CAPITAL AREA IMMIGRANTS' RIGHTS COALITION et al v. TRUMP et al

Filing 20

Memorandum in opposition to re #3 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by MATTHEW T. ALBENCE, WILLIAM P. BARR, KENNETH T. CUCCINELLI, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, KEVIN K. MCALEENAN, JAMES MCHENRY, JOHN P. SANDERS, DONALD J. TRUMP, U.S. CITIZENSHIP & IMMIGRATION SERVICES, U.S. CUSTOMS & BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. DEPARTMENT OF JUSTICE, U.S. IMMIGRATION & CUSTOMS ENFORCEMENT. (Attachments: #1 Text of Proposed Order)(Reuveni, Erez)

Case 1:19-cv-02117-TJK Document 20 Filed 07/20/19 Page 1 of 53

JOSEPH H. HUNT
Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
EREZ REUVENI
Assistant Director
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: [phone]
Email: [e-mail]
PATRICK GLEN
Senior Litigation Counsel
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Capital Area Immigrants’ Rights
Coalition, et al.,
Plaintiffs,
v.
William Barr, et al.,
Defendants.

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Civil Action No. 1:19-cv-02117-TJK

MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO THE
MOTION FOR TEMPORARY RESTRAINING ORDER

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TABLE OF CONTENTS
INTRODUCTION ..................................................................................................................... 1
LEGAL AND PROCEDURAL BACKGROUND ................................................................... 5
ARGUMENT............................................................................................................................. 9
I.

Plaintiffs Lack Article III Standing and Are Not Within the Zone of Interests. ........ 9

II.

The Government is Likely to Succeed on the Merits. ............................................... 18
A.

The Rule Is Consistent With The INA. .............................................................. 18

B.

The Rule Does Not Conflict With the TVPRA. ................................................. 26

C.

The Rule Satisfies the APA’s Procedural Requirements. ................................... 26

D.

The Rule Is Not Arbitrary and Capricious. ......................................................... 32

III.

The Other TRO Factors Foreclose Issuing a TRO. ................................................... 37

IV.

Any Interim Relief Must Be Sharply Limited. .......................................................... 39

CONCLUSION ....................................................................................................................... 42
CERTIFICATE OF SERVICE .............................................................................................. 43

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TABLE OF AUTHORITIES
CASE LAW
Adams v. Vance,
570 F.2d 950 (D.C. Cir. 1978) ................................................................................................ 39
Air All. Houston v. EPA,
906 F.3d 1049 (D.C. Cir. 2018) .............................................................................................. 23
Am. Ass’n for Homecare v. Leavitt,
No. 08-cv-0992, 2008 WL 2580217 (D.D.C. June 30, 2008) ............................................ 14, 39
*Am. Ass’n of Exporters & Importers-Textile & Apparel Grp. v. United States,
751 F.2d 1239 (Fed. Cir. 1985) ........................................................................................ 29, 31
*Am. Immigration Lawyers Ass’n v. Reno,
199 F.3d 1352 (D.C. Cir. 2000) ................................................................................................ 9
Am. Soc. for Prevention of Cruelty to Animals v. Feld Entm’t, Inc.,
659 F.3d 13 (D.C. Cir. 2011).................................................................................................. 12
Amoco Prod. Co. v. Vill. of Gambell,
480 U.S. 531 (1987) ............................................................................................................... 38
*Arpaio v. Obama,
797 F.3d 11 (D.C. Cir. 2015).................................................................................................. 13
Bains v. Schiltgen,
No. C 97-2573 SI, 1998 WL 204977 (N.D. Cal. Apr. 21, 1998) ............................................. 17
Block v. Cmty. Nutrition Inst.,
467 U.S. 340 (1984) ......................................................................................................... 16, 17
Cal. Ass’n of Private Postsecondary Sch. v. DeVos,
No 17-cv-999, 2018 WL 5017749 (D.D.C. Oct. 16, 2018)...................................................... 38
Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) ................................................................................................ 38
City of Los Angeles v. Barr,
--- F.3d --- (9th Cir. July 12, 2019) 2019 WL 3049129, at *8. ................................................ 33
CityFed Fin. Corp. v. Office of Thrift Supervision,
58 F.3d 738 (D.C. Cir. 1995).................................................................................................. 28

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Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) ............................................................................................................... 13
Clarke v. Secs. Indus. Ass’n,
479 U.S. 388 (1987) ......................................................................................................... 14, 15
DaimlerChrysler Corp. v. Cuno,
547 U.S. 332 (2006) ............................................................................................................... 10
*Dep’t of Commerce v. New York,
139 S. Ct. 2551 (2019) ........................................................................................................... 37
*EarthLink, Inc. v. FCC,
462 F.3d 1, 9 (D.C. Cir. 2006) ......................................................................................... 33, 37
*East Bay Sanctuary Covenant v. Trump,
909 F.3d 1219 (9th Cir. 2018) ......................................................................................... passim
*East Bay Sanctuary Covenant v. Trump,
354 F. Supp. 3d 1115 (N.D. Cal. 2018) ........................................................................ 4, 27, 39
Elk Assoc. Funding Corp. v. U.S. Small Bus. Admin.,
858 F. Supp. 2d 1 (D.D.C. 2012) ............................................................................................ 39
Fair Empl. Council of Greater Washington, Inc. v. BMC Marketing,
28 F.3d 1268 (D.C. Cir. 1994) ................................................................................................ 10
*Fed’n for Am. Immigration Reform, Inc. (FAIR) v. Reno,
93 F.3d 897 (D.C. Cir. 1996).................................................................................................. 15
Fiallo v. Bell,
430 U.S. 787 (1977) ............................................................................................................... 11
Fla. Power & Light Co. v. Lorion,
470 U.S. 729 (1985) ............................................................................................................... 29
*Food & Water Watch, Inc. v. Vilsack,
808 F.3d 905 (D.C. Cir. 2015) ................................................................................................ 14
*Fook Hong Mak v. INS,
435 F.2d 728 (2d Cir. 1970) ................................................................................................... 19
Fund for Animals, Inc. v. Kempthorne,
472 F.3d 872, 879 (D.C. Cir. 2006) ........................................................................................ 25

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*Gill v. Whitford,
138 S. Ct. 1916 (2018) ....................................................................................................... 9, 39
Gonzales v. Oregon,
546 U.S. 243 (2006) ............................................................................................................... 23
*Haitian Refugee Ctr. v. Gracey,
809 F.2d 794 (D.C. Cir. 1987) ................................................................................................ 11
*Havens Realty Corp. v. Coleman,
455 U.S. 363 (1982) ......................................................................................................... 10, 12
*Hawaii Helicopter Operators Ass’n v. FAA,
51 F.3d 212 (9th Cir. 1995) .................................................................................................... 27
Hill Dermaceuticals, Inc. v. Food & Drug Admin.,
709 F.3d 44, 47 (D.C. Cir. 2013) ............................................................................................ 27
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ................................................................................................................... 29
*Innovation Law Lab v. McAleenan,
924 F.3d 503 (9th Cir. 2019) .................................................................................................. 39
*INS v. Aguirre-Aguirre,
526 U.S. 415 (1999) ............................................................................................................... 18
INS v. Cardoza-Fonseca,
480 U.S. 421 (1987) ............................................................................................................... 25
*INS v. Legalization Assistance Project of L.A. Cty.,
510 U.S. 1301 (1993) ....................................................................................................... 15, 16
*J.E.F.M. v. Lynch,
837 F.3d 1026 (9th Cir. 2016) ................................................................................................ 17
Jifry v. F.A.A.,
370 F.3d 1174 (D.C. Cir. 2004) .............................................................................................. 27
Khan v. Holder,
584 F.3d 773 (9th Cir. 2009) .................................................................................................. 26
Landon v. Plasencia,
459 U.S. 21 (1982) ................................................................................................................. 37

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League of Women Voters of the United States v. Newby,
838 F.3d 1 (D.C. Cir. 2016).................................................................................................... 38
*Linda R.S. v. Richard D.,
410 U.S. 614 (1973) ......................................................................................................... 10, 13
*Lindeen v. SEC,
825 F.3d 646, 656 (D.C. Cir. 2016) ........................................................................... 24, 33, 37
Lopez v. Davis,
531 U.S. 230 (2001) ............................................................................................................... 19
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ................................................................................................................. 9
Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) ............................................................................................................... 39
Mathews v. Diaz,
426 U.S. 67 (1976) ................................................................................................................. 11
Medellín v. Texas,
552 U.S. 491 (2008) .............................................................................................................. 25
Mendoza v. Perez,
754 F.3d 1002 (D.C. Cir. 2014) .............................................................................................. 16
*Mobil Oil Corp. v. Dep’t of Energy,
728 F.2d 1477 (TECA 1983) .................................................................................................. 27
*Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co.,
463 U.S. 29 (1983) ................................................................................................................. 33
Mountain States Legal Found. v. Glickman,
92 F.3d 1228 (D.C. Cir. 1996) ................................................................................................ 15
Nat. Res. Def. Council, Inc. v. Reilly,
976 F.2d 36 (D.C. Cir. 1992).................................................................................................. 23
*Nat’l Taxpayers Union, Inc. v. United States,
68 F.3d 1428 (D.C. Cir. 1995) ................................................................................................ 14
*Nat’l Treasury Emps. Union (NTEU) v. United States,
101 F.3d 1423 (D.C. Cir. 1996) .............................................................................................. 12

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New Jersey v. United States,
91 F.3d 463 (3d Cir. 1996) ..................................................................................................... 11
*New York v. NRC,
824 F.3d 1012, 1022 (D.C. Cir. 2016) ............................................................................. 33, 37
*NW Immigrant Rights Project v. USCIS,
325 F.R.D. 671 (W.D. Wash. 2016) ....................................................................................... 15
O’Bannon v. Town Court Nursing Ctr.,
447 U.S. 773 (1980) ............................................................................................................... 11
PETA v. United States Dep’t of Agric.,
797 F.3d 1087 (D.C. Cir. 2015) .............................................................................................. 12
PI v. U.S. Immigration and Customs Enforcement,
1:19-cv-1336, ECF 102 (S.D.N.Y. June 21, 2019) .................................................................. 17
Plyler v. Doe,
457 U.S. 202 (1982) ............................................................................................................... 11
*Raoof v. Sullivan,
315 F. Supp. 3d 34, 43-44 (D.D.C. 2018) .............................................................................. 31
*R-S-C- v. Sessions,
869 F.3d 1176 (10th Cir. 2017) .............................................................................................. 25
*Rajah v. Mukasey,
544 F.3d 427 (2d Cir. 2008) ................................................................................................... 32
Saavedra Bruno v. Albright,
197 F.3d 1153 (D.C. Cir. 1999) .............................................................................................. 17
Sacora v. Thomas,
628 F.3d 1059, 1068-69) (9th Cir. 2010) ......................................................................... 33, 37
Saleh v. Bush,
848 F.3d 880, 891 n.9 (9th Cir. 2017) .................................................................................... 25
Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017) ............................................................................................................. 9
Spokeo, Inc. v. Robins,
136 S. Ct. 1540 (2016) ....................................................................................................... 9, 10

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Summers v. Earth Island Inst.,
555 U.S. 488 (2009) ............................................................................................................... 14
*Sure-Tan, Inc. v. NLRB,
467 U.S. 883 (1984) ............................................................................................................... 11
*Tchitchui v. Holder,
657 F.3d 132 (2d Cir. 2011) ....................................................................................... 34, 36, 37
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ........................................................................................................... 40
United States v. Malenge,
294 F. App’x 642 (2d Cir. 2008) ............................................................................................ 22
United States v. Mendoza,
464 U.S. 154, (1984) .............................................................................................................. 40
United States v. Yunis,
924 F.2d 1086 (D.C. Cir. 1991) .............................................................................................. 25
Warth v. Seldin,
422 U.S. 490 (1975) ................................................................................................................. 9
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 20 (2008) ................................................................................................................. 40
*Yassini v. Crosland,
618 F.2d 1356 (9th Cir. 1980) .................................................................................... 30, 31, 32
ADMINISTRATIVE DECISIONS
Matter of B–R–,
26 I&N Dec. 119 (BIA 2013) ................................................................................................. 23
*Matter of Pula,
19 I&N Dec. 467 (BIA 1987) ..................................................................................... 19, 22, 36
FEDERAL STATUTES
5 U.S.C. § 553(a)(1) ............................................................................................................ 26, 32
5 U.S.C. § 553(b) .................................................................................................................... 4, 8
5 U.S.C. § 553(b)(B) ............................................................................................................. 4, 26

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5 U.S.C. § 553(c) ........................................................................................................................ 8
5 U.S.C. § 553(d) ........................................................................................................................ 8
5 U.S.C. § 553(d)(3).............................................................................................................. 4, 26
5 U.S.C. § 701(a)(1) .................................................................................................................. 17
5 U.S.C. § 702........................................................................................................................... 14
5 U.S.C. § 706............................................................................................................................. 8
5 U.S.C. § 706(2)(A)................................................................................................................... 8
8 U.S.C. § 1101(a)(42) ................................................................................................................ 5
8 U.S.C. § 1158............................................................................................................. 5, 6, 8, 18
8 U.S.C. § 1158(a)(1) .............................................................................................................. 3, 6
8 U.S.C. § 1158(a)(2) .................................................................................................................. 6
8 U.S.C. § 1158(a)(2)(A).................................................................................. 3, 8, 20, 22, 24, 36
8 U.S.C. § 1158(b)(1)(A) .................................................................................................. 3, 6, 18
8 U.S.C. § 1158(b)(2)(A) .................................................................................................... 18, 36
8 U.S.C. § 1158(b)(2)(A)(iv) ........................................................................................... 8, 22, 24
8 U.S.C. § 1158(b)(2)(C).................................................................................................... passim
8 U.S.C. § 1158(d)(5)(B)............................................................................................................. 6
8 U.S.C. § 1225........................................................................................................................... 5
8 U.S.C. § 1225(b) ...................................................................................................................... 6
8 U.S.C. § 1231(b)(3)(A) ...................................................................................................... 6, 25
8 U.S.C. § 1252..................................................................................................................... 2, 16
8 U.S.C. § 1252(a) .................................................................................................................... 16
8 U.S.C. § 1252(a)(5) .......................................................................................................... 10, 16

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8 U.S.C. § 1252(b)(9).......................................................................................................... 16, 17
8 U.S.C. § 1252(e)(1) ................................................................................................................ 39
8 U.S.C. § 1252(e)(3) .......................................................................................................... 16, 39
8 U.S.C. § 1329..................................................................................................................... 2, 17
FEDERAL REGULATIONS
8 C.F.R. § 208.15 ...................................................................................................................... 22
8 C.F.R. § 1208.16(c) .................................................................................................................. 6
8 C.F.R. § 1208.16(c)-1208.18 .................................................................................................. 25

FEDERAL REGISTER
69 Fed. Reg. 69,480 .................................................................................................................. 20
69 Fed. Reg. 69,490 .................................................................................................................. 20
84 Fed. Reg. 33,384 .................................................................................................................. 22
84 Fed. Reg. 33,829 .................................................................................................................... 1
84 Fed. Reg. 33,830 .............................................................................................................. 6, 21
84 Fed. Reg. 33,831 ........................................................................................................... passim
84 Fed. Reg. 33,834 .............................................................................................................. 7, 38
84 Fed. Reg. 33,837 .................................................................................................................... 7
84 Fed. Reg. 33,838 .............................................................................................................. 1, 29
84 Fed. Reg. 33,839 .............................................................................................1, 18, 21, 22, 36
84 Fed. Reg. 33,841 .................................................................................................. 4, 27, 28, 30
84 Fed. Reg. 33,842 .............................................................................................. 1, 4, 30, 31, 35

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INTRODUCTION
This case arises from two advocacy groups’ efforts to halt on a nationwide basis an
important, timely, and well-supported interim final rule promulgated jointly by the Departments
of Justice and Homeland Security to address the urgent, ongoing crisis on the United States’
southern border. See Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (July
16, 2019). During the first eight months of FY2019, the Department of Homeland Security (DHS)
has apprehended an astonishing 524,446 non-Mexican border-crossers—nearly double from the
prior two years combined. Id. at 33,838; see AR21, 208-10, 222-30. Based on historical trends,
many of these aliens are expected to claim a fear of persecution, secure release into our country,
and then never apply for asylum, never show up for their asylum hearings, or ultimately have their
asylum claims rejected as meritless. 84 Fed. Reg. at 33,839-41; see AR21-22, 45, 192, 558-59,
664, 770.
Faced with this overwhelming crush on our asylum system—and amidst ongoing
diplomatic discussions with the governments of Mexico, El Salvador, Guatemala, and Honduras,
84 Fed. Reg. at 33,831, 33,842; AR537, 635-37—the Departments issued a rule that renders
ineligible for asylum an alien who enters or attempts to enter the United States’ southern border
after failing to apply for protection from persecution or torture while in a third country through
which the alien transited en route to the United States. See 84 Fed. Reg. at 33,838. The rule thus
addresses the problems presented by the many aliens who have no bona fide asylum claim “by
restricting the claims of aliens who, while ostensibly fleeing persecution, chose not to seek
protection at the earliest possible opportunity,” raising “questions about the validity and urgency
of the alien’s claim.” Id. at 33,839. The rule encourages aliens to apply for protection in other
countries that they enter before proceeding to the United States, aids ongoing negotiations with

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Mexico and other countries on deterring mass migration to the United States, and promotes
asylum’s purpose of helping desperate refugees who reach our shores with truly nowhere else to
turn. Importantly, aliens subject to the rule’s eligibility bar can still seek protection from removal
here, so they will not be sent back to countries where they are more likely than not to face
persecution or torture.
Despite the Executive Branch’s established authority and sound policy aims, the two
Plaintiff organizations ask this Court to issue immediate nationwide relief halting this rule. This
Court should deny Plaintiffs’ extraordinary request.
Plaintiffs lack standing. They are advocacy groups who claim injury based on the need to
adapt to a new policy and speculation about its effect on their funding. That view of injury defies
Article III by conferring standing whenever the law changes. Plaintiffs’ predictions about how
their funding streams might change are far too speculative to support standing. And Plaintiffs’
asserted injuries fall outside the zone of interests of our Nation’s immigration laws—which provide
a cause of action for individual aliens affected by immigration regulations, but limit challenges to
such regulations to administrative proceedings followed by review in the courts of appeals. 8
U.S.C. § 1252, 1329. Plaintiff organizations—bystanders to the immigration scheme—have no
cognizable role to play in this review scheme, and cannot circumvent it by rushing to federal court
before the aliens directly affected by this rule even do so.
Plaintiffs’ claims also lack merit. First, Plaintiffs contend that the new rule violates the
Administrative Procedure Act (APA) because it is inconsistent with 8 U.S.C. § 1158(a)(2)(A) and
(b)(2)(A)(vi), which, respectively, bar an asylum application if (among other things) an alien may
be removed under a bilateral or multilateral agreement and render ineligible for asylum aliens who
firmly resettled in another country before arriving in the United States. TRO Br. (“Br.”) 6-12. But

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section 1158 squarely authorizes the Departments to issue the rule here, and the rule is consistent
with each of those provisions. The Immigration and Nationality Act (INA) confers broad
discretionary authority on the Attorney General and Secretary of Homeland Security as to whether
to grant asylum, 8 U.S.C. § 1158(b)(1)(A), including authority to adopt categorical “limitations
and conditions” on asylum eligibility by rule, beyond those specified in the statute, so long as those
rules are “consistent with” section 1158, id. § 1158(b)(2)(C). The rule, promulgated under that
broad authority, is consistent with section 1158. The rule does not restrict any alien’s right to
apply for asylum, and so is consistent with section 1158(a)(1)’s general entitlement that an alien
“may apply for asylum.” Nor does the rule conflict with section 1158(b)(2)(A)(iv), which renders
ineligible for asylum any alien who “was firmly resettled in another country prior to arriving in
the United States.” The new rule addresses a different set of aliens from the firm-settlement bar
(those who could have applied (but did not apply) for protection in a third country, rather than
aliens who firmly resettled in a third country) and imposes the bar based on a different ground
(failure to seek relief rather than having firmly resettled). And the rule is consistent with section
1158(a)(2)(A)—which bars applications for asylum if, among other things, “the Attorney General
determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a
country”—because (among other things) nothing in section 1158(a)(2)(A) prohibits the
Departments from taking into account, in considering eligibility for asylum, an applicant’s failure
to seek relief in a third country while in transit to the United States.
Second, Plaintiffs contend that the rule violates the Trafficking Victims Protection
Reauthorization Act (TVPRA) because it does not afford special rights to unaccompanied alien
children. Br. 16-17. But there is no general mandate in the INA that every rule must treat
unaccompanied children differently, and such children are subject to the same eligibility criteria

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as other aliens. Unaccompanied alien children, like all other aliens, have no statutory right to be
eligible for or granted asylum, and the rule accords with all statutory requirements.
Third, Plaintiffs maintain that the rule violates the APA’s notice-and-comment and
effective-date requirements. Br. 17-23. Those requirements do not apply, however, where (as
here) they would harm important national interests—good cause excuses those procedures. See 5
U.S.C. § 553(b)(B), (d)(3). And here, where notice and comment “would be destabilizing and
would jeopardize the lives and welfare of aliens who could surge to the border to enter the United
States before the rule took effect” by encouraging a “surge in migrants,” 84 Fed. Reg. at 33,841,
good cause is satisfied. See East Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1115
(N.D. Cal. 2018); AR119, 208, 434-56, 664, 676, 682. Nor is notice and comment required when
agencies are implementing a measure linked intimately with foreign affairs—here, ongoing
negotiations between the United States, Mexico, and Northern Triangle countries to address the
current crisis in mass migration and methods for burden-sharing in addressing claims for asylum.
See 5 U.S.C. § 553(a)(1). Awaiting notice and comment would “[h]inder” the Executive’s “ability
to implement a new policy in response to a current foreign affairs crisis,” precisely the “undesirable
international consequence that warrants invocation of the foreign affairs exception.” See East Bay
Sanctuary Covenant v. Trump, 909 F.3d 1219, 1252 (9th Cir. 2018); see 84 Fed. Reg. at 33,842;
AR533-46, 635-37, 676, 698.
Fourth, Plaintiffs suggest that the rule is arbitrary and capricious (although they do not
raise such a claim in their complaint) because “Defendants have offered no valid defense of the
Rule,” but this argument fails too. Br. 14; see Br. 14-16. But the agencies explained the reason
for the rule, and have supported that rule with a robust administrative record. AR1-784. The rule
explains its rationale—the need to dis-incentivize aliens with meritless asylum claims from

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seeking admission to the United States, thereby relieving stress on immigration enforcement and
adjudicatory authorities, prioritizing individuals who are unable to obtain protection from
persecution elsewhere, curtailing human smuggling, and strengthening the United States’
negotiating hand in “ongoing diplomatic negotiations ... between the United States and Mexico,”
84 Fed. Reg. at 33,831—and provides a robust evidentiary basis for its conclusions. E.g., AR2124, 37-44, 45, 109-10, 119, 121-37, 192, 208-32, 558-65, 581-88, 634, 679, 768-70. Plaintiffs’
policy disagreements with the Executive’s considered policy judgments are no basis to secondguess the considered conclusions of the agency heads.
Finally, Plaintiffs cannot demonstrate that the balance of harms warrants drastic and
immediate injunctive relief based on the alleged risk that these organizations may need to adapt to
new rules. Br. 23-27. The rule aims to save lives by discouraging asylum seekers from making
dangerous, unlawful border crossings, while promoting asylum’s core purpose of providing refuge
to desperate refugees who reach our shores with nowhere else to turn. And the Executive has a
paramount sovereign interest in maintaining the integrity of the United States’ borders, in
enforcing the immigration laws, and in ensuring that immigration cases can be adjudicated swiftly.
Indeed, Plaintiffs have not even brought before this Court a single alien plaintiff to claim harm.
The United States and the public, by contrast, would plainly be harmed by any halting of the
important measure adopted by the rule at issue in this case. The Court should deny a TRO.
LEGAL AND PROCEDURAL BACKGROUND
Legal Background. Congress has empowered the Attorney General and Secretary of
Homeland Security to decide who may be admitted to this country as a refugee. 8 U.S.C.
§§ 1101(a)(42), 1158, 1225. As a general matter, aliens have a right to apply for asylum. “Any
alien who is physically present in the United States or who arrives in the United States (whether

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or not at a designated port of arrival ... ), irrespective of such alien’s status, may apply for asylum
in accordance with this section or, where applicable, [8 U.S.C. § 1225(b), which governs expedited
removal of aliens].” Id. § 1158(a)(1). But a grant of asylum is entirely discretionary. Asylum
“may [be] grant[ed] to an alien who has applied,” id. § 1158(b)(1)(A) (emphasis added), if the
alien satisfies certain standards and is not subject to an application or eligibility bar, id.
§ 1158(a)(2), (b)(1)(B), (b)(2). As part of this discretion, “[t]he Attorney General [and Secretary]
may by regulation establish additional limitations and conditions, consistent with this section [§
1158], under which an alien shall be ineligible for asylum.” Id. § 1158(b)(2)(C). Separate from
the discretionary authority to grant asylum, the United States has a mandatory duty to provide two
forms of protection from removal: withholding of removal (when an alien faces a probability of
persecution on a protected ground in another country) and protection under the Convention Against
Torture (CAT) (when an alien faces a probability of torture in another country). See 8 U.S.C.
§ 1231(b)(3)(A) (withholding); 8 C.F.R. § 1208.16(c) (CAT).
Joint Rule. On July 16, 2019, the Attorney General and Acting Secretary issued a joint
interim final rule providing (with limited exceptions) that “an alien who enters or attempts to enter
the United States across the southern border after failing to apply for protection in a third 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 is ineligible for asylum.” 84 Fed. Reg. at
33,830.

The Attorney General and Acting Secretary invoked their authority to establish

“additional limitations … under which an alien shall be ineligible for asylum” (8 U.S.C.
§ 1158(b)(2)(C)), and to impose “limitations on the consideration of an application for asylum”
(id. § 1158(d)(5)(B)). See 84 Fed. Reg. at 33,830-31. The rule provides that aliens who are

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ineligible for asylum may still receive protections from removal if they establish a reasonable fear
of persecution or torture. Id. at 33,834, 33,837-38.
The rule seeks to discourage “asylum claims raised by those apprehended at the southern
border [that] are ultimately determined to be without merit” and that impose a “strain on the
nation’s immigration system,” “undermine[ ] many of the humanitarian purposes of asylum,” have
“exacerbated the humanitarian crisis of human smuggling,” and “affect[ ] the United States’
ongoing diplomatic negotiations with foreign countries.” 84 Fed. Reg. at 33,831. It does so by
“de-prioritizing the applications of individuals who could have obtained protection in another
country” and “ensur[ing] that those refugees who have no alternative to U.S.-based asylum relief
or have been subjected to an extreme form of human trafficking are able to obtain relief more
quickly.” Id. “[C]urrently more than 900,000 cases are pending before immigration courts,” id.,
many tens of thousands of which involve asylum claims that will not be granted. AR21, 121. The
rule combats that serious systemic strain by “reducing the incentive for aliens without an urgent
or genuine need for asylum to cross the border—in the hope of a lengthy asylum process that will
enable them to remain in the United States for years, typically free from detention and with work
authorization, despite their statutory ineligibility for relief.” Id. The rule thus “mitigates the strain
on the country’s immigration system by more efficiently identifying aliens who are misusing the
asylum system to enter and remain in the United States rather than legitimately seeking urgent
protection from persecution or torture.” Id. “Aliens who transited through another country where
protection was available, and yet did not seek protection, may fall within that category.” Id.
The rule was issued as an interim final rule, effective immediately during the comment
period under the good-cause and foreign-affairs exceptions to the notice-and-comment and
effective-date requirements of the APA. See id. at 33,840-41.

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This Lawsuit. The day the rule was published, two organizations that provide legal and
social services to immigrants and refugees filed this suit seeking immediate injunctive relief.
Plaintiffs allege that the rule unlawfully “strip[s] asylum eligibility” from many aliens. Compl.
¶ 7. Plaintiffs’ own alleged injuries are different, however, since none of them is an alien:
Plaintiffs allege that they must “diver[t] ... their human and financial resources” to, among other
things, “create more complicated new resources and procedures to assist clients with their claims,”
id. ¶¶ 110, 115, 135, 136, and that the rule could mean fewer cases and fewer “volunteers at law
firms,” which will lead to “fewer ... donations,” id. ¶¶ 130, 142.
Plaintiffs bring three APA claims and one constitutional claim. First, they claim that the
rule conflicts with the asylum statute, 8 U.S.C. § 1158, and so is contrary to law. Compl. ¶¶ 15360; see 5 U.S.C. § 706. Plaintiffs principally contend that the rule conflicts with INA provisions
that: (1) render ineligible for asylum aliens who “may be removed, pursuant to a bilateral or
multilateral agreement, to a country ... in which the alien’s life or freedom would not be
threatened,” 8 U.S.C. § 1158(a)(2)(A); and (2) prohibit granting asylum to an alien who “was
firmly resettled in another country prior to arriving in the United States,” id. § 1158(b)(2)(A)(iv).
Compl. ¶¶ 153-60. Second, Plaintiffs claim that the rule violates the APA because it was
improperly issued without notice and an opportunity to comment and was published less than 30
days before its effective date. Compl. ¶¶ 144-47; see 5 U.S.C. § 553(b), (c), (d). Third, Plaintiffs
allege that the rule violates the due-process rights of “Individual Plaintiffs and the other putative
class members in the United States,” although the suit names no individual plaintiffs and no classaction component. Compl. ¶¶ 168-75; see 5 U.S.C. § 706(2)(A). Fourth, they allege a violation
of the TVPRA. Compl. ¶¶ 176-83. They bring a mandamus claim and seek a declaratory
judgment. Id. ¶¶ 184-95. Plaintiffs moved for a TRO—based on their APA and TVPRA, but not

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due-process, claims—preventing the rule from taking effect. See Br. 1. Plaintiffs argue that such
relief is necessary because they are irreparably harmed by their inability to comment on the
proposed rule, by the need to divert resources to respond to the new rule, and by the increased
resources that would need to be spent on asylum applications in light of the rule. Id. 23-26.
ARGUMENT
The Court should deny a TRO—Plaintiffs lack standing and are not within the INA’s zone
of interests, their claims lack merit, the equities are against them, and their requested relief is far
too broad in any event.
I.

Plaintiffs Lack Article III Standing and Are Not Within the Zone of Interests
Standing. The Plaintiff organizations have not suffered a cognizable injury necessary to

establish Article III standing. To satisfy the “‘irreducible constitutional minimum’ of standing”
under Article III, the party invoking federal jurisdiction must demonstrate that it has “(1) suffered
an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that
is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540,
1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). “Foremost among
these requirements is injury in fact—a plaintiff’s pleading and proof that he has suffered the
‘invasion of a legally protected interest’ that is ‘concrete and particularized.’” Gill v. Whitford,
138 S. Ct. 1916, 1929 (2018) (quoting Lujan, 504 U.S. at 560). Where, as here, an organization
sues on its own behalf, it must establish standing in the same manner as an individual. See Warth
v. Seldin, 422 U.S. 490, 511 (1975).1

1

To the extent that Plaintiffs rely on the harms to third parties to justify both their own standing
and the need for a temporary restraining order, “a party must assert his own legal rights and cannot
rest his claim to relief on the legal rights of third parties.” Sessions v. Morales-Santana, 137 S.
Ct. 1678, 1689 (2017). Plaintiffs cannot allege that they are asserting third-party standing based
on any purported right that extraterritorial aliens have to apply for asylum within the United States.
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The organizational Plaintiffs seek to establish standing based on an alleged interference
with their missions, under Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982). See Compl.
¶¶ 110-52. Organizations may have standing in some situations where their core activities are
impaired, as recognized in Havens. But, notably, Havens arose under a private right of action
under the Fair Housing Act, not the generalized challenges that Plaintiffs pursue here where
Congress made plain its interest in channeling review to those directly affected—aliens. See
Spokeo, 136 S. Ct. at 1549 (“Congress may ‘elevat[e] to the status of legally cognizable injuries
concrete, de facto injuries that were previously inadequate in law.’”). Congress’s aim to allow
private enforcement of statutory prohibitions against discriminatory housing practices thus drove
the Court’s standing analysis. See Havens, 455 U.S. at 373-74. And even in the fair-housing
context, an organization alleging standing under Havens must establish that it would have suffered
some other injury if it had not diverted resources to counteracting the problem, because otherwise
the diversion of resources is a purely self-inflicted injury. See Fair Empl. Council of Greater
Washington, Inc. v. BMC Marketing, 28 F.3d 1268, 1276-77 (D.C. Cir. 1994). Here, however, the
INA confers no “legally cognizable interests,” Spokeo, 136 S. Ct. at 1549, on advocacy
organizations, but it does the opposite by channeling review of aliens’ immigration-related claims
into removal proceedings (in administrative proceedings and then federal courts of appeals), 8
U.S.C. § 1252(a)(5), (b)(9), and no Plaintiff has alleged that it is being forced to divert resources
to avoid other cognizable injuries.
Further, a person “lacks standing to contest the policies of the prosecuting authority when
he himself is neither prosecuted nor threatened with prosecution.” Linda R.S. v. Richard D., 410
See Am. Immigration Lawyers Ass’n v. Reno, 199 F.3d 1352, 1364 (D.C. Cir. 2000) (rejecting
organizational standing “to raise claims, whether statutory or constitutional, on behalf of aliens,”
noting “the judicial presumption against suits seeking relief for a large and diffuse group of
individuals, none of whom are party to the lawsuit”).
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U.S. 614, 619 (1973); see also Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 804-07 (D.C. Cir.
1987) (applying principle to immigration context). An organization similarly has “no judicially
cognizable interest in procuring enforcement of the immigration laws” against someone else.
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984). And a person generally lacks standing to
challenge the government’s provision (or denial) of benefits to a third party.

E.g.,

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342-46 (2006); cf. O’Bannon v. Town Court
Nursing Ctr., 447 U.S. 773, 788 (1980) (discussing “[t]he simple distinction between government
action that directly affects a citizen’s legal rights” and “action that is directed against a third party
and affects the citizen only indirectly or incidentally”).
These principles are particularly important in the immigration context. The Supreme Court
has “long recognized the power to expel or exclude aliens as a fundamental sovereign attribute
exercised by the Government’s political departments largely immune from judicial control.”
Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quotation marks omitted). It has emphasized that “[t]he
obvious need for delicate policy judgments has counseled the Judicial Branch to avoid intrusion
into” the field of immigration. Plyler v. Doe, 457 U.S. 202, 225 (1982). Decisions involving
immigration “may implicate our relations with foreign powers” and also must account for
“changing political and economic circumstances.” Mathews v. Diaz, 426 U.S. 67, 81 (1976).
Because of the need for “flexibility in [immigration] policy choices,” such choices are typically
“more appropriate to either the Legislature or the Executive than to the Judiciary.” Id.; see also
New Jersey v. United States, 91 F.3d 463, 470 (3d Cir. 1996) (immigration enforcement decisions
“patently involve policy judgments about resource allocation and enforcement methods [that] fall
squarely within a substantive area clearly committed by the Constitution to the political
branches”).

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Even if Havens applies, the D.C. Circuit has interpreted Havens to impose a two-part test
for determining “whether an organization’s injury is concrete and demonstrable or merely a
setback to its abstract social interests.” PETA v. United States Dep’t of Agric., 797 F.3d 1087,
1094 (D.C. Cir. 2015). First the Court asks “whether the defendant’s allegedly unlawful activities
injured the plaintiff’s interest in promoting its mission.” Am. Soc. for Prevention of Cruelty to
Animals v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C. Cir. 2011). “If the answer is yes, [it] then
ask[s] whether the plaintiff used its resources to counteract that injury.”

Id.

Here, the

organizational Plaintiffs do not satisfy these requirements.
To satisfy the first element, the government’s conduct must “directly conflict with the
organization’s mission.” Nat’l Treasury Emps. Union (NTEU) v. United States, 101 F.3d 1423,
1430 (D.C. Cir. 1996). Standing exists only when “the action challenged ... [is] at loggerheads
with the stated mission of the plaintiff.” Id. at 1429; see also PETA, 797 F.3d at 1095; cf. PETA,
797 F.3d at 1100-01 (Millett, J., dubitante) (criticizing expansive readings of Havens and noting
that the case involved “direct, concrete, and immediate injury” to the organization’s services based
on a “specific legal right”). Plaintiffs state their mission as “provid[ing] assistance to asylum
seekers, including individuals who crossed the southern border without applying for asylum in
third countries.” Compl. ¶ 111. But nothing in the rule prevents them from continuing to represent
asylum-seeking clients. Although the legal landscape may have partially changed because of the
rule, the organizations can still provide legal services.
Even if there were an adequate conflict with those organizations’ missions, they have failed
to demonstrate that they meet the second requirement. Plaintiffs claim that they will suffer harm
because, as a result of the rule, they will not be able to serve as many clients and that they will
suffer corresponding financial harm. Id. ¶ 110-52. But these concerns are speculative and self-

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inflicted. Cf. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (no standing where
plaintiffs’ costly measures to avoid government surveillance they believed reasonably likely were
“self-inflicted”). CAIR claims that it will not be able to fulfill its mission “to serve as many
migrants lawfully seeking asylum as possible,” and that it will “face a drastic reduction in its client
base.” Compl. ¶ 114. And CAIR asserts that the government’s decision to enforce the law by
“deport[ing]” potential future clients “before they reach the Washington, DC metropolitan area”
will decrease their “client base.” Id. ¶ 114. Similarly, RAICES alleges that it will not be able to
serve as many clients as a result of the rule. See id. ¶¶ 134-52. But Plaintiffs have provided no
explanation why they cannot continue to represent asylum seekers who have already crossed the
border or have met the requirements under the rule. Thus, Plaintiffs’ claim that they are likely to
suffer financially—because, perhaps, it will have fewer clients and law firms will contribute less
support, id. ¶ 130—is insufficient to confer standing. And their desire to prevent the removal of
potential future clients provides not basis for standing, as Plaintiffs have no “judicially cognizable
interest” in preventing the government from enforcing the law against third parties. See Linda
R.S., 410 U.S. at 619; see PETA, 797 F.3d at 1099 (Millett, J., dubitante) (criticizing “precedents
[that] now hold that the required Article III injury need not be what the defendant has done to the
plaintiff; it can also be what the defendant has not done to a third party”). Moreover, Plaintiffs
have no judicially cognizable basis to challenge a change in the law simply because it may affect
future clients and then may in turn derivatively affect Plaintiffs’ own decisions about how to
allocate their own resources. See Arpaio v. Obama, 797 F.3d 11, 15 (D.C. Cir. 2015) (rejecting
standing from the “[p]rojected increases ... in the county’s policing burden and jail population”
which “rest on chains of supposition and contradict acknowledged realities”).
Plaintiffs also say that they must adapt to the new requirements by spending more time on

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their clients’ cases, adjusting staffing, and analyzing the new policy and revising new training and
orientation materials. Compl. ¶¶ 110-52. But if such “injuries” could confer standing, then any
legal services or advocacy organization could sue in federal court whenever there is a change in
the law, simply by alleging that the organization must get up to speed on the impact of the change.
Such impacts on legal representation do not satisfy Article III. Indeed, D.C. Circuit “precedent
makes clear that an organization’s use of resources for litigation, investigation in anticipation of
litigation, or advocacy is not sufficient to give rise to an Article III injury.” Food & Water Watch,
Inc. v. Vilsack, 808 F.3d 905, 919 (D.C. Cir. 2015); see also Nat’l Taxpayers Union, Inc. v. United
States, 68 F.3d 1428, 1434 (D.C. Cir. 1995) (“The mere fact that an organization redirects some
of its resources to litigation and legal counseling in response to actions or inactions of another
party is insufficient to impart standing upon the organization.”).
Finally, Plaintiffs claim that they have been harmed because the lack of notice-andcomment procedures did not allow them to inform the government of the alleged harms that would
result from the rule. Compl. ¶¶ 132, 152. But “deprivation of a procedural right without some
concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient
to create Article III standing.” Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009); cf. Am.
Ass’n for Homecare v. Leavitt, No. 08-cv-0992, 2008 WL 2580217, at *5 (D.D.C. June 30, 2008)
(“injury cannot stand on procedural violation alone without showing another actual injury”). And
even were such an injury sufficient, it would supply Article III standing for only one claim.
Zone of Interests. The organizational Plaintiffs’ claims are also outside the zone of
interests of the statutes they invoke. The APA does not “allow suit by every person suffering
injury in fact.” Clarke v. Secs. Indus. Ass’n, 479 U.S. 388, 395 (1987). It provides a cause of
action only to one “adversely affected or aggrieved by agency action within the meaning of a

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relevant statute.” 5 U.S.C. § 702. To be “aggrieved,” “the interest sought to be protected” must
“be arguably within the zone of interests to be protected or regulated by the statute ... in question.”
Clarke, 479 U.S. at 396 (modifications omitted). “[O]n any given claim the injury that supplies
constitutional standing must be the same as the injury within the requisite ‘zone of interests.’”
Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996). Plaintiffs invoke
no such interest here.
Nothing in the INA and its asylum provisions even arguably suggests that the statute
protects the interests of “nonprofit organizations that provide assistance to asylum seekers.”
Compl. ¶ 111. The asylum provisions neither regulate the organizational Plaintiffs’ conduct nor
create any benefits for which these organizations themselves might be eligible. And courts have
routinely concluded that immigration statutes are directed at aliens, not the organizations
advocating for them. When confronted with a similar challenge brought by “organizations that
provide legal help to immigrants,” Justice O’Connor concluded that the Immigration Reform and
Control Act “was clearly meant to protect the interests of undocumented aliens, not the interests
of [such] organizations,” and the fact that a “regulation may affect the way an organization
allocates its resources ... does not give standing to an entity which is not within the zone of interests
the statute meant to protect.” INS v. Legalization Assistance Project of L.A. Cty., 510 U.S. 1301,
1305 (1993) (O’Connor, J., in chambers). The D.C. Circuit and other courts have thus held that
immigrant advocacy organizations are outside the immigration statutes’ zone of interests. See, e.g.,
Fed’n for Am. Immigration Reform, Inc. (FAIR) v. Reno, 93 F.3d 897, 900-04 (D.C. Cir. 1996).2

2

While the Ninth Circuit recently held otherwise in East Bay Sanctuary Covenant v. Trump, 909
F.3d 1219, 1243-44 (9th Cir. 2018), it did not consider FAIR, 93 F.3d at 903, which held that
persons were outside the zone of interests of the INA provisions that they challenged even though
they were within the zone of interests of another statutory provision, and the case is still being
litigated. Regardless, East Bay conflicts with controlling D.C. Circuit authority.
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That reasoning fully applies here. Plaintiffs are not applying for asylum; they seek to help
others do so. Nothing in “the relevant provisions [can] be fairly read to implicate [Plaintiffs’]
interest in the efficient use of resources.” Nw. Immigrant Rights Project v. USCIS, 325 F.R.D.
671, 688 (W.D. Wash. 2016). Because Plaintiffs are simply bystanders to the statutory scheme,
the (alleged) effects on their resources are outside the statutory zone of interests. See Legalization
Assistance Project, 510 U.S. at 1305 (“The fact that the INS regulation may affect the way an
organization allocates its resources … does not give standing to an entity which is not within the
zone of interests the statute meant to protect.”).3
The procedural nature of some of the organizational Plaintiffs’ claims makes no difference.
A plaintiff asserting a violation of the APA’s notice-and-comment requirements must show that
the underlying concrete Article III injury comes within the zone of interests protected by the
underlying substantive statute upon which the claim is based—here, the INA. See Mendoza v.
Perez, 754 F.3d 1002, 1016 (D.C. Cir. 2014). Plaintiffs have not done so.
The INA specifies the manner and scope of judicial review in connection with removal
proceedings, see 8 U.S.C. § 1252, and only the affected alien may seek that review, and only in
petitions for review with the courts of appeals following completion of those proceedings. Id.
§ 1252(a)(5) (“[A] petition for review filed with an appropriate court of appeals in accordance with
this section shall be the sole and exclusive means for judicial review of an order of removal ... .”)
(emphasis added); id. § 1252(b)(9) (“Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory provisions, arising from any action
3

The INA itself confirms that such organizations are not within the zone of interests. An alien’s
challenge to an asylum determination must occur in individual removal proceedings, and others
may not bring suit on their behalf. 8 U.S.C. § 1252(a); see Block v. Cmty. Nutrition Inst., 467 U.S.
340, 351 (1984). And as to any change to expedited removal, should plaintiffs’ claims be
construed as challenging such changes, 8 U.S.C. § 1252(e)(3) creates the exclusive review scheme
for such challenges and precludes organizational challenges.
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taken or proceeding brought to remove an alien from the United States ... shall be available only
in judicial review of a final order under this section” and no district court “shall have jurisdiction
... to review such an order or such questions of law or fact.”); J.E.F.M. v. Lynch, 837 F.3d 1026,
1031 (9th Cir. 2016) (“[A]ny issue—whether legal or factual—arising from any removal-related
activity can be reviewed only through the [administrative] process ... .”); PI v. U.S. Immigration
and Customs Enforcement, No. 1:19-cv-1336, ECF 102, at 7 (S.D.N.Y. June 21, 2019) (holding
that 8 U.S.C. § 1252(b)(9) bars claims raised by organizations challenging the rules that will apply
to removal proceedings). That includes “policies-and-practices challenges,” J.E.F.M., 837 F.3d at
1032, arising from any “action taken or proceeding brought to remove an alien from the United
States,” 8 U.S.C. § 1252(b)(9), whether or not the challenge is to an actual final order of removal
or whether there even is a final order at all. See J.E.F.M., 837 F.3d at 1032. That specification
precludes review at the behest of third parties, including plaintiffs here. Block, 467 U.S. at 34445, 349-51; see 5 U.S.C. § 701(a)(1).
And Congress similarly made clear that no party other than the United States could litigate
such claims in the district courts by withdrawing jurisdiction for such causes of action that had
previously existed. Until Congress amended the INA to include the claim-channeling provisions
of § 1252, a separate provision, 8 U.S.C. § 1329, provided an affirmative basis for jurisdiction in
federal district courts for suits filed by any alien or organization challenging implementation of
the immigration laws. See, e.g., Bains v. Schiltgen, No. C 97-2573 SI, 1998 WL 204977, at *3
(N.D. Cal. Apr. 21, 1998) (describing statute’s prior version). But Congress amended § 1329 in
1996, “making clear that district court jurisdiction founded on the immigration statute is confined
to actions brought by the government.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1162 (D.C.

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Cir. 1999). This provision makes clear that under the INA, organizational plaintiffs like those here
lack any cognizable cause of action with the relevant statute’s zone of interests.
II.

The Government is Likely to Succeed on the Merits
A. The Rule Is Consistent With The INA.
Plaintiffs’ lead argument is that the rule violates the INA by denying eligibility for asylum

to certain aliens. See Br. 6-16. That argument fails.
The rule is consistent with the INA—and, in particular, with the asylum statute, 8 U.S.C.
§ 1158. The asylum statute provides that a grant of asylum is a matter of the Executive’s
discretion: asylum “may [be] grant[ed] to an alien” who satisfies all governing requirements—it
never must be granted to an alien. 8 U.S.C. § 1158(b)(1)(A) (emphasis added); see INS v. AguirreAguirre, 526 U.S. 415, 420 (1999) (“decision whether asylum should be granted to an eligible
alien is committed to the Attorney General’s discretion”). And the asylum statute expressly
authorizes the Executive to establish categorical “limitations and conditions” on asylum eligibility,
on top of those already provided by statute (see 8 U.S.C. § 1158(b)(2)(A)), so long as those
limitations and conditions are “consistent with” the asylum statute. Id. § 1158(b)(2)(C).
The rule here is well within those discretionary grants of authority over asylum. To start,
the rule is consistent with the discretionary nature of asylum and the authority to adopt new
eligibility bars. In the rule, the Department heads determined, in the exercise of discretion, that
aliens who fail to apply for protection in at least one third country through which they transited
should not be granted the discretionary benefit of asylum, because they are not refugees with
nowhere else to turn. 84 Fed. Reg. at 33,839. The broad delegation of authority to establish
additional eligibility bars requires only that regulatory asylum-eligibility bars be “consistent with”
section 1158. 8 U.S.C. § 1158(b)(2)(C). That describes the rule here. The rule bars asylum

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eligibility for aliens who fail to seek asylum at the first available opportunity, and instead wait to
reach their preferred destination of the United States, rendering doubtful the validity and urgency
of the alien’s claim. Nothing in section 1158 precludes such a rule. This rule further is consistent
with Board of Immigration Appeals precedent recognizing that an alien’s attempts to seek asylum
in a third country are relevant to the discretionary determination whether to grant him asylum. See
Matter of Pula, 19 I&N Dec. 467, 473-74 (BIA 1987) (adverse factors supporting denial of asylum
include “whether the alien passed through an other countries or arrived in the United States directly
from his country, whether orderly refugee procedures were in fact available to help him in any
country he passed through, and whether he made any attempts to seek asylum before coming to
the United States”); see also Kalubi v. Ashcroft, 364 F.3d 1134, 1140 (9th Cir. 2004) (noting that
forum-shopping might be “part of the totality of circumstances that sheds light on a request for
asylum in this country”). The rule does adopt a categorical bar rather than a case-by-case approach.
But that too is consistent with the asylum statute. If the Attorney General and the Acting Secretary
may take account of that factor in individual cases, settled principles of administrative law dictate
that they may do so categorically as well. See Lopez v. Davis, 531 U.S. 230, 243-44 (2001); Fook
Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970) (upholding INS’s authority to “determine[]
certain conduct to be so inimical to the statutory scheme that all persons who have engaged in it
shall be ineligible for favorable consideration”).
Plaintiffs make several arguments that the new eligibility bar “contravene[s]” the asylum
statute, Br. 6, but each of their arguments lacks merit.4

4

Throughout their brief, Plaintiffs rely on rhetorical overstatement—using words and phrases like
“countermand” (Br. 8), “purports to rewrite” (Br. 2), “rewrite” (Br. 2), “rewrites” (Br. 6, 8), “guts”
(Br. 1), “override” (Br. 2), “nullifying” (Br. 8), “strikes out” (Br. 9), “wholly subsume” (Br. 9),
“destroying” (Br. 10), “turns that provision on its head” (Br. 11), “effectively rewritten” (Br. 12),
“blatant tension” (Br. 12, 16), “brazen” (Br. 14), “severe distortion” (Br. 15), “[s]training the
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First, Plaintiffs contend that the rule “effectively strikes out the limits contained in” 8
U.S.C. § 1158(a)(2)(A), which bars an alien from applying for asylum if he or she may be removed
to a safe third country under a bilateral or multilateral treaty, and in which he or she would be able
to seek asylum. See Br. 9-11. Plaintiffs claim that “Congress created a narrow bar on asylum
eligibility for a specific class of people based on their capacity to apply for asylum in a third
country.” Br. 10. They argue that the rule “tries to broaden the bar by destroying Congress’ limits
on it.” Id. They analogize it to a hypothetical rule that provides a shorter timeframe for applying
for asylum than the statute explicitly requires. Id.
Plaintiffs are mistaken. The rule is consistent with section 1158(a)(2)(A). The safe-thirdcountry provision is not merely about the ability to “have sought asylum in a safe third country.”
Br. 9 (emphasis omitted). Section 1158(a)(2)(A) categorically bars applications for asylum “if the
Attorney General determines that the alien may be removed, pursuant to a bilateral or multilateral
agreement, to a country ... in which the alien’s life or freedom would not be threatened on account”
of a protected ground. The safe-third-country bar is potent and unyielding: it prohibits an alien
from even applying for asylum in the United States. But nothing in section 1158(a)(2)(A)’s
asylum-application bar forecloses the Department heads from taking into account, in considering
the applicant’s eligibility for relief, the applicant’s failure to seek potential relief in a third country
while in transit to the United States—particularly when that transit was undertaken to flee a
different country for the purported purpose of finding a safe country. Further, the safe-thirdcountry provision offers a potential mechanism for categorically sending away all would-be
asylum applicants to a third country to apply for relief, see 8 U.S.C. § 1158(a)(2)(A), and to entirely
bypass withholding-of-removal proceedings, see Asylum Claims Made By Aliens Arriving From
reader’s credulity” (Br. 22), and “evasion of the law” (Br. 23)—without engaging in robust
statutory interpretation to justify that language.
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Canada at Land Border Pors-of-Entry, 69 Fed. Reg. 69,480, 69,490 (Nov. 29, 2004). This rule is
significantly different, providing for a more tailored determination of whether an alien passed
through a country where he could have, but did not, apply for relief. Further, this rule preserves
withholding of removal for aliens who demonstrate that they have a reasonable fear of persecution.
See 84 Fed. Reg. at 33,830, 33,831.
An additional distinction between the present rule and the types of agreements permissible
under the safe-third-country statutory provision is that, under this country’s safe-third-country
agreement with Canada, a potential asylee traveling through Canada would be barred from
applying for asylum in the United States even if that applicant had applied for asylum in Canada
and had his or her claim rejected. See Agreement Between the Government of the United States of
America and the Government of Canada for Cooperation in the Examination of Refugee Status
Claims from Nationals of Third Countries, U.S.–Can., Dec. 5, 2002, State Dep’t No. 05-35, art. 5;
see also 69 Fed. Reg. 69,480, 69, 480 (Nov. 29, 2004). Not so under this rule. Here, the rule bars
eligibility only if an alien failed to seek potential relief in at least one third country while in transit
to the southern border. If that claim is denied in that country, then, unlike aliens subject to the
safe-third-country agreement with Canada, an alien is not subject to the new eligibility bar and can
still obtain asylum in the United States. 84 Fed. Reg. at 33,831. That agreement makes it so that
an alien may apply for asylum only in the first of the two countries he steps foot in; this new rule,
by contrast, provides no such one-country limit and instead just requires certain aliens to have
exhausted at least one other potential avenue for relief before being eligible for relief in the United
States. Id. at 33,839. And contrary to Plaintiffs’ suggestions, Br. 5-6, the rule does not ban merely
transiting through Mexico to reach the United States. Rather, it renders aliens ineligible for asylum
if they pass through a country but fail to apply for asylum there, thereby “rais[ing] questions about

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the validity and urgency of the alien’s claim.” 84 Fed. Reg. at 33,839. Thus, Plaintiffs’ argument
fails, because the rule relates to eligibility, it relies on sound considerations in addressing
eligibility, and it is qualitatively different from the third-country provisions, as described above.
It is a distinct rule, not an attempt to circumvent other bars.
Finally, as noted above, the failure to seek such relief in a country where there is a colorable
claim that relief could have been obtained has long been recognized as a sufficient factor to deny
asylum. See Pula, 19 I&N Dec. at 473-74. And denying asylum on this ground is consistent with
the purpose of the safe-third-country bar, which is “to prevent forum-shopping by asylum seekers,
and to promote the orderly handling of asylum claims.” United States v. Malenge, 294 F. App’x
642, 645 (2d Cir. 2008).

Thus, far from conflicting with section 1158(a)(2)(A), the rule

complements it, reaching a different class of aliens who the agencies have concluded may be
“forum-shopping ... after transiting through one or more third countries where they could have
sought protection, but did not,” 84 Fed. Reg. at 33,384, while—unlike the safe-third-country bar—
permitting those aliens to apply for asylum if they first apply in another country. See AR121, 770.
Second, Plaintiffs contend that the rule conflicts with the firm-resettlement bar to asylum
eligibility, 8 U.S.C. § 1158(b)(2)(A)(iv), because it precludes asylum relief in the United States in
circumstances that fall short of a permanent offer of residence in a third country. Br. 11-12.
Plaintiffs are incorrect. The third-country-transit bar addresses a different set of aliens than
the firm-settlement bar—those who could have applied (but did not apply) for protection in a third
country. The firm-resettlement bar in section 1158(b)(2)(A)(iv), by contrast, renders ineligible for
asylum any alien who “was firmly resettled in another country prior to arriving in the United
States.” It applies to aliens who, “prior to arrival in the United States, ... entered into another
country with, or while in that country received, an offer of permanent resident status, citizenship,

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or some other type of permanent resettlement.” 8 C.F.R. § 208.15. The two bars are thus
concerned with different circumstances, different classes of aliens, and different actions (or
inactions). There is no inconsistency between barring both classes from asylum eligibility. Far
from the Plaintiffs’ contention that the rule “turns that provision on its head,” Br. 11-12, the rule
here promotes aims that are complementary to the firm-resettlement bar—it prioritizes applicants
“with nowhere else to turn.” Matter of B-R-, 26 I&N Dec. 119, 122 (BIA 2013). The logic of the
firm-resettlement bar is that if someone was offered permanent status in a third country, there is
categorically no need to afford them asylum in the United States. Similarly, the logic of the thirdcountry-transit bar is that if someone could have applied for and obtained protection in a third
country but failed to do so, there is categorically no need to afford them asylum in the United
States. Those harmonized, reinforcing judgments reflect that the new bar is just the sort of
“condition” or “limitation” that Congress authorized the Department heads to adopt.5
Plaintiffs rely on administrative-law cases holding that an agency “cannot escape
Congress’s clear intent to specifically limit the agency’s authority.” Air All. Houston v. EPA, 906
F.3d 1049, 1061 (D.C. Cir. 2018); see Br. 8. (citing Gonzales v. Oregon, 546 U.S. 243, 262 (2006)
& Nat. Res. Def. Council, Inc. v. Reilly, 976 F.2d 36, 41 (D.C. Cir. 1992)). But Congress
specifically provided the Executive the broad authority to establish additional bars and those bars
apply to a distinct class of aliens. In this case, given Congress’s “express delegation of authority
[through 8 U.S.C. § 1158(b)(2)(C)] to the agency to elucidate a specific provision of the statute
by regulation,” the agency’s “judgement [is owed] more than mere deference or weight,” and
5

In a recent case, these Plaintiffs previously contended that under section 1158(b)(2)(C) the
government can promulgate an eligibility bar only if that bar is similar to existing statutory bars.
Br. (ECF 6-1), No. 1:18-cv-2838, at 22 (arguing that eligibility bar must be “similar in nature to
those enumerated) (internal quotation marks and citation omitted). Now they argue the converse,
that a bar is unlawful if it is similar to or complements a pre-existing bar. Br. 6-16. They cannot
have it both ways.
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courts give the agency interpretation “controlling weight unless [it is] arbitrary, capricious, or
manifestly contrary to the statute.” Lindeen v. SEC, 825 F.3d 646, 656 (D.C. Cir. 2016).
There is a repeated, erroneous suggestion running through Plaintiffs’ lead arguments: that
section 1158’s asylum bars regarding third countries somehow occupy the field for how an alien’s
relationship with a third country can bear on eligibility to be granted asylum. Br. 6-12. For
example, Plaintiffs suggest that the rule exceeds the agencies’ authority if it does not parrot section
1158(a)(2)(A) in full, asserting that the safe-third-country-provision as “five criteria,” and the rule
“satis[fies] only two of those five criteria.” Br. 8-10. (emphasis omitted) And they assert that the
rule “rewrite[s]” section 1158(b)(2)(a)(iv), presumably because it is not identical to that eligibility
bar. Br. 11-12. These suggestions are baseless. As already noted, there is no conflict between the
rule and these provisions—the rule complements them, reaching a different class of aliens who the
agencies have concluded may be “forum-shopping ... after transiting through one or more third
countries where they could have sought protection, but did not,” 84 Fed. Reg. at 33,384. But more
importantly, in section 1158 Congress simply made clear, in the safe-third-country provision and
firm-resettlement bar, that two particular third-country actions or relationships are definite bars.
Congress nowhere said that those express bars are the only permitted bars concerning an alien’s
relationship with a third country. Far from it: section 1158(b)(2)(C) authorizes the Executive to
adopt further categorical “additional limitations” on asylum eligibility that are “consistent” with
the rest of section 1158—including those that promote the logic and purposes of those statutory
bars. (Emphasis added.) In contrast to many other regulatory statutes, here Congress expressly
specified the creation of additional extra-statutory limitations on asylum eligibility, which need
not be identical to prior bars that section 1158 codifies explicitly, even if they complement them.
See, e.g., Nijjar v. Holder, 689 F.3d 1077, 1082 (9th Cir. 2012) (“[f]raud in the application is not

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mentioned explicitly [in the statute], but is one of the ‘additional limitations ... under which an
alien shall be ineligible for asylum’ that the Attorney General is authorized to establish by
regulation”). Plaintiffs’ contrary reading would “disabl[e] the Attorney General from adopting [a]
further limitation[]” that the statute “clearly empowers him” to adopt. R-S-C- v. Sessions, 869
F.3d 1176, 1187 n.9 (10th Cir. 2017).6
Finally, Plaintiffs contend that the rule is “inconsistent with international law and the
Charming Betsy canon,” citing recent statements from the United Nations High Commissioner for
Refugees. See Br. 12-14. But neither the Convention nor the Protocol is self-executing and so do
not have “the force of law in American courts,” Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009);
see Medellín v. Texas, 552 U.S. 491, 522 (2008) (“Congress knows how to accord domestic effect
to international obligations [in a non-self-executing treaty] when it desires such a result”).
Accordingly, it is an open question whether the Charming Betsy canon has any application at all
in these circumstances. See, e.g., Saleh v. Bush, 848 F.3d 880, 891 n.9 (9th Cir. 2017) (noting the
open question); Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872, 879 (D.C. Cir. 2006)
(Kavanaugh, J., concurring) (“the canon against construing an ambiguous statute to abrogate a
treaty . . . should not apply in cases involving non-self-executing treaties”).
Plaintiffs nevertheless cite a D.C. Circuit case applying the Charming Betsy principle to
6

There is no merit to Plaintiffs’ analogy to the one-year asylum-application deadline. Br. 1011. To start, the deadline is a process-rule that governs time-limits on applications. It says nothing
about substantive eligibility for asylum, which is what the rule here addresses. Moreover, it is far
from obvious that a shorter deadline would be inconsistent with that provision, which puts the
burden on the “alien” to show that he has filed his application “within 1 year” of arrival. 8 U.S.C.
§ 1158(a)(2)(B) (“clear and convincing evidence”). Plaintiffs do not explain what part of that
provision requires the government to provide a full year to file asylum applications in every
case. The text by its terms addresses the limits that apply to an alien’s procedural right to apply
for asylum, and does not say (for example) that the government must afford a specific minimum
time period. The Court need not wade into all of this, however, because, for reasons already given,
the new rule is consistent with section 1158, and in any event does not purport to address any part
of section 1158(a)(2)(B).
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argue that the United States must interpret its regulations in accordance with 2013 guidance from
the UNHCR. But that guidance is not entitled to weight in American courts. See, e.g., United
States v. Yunis, 924 F.2d 1086, 1091 (D.C. Cir. 1991) (“Our duty is to enforce the Constitution,
laws, and treaties of the United States, not to conform the law of the land to norms of customary
international law.”). Regardless, nothing in the rule puts the United States at odds with any
international obligations: The United States has implemented its non-refoulement obligations
under the relevant treaties by providing for withholding of removal, 8 U.S.C. § 1231(b)(3)(A), and
CAT protection, 8 C.F.R. §§ 1208.16(c)-1208.18. See Cardoza-Fonseca, 480 U.S. 421, 429
(1987). The rule leaves those protections in place. Asylum, by contrast, is a discretionary benefit
that is not required by any U.S. treaty commitment. See id. at 441. Moreover, the Refugee
Convention and its 1967 Protocol7 contemplate the permissibility of formal safe-third-country
agreements, see Article 31(1) (states “shall not impose penalties, on account of their illegal entry
or presence, on refugees who, coming directly from a territory where their life or freedom was
threatened ... enter or are present in their territory without authorization”), meaning that the
availability of relief in a third country may be a factor that a State Party can take into account in
assessing asylum eligibility. So, for aliens fleeing harm who transit through third countries, the
Convention and Protocol allow the imposition of conditions and limitations on that class’s
eligibility for relief.
B. The Rule Does Not Conflict With the TVPRA.
Plaintiffs also challenge the rule under the TVPRA, claiming that it strips children of their
right to present their case before a USCIS officer and requires them to present their claims to an
immigration judge in an adversarial proceeding. Br. 16-17. But there is no general mandate in the
7

The United States is not a signatory to the Convention but rather to the 1967 Protocol that adopted
the substantive provisions of the Convention. See, e.g., Cardoza-Fonseca, 480 U.S. at 429.
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INA that every rule must treat unaccompanied children differently, and such children are subject
to the same eligibility criteria as other aliens. Section 1158(b)(2)(A)’s eligibility bars make no
exception for unaccompanied alien children, and so there is no reason to believe that an eligibility
bar promulgated under section 1158(b)(2)(C) must make special dispensation for such individuals.
In other words, unaccompanied alien children, like all other aliens, have no statutory right to be
eligible for or granted asylum. And the rule is consistent with 8 U.S.C. § 1158(b)(3)(C), as
unaccompanied alien children who retain asylum eligibility will still have their claims heard
initially by the asylum officer, as that provision directs.
C. The Rule Satisfies the APA’s Procedural Requirements.
Plaintiffs contend that the rule was unlawfully issued without notice and an opportunity for
comment. Br. 17-23. But the APA provides exceptions to its notice-and-comment and publication
requirements when either “the agency for good cause finds ... that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public interest,” 5 U.S.C. § 553(b)(B),
(d)(3), or the rule “involve[s] ... [a] foreign affairs function of the United States,” id. § 553(a)(1).
The rule here fits within both exceptions and is consistent with similar interim rules affecting the
border.
Good Cause. The good-cause exception applies when “the very announcement of a
proposed rule itself can be expected to precipitate activity by affected parties that would harm the
public welfare.” Mobil Oil Corp. v. Dep’t of Energy, 728 F.2d 1477, 1492 (TECA 1983).
Significant public-safety harms provide good cause to make rule changes without prepromulgation notice and comment. Hawaii Helicopter Operators Ass’n v. FAA, 51 F.3d 212, 214
(9th Cir. 1995) (delay may increase “threat[s] to public safety”); see Jifry v. F.A.A., 370 F.3d 1174,
1179-80 (D.C. Cir. 2004) (relying on Hawaii Helicopter). This standard is met where “an

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announcement of a proposed rule creates an incentive for those affected to act prior to a final
administrative determination.” East Bay, 909 F.3d at 1253; see East Bay, 354 F. Supp. 3d at 1115.
Consistent with these principles, the Departments recognized that pre-promulgation notice
and comment or a delayed effective date “would be destabilizing and would jeopardize the lives
and welfare of aliens who could surge to the border to enter the United States before the rule took
effect” by encouraging a “surge in migrants.” 84 Fed. Reg. at 33,841; e.g., AR438-48, 664. Their
“experience has been that when public announcements are made regarding changes in our
immigration laws and procedures, there are dramatic increases in the numbers of aliens who enter
or attempt to enter the United States along the southern border.” 84 Fed. Reg. at 33,841 (citing
East Bay, 354 F. Supp. 3d at 1115); e.g., AR438-48, 676. The Departments described the “urgent
need to deter foreign nationals from undertaking dangerous border crossings, and thereby prevent
the needless deaths and crimes associated with human trafficking and alien smuggling operations.”
84 Fed. Reg. at 33,841; e.g. AR682.

Further, the Departments determined that “an additional

surge of aliens ... would be destabilizing to the region, as well as to the U.S. immigration system.”
84 Fed. Reg. at 33,841; e.g., AR21-22, 45, 119, 208-20, 679. They specified the factors that
contribute to the “massive increase in aliens arriving at the southern border who assert a fear of
persecution [that] is overwhelming our immigration system.” 84 Fed. Reg. at 33,841; e.g., AR2122, 37-44, 45, 119, 121, 192, 208-20, 222-30, 241-63, 634, 679, 768-70. They stressed that the
“concern is particularly acute in the current climate in which illegal immigration flows fluctuate
significantly in response to news events.” 84 Fed. Reg. at 33,841; e.g., AR438-48, 540-54, 664,
682. The Departments therefore lawfully concluded that “[a] large additional influx of aliens who
intend to enter unlawfully or who lack proper documentation to enter this country, all at once,
would exacerbate the existing border crisis.” 84 Fed. Reg. at 33,841 The promulgation of the rule

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without notice and comment “is thus a practical means to address the time-sensitive influx of aliens
and avoid creating an even larger short-term influx,” and “[a]n extended notice-and-comment
rulemaking process would be impracticable and self-defeating” for those reasons.8 84 Fed. Reg.
at 33,841; AR119, 208, 434-56, 664, 676, 682; see East Bay, 909 F.3d at 1253; East Bay, 54 F.
Supp. 3d at 1115 (noting that the Departments’ evidence on border surges “supports the inference
that smugglers might similarly communicate the Rule’s potentially relevant change in U.S.
immigration policy” and in turn precipitate changes in immigration patterns, warranting the
application of the good-cause exception). The rule addresses the current crisis, which was not
caused by its “own choice[ ]” in promulgating the rule. Br. 20 (internal quotation marks and
citation omitted).
Plaintiffs argue that the government’s conclusion that a delayed effective date may cause
a surge of migrants is “imagined” and that it offers “frail support,” notwithstanding the East Bay
court’s agreement with the government’s conclusion. Br. 18; see East Bay, 54 F. Supp. 3d at 1115.
Under Plaintiffs’ argument, the federal government could never rely on the good-cause exception
by making predictive judgments about how people will rationally act based on past behavior. Yet
the court in East Bay found good cause on a similar showing. See East Bay, 354 F. Supp. 3d at
1115; AR439 (“Americans do not jail parents who bring children—and to hurry up before they
might start doing so again.”). That was appropriate: the government obviously cannot provide
evidence for actions that have not occurred in response to a rule that has yet to be promulgated,

8

The Departments did not invoke the “impracticability” exception to notice and comment—
concerning the “threat of impending fiscal peril”—that is discussed in Sorenson Communications,
Inc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014). See Br. 18. Therefore, Plaintiffs’ discussion of
it is inapposite.
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and courts are ill-equipped to second-guess the Executive Branch’s prospective judgment.9 See
Holder v. Humanitarian Law Project, 561 U.S. 1, 34-35 (2010) (“The Government, when seeking
to prevent imminent harms in the context of international affairs and national security, is not
required to conclusively link all the pieces in the puzzle before we grant weight to its empirical
conclusion.”). In an APA case, the Court’s review of the merits must be “based on the record the
agency presents to the reviewing court.” Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44
(1985). Plaintiffs’ attempt to substitute its own record and views for that of the Departments is
thus inappropriate.10
Foreign Affairs. The foreign-affairs exception covers agency actions “linked intimately
with the Government’s overall political agenda concerning relations with another country.” Am.
Ass’n of Exporters & Importers-Textile & Apparel Grp. v. United States, 751 F.2d 1239, 1249
(Fed. Cir. 1985). “A rule of law that would inhibit the flexibility of the political branches [in
matters of foreign affairs] should be adopted with only the greatest caution.” Yassini v. Crosland,
618 F.2d 1356, 1361 (9th Cir. 1980).
The Departments properly invoked this exception. First, the “flow of aliens across the
southern border, unlawfully or without appropriate travel documents, directly implicates the
foreign policy and national security interests of the United States.” 84 Fed. Reg. at 33,841; e.g.,

9

Plaintiffs’ claim that a surge is self-inflicted from the promulgation of the rule means that a goodcause exception based on the promulgation of a rule could never be justified. Br. 19-20. That
cannot be the case—and, even accepting Plaintiffs’ terms, see Br. 20 n.5, the Departments
documented the current border crisis that is the impetus for the rule as they have in the prior rules
that Plaintiffs cite. 84 Fed. Reg. at 33,841; e.g., AR21-22, 37-44, 45, 119, 121, 192, 208-20, 22230, 241-63, 634, 679, 768-70.
10
Plaintiffs disingenuously claim no evidence of a surge in East Bay ever materialized. Br. 19. Of
course, the rule was enjoined almost immediately and has not been just “temporarily enjoined” but
rather remains enjoined, so no surge directly tied to the rule could arise. Id. But certainly aliens
continue to surge across the border in ever greater numbers, as the rule at issue here, 84 Fed. Reg.
at 33,838, and the record, AR119, demonstrate.
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AR676, 698. The Departments found that the “rule will facilitate ongoing diplomatic negotiations
with foreign countries regarding migration issues, including measures to control the flow of aliens
into the United States ... and the urgent need to address the current humanitarian and security crises
along the southern land border between the United States and Mexico.” 84 Fed. Reg. at 33,842;
AR537, 635-37. The Departments concluded that the “negotiations would be disrupted” by the
surge of migrants who would attempt to enter the United States in response to the rule: the rule’s
delayed effective date would “provok[e] a disturbance in domestic politics in Mexico and the
Northern Triangle countries, and erod[e] the sovereign authority of the United States to pursue the
negotiating strategy it deems to be most appropriate as it engages its foreign partners.” Id.
Moreover, a delay in effectiveness would prompt the undesirable consequence of an increase in
the number of migrants who could have sought assistance in foreign countries at the “U.S. border,
which has little present capacity to provide assistance.” 84 Fed. Reg. at 33,842; AR208-20, 22230, 558-59, 679. “Addressing this crisis will be more effective and less disruptive to long-term
U.S. relations with Mexico and the Northern Triangle countries the sooner that this interim final
rule is in place” to slow the “enormous flow of aliens through these countries to the southern U.S.
border,” thereby “facilitat[ing] the likelihood of success” in the United States’ ongoing
negotiations with Mexico “regarding regional and bilateral approaches to asylum,” and supporting
the President’s foreign-policy aims. 84 Fed. Reg. at 33,842; e.g., AR231-32, 676, 698. Indeed,
just last month, the United States, relying on another immigration initiative—the “Migrant
Protection Protocols” (MPP)—successfully negotiated a partial agreement with Mexico
concerning asylum seekers whereby MPP would be implemented “across its entire Southern
Border” and “Mexico will take unprecedented steps to increase enforcement to curb irregular
migration, to include the deployment of its National Guard throughout Mexico” and take “decisive

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action to dismantle human smuggling and trafficking organizations as well as their illicit financial
and transportation networks.” AR24, see AR45-50, 138-39, 231-32 533-57, 635-37, 676, 698.
The two countries will “continue their discussions on the terms of additional understandings to
address irregular migrant flows and asylum issues.” 84 Fed. Reg. at 33,842.
An immigration initiative like the rule here—which promotes the interlocking goals of
securing the border and promoting negotiations with other countries—is thus “linked intimately
with the Government’s overall political agenda concerning relations with another country.” Am.
Ass’n of Exporters, 751 F.2d at 1249; see Raoof v. Sullivan, 315 F. Supp. 3d 34, 43-44 (D.D.C.
2018) (affirming Department of State’s invocation of the foreign-affairs exception to promulgate
a rule governing the “exchange visitor program” without notice and comment because it “relates
to the foreign affairs and diplomatic duties conferred upon the Secretary of State and the State
Department”). The Executive Branch’s choice—to require aliens seeking asylum here to first seek
protection in countries that offer asylum and thus stem the transit through countries with which
the United States is negotiating—is a “[d]ecision[ ] involving the relationships between the United
States and its alien visitors” that “implicate[s] our relations with foreign powers” and
“implement[s] the President’s foreign policy.” Yassini, 618 F.2d at 1361. Indeed, this is a more
straightforward case than Yassini, which involved Iranians already in the United States who were
required to leave. Id. This case involves only aliens transiting countries with whom the United
States is negotiating.
Plaintiffs argue that the rule does not show notice and comment “will provoke definitely
undesirable international consequences.” Br. 21. The statute requires no such showing. The
exception applies when a rule “involve[s]” a “foreign affairs function of the United States”—
without regard to harm. 5 U.S.C. § 553(a)(1); see Rajah v. Mukasey, 544 F.3d 427, 437 (2d Cir.

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2008) (there is “no requirement” that agency state a finding of undesirable international
consequences, particularly “when the consequences are seemingly as evident” as they are here).
Indeed, “[h]indering” the Executive’s “ability to implement a new policy in response to a current
foreign affairs crisis is the type of definitely undesirable international consequence that warrants
invocation of the foreign affairs exception.” East Bay, 909 F.3d at 1252. And even if a showing
that harm will follow “immediate publication of the Rule, instead of announcement,” were
required, it is present here: the Executive has shown that a delay in publishing the rule would
overwhelm an already-taxed border and detrimentally alter the status quo by increasing the very
migration that the negotiations seek to decrease, undermining the United States’ negotiations with
Mexico. 84 Fed. Reg. at 33,842; Yassini, 618 F.2d at 1360 (“prompt response” required to embassy
takeover). The rule satisfies the foreign-affairs exception.
D. The Rule Is Not Arbitrary and Capricious.
Plaintiffs also assert that they are entitled to a TRO because “Defendants have offered no
valid defense of the rule.” Br. 14. It is unclear what claim Plaintiffs purport to invoke here, but
they may mean to contend that the new rule is arbitrary and capricious because the Departments
“have offered no valid defense,” Br. 14; see Br. 14-16. Plaintiffs did not raise this claim in their
complaint, and so cannot obtain a TRO based on a claim they did not bother to plead. See Compl.
¶¶ 154-59 (bringing an APA claim based on statutory authority alone). Even were their complaint
somehow to raise such a claim, this claim also lacks merit.
To begin, arbitrary-and-capricious review is “limited,” EarthLink, Inc. v. FCC, 462 F.3d
1, 9 (D.C. Cir. 2006), and courts may not substitute their “judgment for that of the agency.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). “‘An
agency’s predictive judgments about areas that are within the agency’s field of discretion and

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expertise are entitled to particularly deferential review’” and “need not rest on ‘pure factual
determinations.’” EarthLink, Inc., 462 F.3d at 213 (quoting In re Core Commc’ns, Inc., 455 F.3d
267, 282 (D.C. Cir. 2006) & FCC v. WNCN Listeners Guild, 450 U.S. 582, 594 (1981)) (emphasis
in original). An agency thus “does not engage in arbitrary or capricious decision-making by
making ‘predictive judgement[s]’ or even by relying on ‘[i]ncomplete data.’” New York v. NRC,
824 F.3d 1012, 1022 (D.C. Cir. 2016); see Sacora v. Thomas, 628 F.3d 1059, 1068-69) (9th Cir.
2010) (it is “reasonable for the [agency] to rely on its experience” to arrive at its conclusions, even
if those conclusions are not supported with “empirical research.”). The agency need only articulate
“a rational connection between the facts found and the choice made,” Motor Vehicle, 463 U.S. at
43, and Plaintiffs cannot demonstrate a likelihood of success by relying on non-record materials.11
See, e.g., Hill Dermaceuticals, Inc. v. Food & Drug Admin., 709 F.3d 44, 47 (D.C. Cir. 2013). In
cases like this one, which does not concern a statutory gap but rather the express grant of authority
to prescribe rules and standards, the agency’s “judgement [is owed] more than mere deference or
weight,” and courts give the agency interpretation “controlling weight unless [it is] arbitrary,
capricious, or manifestly contrary to the statute.” Lindeen, 825 F.3d at 656; see City of Los Angeles
v. Barr, --- F.3d --- (9th Cir. July 12, 2019), 2019 WL 3049129, at *8 (in such circumstances
“agency’s promulgations are entitled to more than mere deference or weight; rather, they are
entitled to legislative effect”).
The rule here was promulgated based on several considerations, including: (1) the need to
11

This includes the declarations submitted by proposed amicus KIND, which amicus relies on to
present their own view of facts relied upon by the government in the administrative record. The
general rule precludes extra-record review, and the court may not consider materials—including
declarations—that are outside the administrative record when reviewing Plaintiffs’ likelihood of
success on the merits of their claims. he general rule against extra-record review, the court may
not consider materials—including declarations—that are outside the administrative record. Ctr. for
Auto Safety v. Fed. Highway Admin., 956 F.2d 309, 314 (D.C.Cir.1992);Ctr. for Auto Safety v.
Fed. Highway Admin., 956 F.2d 309, 314 (D.C. Cir. 1992).
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dis-incentivize aliens with meritless asylum claims from seeking entry into the United States,
thereby relieving stress on immigration enforcement and adjudicatory authorities; (2) the policy
decision to “prioritize[] individuals who are unable to obtain protection from persecution
elsewhere and individuals who are victims of a ‘severe form of trafficking in persons,’” “ensur[ing]
that those refugees who have no alternative to U.S.-based asylum relief or have been subjected to
an extreme form of human trafficking can obtain relief more quickly”; (3) the need “to curtail the
humanitarian crisis” of human smuggling; and (4) the goal of strengthening the United States’
negotiating hand in “ongoing diplomatic negotiations” “regarding migration issues in general,
related measures employed to control the flow of aliens in the United States ... , and the urgent
need to address the humanitarian and security crisis along the southern land border between the
United States and Mexico.” 84 Fed. Reg. at 33,831.
The rule is reasonably related to all these objectives. As the rule concludes, aliens with
non-meritorious asylum claims will have less incentive to seek entry to the United States, and thus
less incentive to rely on “human smuggling” and suffer “its tragic effects,” if they cannot take
advantage of a lengthy delay in adjudicating that claim to live and work in this country. Id. at
33,840; AR109-10, 664, 676, 682. This relieves stress on the adjudicatory authorities of both DHS
and DOJ, and relieves stress on border enforcement given fewer incentives to illegally seek entry.
See 84 Fed. Reg. at 33,831, 33,840-41; AR21-22, 37-45, 109-10, 119, 121, 138-39, 192, 208-32,
558-65, 634, 679, 768-70. Likewise, by ensuring that the adjudicators are able to focus on the
claims of aliens who have not been able to obtain relief in a third country, the rule focuses on the
class of aliens who have no other country to turn to, making it easier for those adjudicators to fulfill
the humanitarian nature of asylum relief. See id.; accord Tchitchui v. Holder, 657 F.3d 132, 137
(2d Cir. 2011) (“core regulatory purpose of asylum … is not to provide [aliens] with a broader

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choice of safe homelands, but rather, to protect refugees with nowhere else to turn”). And by
declining to consider asylum claims by aliens who transit Mexico and Northern Triangle countries
without seeking relief, the government is in a better position to negotiate a formal and lasting
resolution to the “humanitarian and security crisis along the southern” border with those same
countries. 84 Fed. Reg. at 33,831, 33,842; AR231-32. This shifts the onus to consider such claims
to other countries within that region that are able to provide fair adjudications of requests for
asylum, while pointing towards an eventual burden-sharing framework of the kind that already
governs consideration of asylum claims made by many aliens on the northern border with Canada.
AR138-39, 231-32, 537, 635-36.
In arguing that “no valid defense” of the rule has been offered, Br. 14, Plaintiffs repeatedly
seek to cast doubt on the government’s judgments underlying the rule. They argue, for instance,
that contrary to the Rule’s preamble, this case is not analogous to earlier exercise of the Attorney
General’s authority, because those rules did not “undermine, let alone rewrite, any of the specific
criteria for asylum ineligibility that Congress imposed.” Br. 15. But as already explained, the rule
does not “rewrite” or conflict with any of the other application conditions or eligibility
requirements that Congress included in the statute. See 8 U.S.C. §§ 1158(a)(2)(A), (b)(2)(A)(vi).
Rather, this rule is a complement to those provisions and a valid exercise of a specific statutory
grant of authority to the Attorney General to impose just such additional limitations and conditions
on eligibility. See id. § 1158(b)(2)(C). Plaintiffs also argue that the rule “is a severe distortion of
Congress’s purpose” in enacting the asylum statute, as it “strip[s] from the statute the very
limitations designed to ensure that a foreign national’s alternative places for seeking asylum are in
fact safe,” and “requir[es] aliens to seek asylum in countries where foreign nationals often face
severe threats of persecution and violence.” Br. 15-16. But the rule is no such thing. The rule

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rests on (among other determinations) the judgment that the “decision not to apply for protection
at the first available opportunity, and instead wait for the more preferred destination of the United
States, raises questions about the validity and urgency of the alien’s claim and may mean that the
claim is less likely to be successful,” and so the rule “ensure[s] that those asylees who need relief
most urgently are better able to obtain it.” 84 Fed. Reg. at 33,839. That determination was
reasonable: Immigration law has long supported the denial of relief to individuals who could have
sought, but failed to seek, relief in a third country while in transit to the United States, see Pula,
19 I&N Dec. at 473-74, and the asylum statute recognizes the relevance of third-country relief as
relevant to an alien’s ability to apply for or be eligible for asylum in the United States, see 8 U.S.C.
§§ 1158(a)(2)(A), (b)(2)(A)(vi). Moreover, the government determined that Mexico is a signatory
to and in compliance with the relevant international instruments governing consideration of
refugee claims, that its domestic law and procedures regarding such relief are robust and capable
of handling claims made by Central American aliens in transit to the United States, and that the
statistics regarding the influx of claims in that country support the conclusion that asylum in
Mexico is a feasible alternative to relief in the United States. See 84 Fed. Reg. 33,839; AR23132, 286-433, 533-37, 560-65, 581-83, 588, 638-57, 702-66. The point of the rule is that an
“opportunity” to seek protection exists in those countries that an alien necessarily must transit to
reach the southern border, see 84 Fed. Reg. 33,839, and so the rule only bars from relief those who
made no attempt to avail themselves of those protections. And consistent with the humanitarian
aims of asylum, the Department heads reasonably decided to allow individuals who were unable
to obtain relief elsewhere an opportunity to seek it in this country. See Tchitchui, 657 F.3d at 137.
Plaintiffs finally argue that “[i]t is unlikely ... that Congress meant to vest” the authority to
issue the rule in the Attorney General, as the scope of the rule may “render a high percentage of

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the aliens that cross into this country ineligible for asylum.” Br. 16. But the only limitations that
Congress placed on the exercise of this authority is that the Rule must be otherwise consistent with
the asylum statute. See 8 U.S.C. § 1158(b)(2)(C). As explained already, the rule is consistent with
the other provisions of the asylum statute.
In the end, Plaintiffs’ claims are nothing more than disagreement with the judgment of the
agencies. But this Court may not “second-guess[ ] the” Attorney General’s and Secretary’s
“weighing of risks and benefits.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2571 (2019);
New York, 824 F.3d at 1022 (“a challenge to the agency's assumptions must be more than an effort
by [a party] to substitute its own analysis’ for the agency’s”). The rule is supported by reasonable
justifications rooted in the government’s “expertise and experience,” Earthlink, Inc., 462 F.3d at
213 (quoting Time Warner Entm’t Co. v. FCC, 240 F.3d 1126, 1133 (D.C. Cir. 2001)), and passes
muster under the extraordinarily deferential review applicable to such rules, Lindeen, 825 F.3d at
656; see Time Warner, 240 F.3d at 1133 (“we must give appropriate deference to predictive
judgments that necessarily involve the expertise and experience of the agency.”).
III.

The Other TRO Factors Foreclose Issuing a TRO.
A TRO would irreparably harm the United States and the public. It is always in the public

interest to protect the country’s borders and enforce its immigration laws.

See Landon v.

Plasencia, 459 U.S. 21, 34 (1982). Here, the Executive Branch has identified a crisis at the
southern border—of thousands of aliens entering our country, overwhelming the immigration
system, incentivizing human trafficking, and risking their lives—and has taken targeted measures
to address that crisis. See 84 Fed. Reg. at 33,831 (noting an “increase of more than 100,000 cases
(or a greater than 13 percent increase in the number of pending cases) since the start of FY 2019”
and recognizing that between FY 2015 and FY 2019 there has been a “nearly 125 percent” increase

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in pending cases even with “double the number of immigration judges as in 2010”); AR21-22, 3745, 109-10, 119, 121, 138-39, 192, 208-32, 558-65, 634, 679, 768-70. Plaintiffs tar Defendants as
“harsh” (Br. 4) and “cruel” (Br. 3) for seeking to address the crisis at the southern border, without
ever acknowledging, in 30 pages of briefing, the extraordinary strain on our asylum system
inflicted by those who have no valid claim for asylum at all. See Br. 20, 27-28, 29 n.7. The public
interest is served by encouraging aliens to apply for asylum in the first country in which they may
take refuge, rather than picking among preferred destinations. See Tchitchui, 657 F.3d at 137.
Against this, “the basis of injunctive relief in the federal courts has always been irreparable
harm.” CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995). The
“failure to show any irreparable harm is therefore grounds for refusing to issue a preliminary
injunction, even if the other three factors entering the calculus merit such relief.” Chaplaincy of
Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). “The D.C. Circuit has set
a high standard for irreparable injury. The injury must be unrecoverable; it must be both certain
and great; [and] it must be actual and not theoretical.” Cal. Ass’n of Private Postsecondary Sch.
v. DeVos, No 17-cv-999, 2018 WL 5017749, at *6 (D.D.C. Oct. 16, 2018).
Plaintiffs should not be rewarded a nationwide injunction when they do not even identify
a single alien affected by the rule. And even if they had, aliens ineligible for asylum lose only a
discretionary benefit to which they are never entitled—and they remain eligible for mandatory
protections from removal. See 84 Fed. Reg. at 33,834. Plaintiffs may not even properly invoke
the alleged harm to third parties from the rule. East Bay, 909 F.3d at 1240. Plaintiffs are
organizations and the only harms they allege to themselves are speculations about their funding
and the need to plan for the new rules. See, e.g., Compl. ¶¶ 110-52; Br. 23-26. Even these alleged
harms ring hollow since expending resources is not irreparable injury. See, e.g., Chaplaincy of

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Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006).12 And the loss of an
opportunity to comment, Br. 23, is not sufficient. See Amoco Prod. Co. v. Vill. of Gambell, 480
U.S. 531, 545 (1987). Plaintiffs, relying on N. Mariana Islands v. United States, 686 F. Supp. 2d,
7, 17 (D.D.C. 2009), Br. 26), suggest otherwise, but they fail to acknowledge law in this Circuit
that provides that a putative procedural violation does not produce irreparable injury because the
violation has already occurred and can “be remedied by a decision on the merits” (by requiring the
agency to re-do the decision using the proper procedures). See Elk Assoc. Funding Corp. v. U.S.
Small Bus. Admin., 858 F. Supp. 2d 1, 31 (D.D.C. 2012). Thus, “irreparable injury cannot stand
on procedural violation alone.” Am. Ass’n for Homecare v. Leavitt, 2008 WL 2580217, *5 (D.D.C.
June 30, 2008). And even if credited, those administrative inconveniences do not outweigh the
harm that would be imposed by “injunctive relief [that] deeply intrudes into the core concerns of
the executive branch,” Adams v. Vance, 570 F.2d 950, 954 (D.C. Cir. 1978), and undermines the
“efficient administration of the immigration laws at the border,” Innovation Law Lab v.
McAleenan, 924 F.3d 503, 510 (9th Cir. 2019).
IV.

Any Interim Relief Must Be Sharply Limited.
Even if Plaintiffs were entitled to any relief, it would need to be strictly limited.
First, to the extent that Plaintiffs could be deemed to challenge any aspect of the rule as

applied to expedited removals, the Court “lacks the authority” to issue any such relief. East Bay,
354 F. Supp. 3d at 1118; see 8 U.S.C. § 1252(e)(1), (3).
Second, Article III and equitable principles require that relief be no broader than necessary
to redress the Plaintiffs’ injuries. Under Article III, “[a] plaintiff’s remedy must be tailored to
12

Plaintiffs cite League of Women Voters of the United States v. Newby, 838 F.3d 1 (D.C. Cir.
2016), for the proposition that expending resources satisfies irreparable harm because there “can
be no do over and no redress.” Id. at 74. That case involved registering voters in time for an
election, and so does not stand for that broader proposition.
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redress the plaintiff’s particular injury.” Gill, 138 S. Ct. at 1934. And the rule in equity is that
injunctions “be no more burdensome to the defendant than necessary to provide complete relief to
the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). Contrary to the
stay panel’s decision in East Bay, 909 F.3d at 1255-56, immigration law is not a special context
that warrants different consideration—especially where, as here, the farther plaintiffs are from
being actually affected by a rule, the more likely they could assert a successful nationwide “harm”:
an individual plaintiff, who is actually affected by the rule, could receive a complete remedy by
an individualized injunction, while under Plaintiffs’ theory of Article III, an organizational
plaintiff, less personally affected, could receive a far more encompassing remedy. A limit to
nationwide injunctions ensures that the courts resolve actual cases and controversies rather than
entering into disputes that are constitutionally delegated to the other two branches of government.
And it is Plaintiffs who bear the burden of showing their requested injunction—a nationwide
injunction on behalf of two organizations that lack a cognizable cause of action and who have
failed to identify a single actual alien client on whose behalf they speak—is not impermissibly
broad, given that it is their burden to demonstrate their entitlement to an injunction. See Winter v.
NRDC, 555 U.S. 7, 20 (2008).
Finally, this is not the only case challenging this rule, and this Court’s ruling should respect
that. See East Bay Sanctuary Covenant v. Barr, No. 19- 4073 (N.D. Cal.). If this Court issues any
relief, it should not preempt the Northern District of California district court’s ability to consider
the issue under the relevant law of the Ninth Circuit. To do otherwise “take[s] a toll on the federal
court system—preventing legal questions from percolating through the federal courts, encouraging
forum shopping, and making every case a national emergency for the courts and for the Executive
Branch.” Trump v. Hawaii, 138 S. Ct. 2392, 2425 (2018) (Thomas, J., concurring); see also United

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States v. Mendoza, 464 U.S. 154, 160 (1984) (“[a]llowing only one final adjudication would”
“substantially thwart the development of important questions of law by freezing the first final
decision rendered on a particular legal issue” and “deprive this Court of the benefit it receives from
permitting several courts of appeals to explore a difficult question before this Court grants
certiorari.”). At a minimum, then, the Court may not issue an injunction affecting the California
district court’s ability to decide the same issues under the Ninth Circuit precedent.
CONCLUSION
For these reasons, the Court should deny the motion for a TRO.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
SCOTT G. STEWART
Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
By: /s/ Erez Reuveni
EREZ REUVENI
Assistant Director
Office of Immigration Litigation
U.S. Department of Justice, Civil Division
P.O. Box 868, Ben Franklin Station
Washington, DC 20044
Tel: [phone]
Email: [e-mail]
PATRICK GLEN
Senior Litigation Counsel
Dated: July 20, 2019

Attorneys for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on July 20, 2019, I electronically filed the foregoing document with
the Clerk of the Court for the United States Court District Court for the District of Columbia by
using the CM/ECF system. Counsel in the case are registered CM/ECF users and service will be
accomplished by the CM/ECF system.

By: /s/ Erez Reuveni
EREZ REUVENI
Assistant Director
United States Department of Justice
Civil Division

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
Capital Area Immigrants’ Rights Coalition, )
et al.,
)
)
Plaintiffs,
)
)
v.
)
)
Donald J. Trump, et al.,
)
)
Defendants.
)
)

Civil Action No. 1:19-cv-02117-TJK

[PROPOSED] ORDER
Pending before the Court is Plaintiffs’ motion for temporary restraining order. Having
considered the motion, Defendants’ opposition, Plaintiffs’ reply, and oral argument held on July
22, 2019, the Court HEREBY DENIES the motion.
Dated: July __, 2019

_______________________
United States District Judge