), and that the text of sections 1158 and 1225 and the

legislative history show that Congress “intended the statute to apply to asylum

seekers in the process of arriving,” even if they are not yet quite within our

borders, id.

Notably, the district court’s analysis does not authorize asylum seekers to

submit an asylum application from outside the United States; it recognizes only

that the statutory right to apply attaches once the asylum seeker is on the

doorstep—“at a land border,” in the words of the earlier iteration of the statute—in

the process of arriving. Despite the Dissent’s protestations, see Dissent at 28–30,

this reading is fully consistent with the Supreme Court’s observation that section

1158 “sets out the process by which refugees currently in the United States may be

granted asylum,” INS v. Cardoza-Fonseca, 480 U.S. 421, 433 (1987); aliens do not

actually submit an asylum application until after they have completed the process

of arriving in the United States.

The district court’s linguistic and contextual analysis has considerable force.

Although it is likely correct, we need not decide at this juncture whether it is. We

25 need only determine whether, given the minimal—at best—showing of irreparable

harm, the government has made a particularly strong showing that the district

court’s statutory interpretation will be disapproved on review of the preliminary

injunction. That the government has most definitely failed to do.

As to the second government argument, the question is whether there is a

particularly strong likelihood that the government will succeed in establishing on

appeal that even if the class members did arrive and so had a statutory right to be

considered for asylum under section 1158(a)(1), and although they were “arriving

in the United States” and so should have been “refer[ed] . . . for an interview by an

asylum officer,” 8 U.S.C. § 1225(b)(1)(A)(ii), their right to asylum must be

determined not as of the time they met the statutory requirements for consideration

for asylum but as of the time they are ultimately allowed to enter.11

Under the statute as construed by the district court, each arrival triggers a

right to apply for asylum and be interviewed by an asylum officer. The government

does not maintain otherwise—that is, it does not dispute that the INA guarantees a

11 We note that the government may be right that, because the class members were “metered,” they will arrive a second time when they get to the top of the waitlist and are finally admitted and processed. And because the district court has not yet decided whether the delay in processing the class member’s asylum requests and requiring them to stay in Mexico in the meanwhile is itself violative of their statutory or constitutional rights, we assume for present purposes that it was not. Neither of these considerations, however, affects whether the first arrival triggered a statutory right to be considered for asylum even if that consideration was not immediate.

26 right to apply for asylum to any noncitizen who arrives in the United States.

Rather, aside from its disagreement with the district court’s conclusion that class

members did “arrive,” the government’s argument is that “[n]othing in the Rule

suggests that only an alien’s first attempt at entry counts, and nothing makes prior

attempts at entry relevant.”

The government does not have a strong chance of succeeding on this point.

It is the INA, not the Rule, that makes an alien’s first arrival legally significant.

Under the district court’s statutory interpretation, a class member’s first arrival

triggered a statutory right to apply for asylum and have that application considered.

See 8 U.S.C. §§ 1158, 1225(a)(3), 1225(b)(1)(A)(ii); 394 F. Supp. 3d at 1203–05.

Nothing in the INA or regulations suggests that a class member loses her statutory

right to apply for asylum as of her arrival because there is a government-imposed

delay between when she arrives and when her application is accepted and

processed.12 As the Rule was not in place at the time each class member’s right to

apply for asylum attached, it makes sense that it would not apply.

12 The provisionally certified class is defined to include only those asylum seekers who were involuntarily turned away “and who continue to seek access to the U.S. asylum process.” Thus, there can be no argument that class members abandoned their statutory right to submit an asylum claim. In contrast, the Dissent’s hypothetical asylum seeker who is metered “and then returns to a United States port of entry many years later,” see Dissent at 40–41, would likely have voluntarily abandoned their right to submit an asylum claim by waiting many years to return.

27 The government’s premise—assuming acceptance of the district court’s

statutory interpretation of “arrives” and “arriving in the United States”—must be

that any second arrival cancels out the statutory obligation that arose at the time of

the original arrival to receive and process the class member’s asylum application.

No reasoning is provided to substantiate this cancellation theory. It is more likely

that the first arrival is governed by the eligibility requirements at the time the right

to be considered for asylum arose than that regulations imposed after the fact will

cancel out the earlier eligibility. Put another way, class members will be governed

by the Rule if they seek asylum based on a second arrival, but they also arrived

earlier and, under the statute, were quite likely entitled to asylum consideration

triggered by that arrival, even if that consideration was delayed. At least, the

government has not made a showing that this statutory understanding is incorrect

strong enough to counterbalance its weak irreparable harm evidence.

In sum, the government has not met its burden to make a sufficiently strong

showing of a likelihood of success on the merits. Even if its weak showing of harm

met the minimum threshold, the government has not made a sufficient showing of

likelihood of success on the merits strong enough to warrant a stay pending appeal

under the sliding scale approach. See Nken, 556 U.S. at 434; Wild Rockies, 632

F.3d at 1131.

C.

28 “Because the Government has not ‘satisfie[d] the first two factors,’ we need

not dwell on the final two factors—‘harm to the opposing party’ and ‘the public

interest.’” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 778 (9th Cir. 2018)

(quoting Nken, 556 U.S. at 435). Even so, the balance of equities and public

interest tip sharply in Al Otro Lado’s favor.

The third factor, “whether issuance of the stay will substantially injure the

other parties interested in the proceeding,” Nken, 556 U.S. at 434, weighs heavily

against granting the stay. In contrast to the showing of harm by the government, Al

Otro Lado has offered ample evidence that enforcement of the Rule against the

provisionally certified class would cause not only substantial but irreparable injury

to them. See id. The class relied to their detriment on the government’s

representations. As the district court observed, “[t]hey returned to Mexico

reasonably believing that if they followed these procedures, they would eventually

have an opportunity to make a claim for asylum in the United States.” The Rule

would now make them ineligible for asylum in the United States, and they cannot

in all probability pursue asylum in Mexico “because they did as the Government

initially required and waited” for their number to be called.13 We agree with the

13 The government argues that this harm is self-inflicted because class members chose not to pursue asylum in Mexico. But the class members were not required to do so when they approached the POE to apply for asylum, and some class members face Mexico’s time bar because they relied on the government’s

29 district court that “[t]his situation, at its core, is quintessentially inequitable,” and

likely will substantially injure class members.

As to the fourth factor, aspects of the public interest favor both sides. The

public has a “weighty” interest “in efficient administration of the immigration laws

at the border.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). “But the public also

has an interest in ensuring that ‘statutes enacted by [their] representatives’ are not

imperiled by executive fiat.” E. Bay Sanctuary, 932 F.3d at 779 (quoting Maryland

v. King, 567 U.S. 1301, 1301 (2012) (Roberts, C.J., in chambers)). “We need go no

further than this; when considered alongside the Government’s failure to show

irreparable harm, the final two factors do not weigh in favor of a stay.” Id.

III.

We emphasize that the question whether the injunction should be

overturned—the merits of the ultimate appeal—is not before this motions panel.

We are ruling only on the motion to stay the injunction pending appeal. “The

decision whether to grant a stay is a ‘probabilistic’ endeavor. We discuss the merits

of a stay request in ‘likelihood terms,’ and exercise a ‘restrained approach to

assessing the merits.’” E. Bay Sanctuary Covenant v. Trump, 18-17274, __ F.3d __

(9th Cir. 2020) (quoting Sierra Club v. Trump, 929 F.3d 670, 688 (9th Cir. 2019)).

representations that they could apply for asylum in the United States if they waited in line.

30 Judge Bress criticizes this restrained approach. See Dissent at 16, 27. But the

“pre-adjudication adjudication” he advocates “would defeat the purpose of a stay,

which is to give the reviewing court the time to ‘act responsibly,’ rather than

doling out ‘justice on the fly.’” Leiva-Perez v. Holder, 640 F.3d 962, 967 (9th Cir.

2011) (quoting Nken v. Holder, 556 U.S. 418, 427 (2009)). Respecting the role of

stay motions requires that we decline to usurp the role of the preliminary injunction

merits panel—which, it bears noting, is itself engaged in a probabilistic analysis

preliminary to the eventual consideration of any request for a permanent

injunction. Although seeking the collapse of these sequential steps into one has

become increasingly common, see Barr v. E. Bay Sanctuary Covenant, 140 S. Ct.

3, 6 (2019) (Sotomayor, J., dissenting); Stephen I. Vladeck, The Solicitor General

and the Shadow Docket, 133 Harv. L. Rev. 123 (2019), premature determination of

complex legal and factual issues will not in the long run produce well-considered

and dependable judicial decision-making.

The government has not carried its burden of showing that a stay is

warranted. Accordingly, we deny the motion.

31 Al Otro Lado, et al v. Chad Wolf, et al, No. 19-56417

FILED

MAR 5 2020

BRESS, Circuit Judge, dissenting:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

In a case that does not challenge it, the district court below partially enjoined

an asylum rule that the Supreme Court just months ago ordered could go into effect

pending appeal. See Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019).

How could this even happen?

This case, which was brought in 2017, is a challenge to certain U.S. Customs

and Border Protection “metering” practices. Due to a massive influx of immigrants

and severe resource constraints at the southern border, CBP through “metering”

limits the number of aliens who can gain access to U.S. ports of entry at a given time.

The plaintiffs are asylum seekers waiting in Mexico or other countries who claim

that metering violates our asylum laws.

In July 2019, and years after this metering case was filed, the Attorney

General and Acting Secretary of Homeland Security promulgated the “Third

Country Transit Rule,” which generally bars asylum for persons who did not

previously seek protection in a third country through which they journeyed on their

way to the United States. See Asylum Eligibility and Procedural Modifications, 84

Fed. Reg. 33,829 (2019), codified at 8 C.F.R. § 208.13(c)(4). This Rule was

challenged in a separate lawsuit. After a district court in this circuit re-imposed a

nationwide injunction blocking its implementation, the Supreme Court stayed the injunction, and allowed the Rule to go into effect pending appeal. East Bay, 140 S.

Ct. at 3.

Shortly after the Supreme Court’s ruling in East Bay, the plaintiffs in this

“metering” case—including Al Otro Lado, an advocacy group that was also a

plaintiff in East Bay—asked the district court to enjoin the Third Country Transit

Rule as to persons who were metered. The district court agreed and enjoined

application of the Rule as to a 26,000-person subclass who were metered prior to

July 16, 2019, the date that the Rule by its terms takes effect. Under the district

court’s injunction, the government may not apply the Third Country Transit Rule to

these persons, even though under East Bay the Rule may otherwise be applied.

We originally granted a temporary stay of the district court’s injunction, but

my fine colleagues in the majority now unfortunately reverse course and deny a stay

pending appeal. I would have granted the stay and so respectfully dissent. The

majority’s refusal to grant a stay is wrong on many levels and forces immigration

officials to undertake an effectively impossible mission at our already overwhelmed

border with Mexico. Particularly where the Supreme Court has recently stayed an

injunction of the very same asylum Rule, one would expect the district court’s

subsequent injunction of that Rule to be airtight. Instead, and regrettably, both the

district court’s injunction and today’s decision reflect cascading legal error,

wreaking further havoc on a southern border already in crisis.

2 There was no basis for the district court to enjoin the Third Country Transit

Rule in this metering case. This case is not about the Third Country Transit Rule,

the validity of which is not at issue. And the plaintiffs have not shown a likelihood

of success that metering is unlawful. Indeed, a central premise of both the district

court and the majority opinion is that metering may well be legitimate. Lawsuits,

even putative class actions, are not an opportunity to declare open season on the

implementation of every new government policy that comes along that bears some

tangential relationship to the subject matter of a case. And courts cannot go around

enjoining immigration rules in cases that do not challenge them, particularly where

the Supreme Court has just allowed the rule to go into effect. The district court

below greatly exceeded its powers.

Even so, the Third Country Transit Rule plainly applies to the plaintiffs in this

case, so that enjoining it as to them was legal error. The Third Country Transit Rule

applies to “any alien who enters, attempts to enter, or arrives in the United States

across the southern land border on or after July 16, 2019.” 8 C.F.R. § 208.13(c)(4).

When plaintiffs reach this country, they will be entering or arriving in the United

States after that date; the Rule thus plainly covers them. That should have been the

end of this case or, more accurately, this issue, since this case is not about the Rule

anyway. The district court’s decision holding otherwise, which the majority

effectively endorses, is based on the theory that our asylum laws apply not only to

3 persons physically “in” the United States, but to persons outside the United States

who are “in the processing of” arriving into it. That holding is unprecedented,

contradicts the statutory text and settled law, and will create untold confusion in the

interpretation of our asylum laws.

The immense problems of administration that the district court’s injunction

will create are entirely predictable. Even though neither the metering practices nor

the Third Country Transit Rule have been invalidated—and both are presently in

effect, the latter by order of the Supreme Court—some 26,000 persons who sought

to enter the United States prior to July 16, 2019 and were unable to do so due to

metering are now exempt from the Supreme Court’s order in East Bay. Requiring

the government to now apply different rules to this subclass, and even figuring out

who such persons are, will be an enormous and arduous task, made only more

difficult by the lack of documentation and the incredible strain under which our

immigration system already labors. Today’s decision will unfortunately cause only

greater difficulty and confusion at a border that desperately needs neither.

The problems at our border with Mexico are among the most difficult of the

day. Fair debates may be had about how to prioritize safety, humanitarian concerns,

and costs. But the questions before us are legal ones. Under the factors that govern

our review, we should have stayed the district court’s injunction. I therefore

respectfully dissent.

4 I

A

This putative class action lawsuit, filed in 2017, challenges CBP’s practice of

regulating the intake of aliens arriving at U.S. ports of entry from Mexico. In

response to record numbers of aliens seeking entry into the United States and

substantial overcrowding at southern ports of entry, CBP instituted a policy known

as “metering” or “queue management.” Metering policies limit the number of

persons who can gain access to the ports of entry at a given time. When metering is

in effect, CBP officers stand at the boundary line between our country and Mexico

to limit the persons who may cross into the United States. Persons with valid

documents are allowed into the port of entry, but persons who lack adequate

documentation are not allowed in until the port of entry has capacity to accommodate

them. Plaintiffs—a legal services organization named Al Otro Lado and a group of

asylum seekers—claim that metering unlawfully denies access to the asylum

process.

The allegations in plaintiffs’ operative complaint and supporting materials

reflect a far-reaching challenge to metering practices across our country’s southern

border. The formal metering policies at issue were implemented and enforced

between 2016 and the present, though plaintiffs appear to challenge metering

practices that may date back even farther. Plaintiffs challenge these policies at

5 “Class A” United States ports of entry at the United States-Mexico border, which

include the following locations from California to Texas: San Ysidro, California;

Otay Mesa, California; Calexico, California; San Luis, Arizona; Nogales, Arizona;

El Paso, Texas; Del Rio, Texas; Eagle Pass, Texas; Laredo, Texas; Roma, Texas;

Hidalgo, Texas; Los Indios, Texas; and Brownsville, Texas. Some of these ports of

entry, such as El Paso and Laredo, Texas are in more urban areas. Others, such as

Los Indios and Roma, Texas are in more remote areas of the vast expanse that makes

up our country’s border with Mexico.

Based on plaintiffs’ allegations and supporting materials, persons from

Mexico, Central and South America, and “all across the world,” have journeyed to

our southern border with the goal of gaining entry into the United States. The record

contains evidence that metering was applied to persons from a wide range of

countries, including Haiti, Cuba, Venezuela, Iraq, Guatemala, Honduras, El

Salvador, Russia, Angola, Cameroon, and the Congo. Many of these persons do not

have proper documentation.

Plaintiffs further allege that aliens have often approached the United States in

large groups numbering in the hundreds and thousands. For example, plaintiffs

allege that from June 2016 to December 2016, “more than 15,000 Haitians migrated

to Tijuana with the intent to seek protection in the United States.” Plaintiffs also

allege that some formal metering policies were issued in response to an approaching

6 group of roughly 1,500 immigrants from Central America and Mexico in the spring

of 2018.

When not allowed into the United States due to metering, plaintiffs allege that

putative class members either leave the border area or remain in the vicinity of the

border in the hope of being allowed to pursue entry into this country. For example,

materials that plaintiffs submitted in connection with their instant request for a

preliminary injunction indicate that in November 2018, there were 4,700 persons

from Central America, and perhaps many more, waiting in the Tijuana area alone.

A central point of disagreement between the majority and this dissent centers on the

reliability of certain “waitlists” that have been created by various groups in Mexico.

I will have more to say about the waitlists later.

While plaintiffs contend that metering unlawfully denies them access to the

asylum process in the United States, the government maintains that metering is a

necessary response to an overwhelming situation at the border. According to the

government, in April 2019 alone, CBP encountered approximately 100,000

individuals seeking entry into the United States, often without documents. Randy

Howe, CBP’s Executive Director for Operations in the Office of Field Operations,

described this surge in migration as “unprecedented” and as representing “the

highest monthly total in well over a decade.” It is the government’s position that

ports of entry were often stretched to the limits, with ever-increasing numbers of

7 aliens “surpass[ing] the physical capacity” of various ports and “result[ing] in a

tremendous strain on all available local resources,” including personnel. The

government claims it authorized metering practices to manage the large inflow of

persons safely and properly.

The government moved to dismiss plaintiffs’ metering case, arguing that

because asylum is only available to aliens “who [are] physically present in the United

States or who arrive[] in the United States,” 8 U.S.C. § 1158(a)(1), persons who had

been metered—and who thus had not entered the United States—had no right to

apply for asylum. For this reason, the government argued that plaintiffs could not

challenge metering as a violation of the asylum laws.

The district court denied the government’s motion. As discussed in greater

detail below, the district court reasoned that our asylum laws extended not only to

persons who were physically in the United States, but also aliens who were “in the

process of arriving in the United States.” Al Otro Lado, Inc. v. McAleenan, 394 F.

Supp. 3d 1168, 1199–1203 (S.D. Cal. 2019). The district court thus held that

plaintiffs had stated a claim and allowed their metering lawsuit to proceed.

Importantly, the district court has not determined whether metering is

unlawful, either at any particular port of entry or across all ports of entry. Instead,

the district court has “acknowledge[d] that it is entirely possible that there may exist

potentially legitimate factors that prevent CBP officers from immediately

8 discharging the mandatory duties” in the asylum laws. Id. at 1212. Plaintiffs’

challenge to CBP’s metering practices remains ongoing in the district court.

B

Meanwhile, on July 16, 2019, and approximately two years into this metering

case, the Attorney General and Acting Secretary of Homeland Security issued the

Third Country Transit Rule. See Asylum Eligibility and Procedural Modifications,

84 Fed. Reg. 33,829 (2019), codified at 8 C.F.R. § 208.13(c)(4). The Rule provides

that

any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence in route to the United States, shall be found ineligible for asylum. Id. The Rule does not apply to aliens who show that they applied for and were denied

protection in a third country through which they traveled en route to the United

States. Id. § 208.13(c)(4)(i). Nor does the Rule apply to asylum seekers who are

“victim[s] of a severe form of trafficking” or if “[t]he only countries through which

the alien transited en route to the United States were, at the time of transit, not parties

to” certain international agreements. Id. § 208.13(c)(4)(ii)-(iii). The Rule also does

not bar asylum seekers from applying for withholding of removal or for relief under

9 the Convention Against Torture. Id. § 208.13(c)(1). 1

In a wholly separate lawsuit captioned East Bay Sanctuary Covenant v. Barr,

several organizations, including Al Otro Lado, challenged the Third Country Transit

Rule on various grounds. See 385 F. Supp. 3d 922 (N.D. Cal. 2019). Eight days

after the Third Country Transit Rule was issued, a district court in our circuit entered

a nationwide injunction blocking the Rule’s implementation. Id. Notably, the issue

of metering factored into the district court’s injunction. As the district court

explained:

The Court notes one additional equitable consideration suggested by the administrative record. The administrative record contains evidence that the government has implemented a metering policy that “force[s] migrants to wait weeks or months before they can step onto US soil and exercise their right to claim asylum.” At the same time, the record also indicates that Mexico requires refugees seeking protection to file claims within 30 days of entering the country. For asylum seekers that forfeited their ability to seek protection in Mexico but fell victim to the government’s metering policy, the equities weigh particularly strongly in favor of enjoining a rule that would now disqualify them from asylum on a potentially unlawful basis.

Id. at 959 (record citations omitted).

The government sought a stay of the district court’s injunction pending

1 The district court and plaintiffs refer to the Rule as the “Asylum Ban.” But the Rule does not ban asylum. I will therefore refer to the Rule as the Third Country Transit Rule, except when quoting to the district court or plaintiffs’ submissions.

10 appeal. Our court rejected the injunction’s national reach and limited its scope to

the Ninth Circuit only. East Bay Sanctuary Covenant v. Barr, 934 F.3d 1026 (9th

Cir. 2019). Shortly thereafter, the district court reissued its nationwide injunction.

See East Bay Sanctuary Covenant v. Barr, 391 F. Supp. 3d 974 (N.D. Cal. 2019).

At that point, and although the majority relegates it to a footnote, see Maj. Op. 5–6

n.2, the Supreme Court stepped in and by a 7-2 vote stayed the district court’s orders

“in full.” Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019).

The Supreme Court thus allowed the Third Country Transit Rule to take effect

over the objection of Al Otro Lado and others. The Supreme Court stayed the district

court’s injunction “in full pending disposition of the Government’s appeal in the

United States Court of Appeals for the Ninth Circuit and disposition of the

Government’s petition for writ of certiorari, if such writ is sought.” Id. The

government’s appeal in East Bay remains pending in this court.

C

Just fifteen days after the Supreme Court issued its order in East Bay, the

plaintiffs in this metering case—including Al Otro Lado—sought a partial injunction

of the very same Third Country Transit Rule that the Supreme Court had just recently

allowed to go into effect pending appeal. The plaintiffs sought this injunction on

behalf of a subclass of some 26,000 non-Mexican aliens seeking asylum, who were

allegedly denied access to U.S. ports of entry prior to July 16, 2019 because of CBP’s

11 metering policies.

The plaintiffs did not purport to challenge the Third Country Transit Rule per

se. Instead, the plaintiffs claimed the Third Country Transit Rule should not apply

to them. As noted, that Rule applies to “any alien who enters, attempts to enter, or

arrives in the United States across the southern land border on or after July 16, 2019.”

8 C.F.R. § 208.13(c)(4). The plaintiffs claimed the Rule should not apply to them

because they had previously attempted to enter the United States prior to July 16,

2019, but were prevented from doing so due to metering.

In seeking an injunction, the plaintiffs likewise sought to certify a subclass of

“approximately 26,000 asylum seekers,” who are “scattered in encampments and

shelters in Mexican border cities.” Consistent with their underlying challenge to

metering policies across the southern border, the proposed 26,000-person subclass

consists of aliens from all over the world who sought entry over a period of years at

numerous points of entries at the United States-Mexico border. This graphic from

plaintiffs’ class motion shows the breadth of the proposed subclass and U.S.-Mexico

entry points that are implicated:

12 On November 19, 2019, the district court granted plaintiffs’ motion and

certified a subclass consisting of “all non-Mexican noncitizens who sought

unsuccessfully to make a direct asylum claim at a U.S. [port of entry] before July

16, 2019, were instead required to wait in Mexico due to the U.S. Government’s

metering policy, and who continue to seek access to the U.S. asylum process.” Al

Otro Lado, Inc. v. McAleenan, 2019 WL 6134601, at *16 (S.D. Cal. Nov. 19, 2019).

The district court also enjoined the Third Country Transit Rule as to this subclass.

Id. at *16–20.

The district court reasoned that, although plaintiffs did not challenge the Third

Country Transit Rule in their operative complaint, the court could nonetheless enjoin

the Rule as to asylum seekers metered before July 16, 2019. Id. at *10. The district

court held that the Rule “by its express terms, does not apply to those non-Mexican

foreign nationals in the subclass who attempted to enter or arrived at the southern

13 border before July 16, 2019 to seek asylum but were prevented from making a direct

claim at a [port of entry] pursuant to the metering policy.” Id. at *17 (emphasis in

original). The district court also relied on its earlier ruling on the government’s

motion to dismiss, in which it had held that the persons who had not yet entered the

United States, but who were “‘in the process of arriving in the United States through

a [port of entry],’” were covered under the asylum statutes. Id. at *17 (quoting Al

Otro Lado, 394 F. Supp. 3d at 1200).

On December 4, 2019, the government filed a motion in the district court for

an emergency stay of the injunction pending appeal, requesting a ruling by

December 11, 2019. After the district court signaled that it would not rule on the

stay motion by the requested date, the government filed in this court a motion for

stay pending appeal, along with an emergency motion for an administrative stay.

Accompanying its motion, the government submitted declarations from Randy

Howe, Executive Director for Operations, Office of Field Operations, U.S. Customs

and Border Protection; Ashley Caudill-Mirillo, Deputy Chief of the Asylum

Division with the U.S. Citizenship and Immigration Services (USCIS), U.S.

Department of Homeland Security; and Sirce Owen, an Assistant Chief Immigration

Judge in the Executive Office for Immigration Review. As described later, these

declarations attested to the government’s hardship in complying with the district

court’s injunction and the irreparable harm that the injunction causes.

14 On December 20, 2019, we granted the government’s motion for a temporary

stay, noting, among other things that “[p]rohibiting the government from applying

the Rule to the proposed class members could cause complications at the border.”

Al Otro Lado v. Wolf, 945 F.3d 1223, 1224 (9th Cir. 2019). The court now goes in

a different direction and allows the district court’s injunction to go back into effect.

Because this decision is wrong as a matter of law, I respectfully dissent.

II

The following familiar factors govern the government’s request for a stay of

the district court’s injunction pending appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. City & Cty. of S.F. v. USCIS, 944 F.3d 773, 789 (9th Cir. 2019) (quoting Nken v.

Holder, 556 U.S. 418, 433–34 (2009)).

Usually—and nearly without fail—we analyze those factors in order. See,

e.g., id. at 790–807; FTC v. Qualcomm Inc., 935 F.3d 752, 755–57 (9th Cir. 2019);

Sierra Club v. Trump, 929 F.3d 670, 687–707 (9th Cir. 2019); Innovation Law Lab

v. McAleenan, 924 F.3d 503, 506–10 (9th Cir. 2019) (per curiam); Lair v. Bullock,

697 F.3d 1200, 1203–15 (9th Cir. 2012); Golden Gate Restaurant Ass’n v. City &

Cty. of S.F., 512 F.3d 1112, 1119–27 (9th Cir. 2008). In the classic recitation of the

15 factors governing a request for a stay, likelihood of success on the merits is listed

first. That is how the majority itself lays out the standard. See Maj. Op. 10.

One will notice that the majority opinion inverts the traditional stay analysis,

beginning with irreparable harm and demoting the merits to secondary status. This

is not accidental, but tactical. We are told that because “[t]he government has made

a weak showing that it will suffer harm” pending appeal, Maj. Op. 11, it must not

make merely “a strong showing that [it] is likely to succeed on the merits,” Nken,

556 U.S. at 434, but rather a showing that is “strong enough to counterbalance its

weak irreparable harm evidence.” Maj. Op. 28. By seemingly inflating the

government’s required showing, the majority trends toward a new, undefined

standard that waters down the merits analysis. And it is unclear how strong is

“strong enough” in a case like this one, where the government’s merits arguments

are purely legal in nature, turning on the interpretation of statutes and regulations.

The sequencing of today’s opinion can only reflect the majority’s implicit

acknowledgement that the government’s case is strongest where it most matters,

namely, the likelihood of success on the merits. That explains the majority’s tepid

endorsement of the district court’s merits analysis, which the majority only describes

as “likely correct,” “sufficiently sound,” and having “considerable force.” Maj. Op.

20–21, 25. The strength of the government’s merits arguments likely explains why

the majority feels the apparent need to elevate the government’s burden on

16 likelihood of success on the merits before addressing them. Hence the decision to

lead with irreparable harm first.

The issuance of a stay “is to be guided by sound legal principles,” and “those

legal principles have been distilled into” the traditional four-factor test I quoted

above, Nken, 556 U.S. at 434 (quotations omitted), not factors with new modifiers

around them. In this case, and under the governing standards, the government has

made both “a strong showing that [it] is likely to succeed on the merits” and that it

“will be irreparably injured absent a stay.” City & Cty. of S.F., 944 F.3d at 789.

III

A

I begin, as we usually do, with the merits. But the merits of what exactly?

Not the merits of CBP’s metering policies, which is what this lawsuit is actually

about. The legality of metering remains a live issue in the district court, with the

district court acknowledging “it is entirely possible” that metering could be founded

on “legitimate factors.” Al Otro Lado, Inc., 394 F. Supp. 3d at 1212. Indeed, the

district court issued its injunction “assuming the Government’s metering practice

was legal.” Al Otro Lado, 2019 WL 6134601, at *13. The majority opinion rests

on the same assumption: “because the district court has not yet decided whether the

delay in processing the class member[s’] asylum requests and requiring them to stay

in Mexico in the meanwhile is itself violative of their statutory or constitutional

17 rights, we assume for present purposes that it was not.” Maj. Op. 26 n.11.

But if metering is potentially lawful and not even at issue in this preliminary

injunction proceeding, on what basis could the district court partially enjoin the

wholly separate and later-enacted Third Country Transit Rule, whose legality is not

questioned here either? Somehow a motion for preliminary injunction that

challenges neither metering nor the Third Country Transit Rule has used the prospect

of a challenge to the former as a justification for partially enjoining the latter.

The majority never explains why this is at all appropriate. This metering case

plodded along for years until the government enacted the Third Country Transit

Rule. Then, and not long after the ink had dried on an unsuccessful effort to obtain

a preliminary injunction of that Rule, see East Bay, 140 S. Ct. at 3, the plaintiffs—

including Al Otro Lado, a plaintiff from East Bay itself—tried to use this metering

case to accomplish, in part, what East Bay thus far has not. Under the circumstances

and our case law, the district court’s partial injunction of the Third Country Transit

Rule exceeded the equitable powers of the federal courts.

We have made clear that “[a] court’s equitable power lies only over the merits

of the case or controversy before it,” so that “[w]hen a plaintiff seeks injunctive relief

based on claims not pled in the complaint, the court does not have the authority to

issue an injunction.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d

631, 632 (9th Cir. 2015). That principle of law is well-accepted. See, e.g., Alabama

18 v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1134 (11th Cir. 2005) (“To secure

preliminary injunctive relief, a petitioner must demonstrate a substantial likelihood

of prevailing on at least one of the causes of action he has asserted.”); Omega World

Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 (4th Cir. 1997) (“[A]

preliminary injunction may never issue to prevent an injury or harm which not even

the moving party contends was caused by the wrong claimed in the underlying

action.”); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam) (“[A]

party moving for a preliminary injunction must necessarily establish a relationship

between the injury claimed in the party’s motion and the conduct asserted in the

complaint.”). The district court’s injunction easily fails this test, both because the

Third Country Transit Rule was not otherwise at issue in this case, and because the

district court’s partial injunction of that Rule does not turn on the merits of plaintiffs’

metering claims.

The district court apparently believed that our decision in Pacific Radiation

was no obstacle to enjoining the Third Country Transit Rule because, in its view,

“Plaintiffs’ claims regarding the [the Rule] and Plaintiffs’ underlying claims in their

[Second Amended Complaint] are so intertwined that denying Plaintiffs’ Motion for

Preliminary Injunction could effectively eviscerate the asylum claims Plaintiffs seek

to preserve in their underlying lawsuit.” Al Otro Lado, 2019 WL 6134601, at *10.

That is not correct.

19 For a federal court to issue an injunction, there must be “a sufficient nexus

between the claims raised in a motion for injunctive relief and the claims set forth in

the underlying complaint itself.” Pac. Radiation, 810 F.3d at 636. Here there is no

claim in the operative complaint concerning the Third Country Transit Rule, which

did not come along until years into this case. Under our precedent, moreover, “[t]he

relationship between the preliminary injunction and the underlying complaint is

sufficiently strong where the preliminary injunction would grant ‘relief of the same

character as that which may be granted finally.’” Id. (quoting De Beers Consol.

Mines v. United States, 325 U.S. 212, 220 (1945)). In this case, the character of the

relief sought in the motion for preliminary injunction is entirely different from that

sought in the complaint: the complaint concerns delays in processing asylum

seekers, whereas the Third Country Transit Rule concerns eligibility requirements

for asylum itself.

The majority opinion asserts that the operative complaint and injunction both

“sought to preserve class members’ access to the asylum process.” Maj. Op. 9 n.6.

But the injunction is not about “access to the asylum process,” but claimed

entitlement to asylum itself, which is not at issue in this metering case. And even if

it was, casting the complaint and injunction at such a high level of generality would

undermine the limitations that Pacific Radiation imposes. Indeed, Pacific Radiation

expressly rejected an effort to secure an injunction by “merely asserting that the

20 claims are related or incorporated into [the] complaint.” 810 F.3d at 637.

The approach taken by the district court and majority opinion is therefore

dramatic in its potential: in a case that does not challenge them, it would authorize

injunctions of any current or future asylum-related rule, the application of which

likewise “could” just as easily “eviscerate” plaintiffs’ eventual asylum claims. Al

Otro Lado, 2019 WL 6134601, at *10. And it would allow such injunctions on the

assumption that the governmental conduct at issue in the case—here, metering—is

lawful. Id. at *11, 13. The result is a mission creep nowhere authorized in our

precedents, where an expansive and long-running lawsuit like this one can become

the forum for challenging any future governmental action in the general subject area.

That the majority implicitly blesses this vast expansion of the federal courts’

injunctive powers in a footnote, Maj. Op. 9 n.6, is deeply troubling.

The majority and district court also justify the injunction under the All Writs

Act, 28 U.S.C. § 1651, on the theory that the Third Country Transit Rule “would

effectively moot Plaintiffs’ request for relief in the underlying action by

extinguishing their asylum claims.” Al Otro Lado, 2019 WL 6134601, at *11; Maj.

Op. 9 n.6. This is even farther afield and clearly incorrect. This metering case does

not concern plaintiffs’ underlying asylum claims, which are not at issue here. And

the Third Country Transit Rule obviously does not moot this metering case because

it has no effect on Mexican asylum seekers to whom the Rule does not apply. Such

21 Mexican asylum seekers are both named plaintiffs and part of the putative class

challenging CBP’s metering practices.

The majority does not dispute this. Instead, it claims that the Third Country

Transit Rule “would extinguish some provisional class members’ asylum claims.”

Maj. Op. 9 n.6 (emphasis added). But neither the majority opinion nor the district

court provide any authority for the remarkable proposition that the All Writs Act can

be used as an all-purpose bulwark against mootness. If a party’s claims become

moot, a court lacks jurisdiction to decide them. See, e.g., Center for Biological

Diversity v. Lohn, 511 F.3d 960, 963 (9th Cir. 2007). And the All Writs Act only

allows a court “to issu[e] process ‘in aid of’ its existing jurisdiction; the Act does

not enlarge that jurisdiction.” Clinton v. Goldsmith, 526 U.S. 529, 534–35 (1999).

The notion that the All Writs Act could be used to enjoin anything that would

make even one of 26,000 provisional class members’ claims moot reflects a

sweeping theory of judicial power with no basis in principle or precedent. As the

Supreme Court has explained in the context of similar statutory language in the Anti-

Injunction Act, “[n]o case of this Court has ever held that an injunction to ‘preserve’

a case or controversy fits within the ‘necessary in aid of its jurisdiction’ exception.”

Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 641 (1977) (plurality opinion); see

also Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir. 1988) (interpreting

All Writs Act in light of Anti-Injunction Act precedent). The All Writs Act “is not

22 a grant of plenary power to federal courts.” Doe v. INS, 120 F.3d 200, 205 (9th Cir.

1997) (quotations omitted). Yet by today’s decision, it is.

Because the district court could not enter this injunction in this case, that

should be the end of the matter and the injunction should have been stayed for this

reason alone.

B

But even assuming, as the majority does, that the likelihood of success on the

merits should focus instead on whether the Third Country Transit Rule applies to the

plaintiff subclass, the government has shown a strong likelihood of success on that

front as well.

As I set forth above, the Third Country Transit Rule provides that

any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence in route to the United States, shall be found ineligible for asylum.

8 C.F.R. § 208.13(c)(4) (emphasis added). The district court held that this Rule did

not apply to persons who had been metered prior to July 16, 2019. Al Otro Lado,

2019 WL 6134601, at *17. Its central reasoning was that the Rule “by its express

terms, does not apply to those non-Mexican foreign nationals in the subclass who

attempted to enter or arrived at the southern border before July 16, 2019 to seek

asylum but were prevented from making a direct claim at a [port of entry] pursuant

23 to the metering policy.” Id. (emphasis in original). In the district court’s view, “[t]he

Government’s position that the Asylum Ban applies to those who attempted to enter

or arrived at the southern border seeking asylum before July 16, 2019 contradicts the

plain text of their own regulation.” Id.

The majority and I at least appear to agree on one thing: this reasoning is

definitely wrong. The Third Country Transit Rule applies to “any alien who enters,

attempts to enter, or arrives in the United States across the southern land border on

or after July 16, 2019.” 8 C.F.R. § 208.13(c)(4). It includes anyone, including the

plaintiffs in this case, who will be attempting to enter the United States after July 16,

2019. There is no exception for persons who previously tried to enter the United

States and who were unable to do so, whether due to metering or any other reason.

The district court was thus mistaken to believe that the Third Country Transit Rule

“by its express” terms contains a carve-out for metered persons. It does not. As the

majority thus concedes, “the government may be right that, because the class

members were ‘metered,’ they will arrive a second time when they get to the top of

the waitlist and are finally admitted and processed.” Maj. Op. 26 n.11.

C

The majority nevertheless refuses to stay the district court’s injunction. Why?

Notwithstanding the language of the Third Country Transit Rule, the majority holds

that the government still has not shown a strong likelihood of success based on the

24 district court’s earlier motion to dismiss ruling. Maj. Op. 21–25. In that ruling, the

district court held that the asylum laws apply not only to persons physically present

inside the United States, but also to persons “who [are] in the process of arriving in

the United States through a [port of entry].” Al Otro Lado, 394 F. Supp. 3d at 1200.

Extending this logic to plaintiffs’ request to enjoin the Third Country Transit Rule,

the district court held that persons who were metered had arrived in the United States

prior to July 16, 2019, such that the Rule does not apply to them. Al Otro Lado,

2019 WL 6134601, at *17.

As I will now explain, the majority’s effective endorsement of the district

court’s unprecedented motion to dismiss ruling works a revolution in immigration

law. And the majority’s related holding that our country’s immigration laws are

effectively frozen as of the time of metering, so that no new immigration eligibility

requirement could apply to persons who had been metered, works an entirely new

revolution beyond that. The majority’s twin determinations on this score contravene

settled law, contradict our precedents, and wrongly allow a partial injunction of the

very Third Country Transit Rule that the Supreme Court recently allowed to go into

effect pending appeal. See East Bay, 140 S. Ct. at 3.

1

An alien “who is physically present in the United States or who arrives in the

United States” may apply for asylum. 8 U.S.C. § 1158(a)(1). Another provision of

25 the statute provides that aliens may receive asylum screening if they are “arriving in

the United States.” Id. § 1225(b)(1)(A)(i)-(ii). Back when this case was about

metering, the threshold legal issue before the district court at the motion to dismiss

stage was whether metered persons could even claim a violation of the asylum laws,

given that they had never physically entered the United States.

The district court held that they could. According to the district court, persons

“‘who may not yet be in the United States, but who [are] in the process of arriving

in the United States through a [port of entry,]’ were ‘arriving in the United States’

such that the statutory and regulatory provisions at issue applied to them.” Al Otro

Lado, 2019 WL 6134601, at *17 (quoting Al Otro Lado, 394 F. Supp. 3d at 1199–

1205). To reach that conclusion, the district court reasoned that under the canon

against surplusage, § 1158(a)(1)’s reference to a person “who arrives in the United

States” must have a different meaning than someone “who is physically present in

the United States.” Al Otro Lado, 394 F. Supp. 3d at 1199–1200. Focusing then on

the phrase “arrives in the United States,” and while noting that “neither side raises

th[e] point,” the district court held that under the Dictionary Act, “‘words used in the

present tense include the future as well as the present.’” Id. at 1200 (quoting 1 U.S.C.

§ 1). From this the district court held that “Section 1158(a)(1)’s use of the present

tense of ‘arrives’ plainly covers an alien who may not yet be in the United States,

but who is the process of arriving in the United States through a [port of entry].” Id.

26 In its order partially enjoining the Third Country Transit Rule, the district

court relied on this earlier motion to dismiss ruling to hold that the Rule did not apply

to persons who were metered prior to July 16, 2019. Al Otro Lado, 2019 WL

6134601, at *17. It is important to see at the outset that whether or not the district

court’s motion to dismiss ruling is correct, its conclusion at the preliminary

injunction stage did not follow: even if the plaintiffs had previously attempted to

enter the United States prior to July 16, 2019, they are now attempting to enter it

again after July 16, 2019. 8 C.F.R. § 208.13(c)(4). As such, the Third Country

Transit Rule clearly applies to them, whether or not they previously “arrived in” or

were in the “process of arriving in” the United States at some earlier point. I take

up this issue further below when addressing the majority’s apparent view that the

immigration laws should be considered frozen as of the time plaintiffs were metered.

Regrettably, however, and with little independent reasoning of its own, the

majority endorses the district court’s motion to dismiss ruling. Maj. Op. 21–25.

After describing the district court’s reasoning, the majority with limited analysis

states that “[t]he district court’s linguistic and contextual analysis has considerable

force” and “is likely correct.” Maj. Op. 25.

In fact, however, the district court’s reasoning at the motion to dismiss stage

was not correct, and the majority errs in giving it any credit. At the very least, the

government has made a strong showing that the district court’s motion to dismiss

27 ruling was not sound. This point should be very clear: neither the majority, the

district court, nor the plaintiffs cite any authority for the proposition that our

country’s asylum laws apply to persons who are not physically located in the United

States, but who are outside our borders yet “in the process of arriving in” the United

States. The district court’s holding in this regard is unprecedented and runs counter

to both the statutory text and established case law.

Before 1980, “there was no statutory basis for granting asylum to aliens who

applied from within the United States.” INS v. Cardoza-Fonseca, 480 U.S. 421, 433

(1987). In 1980, and as part of amendments to the Immigration and Nationality Act

(INA), Congress separately addressed refugees applying for admission from outside

the United States, as distinguished from asylum seekers asking for protection from

within our borders. Id. As the Supreme Court has explained in describing these

reforms, “Section 207, 8 U.S.C. § 1157, governs the admission of refugees who seek

admission from foreign countries. Section 208, 8 U.S.C. § 1158, sets out the process

by which refugees currently in the United States may be granted asylum.” Id.

(emphasis added).

It has thus long been understood that unlike admission for refugees, see 8

U.S.C. § 1157 (imposing certain population caps for resettling refugees), asylum

under § 1158 requires application from within the United States. As we have

explained, “Section 207 [8 U.S.C. § 1157] establishes the procedure by which an

28 alien not present in the United States may apply for entry as a refugee. . . . Section

208 [8 U.S.C. § 1158], on the other hand, sets out the procedures for granting asylum

to refugees within the United States.” Yang v. INS, 79 F.3d 932, 938 (9th Cir. 1996)

(emphasis in original); see also Singh v. Holder, 649 F.3d 1161, 1167 (9th Cir. 2011)

(en banc) (“Th[e] definition of a refugee contains no cross-reference to the

procedural requirements for asylum, such as being physically present in the United

States . . . .”); Halaim v. INS, 358 F.3d 1128, 1133 (9th Cir. 2004) (“Because they

are physically present in the United States, however, Petitioners are applying for

asylum and withholding of deportation only under Section 208 of the INA, 8 U.S.C.

§ 1158.”); Sadhvani v. Holder, 596 F.3d 180, 183 (4th Cir. 2009) (“[T]he BIA did

not abuse its discretion in denying relief based on the statutory requirement that one

must be present in the United States to eligible for asylum.”); Kiyemba v. Obama,

555 F.3d 1022, 1030 (D.C. Cir. 2009), vacated by 559 U.S. 131 (2010), and

judgment reinstated as amended, 605 F.3d 1046 (D.C. Cir. 2010) (“[R]efugees apply

from abroad; asylum applicants apply when already here[.]”).

Consistent with the foregoing, the text, structure, and history of the INA all

confirm that an alien who approaches a port of entry, but who does not enter the

United States, is not covered by the asylum laws. The INA’s asylum provisions are

limited to aliens who are “physically present in the United States or who arrive[] in

the United States” or “who [are] arriving in the United States.” See 8 U.S.C.

29 §§ 1158(a)(1), 1225(b)(1)(B)(i)-(ii) (emphases added). This language

unambiguously requires an alien to be in the United States to apply for asylum. The

statute does not apply by its terms to someone who is “in the process of arriving” in

the United States, but who is not yet here. One who “arrives in the United States,”

8 U.S.C. § 1158(a)(1) is one who, at the very least, has crossed into the United States.

See, e.g., THE AMERICAN HERITAGE DICTIONARY 102 (3d ed. 1992) (defining

“arrive” as “[t]o reach a destination”); THE OXFORD ENGLISH DICTIONARY 651 (2d

ed. 1989) (defining “arrive” as “to come to land at, reach (a shore, port, etc.)” and

“[t]o come to the end of a journey, to a destination, or to some definitive place”).

When we say that a person “arrives” in a location, we mean he reaches that location,

not that he is somewhere on his travels toward it. An alien thus “arrives in” the

United States or he does not; there is no in-between.

The majority nevertheless relies on the district court’s use of the canon against

surplusage, which the district court held requires that “arrives in the United States”

must mean something different than “physically present in the United States.” Maj.

Op. 21 (citing 8 U.S.C. § 1158(a)). The district court’s surplusage analysis fails

upon closer scrutiny. The Refugee Act of 1980 originally ordered the Attorney

General to accept asylum applications from any alien “physically present in the

United States or at a land border or port of entry, irrespective of such alien’s status.”

8 U.S.C. § 1158(a) (1980). The majority suggests without citation that this earlier

30 language covered “[a] person standing at the border,” but who was “not necessarily

across it.” Maj. Op. 23 (emphasis in original). The majority identifies no court that

has accepted this interpretation of the 1980 Act, nor does it address the fact that both

the Supreme Court and this court have described the 1980 provision as applying to

“refugees currently in the United States,” Cardozo-Fonseca, 480 U.S. at 433, and

“refugees within the United States,” Yang, 79 F.3d at 938 (emphasis in original).

In the landmark Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, Congress revised the

statutory language in § 1158(a)(1), so that it now provides that “[a]ny alien who is

physically present in the United States or who arrives in the United States (whether

or not at a designated port of arrival and including an alien who is brought to the

United States after having been interdicted in international or United States waters),

irrespective of such alien’s status, may apply for asylum.” 8 U.S.C. § 1158(a); see

generally East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 757–58 (2018)

(describing the IIRIRA changes to the statutory scheme). The 1996 amendments did

not somehow work a major change in the law to enable persons who were outside

the United States, but “in the process” of arriving into it, to apply for asylum.

Prior to 1996, our immigration laws set forth two types of expulsion

proceedings: deportation and exclusion. See Vartelas v. Holder, 566 U.S. 257, 261

(2012); Jama v. ICE, 543 U.S. 335, 349 (2005); Lezama-Garcia v. Holder, 666 F.3d

31 518, 526 (9th Cir. 2011). In the 1996 immigration reforms, Congress “abolished the

distinction between exclusion and deportation procedures and created a uniform

proceeding known as ‘removal.’” Vartelas, 566 U.S. at 262. Congress also created

expedited removal proceedings for aliens “arriving in” the United States who seek

to procure entry through fraudulent means or who lack proper documentation. 8

U.S.C. § 1225(b)(1)(A)(i). Congress further authorized the Attorney General to

place in expedited removal proceedings certain persons who had been physically

present in the United States for less than two years. Id. § 1225(b)(1)(iii).

Nevertheless, most persons subject to expedited removal can request asylum and be

referred for a credible fear interview “either at a port of entry or at such other place

designated by the Attorney General.” Id. § 1225(b)(1)(A)(ii), (B)(i).

Properly considered, the phrases “arrives in the United States,” 8 U.S.C.

§§ 1158(a)(1), 1225(a)(1), or “arriving in the United States,” id. § 1225(b)(1)(A)(i),

did not extend our asylum laws to persons outside the physical boundaries of the

United States. Instead, the point was to identify certain persons who could be subject

to expedited removal, while ensuring that they could still pursue asylum. Id.

§ 1225(b)(1)(A)-(B); see also Succar v. Ashcroft, 394 F.3d 8, 13 (1st Cir. 2005)

(“Congress established expedited removal proceedings for arriving non-citizens who

are charged as inadmissible due to lack of proper documents or material

misrepresentations at entry. Expedited removal proceedings provide little

32 opportunity for relief; however, aliens in this situation can seek asylum.”)

(quotations omitted).

Nothing in these changes suggested that from the perspective of whether the

asylum applicant had to be located in the United States, there was a difference

between a person “present in the United States” and one “who arrives in the United

States.” 8 U.S.C. § 1225(a)(1); see also id. § 1158(a)(1). A change of that

magnitude, and particularly one made through the 1996 immigration reforms—

widely regarded as placing important new limits on immigration, see Morales-

Izquierdo v. Gonzales, 486 F.3d 484, 494 (9th Cir. 2007) (en banc); Avendano-

Ramirez v. Ashcroft, 365 F.3d 813, 819–20 (9th Cir. 2004)—would surely have been

made quite explicitly. The district court’s invocation of the canon against surplusage

was therefore misplaced.

Not only was the district court incorrect to apply the canon against surplusage,

its effort to do so led it to misapply the Dictionary Act, an error the majority

unfortunately credits. Maj. Op. 21. The district court relied upon a provision in the

Dictionary Act which states that “unless the context indicates otherwise,” “words

used in the present tense include the future as well as the present.” 1 U.S.C. § 1.

From this it concluded that “arrives in”—which it believed must have a different

meaning than “physically present in”—had to include “an alien who may not yet be

in the United States, but who is the process of arriving in the United States through

33 a [port of entry].” Al Otro Lado, 394 F. Supp. 3d at 1200.

The conclusion does not follow. Courts cannot “invoke[] the Dictionary Act

in an effort to convert an unambiguous verb tense into claimed ambiguity,” and then

use “that manufactured ambiguity as a stepping stone to altering the plain sense of a

statute.” Guidiville Band of Pomo Indians v. NGV Gaming, Ltd., 531 F.3d 767, 775

(9th Cir. 2008). Here, the district court used the Dictionary Act not to read “arrives”

in both the present and future tense, but to change the entire definition of “arrives”

to include the “process of arriving.” And if the phrase “arrives in” does refer to

something in the future, there is no reason to limit that interpretation, as the district

court did, to someone “in the process of arriving in” the United States, as opposed

to someone who took some other antecedent step toward arriving in this country.

The uncertainty of what it means to be “in the process of arriving” raises a host of

interpretative and practical issues that the majority does not address.

In all events, if the district court had been consistent in its application of the

Dictionary Act, it would have read “is physically present in the United States”—also

framed in the present tense—to refer to the future as well. 8 U.S.C. § 1158(a)(1).

But that would have erased the very distinction that the surplusage canon supposedly

required. There too, of course, the statute in the future tense would merely reflect

the unremarkable proposition that one who will be physically present in the United

States will be able to apply for asylum once they are here. It would not mean that

34 one who is in the process of becoming physically present would have that same

statutory right. This same logic applies to the phrase “arrives in” as well.

The district court believed, and the majority apparently agrees, that 8 U.S.C.

§ 1225(b) supported the district court’s “in the process of” theory. Maj. Op. 21–22.

As described above, § 1225(b)(1) references aliens “arriving in the United States.”

The district court held that this phrase supported its interpretation of § 1158(a)(1),

because § 1225(b)’s “use of the present progressive, like use of the present

participle, denotes an ongoing process.” Al Otro Lado, 394 F. Supp. 3d at 1200.

The district court’s (and majority’s) reading collapses when § 1225 is read as

a whole. See, e.g., Sturgeon v. Frost, 136 S. Ct. 1061, 1070 (2016) (“It is a

fundamental canon of statutory construction that the words of a statute must be read

in their context and with a view to their place in the overall statutory scheme.”)

(quotations omitted). In this case, the very provision the district court relied upon

states that “[i]f an immigration officer determines that an alien … who is arriving in

the United States … is inadmissible, the officer shall order the alien removed from

the United States without further hearing or review.” 8 U.S.C. § 1225(b)(1)(A)(i)

(emphasis added). For an alien to be “removed from the United States,” the alien

must of course have been in the United States in the first place.

There are various other aspects of § 1225 and § 1158 that likewise do not

make sense if “arriving in” means something short of setting foot in the United

35 States. Section 1225(b), for example, concerns the “inspection” of aliens “arriving

in the United States.” Aliens must be screened in inspections, 8 U.S.C.

§ 1225(b)(1)(A), before proceeding to asylum interviews, id. § 1225(b)(1)(B).

These inspections apply to any person “present in the United States” or “who arrives

in the United States.” Id. § 1225(a)(1). There is no suggestion in § 1225 that CBP

officers could inspect persons who did not enter the United States. Under

§ 1158(a)(2)(B), to give another example, an alien must generally apply for asylum

“within 1 year after the date of the alien’s arrival in the United States.” It is unclear

how this and other provisions would apply if arrival were an “ongoing process” that

includes periods prior to entering the United States. Maj. Op. 22. The majority’s

endorsement of the district court’s reasoning thus injects confusion in our

immigration laws, with no basis in the statutory text.

Finally, relying upon the district court, the majority states that “the legislative

history is consistent with its interpretation of ‘arrives in’ as denoting an ongoing

process.” Maj. Op. 22–23 & n.10. By “legislative history,” the majority means the

written statement of a single congressman, Representative Lamar Smith of Texas.

Al Otro Lado, 394 F. Supp. 3d at 1201. It is difficult to call this statement legislative

history. The statement is in fact a letter sent by Rep. Smith to the Director of the

Immigration and Naturalization Service (INS) about a proposed INS rulemaking (the

letter was later placed in the congressional record). See Implementation of Title III

36 of the Illegal Immigration Reform and Immigration Responsibility Act of 1996:

Hearing Before the Subcomm. On Immigration and Claims of the H. Comm. On the

Judiciary, 105th Cong. (1997), at 13–28 (letter from Rep. Smith to INS). The letter

also post-dates the enactment of the IIRIRA. See Bruesewitz v. Wyeth LLC, 562 U.S.

223, 242 (2011) (“Post-enactment legislative history (a contradiction in terms) is not

a legitimate tool of statutory interpretation.”).

Even assuming this is true legislative history, the usual warnings about its use

would apply. See Conroy v. Aniskoff, 507 U.S. 511, 518–28 (1993) (Scalia, J.,

concurring). In this case, however, there is a more fundamental problem, which is

that the majority block-quotes the district court’s opinion discussing this “legislative

history,” Maj. 22, but the district court in quoting that material used an ellipsis to

omit critical context from the quoted passage. The following is the full quote from

Rep. Smith’s letter. I have bolded the text that the district court (and majority) omit

with an ellipsis; notably, most of that same material was italicized for emphasis in

Rep. Smith’s letter:

The term ‘arriving alien’ was specifically selected by Congress in order to provide a flexible concept that would include all aliens who are in the process of physical entry past our borders, regardless of whether they are at a designated port of entry, on a seacoast, or at a land border. Thus, an ‘arriving alien’ will in many cases include an alien who, under the current interpretation of section 101(a)(13) of the INA definition of ‘entry’, would have been found to have made an ‘entry.’ In specific terms, an alien who has entered U.S. territory between

37 ports of entry on our land borders, or who has come ashore on a smuggling boat, should be considered an ‘arriving alien’ even if that alien has penetrated several hundred yards or even farther into United States territory and has been in that territory for several hours. ‘Arrival’ in this context should not be considered ephemeral or instantaneous, but, consistent with common usage, as a process. An alien apprehended at any stage of this process, whether attempting to enter, at the point of entry, or just having made entry, should be considered an ‘arriving alien’ for the various purposes in which that term is used in the newly revised portions of the INA.

1997 IIRIRA Subcomm. Hrg. at 17–18 (bold added; italics in original).

Rep. Smith was certainly not advocating for an interpretation of “arriving”

that would accord asylum protection to persons who had not crossed into the United

States. Instead, and consistent with what he later describes as “the pro-enforcement

philosophy of” the INA, Rep. Smith sought to ensure that aliens who had “entered

U.S. territory” and proceeded some ways past the border should still be treated as

“arriving” in the United States and subject to the expedited procedures applicable to

such persons. Id. at 17–19. That is the stated “context” of Rep. Smith’s comments

about the word “arrival”—“context” that the ellipsis eliminated. And that is why

Rep. Smith elsewhere referred to “physical entry past our borders” and persons

“having crossed the border.” Id. at 17–18 (emphasis in original).

The majority opinion acknowledges (but does not re-produce) the “language

elided from the district court’s block quotation and ours,” but maintains that my

reading of Rep. Smith’s letter is “inconsistent with [his] comments themselves.”

38 Maj. Op. 22–23 n.10. That is not correct. As explained above, Rep. Smith was

referring to “arrival” as a “process” that begins and continues after an alien has

crossed the border. Statements Rep. Smith made at the congressional hearing in

which he submitted his letter only confirm what his letter plainly says. See, e.g.,

1997 IIRIRA Subcomm. Hrg. at 70 (“The problem that I hope you all will address

when we get to that definition of arriving alien is the situation where you have

someone crossing a land border perhaps in a vehicle, and as soon as they travel,

they’re going north or south or east or west; 2 hours later they’re 120 miles in the

interior. Clearly, they’re still an arriving alien, and you somehow need to have a

broad enough net to catch those individuals and apply that definition to them.”).

Rep. Smith’s statement thus provides no support for the district court’s

unprecedented holding that persons who are not in the United States may invoke our

asylum laws. Because that holding was wrong, the injunction of the Third Country

Transit Rule upon which it was based should have been stayed.

2

Of course, one does not need to agree with anything in the preceding section

to conclude that the district court’s injunction of the Third Country Transit Rule was

improper. As I have explained, the government correctly argues (and the majority

seemingly agrees, Maj. Op. 26 n.11) that regardless of whether plaintiffs attempted

to enter the United States prior to July 16, 2019, they would now be arriving again

39 after that date, so that the Third Country Transit Rule on its face applies to them.

The majority therefore acknowledges that even if the district court’s “arriving in”

analysis were correct, the government would still succeed on the merits if plaintiffs’

“first arrival” was not the proper focus, so that “any second arrival . . . governed by

the Rule” is the “one that matters.” Maj. Op. 20.

The majority holds that the government has not made a sufficient showing in

this respect either, on the theory that “[i]t is more likely that the first arrival is

governed by the eligibility requirements at the time the right to be considered for

asylum arose than that regulations imposed after the fact will cancel out the earlier

eligibility.” Maj. Op. 27–28. That is the direct effect of the district court’s injunction

as well, which ordered the government “to return to the pre-Asylum Ban practices

for processing the asylum applications of members of the certified class.” Al Otro

Lado, 2019 WL 6134601, at *20. This, according to the majority, “makes sense.”

Maj. Op. 27.

This reasoning will drastically destabilize the law at the border. What the

majority is apparently saying is that asylum eligibility rules should be frozen in time

as of the point that the plaintiffs were first arriving at a port of entry (or, more

accurately, in the process of arriving there). The theory would extend to any change

in the law after the plaintiffs were first metered. The implications of this rule of law

are significant. By the logic of the majority’s opinion, persons could be metered,

40 deported from Mexico, and then return to a United States port of entry many years

later, demanding that any new developments in immigration law not apply to them.

Indeed, any person who is “in the processing of arriving in” the United States would

seemingly have a vested right to the eligibility requirements in place as of that time.

This would atomize the process for applying immigration rules of supposed general

applicability, with the law in constant flux depending upon the person being

considered for admission. This would cause obvious and enormous problems of

administration at the border.

The majority’s determination that the Third Country Transit Rule should not

apply because it was not “in place” “at the time each class member’s right to apply

for asylum attached” (the “first arrival”), Maj. Op. 26–27, also meets serious

resistance from our cases. We have repeatedly held that a change in immigration

law may apply to persons much farther along in immigration proceedings than the

plaintiffs are here. As we explained long ago, where a “Petitioner had been eligible

for the relief sought when he first applied for it” but “became ineligible by virtue of

[a] change in the law,” “[i]t is settled that when the law is changed before a decision

is handed down by an administrative agency, the agency must apply the new law.”

Talanoa v. INS, 397 F.2d 196, 200 (9th Cir. 1968); see also Vasquez-Zavala v.

Ashcroft, 324 F.3d 1105, 1108 (9th Cir. 2003) (rejecting petitioners’ arguments

based on allegedly “settled expectations” and applying change in law that was made

41 after petitioners filed their asylum application); Ortiz v. INS, 179 F.3d 1148, 1156

(9th Cir. 1999) (holding that new definition of “aggravated felony” that took effect

after petitioners had filed an asylum application applied, and “[t]he fact that the

[petitioners’] petition for asylum was filed prior to the effective date of the IIRIRA

does not help them”). In these cases, the new law was “not in place” at the relevant

time either, Maj. Op. 27, but that did not change the court’s analysis.

To the extent the majority would allow new changes in the law to apply to

ongoing asylum proceedings, as our precedent confirms can occur, the broader

statements in the majority’s opinion must give way to a more limited holding: that

when an alien was previously “in the process of arriving” in the United States, the

Third Country Transit Rule does not apply to that person. But that returns us to the

beginning, namely, that the Third Country Transit Rule does not exempt persons

who previously attempted to enter the country. And nothing in the INA says that

when there are multiple “arrivals” over time, it is the first one, and not the later

arrival in front of us (and immigration officials), that matters.

The majority would presumably agree that if an alien entered the United States

prior to July 16, 2019, freely left the United States on her own accord, and then

returned after July 16, 2019, the Third Country Transit Rule could apply to her. That

would be so notwithstanding her earlier pre-July 16, 2019 “arrival.” The majority

would likewise seemingly agree that if an alien entered the United States prior to

42 July 16, 2019, was lawfully removed, and then attempted to arrive again after July

16, 2019, the Third Country Transit Rule could apply to that person too.

Then why is this case different? The only possible reason could be that there

is something wrong about the combination of the government’s metering policies

and the Third Country Transit Rule, namely, that the government turned people away

through metering only to then subject them to a new asylum eligibility requirement.

The district court was explicit on this point: it thought the government’s metering

policies had created a “legal bind” that was “at best, misleading, and at worst,

duplicitous.” Al Otro Lado, 2019 WL 6134601, at *1, 11. The majority makes the

same point, “agree[ing] with the district court that ‘[t]his situation, at its core, is

quintessentially inequitable.’” Maj. Op. 29.

The problem with these statements is that this entire injunction—and the

majority’s opinion refusing to stay it—is premised on the assumption that metering

is not unlawful. Maj. Op. 1–2, 26 n.11; Al Otro Lado, 2019 WL 6134601, at *11,

13. And if metering is lawful, as the district court conceded may be the case, then

the supposed “legal bind” and “quintessentially inequitable” government behavior

are nothing of the sort, but rather a natural consequence of the government’s valid

enforcement of the immigration laws. This really has now brought us back

completely full circle: the injunction does not turn on whether metering is lawful.

The majority and district court therefore cannot then smuggle into the analysis an

43 implicit and unproven judgment that metering is wrong. And they certainly cannot

do so on a classwide basis for all ports of entry at all times.

For all these reasons, the government has shown an overwhelming likelihood

of success on the merits and the first stay factor thus tips decidedly in its favor. I am

unsure why the majority opinion suggests that I am criticizing what the majority

views as its “restrained approach.” Maj. Op. 30. The majority opinion is restrained

only insofar as it fails to confront the obvious legal deficiencies in the district court’s

injunction. The majority’s citation of a law review article and the dissenting opinion

in East Bay notwithstanding, see Maj. Op. 31 (citing East Bay, 140 S. Ct. at 6

(Sotomayor, J., joined by Ginsburg, J., dissenting), at this stage of the process, we

not only may consider the likelihood of success on the merits, but are required to do

so. Nken, 556 U.S. at 433–34. We often do so extensively, whether a stay is granted

or denied. See, e.g., City & Cty. of S.F., 944 F.3d at 790–805; Sierra Club v. Trump,

929 F.3d 670, 688–704 (9th Cir. 2019). That the inquiry at this stage is probabilistic,

Maj. Op. 30, does not mean we can shy away from it.

IV

The second stay factor—irreparable harm—also weighs strongly in favor of

the government. See Nken, 556 U.S. at 424. We have previously explained that the

harm analysis “focuses on irreparability, irrespective of the magnitude of the injury.”

City & Cty. of S.F., 944 F.3d at 806 (quoting California v. Azar, 911 F.3d 558, 581

44 (9th Cir. 2018)). The majority opinion is thus incorrect to insist on a showing of

“significant irreparable harm.” Maj. Op. 13. That is not the governing standard.

Here, however, the harm of complying with the district court’s injunction is both

irreparable and significant, requiring a stay of the injunction.

Although the majority does not mention it, the initial harm here is the

government’s inability to apply the Third Country Transit Rule to persons that the

Rule covers, where the Supreme Court has already held that this Rule may be

implemented pending appeal. See East Bay, 140 S. Ct. at 3. Citing an exponential

increase in persons approaching our border and the fact that many asylum claims are

later found to be “meritless,” the Third Country Transit Rule sought to focus the

country’s immigration resources on those applicants who are more likely to present

meritorious asylum claims. See 84 Fed. Reg. at 33,839. The district court’s

injunction thus disallows the government from denying asylum on a presently

permitted ground. This constitutes an irreparable harm. See City & Cty. of S.F., 944

F.3d at 806. But in all events, it is not for us to debate whether the government’s

inability to enforce the Third Country Transit Rule creates such harm. The Supreme

Court—in staying an injunction of that very Rule—has already found that the

government met its burden on the stay factors. East Bay, 140 S. Ct. at 3.

The irreparable harm here, however, runs deeper. Under the district court’s

injunction, the government is obligated to identify and treat differently an estimated

45 26,000 persons who were metered during a several-year period at various points of

entry across our southern border. Many of these persons will lack proper

documentation. While the Third Country Transit Rule may now be applied to

everyone else entering this country, see East Bay, 140 S. Ct. at 3, officials at our

already overburdened border will now face the additional task of exempting a

26,000-person subclass from the Rule.

To hear the majority tell it, this will be straightforward. All that is needed are

“fairly simple factual determinations.” Maj. Op. 12. The record refutes that

characterization. The majority opinion turns on the government’s supposed ability

to rely upon certain lists of metered persons prepared by different groups in Mexico,

lists the majority says border officials could use to identify those persons who had

been metered prior to July 16, 2019. Id. at 14–15. The majority goes so far as to

assert that the government has in fact relied on these lists in the past, and that the

government’s failure to create its own lists of metered aliens is the government’s

own fault. Id. at 13–14.

The record does not support these assertions. What the record instead reveals

is that based on materials that plaintiffs themselves have put forward in this

litigation—including expert opinion—the various lists are highly unreliable and

underinclusive. The government represents that it does not view the lists as reliable.

Given plaintiffs’ own positions on the lists in this litigation, it cannot be that the

46 government should be expected to rely upon them in complying with the district

court’s order.

The district court’s injunction does not require “fairly simple factual

determinations.” Maj. Op. 12. It instead creates an administrative dilemma of the

highest order, across every port of entry at the United States-Mexico border.

Although the majority dismisses it as “the supposition of some officials,” Maj. Op.

15, the government has come forward with the declarations of high-ranking

immigration personnel attesting to the serious problems of administration and delays

that the district court’s injunction will cause. The majority therefore errs in

concluding that the government’s showing of irreparable harm is “weak.” Id. at 18.

The record shows that the government has made a more than sufficient showing of

irreparable harm, warranting a stay.

A

I must first address the majority’s claim that the irreparable harm here is “self-

inflicted” based on “the government’s own failure to keep records of asylum seekers

who have been metered.” Maj. Op. 13–14. In the majority’s view, “[t]hat the

government’s asserted harm is largely self-inflicted ‘severely undermines’ its claim

for equitable relief.” Id. at 13. This position is not justified and improperly

substitutes the court’s judgment for that of immigration officials.

47 As an initial matter, nothing required the government to maintain lists of

persons who approached the United States border but could not enter due to

metering. Neither plaintiffs nor the majority cite any statute, regulation, or other

requirement imposing such a record-keeping obligation. When rejecting the

argument that plaintiffs’ harm was self-inflicted because class members did not

pursue asylum in Mexico, the majority holds that “the class members were not

required to do so.” Maj. Op. 29 n.13. It is unclear why this same rationale would

not apply to the government’s alleged failure to create lists of metered persons,

which it was not required to do either.

Equally unavailing is the majority’s claim that the government’s harm is self-

inflicted because it was foreseeable. Maj. Op. 13–14. The chain of events that would

make this true is far too unlikely. The government would have had to presume that

its metering practices, dating back many years, would be challenged and result in a

novel decision holding that persons outside the United States could claim a violation

of our asylum statutes. The government would then have had to predict the

enactment of the Third Country Transit Rule two years into this case. And it would

then have to envision that the Supreme Court would allow this Rule to go into effect

pending appeal, see East Bay, 140 S. Ct. at 3, but that the Rule could then be partially

enjoined in a metering lawsuit that does not directly challenge it. It is hard to see

how this unusual sequence could be regarded as foreseeable such that the

48 government must now be faulted for failing to prepare lists that it was not required

to prepare in the first place.

Finally, the majority ignores evidence in the record as to the government’s

reasons for not creating such lists. As Randy Howe, Executive Director for

Operations, Office of Field Operations, U.S. Customs and Border Protection, has

explained, CBP officers’ interactions with persons at the border line are “not

intended to be a detailed encounter; memorializing a great deal of information at this

time would be not only impracticable but potentially dangerous to the personnel and

the port.” As Mr. Howe explains in greater detail,

Personnel at the limit line are in a constant or near- constant cycle of encountering dozens or hundreds of travelers a day, some of whom may be seeking to cause harm or evade the law. For these reasons, forcing limit line personnel to halt their present duties and memorialize the counter, when those travelers may or may not need interpretative assistance to engage in thorough dialogue, including collecting biographical information about that individual or family unit (along with at least some measure of verification), would weaken the operational posture of the remainder of the limit line and could pose a threat to safety.

The majority opinion tries to shift responsibility back to the government by

referencing the fact that at “one [port of entry]” “around the end of 2016,” CBP

officials were instructed to provide aliens with pieces of paper identifying

appointment times “if possible.” Maj. Op. 12; id. at 4 n.1. The record shows that

the government ultimately concluded that “giving out tickets would just lead to a lot

49 of fake tickets and a lot of misuse of [the] system.” The government’s official

metering guidance thus prohibited the provision of any “tickets or appointments” or

other means of scheduling persons for entry.

The difficulty the government would face in creating records of persons

approaching the border during periods of metering was also exacerbated by evidence

in the record of large groups of immigrants approaching U.S. ports of entry.

Plaintiffs’ expert witness claims, for example, that certain formal metering guidance

was issued in response to “surge events,” such as a large group of approximately

1,500 asylum seekers traveling through Mexico toward the United States in 2018.

The majority opinion fails to appreciate the reality on the ground, which is that

documenting large volumes of persons during periods of metering would raise

significant logistical and other issues.

These safety and logistical issues easily distinguish this case from the cases

the majority cites involving self-inflicted harms. In Hirschfeld v. Board of Elections

in City of New York, 984 F.2d 35 (2d Cir. 1993), the court denied a stay because of

the applicant’s “inexcusable delay” in seeking it, which reflected a “misuse of the

judicial process.” Id. at 37–39. In Second City Music, Inc. v. City of Chicago, 333

F.3d 846 (7th Cir. 2003), the court denied a stay of a licensing requirement because

the applicant had not even sought the “readily available license” and “would incur

no detriment by the act of applying” for it. Id. at 849–50. And in Caplan v.

50 Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828 (3d Cir. 1995), the court held

that the defendant law firm seeking an injunction could not show irreparable injury

from its insurer settling a claim, because the law firm had contracted with the insurer

to do just that. Id. at 839. These cases all involved easily foreseeable or readily

avoidable harms. And none involved situations remotely as dynamic or difficult as

the United States’ border with Mexico.

B

The majority asserts that because the government supposedly “relied on [the

waitlists] to facilitate the metering policy,” “[n]o reason appears why the lists are

adequate for those purposes but must be entirely disregarded in identifying who

came to the border when for purposes of complying with the district court’s

injunction.” Maj. Op. 15. The record does not support either conclusion.

It is not accurate to claim, as the majority does, that “the record establishes

that the government has been using [the waitlists] in determining the order in which

applicants for asylum are allowed to enter, submit their asylum applications, and

undergo credible fear interviews.” Maj. Op. 15 (emphasis added). For this

proposition the majority cites the report of plaintiffs’ expert witness, Stephanie

Leutert. But the relevant portions of that report, which may be found at pages ER

996–1001 of plaintiffs’ excerpts of record, do not support the majority’s statement.

51 After discussing metering practices generally and the creation of certain lists

in Mexico, Ms. Leutert states that

Once asylum seekers get on a waitlist, they have to wait until their number is called. Every day, a CBP official communicates the number of people that they will receive that day to an individual in Mexico. This exact process depends on the port of entry and the waitlist structure in each Mexican city. According to list managers in cities such as Ciudad Juárez, Ciudad Acuña, and Piedras Negras, CBP officers directly call the Mexican individuals who manage the lists.

As this passage shows, Ms. Leutert’s report does not say that the government is

relying upon the waitlists themselves (and certainly not all of them), but rather that

when capacity frees up at a port of entry, CBP will contact some of the persons who

allegedly manage the lists to let them know. The Leutert report also does not

suggest, as the majority claims, that the government has been using the waitlists “in

determining the order in which applications for asylum are allowed to enter.” Maj.

Op. 15 (emphasis added). Ms. Leutert offers no opinion as to whether CBP is relying

upon persons managing the waitlists to provide names in a particular order. And

there would be obvious questions whether Ms. Leutert would even have a basis to

offer such an opinion, particularly across the many different ports of entry.

The majority also states that “[t]he district court concluded that ‘CBP relied

on these lists to facilitate the process of metering,’ and the record supports this

conclusion.” Maj. Op. 4–5 (quoting Al Otro Lado, 2019 WL 6134601, at *15). What

52 the district court relied upon for this statement, and what the majority relies upon as

well, are the declarations of Nicole Ramos of Al Otro Lado and J.R., an asylum-

seeker from Cuba. Id. The majority provides no explanation as to why an employee

of Al Otro Lado or a person seeking entry into this country can be the authority on

what CBP does or does not rely upon. But even so, these declarations on their face

do not support the notion that CBP has broadly relied on lists of metered persons

that various outside groups have generated, or that it has relied on these lists to

sequence entry of persons in any particular order.

Ms. Ramos, Al Otro Lado’s Border Rights Project Director, states only that

Grupo Beta maintains a list and that “CBP communicates its daily capacity to Grupo

Beta, which uses that information to call the appropriate numbers from the top of the

list.” Ms. Ramos is here referring to only one group (Grupo Beta, a Mexican

governmental entity) for one port of entry (Tijuana). Her declaration thus does not

support the majority’s description of what CBP supposedly does “[a]t each” port of

entry. Maj. Op. 4. Nor does it support the majority’s suggestion that CBP’s purpose

in contacting Grupo Beta was to receive asylum seekers in a certain order. Once

again, that CBP would contact Grupo Beta to let it know about capacity at a border

station is not the same as CBP relying upon the accuracy or ordering of Grupo Beta’s

list—a list that Ms. Ramos herself says was subject to “corruption,” a point I will

discuss further below.

53 J.R.’s declaration likewise does not support the majority. J.R. is a Cuban

citizen who sought to enter the United States at Brownsville, Texas and was put on

a waitlist. According to J.R., “[t]he list was controlled by Mexican immigration

officials, and they were in touch with U.S. officials who would ask every day for a

certain number of people to present themselves at the U.S. offices.” J.R.’s

declaration is limited to one port of entry and also does not support the majority’s

position that CBP “has been using [the waitlists] in determining the order in which

applicants for asylum are allowed to enter.” Maj. Op. 15.

Nor is it correct, as the majority opinion states, that through the use of the

“terms” “metering and queue management,” the “government recognized” and

“impl[ied]” “the practical need to identify which applicants had appeared at the

border and in what order.” Maj. Op. 14. This point has little to do with whether the

government previously relied upon waitlists that others generated. But even so, the

terms “metering” and “queue management” do not have the implication that the

majority suggests. To the contrary, government witnesses have explained that

metering was not a “scheduling system,” but a means of “controlling the flow based

on our operation.”

The upshot is that the government’s ability to comply with the injunction

without irreparable harm cannot depend upon what the government has already done

(supposed reliance on the lists) or not done (alleged self-inflicted failure to create its

54 own lists). Instead, it must turn on whether the lists are themselves capable of being

used to comply with the district court’s order. I turn now to that issue.

C

Can waitlists that various groups in Mexico prepared be used to separate out

the 26,000 class members from all other asylum seekers who would otherwise be

subject to the Third Country Transit Rule? On this critical point, the majority says

very little. It acknowledges that the lists are “not entirely reliable,” but says there is

no reason why the lists “must be entirely disregarded in identifying who came to the

border when for purposes of complying with the district court’s injunction.” Maj.

Op. 15. But the question is not whether the lists should be “entirely disregarded.”

It is whether the lists can be relied upon to any meaningful extent, so that the

government would not be put to a significant burden of determining whether each

asylum applicant is a class member. The record does not support the majority’s

apparent theory that the government can easily comply with the district court’s

injunction by relying upon the waitlists.

I conclude this based on materials that plaintiffs themselves have put forward,

in an evident effort to support their underlying claims about metering. This includes,

but is not limited to, the expert report of Stephanie Leutert, the Director of the

Central America & Mexico Policy Initiative at the Strauss Center for International

Security and Law at the University of Texas. The point here is not to credit any

55 particular evidence, but to show that the government should not be expected to rely

upon the various lists when plaintiffs in this case have sharply impugned the integrity

of those very lists.

At the outset, it is important to recognize that there is no single waitlist, but

many different waitlists in many different locations along the Mexico border. This

begins to show some of the serious problems with using the lists to comply with the

district court’s injunction. According to plaintiffs’ expert, Ms. Leutert, waitlists are

“in place in every city with waiting asylum seekers.” Ms. Leutert formally identifies

as of November 2019 twenty-two such waitlists, which were in place in eleven

different border locations. According to her report, some areas have more than one

list. Nuevo Laredo, opposite Laredo, Texas, has six different lists. Brownsville has

three.

According to Ms. Leutert, lists are maintained by a variety of different groups,

such as “the asylum seekers themselves, Mexican government officials, or

humanitarian workers.” The details vary in every location. For example, a Strauss

Center report upon which plaintiffs and Ms. Leutert rely indicates that in Nuevo

Laredo, six different shelters each operate their own list, with “[t]he shelters

select[ing] which asylum seekers will cross” into the United States. In Tijuana, the

list operating as of July 16, 2019 was a physical notebook containing tens of

thousands of names, with asylum seekers themselves serving as “list managers.” In

56 Reynosa, Mexico, and again based on the same report, approximately 3,600 asylum

seekers are organized into different lists for single men, single women, families, and

pregnant women.

As a result, and contrary to the apparent assumption in the majority’s opinion,

according to Ms. Leutert, the “asylum waitlists have no standardized procedure or

structure,” and “there is no standardized Mexican or U.S. regulation of the asylum

waitlists nor their managers.” That is the case even as to lists that the Mexican

government maintains. Ms. Leutert reports that “[d]espite Mexican government

entities managing the lists in certain cities, there does not appear to be any

standardized guidance,” which “is evidenced by the different list formats and

processes in different cities even when the same federal government agency is

running the asylum waitlist.” The majority does not explain whether any or all of

the different waitlists would indicate when a person was metered, much less reliably

so across every border location.

Equally problematic, plaintiffs maintain that for many different reasons the

waitlists are underinclusive of persons who were metered. A December 2018

Strauss Center report—which lists Ms. Leutert as the lead author—notes that various

lists were not enacted until the summer of 2018, and so would evidently not capture

persons metered before then. In addition, according to Ms. Leutert, “the lack of

regulations means that some cities can stop asylum seekers from joining waitlists

57 altogether.” In a border town opposite Del Rio, Texas, for example, “the asylum

waitlists for both individuals and families have been ‘closed’ since March 2019.”

There are other reasons the lists are underinclusive as well. An August 2019 Strauss

Center report (upon which Ms. Leutert also relies) describes that in Matamoros,

Mexico, “there have been reports that asylum seekers who lack documentation and

legal status in Mexico are being barred from signing up on the list, and are instead

being deported.” There are other similar examples in the record involving other

border locations.

Plaintiffs further put forward evidence that the lists are underinclusive for

more malign reasons. Ms. Leutert reports that there are “no controls to guarantee

that these waitlists are being run transparently or without corruption,” and that

corruption is an issue. Ms. Leutert recounts that “some list managers charge asylum

seekers to get on the asylum waitlist, including in Piedras Negas, Reynosa, and

Matamoros.” Ms. Leutert also relies upon a news article reporting that when an

individual in Tijuana misses his number being called, the individual may be

reassigned a new number at the end of the line. Her expert report also recounts

allegations in Tijuana “that black asylum seekers were at times excluded from

waitlists, and as such would not be counted.”

A declaration from Nicole Ramos, Al Otro Lado’s Border Rights Director,

gives deeper insight into some of these issues in Tijuana, where Grupo Beta runs the

58 list. As with Ms. Leutert’s expert report, the plaintiffs relied upon Ms. Ramos’

declaration in seeking the injunction at issue.The majority also specifically

references Grupo Beta’s “‘formalized list,’” thereby suggesting it is reliable. Maj.

Op. 4. But Ms. Ramos’ declaration tells a different story.

An entire heading in Ms. Ramos’ declaration is that “The Waitlist in Tijuana,

Mexico is Underinclusive.” Grupo Beta’s rules “require that each asylum seeker

present identification, which has prevented asylum seekers who lack identification

from being added to the list.” Ms. Ramos reports that these requirements

“disproportionately affect Black migrants,” who are less likely to possess identifying

documents. Like Ms. Leutert, Ms. Ramos cites “numerous reports of corruption of

the list administered by Grupo Beta,” including “several asylum seekers who paid

to have their names added to the list while still in South America.”

Given everything plaintiffs have said about the various lists, it is difficult to

understand why the government should now be expected to rely upon them,

particularly for purposes of complying with a court order. A declaration from

Ashley Caudill-Mirillo, the Deputy Chief of the Asylum Division with U.S.

Citizenship and Immigration Services (USCIS) who “oversee[s] all Asylum Offices

nationwide,” explains that “[e]ven if USCIS had access to any lists[] purportedly

maintained by shelters or otherwise,” “USCIS has no definitive way to verify the

accuracy or authenticity of any such lists.” As a result, Ms. Caudill-Mirillo attests,

59 “asylum officers would still need to question the interviewees to assess the veracity

of any documentation provided and determine whether or not they are class

members.”

The Supreme Court has reminded us that “[t]he Government’s interest in

preventing the entry of unwanted persons and effects is at its zenith at the

international border.” United States v. Flores-Montano, 541 U.S. 149, 152 (2004).

The government personnel in charge of managing our borders and maintaining their

safety are surely due some degree of deference on the operational issue of whether

certain lists are reliable for determining if asylum seekers were metered prior to July

16, 2019. See, e.g., Tabbaa v. Chertoff, 509 F.3d 89, 106 (2d Cir. 2007) (“[S]ome

measure of deference is owed to CBP due to its considered expertise in carrying out

its mission of protecting the border.”).

The lists may be the product of well-meaning efforts to help those in need, or

the unfortunate result of persons taking advantage of the downtrodden. But given

plaintiffs’ own positions on the various lists, I am hard-pressed to understand how

the majority can conclude that the government can be expected to use them, so that

its burden in complying with the district court’s injunction would be minimal.

D

With the lists unable to ease the government’s burden, the enormity of the

government’s task in complying with the district court’s injunction pending appeal

60 reveals itself in stark relief. Just this Term, the Supreme Court reiterated that

patrolling our border with Mexico is “a daunting task.” Hernandez v. Mesa, No. 17-

1678, slip op. at 11 (S. Ct. Feb. 25, 2020). Today’s decision makes this work only

more daunting.

Immigration officials at an already overburdened border must now somehow

identify the 26,000 persons among the easily hundreds of thousands more who, per

a court order, cannot be subject to the Third Country Transit Rule. CBP officers

must determine those asylum seekers who previously approached a port of entry and

were turned away due to metering, a practice that took place over a period of years

and at many different entry locations. Immigration officers will have to make these

determinations without reliable records of who previously approached border limit

lines or when they may have done so. And officials must undertake this effort at

every United States port of entry across the southern border, as to persons who

frequently lack proper documentation and who speak a diversity of languages. As

CBP’s Randy Howe explains, “[w]ere any individual to come forward and assert

that they had been encountered at the limit line, CBP would have no way to either

confirm or refute that individual’s own statements.”

The result is that as immigration officials inspect people every day in locations

from San Diego to Brownsville, they will have to undertake an entirely new and

unfamiliar inquiry to determine if persons were previously metered. The

61 government has submitted declarations from high-ranking immigration personnel

attesting to the serious problems this will create at the border. This includes CBP’s

Mr. Howe, who oversees 23,000 immigration employees at 20 major field offices

and 328 U.S. ports of entry. Based on his three decades of service in our country’s

immigration system, Mr. Howe explains that based on the lack of documentation,

“there is no way for CBP to determine who may or may not have been encountered

at the limit line historically. Indeed, there is no way to even calculate, with any

degree of accuracy, how many individuals have been encountered in the limit line.”

A declaration from Ashley Caudill-Mirillo, the USCIS official who oversees

all Asylum Offices across the country, gives color to what immigration officers on

the ground will need to do to even attempt to comply with the injunction. CBP

officers at the border will be required to question asylum applicants to determine if

they are members of the 26,000-person subclass. Ms. Caudill-Mirillo explains that

this additional questioning will lengthen credible fear interviews, which in turn

reduces the number of interviews that can be conducted, prolonging wait times at

the border. Some applicants are likely to reschedule their interviews to obtain proof

of past metering, and their interview slots may go then go unfilled. Because “[m]ost

individuals are detained throughout the credible fear process,” longer processing

times will lead to longer periods of detention in Immigration and Customs

Enforcement (ICE) or CBP custody.

62 Ms. Caudill-Mirillo further explains how additional problems arise when it

comes to persons who already went through credible fear screening interviews,

where the Third Country Transit Rule was applied but where the person has not yet

been removed from the United States. In coordination with ICE, detained persons

would need to be identified and then re-interviewed to determine if they are class

members. If persons turn out to be class members, the credible fear interview

process would need to be conducted anew. Ms. Caudill-Mirillo reports that USCIS

in 2019 received over 100,000 credible fear referrals. Complying with the district

court’s injunction as to persons who had already gone through this process would

only add to the irreparable harm.

The irreparable harm would extend to proceedings before immigration judges.

As a separate declaration from Assistant Chief Immigration Judge Sirce Owen

explains, if USCIS goes through the above-described process and issues a new

negative credible fear determination, the applicant “will again be entitled to

immigration judge review.” Immigration judges will then be tasked with evaluating

the applicant’s membership in the subclass and conducting further reviews of

credible fear determinations. The bottom line is that as the government’s

declarations amply demonstrate, the district court’s injunction will have a domino

effect at the border, imposing new and difficult requirements on an immigration

system that is constantly struggling to keep up.

63 I disagree with the majority’s refusal to recognize the irreparable harms that

the government’s declarations make plain, and which resonate based on any

reasonable understanding of how our immigration process works. To cast off the

declarations as the mere “supposition of some officials,” as the majority does, Maj.

Op. 15, fails to acknowledge that the government’s declarants are high-ranking

persons with a collective decades of experience dealing with some of the most

intractable problems at our border. “[G]overnance of immigration and alien status

is extensive and complex,” and trained immigration officials play a “major role” in

“determining the admissibility of aliens and securing the country’s borders.”

Arizona v. United States, 567 U.S. 387, 395, 397 (2012). I therefore believe the

views of the government declarants in this case should not be so lightly cast aside.

See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 27 (2008).

Nor is there anything wrong or insufficient in this context with declarations

that set forth the anticipated effect of an injunction. See id. at 28 (“The lower courts

failed properly to defer to senior Navy officers’ specific, predictive judgments about

how the preliminary injunction would reduce the effectiveness of the Navy’s

SOCAL training exercises.”). To minimize the government’s declarations as setting

forth only “guesses concerning the likely burden of ascertaining class membership,”

as the majority does, does not seem at all fair. Maj. Op. 14–15. The majority does

not question the declarants’ qualifications or their explanation for how the district

64 court’s injunction will generally affect processes at the border. The declarations are

not based on guesswork, but the informed views of experienced personnel who set

forth a valid and detailed basis for their stated concerns.

I also do not find persuasive the majority’s quibbles with the government

declarants’ time estimates for the additional questioning of asylum applicants that

the district court’s injunction will necessitate. See Maj. Op. 12–13, 15–16. I find it

difficult to substitute our judgment on such operational issues for that of immigration

officials who have a greater on-the-ground understanding of how much time

particular lines of questioning in asylum interviews will take. But the debate over

minutes is not a helpful one, because it cannot be denied that the district court’s

injunction will require immigration officials to conduct an entirely new line of

inquiry to reach an entirely new type of determination about past metering.

The majority notes that in one asylum interview, USCIS was able quickly to

determine that the applicant was not a subclass member. Maj. Op. 15–16 & n.8. But

in that case, the applicant clearly stated that he had not tried to enter the United States

prior to October 2019, and so by his own admission was not a member of the class.

Id. As the majority acknowledges with considerable understatement, “[m]ore time

may be needed to establish that someone who claims to be a member of the class

actually is.” Id. at 16. Once it becomes widely known that persons can avoid the

Third Country Transit Rule if they can claim they were metered prior to July 16,

65 2019, one can expect many people to claim class membership during their asylum

interviews. Whether or not these assertions would be bona fide, the point is that they

will take time for immigration officials to review and verify, at a substantial cost to

the overall system.

The majority does not dispute that frustrating the government’s ability to

process persons at the border can create irreparable harm. See, e.g., Innovation Law

Lab, 924 F.3d at 510. Indeed, we previously granted an administrative stay in this

case because “[p]rohibiting the government from applying [the Third Country

Transit Rule] to the proposed class members could cause complications at the

border.” Al Otro Lado v. Wolf, 945 F.3d at 1224. Now, the majority claims that this

case is akin to Hernandez v. Sessions, 872 F.3d 976 (9th 2017). Maj. Op. 13. The

comparison to Hernandez, however, is inapt.

In Hernandez, we held that a district court did not abuse its discretion in

entering an injunction that required immigration officials to consider a non-citizen’s

financial circumstances in setting the amount of bond. Hernandez, 872 F.3d at 982–

83. We determined that the government had not demonstrated irreparable harm

because the government already had discretion to consider a non-citizen’s financial

circumstances, and therefore “the district court’s injunction imposes only a minor

change on the preexisting bond determination process.” Id. at 995. Considering

66 these financial circumstances was also “not overly complicated or complex.” Id.

(quotations omitted).

As this description of the case shows, the majority is not correct that the

asserted diversion of resources in this case “is no more persuasive as significant

irreparable harm than it was in Hernandez.” Maj. Op. 13. Suffice to say, requiring

the government to identify 26,000 persons at the southern border who were

previously metered at numerous ports of entry over a period of years is considerably

more complicated and burdensome than requiring the government to consider a non-

citizen’s financial circumstances during bond hearings. Hernandez, unlike here, also

did not involve an injunction that imposed collateral consequences on other aspects

of the immigration system.

There is a recognized immigration crisis at our southern border. City & Cty.

of S.F., 944 F.3d at 808 (Bybee, J., concurring); East Bay Sanctuary Covenant, 932

F.3d at 774. Hernandez did not implicate it; this case does. The government has

demonstrated that complying with the district court’s injunction will create

irreparable harm.

V

The final stay factors are “whether issuance of the stay will substantially injure

the other parties interested in the proceeding” and “where the public interest lies.”

Nken, 556 U.S. at 434. For the same reasons I have already set forth above, these

67 factors favor the government. See also Landon v. Plasencia, 459 U.S. 21, 34 (1982)

(“The government’s interest in efficient administration of the immigration laws at

the border is also weighty.”).

The majority concludes otherwise based on harms plaintiffs claim they will

experience from the Third Country Transit Rule and metering. Maj. Op. 28–29. But

the validity of the Third Country Transit Rule is not at issue here, and the same

arguments plaintiffs now make about the harm this Rule allegedly causes were also

made in East Bay, where the Supreme Court stayed the injunction and allowed the

Rule to go into effect. With respect to metering, the majority repeats the point that

the combination of metering and the Third Country Transit Rule creates a

“‘quintessentially inequitable’” situation. Maj. Op. 29. But the problem once again

is that there has been no determination that metering is unlawful.

In a similar vein, the majority endorses the district court’s view that class

members “relied to their detriment on the government’s representations,” because

class members “‘returned to Mexico reasonably believing that if they followed these

procedures, they would eventually have the opportunity to make a claim for asylum

in the United States.’” Maj. Op. at 29 (quoting Al Otro Lado, 2019 WL 6134601, at

*19). But there is no indication that the government informed persons who were

metered that their asylum applications would be adjudged under the law that existed

68 at the time of metering. The district court’s analysis on this point again assumes that

metering is invalid. The injunction cannot be justified on that basis.

* * *

When the Supreme Court allows an immigration rule to go into effect

nationwide pending appeal, it is not for litigants or lower courts to find creative and

legally unjustified ways to circumvent that ruling. The problems at our border are

undeniable, but the policy issues they raise are committed to other branches of our

government. Our review is limited to evaluating immigration rules under law. And

in this case, the district court’s injunction was wrong as a matter of law. Because

the injunction works a radical and improper expansion of our asylum laws and will

create irreparable harm at a border that is already under great strain, the injunction

should have been stayed pending appeal. I respectfully dissent.

69