WILLIAM P. BARR, ATTORNEY GENERAL, ET AL.
EAST BAY SANCTUARY COVENANT, ET AL.
APPLICATION FOR STAY
application for stay presented to JUSTICE KAGAN and by her
referred to the Court is granted. The district court's
July 24, 2019 order granting a preliminary injunction and
September 9, 2019 order restoring the nationwide scope of the
injunction are stayed in full pending disposition of the
Government's appeal in the United States Court of Appeals
for the Ninth Circuit and disposition of the Government's
petition for a writ of certiorari, if such writ is sought. If
a writ of certiorari is sought and the Court denies the
petition, this order shall terminate automatically. If the
Court grants the petition for a writ of certiorari, this
order shall terminate when the Court enters its judgment.
Justice Sotomayor, with whom Justice Ginsburg joins,
dissenting from grant of stay.
again the Executive Branch has issued a rule that seeks to
upend longstanding practices regarding refugees who seek
shelter from persecution. Although this Nation has long kept
its doors open to refugees-and although the stakes for asylum
seekers could not be higher-the Government implemented its
rule without first providing the public notice and inviting
the public input generally required by law. After several
organizations representing immigrants sued to stop the rule
from going into effect, a federal district court found that
the organizations were likely to prevail and preliminarily
enjoined the rule nationwide. A federal appeals court
narrowed the injunction to run only circuit-wide, but denied
the Government's motion for a complete stay.
Government asks this Court to intervene and to stay the
preliminary decisions below. This is an extraordinary
request. Unfortunately, the Court acquiesces. Because I do
not believe the Government has met its weighty burden for
such relief, I would deny the stay.
Attorney General and Secretary of Homeland Security
promulgated the rule at issue here on July 16, 2019. See 84
Fed. Reg. 33829. In effect, the rule forbids almost all
Central Americans-even unaccompanied children-to apply for
asylum in the United States if they enter or seek to enter
through the southern border, unless they were first denied
asylum in Mexico or another third country. Id., at
33835, 33840; see also 385 F.Supp.3d 922, 929-930 (ND Cal.
District Court found that the rule was likely unlawful for at
least three reasons. See id., at 938-957. First, the
court found it probable that the rule was inconsistent with
the asylum statute, 94 Stat. 105, as amended, 8 U.S.C.
§1158. See § 1158(b)(2)(C) (requiring that any
regulation like the rule be "consistent" with the
statute). Section 1158 generally provides that any
noncitizen "physically present in the United States or
who arrives in the United States . . . may apply for
asylum." § 1158(a)(1). And unlike the rule, the
District Court explained, the statute provides narrow,
carefully calibrated exceptions to asylum eligibility. As
relevant here, Congress restricted asylum based on the
possibility that a person could safely resettle in a third
country. See § 1158(a)(2)(A), (b)(2)(A)(vi). The rule,
by contrast, does not consider whether refugees were safe or
resettled in Mexico-just whether they traveled through it.
That blunt approach, according to the District Court, rewrote
the statute. See 385 F.Supp.3d, at 939-947, 959.
the District Court found that the challengers would likely
prevail because the Government skirted typical rulemaking
procedures. Id., at 947-951. The District Court
noted "serious questions" about the rule's
validity because the Government effected a sea change in
immigration law without first providing advance notice and
opportunity for public comment. Id., at 930; see
also 5 U.S.C. §553. The District Court found the
Government's purported justifications unpersuasive at the
preliminary-injunction stage. 385 F.Supp.3d, at 948-951
(discussing statutory exceptions to notice-and-comment
the District Court found the explanation for the rule so
poorly reasoned that the Government's action was likely
arbitrary and capricious. See id., at 951-957; 5
U.S.C. §706. On this score, the District Court addressed
the Government's principal justifications for the rule:
that failing to seek asylum while fleeing through more than
one country "raises questions about the validity and
urgency" of the asylum seeker's claim, 84 Fed. Reg.
33839; and that Mexico, the last port of entry before the
United States, offers a feasible alternative for persons
seeking protection from persecution, id., at 33835,
33839-33840. The District Court examined the evidence in the
administrative record and explained why it flatly refuted the
Government's assumptions. 385 F.Supp.3d, at 951-957. A
"mountain of evidence points one way," the District
Court observed, yet the Government "went the
other-with no explanation." Id., at 955.
the District Court issued the injunction, the Ninth Circuit
declined the Government's request for a complete stay,
reasoning that the Government did not make the required"
'strong showing'" that it would likely succeed
on the merits of each issue. ____ F.3d ____ (2019), 2019 WL
3850928, *1 (quoting Hilton v. Braunskill, 481 U.S.
770, 776 (1987)). Narrowing the injunction to the
Circuit's borders, the Ninth Circuit expedited the appeal
and permitted the District Court to consider whether
additional facts would warrant a broader injunction. 2019 WL
lower courts' decisions warrant respect. A stay pending
appeal is "extraordinary" relief. Williams v.
Zbaraz, 442 U.S. 1309, 1311 (1979) (Stevens, J., in
chambers); see also Maryland v. King, 567 U.S. 1301,
1302 (2012) (ROBERTS, C. J., in chambers) (listing stay
factors). Given the District Court's thorough analysis,
and the serious questions that court raised, I do not believe
the Government has carried its "especially heavy"
burden. Packwood v. Senate Select Comm. on Ethics,
510 U.S. 1319, 1320 (1994) (Rehnquist, C. J., in chambers).
The rule here may be, as the District Court concluded, in
significant tension with the asylum statute. It may also be
arbitrary and capricious for failing to engage with the
record evidence contradicting its conclusions. It is
especially concerning, moreover, that the rule the Government
promulgated topples decades of settled asylum practices and
affects some of the most vulnerable people in the Western
Hemisphere-without affording the public a chance to weigh in.
aside the merits, the unusual history of this case also
counsels against our intervention. This lawsuit has been
proceeding on three tracks: In this Court, the parties have
litigated the Government's stay request. In the Ninth
Circuit, the parties are briefing the Government's
appeal. And in the District Court, the parties recently
participated in an evidentiary hearing to supplement the
record. Indeed, just two days ago the District Court
reinstated a nationwide injunction based on new facts. See
East Bay Sanctuary Covenant v. Barr, No.
4:19-cv-4073, Doc. 73 (ND Cal., Sept. 9, 2019). Notably, the
Government moved to stay the newest order in both the
District Court and the Ninth Circuit. (Neither court has
resolved that request, though the Ninth Circuit granted an
administrative stay to allow further deliberation.) This
Court has not considered the new evidence, nor does it pause
for the lower courts to resolve the Government's pending
motions. By granting a stay, the Court simultaneously lags
behind and jumps ahead of the courts below. And in doing so,
the Court sidesteps the ordinary judicial process to allow
the Government to implement a rule that bypassed the ordinary
rulemaking process. I fear that the Court's precipitous
action today risks undermining the interbranch governmental
processes that encourage deliberation, public participation,
granting a stay pending appeal should be an
"extraordinary" act. Williams, 442 U.S.,
at 1311. Unfortunately, it appears the Government has treated
this exceptional mechanism as a new normal. Historically, the
Government has made this kind of request rarely; now it does
so reflexively. See, e.g., Vladeck, The Solicitor
General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming
Nov. 2019). Not long ago, the Court resisted the shortcut the
Government now invites. See Trump v. East Bay Sanctuary