East Bay Sanctuary Covenant v. WILLIAM P. BARR , Attorney General

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EAST B AY S ANCTUARY C OVENANT;
AL OTRO LADO; INNOVATION LAW
LAB ; C ENTRAL AMERICAN
R ESOURCE C ENTER ,
Plaintiffs-Appellees,
v.
WILLIAM P. B ARR , Attorney General;
UNITED S TATES D EPARTMENT OF
J USTICE; J AMES M C H ENRY, Director
of the Executive Office for
Immigration Review, in his official
capacity; EXECUTIVE OFFICE FOR
IMMIGRATION R EVIEW ; K EVIN K.
M C ALEENAN, Acting Secretary of
Homeland Security, in his official
capacity; U.S. DEPARTMENT OF
HOMELAND S ECURITY; KENNETH T.
C UCCINELLI, Acting Director of the
U.S. Citizenship and Immigration
Services, in his official capacity;
J OHN P. S ANDERS , Acting
Commissioner of U.S. Customs and
Border Protection, in his official
capacity; UNITED S TATES
C ITIZENSHIP AND IMMIGRATION
S ERVICES ; U.S. C USTOMS AND
B ORDER P ROTECTION; M ATTHEW
No. 19-16487
D.C. No.
3:19-cv-04073-
JST
ORDER

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ALBENCE, Acting Director of
Immigration and Customs
Enforcement, in his official capacity;
IMMIGRATION AND C USTOMS
ENFORCEMENT,
Defendants-Appellants.
Filed August 16, 2019
Before: A. Wallace Tashima, Milan D. Smith, Jr.,
and Mark J. Bennett, Circuit Judges.
Order;
Partial Concurrence and Partial Dissent by Judge Tashima
SUMMARY*
Preliminary Injunction / Immigration
The panel granted in part and denied in part Appellants’
motion seeking a stay pending appeal of the district court’s
July 24, 2019, order preliminarily enjoining the Department
of Justice and Department of Homeland Security’s joint
interim final rule, “Asylum Eligibility and Procedural
Modifications” (the “Rule”), 84 Fed. Reg. 33,829 (July 16,
2019), which governs asylum claims in the context of aliens
who enter or attempt to enter the United States across the
southern land border after failing to apply for protection
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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from persecution or torture while in a third country through
which they transited en route to the United States.
The district court held that the Rule likely did not comply
with the Administrative Procedure Act’s (APA) notice-and-
comment and 30-day grace period requirements because
Appellants did not adequately support invocation of the
“good cause” and “foreign affairs” exemptions under the
APA. The panel concluded that Appellants had not made the
required “strong showing” that they were likely to succeed
on the merits on this issue. The panel therefore denied the
motion for stay pending appeal insofar as the injunction
applies within the Ninth Circuit. However, the panel granted
the motion for stay pending appeal insofar as the injunction
applies outside the Ninth Circuit, concluding that the district
court clearly erred by failing to consider whether nationwide
relief was necessary to remedy Plaintiffs’ alleged harms, and
that the nationwide scope of the injunction was not
supported by the record as it stands. The panel noted that
while this appeal proceeds, the district court retains
jurisdiction to further develop the record in support of a
preliminary injunction extending beyond the Ninth Circuit.
Judge Tashima concurred in the portion of the order
denying the motion for stay pending appeal insofar as the
injunction applies within the Ninth Circuit, but dissented
from the balance of the order. Judge Tashima wrote that he
does not believe that it is within a motions panel’s province
to parse the record for error at this stage, which is what the
majority does in concluding that “the nationwide scope of
the injunction is not supported by the record as it stands,”

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4 EAST B AY S ANCTUARY C OVENANT V . B ARR
and in effect remanding that portion to the district court.
Judge Tashima would simply deny the motion to stay.
COUNSEL
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, Civil Division, United States
Department of Justice, Washington, D.C.; for Defendants-
Appellants.
Lee Gelernt, Omar C. Jadwat, and Anand Balakrishnan,
American Civil Liberties Union Foundation Immigrants’
Rights Project, New York, New York; Katrina Eiland, Cody
Wofsy, Spencer Amdur, and Julie Veroff, American Civil
Liberties Union Foundation Immigrants’ Rights Project, San
Francisco, California; Melissa Crow, Southern Poverty Law
Center, Washington, D.C.; Mary Bauer, Southern Poverty
Law Center, Charlottesville, Virginia; Baher Azmy, Angelo
Guisado, and Ghita Schwarz, Center for Constitutional
Rights, New York, New York; Christine P. Sun, Vasudha
Talla, and Angélica Salceda, American Civil Liberties
Union Foundation of Northern California Inc., San
Francisco, California; for Plaintiffs-Appellees.
Mark Brnovich, Attorney General; Oramel H. Skinner,
Solicitor General; Rusty D. Crandell, Deputy Solicitor
General; Office of the Attorney General, Phoenix, Arizona;
for Amicus Curiae State of Arizona.

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Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr
LLP, New York, New York; Alex Gazikas, Wilmer Cutler
Pickering Hale and Dorr LLP, Washington, D.C.; Peter S.
Margulies, Roger Williams University School of Law,
Bristol, Rhode Island; Shoba Sivaprasad Wadhia, University
Park, Pennsylvania; for Amici Curiae Professors of
Immigration Law.
ORDER
Appellants seek a stay pending appeal of the district
court’s July 24, 2019 order preliminarily enjoining the
Department of Justice and Department of Homeland
Security’s joint interim final rule, “Asylum Eligibility and
Procedural Modifications” (the “Rule”), 84 Fed. Reg. 33,829
(July 16, 2019).1
The district court found that the Rule likely did not
comply with the Administrative Procedure Act’s (APA)
notice-and-comment and 30-day grace period requirements
because Appellants did not adequately support invocation of
the “good cause” and “foreign affairs” exemptions under the
APA. See 5 U.S.C. § 553(a)(1), (b)(1)(B), (d)(3);
Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir. 1982)
(good cause exemption “should be interpreted narrowly so
that the exception will not swallow the rule” (internal
citations omitted)); Yassini v. Crosland, 618 F.2d 1356,
1360 n.4 (9th Cir. 1980) (foreign affairs exemption “would
become distended” if applied to immigration rules generally
1 The State of Arizona’s amicus brief in support of Appellants’
motion has been filed. The Professors of Immigration Law’s motion for
leave to file an amicus brief in opposition to Appellants’ motion (Docket
Entry No. 28) is granted, and the brief is filed.

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and requires showing that ordinary public noticing
would “provoke definitely undesirable international
consequences”). We conclude that Appellants have not
made the required “strong showing” that they are likely to
succeed on the merits on this issue. Hilton v. Braunskill,
481 U.S. 770, 776 (1987).2
Consequently, we deny the motion for stay pending
appeal (Docket Entry No. 3) insofar as the injunction applies
within the Ninth Circuit.3
We grant the motion for stay pending appeal insofar as
the injunction applies outside the Ninth Circuit, because the
nationwide scope of the injunction is not supported by the
2 Our finding that Appellants have not made a “strong showing”
does not bind the merits panel in reviewing this aspect of the merits, as
that is not the standard the merits panel will apply. See Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
3 We do not assess Appellants’ remaining arguments as to likelihood
of success on the merits and do not reach the remaining Hilton factors.
See Nken v. Holder, 556 U.S. 418, 435 (2009) (stating that the likelihood
of success on the merits factor is one of the “most critical” and must be
established before considering the last two stay factors); cf. California v.
Azar, 911 F.3d 558, 575 (9th Cir. 2018) (“Likelihood of success on the
merits is the most important factor; if a movant fails to meet this
threshold inquiry, we need not consider the other factors.” (internal
quotation marks omitted) (quoting Disney Enters., Inc. v. VidAngel, Inc.,
869 F.3d 848, 856 (9th Cir. 2017))).

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record as it stands.4 Cf. City and County of San Francisco
v. Trump, 897 F.3d 1225, 1243–45 (9th Cir. 2018).5
An injunction must be “narrowly tailored to remedy the
specific harm shown.” Id. at 1244 (quoting Bresgal v. Brock,
843 F.2d 1163, 1170 (9th Cir. 1987)). We have upheld
nationwide injunctions where such breadth was necessary to
remedy a plaintiff’s harm. See, e.g., id.; California v. Azar,
911 F.3d 558, 582 (9th Cir. 2018) (“Although there is no bar
4 The dissent, without citing any authority, argues that “it is [not]
within a motions panel’s province to parse the record for error at this
stage” and accuses us of “[going] beyond the recognized authority of a
motions panel” by granting the motion for a stay pending appeal insofar
as the injunction applies outside the Ninth Circuit. We have two
responses.
First, we did not have to “parse” the record for error. Appellants’
stay motion specifically argues that the district court erred in imposing a
nationwide injunction. Moreover, the three sentences that the district
court provided to support the imposition of a nationwide injunction—
none of which explains why it believed a nationwide injunction was
necessary in this case—make clear that it failed to undertake the analysis
necessary before granting such broad relief.
Second, other motions panels of our court have reviewed the scope
of injunctive relief granted by district courts. See, e.g., E. Bay Sanctuary
Covenant v. Trump, No. 18-17274, 2018 WL 8807133, at *24 (9th Cir.
Dec. 7, 2018); Hawaii v. Trump, No. 17-17168, 2017 WL 5343014, at *1
(9th Cir. Nov. 13, 2017). We think these decisions illustrate that it is
indeed within our province—our duty, even—to review whether the
district court abused its discretion in granting a nationwide injunction.
5 The dissent criticizes our reliance on Trump, 897 F.3d 1225,
because the procedural posture in this case is different. We recognize
this difference as we cite Trump as an analogous case supporting our
decision because, notwithstanding the different procedural posture, the
issue in that case—whether the scope of the injunction was
appropriate—is the same issue before us. See id. at 1244–45.

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against nationwide relief in federal district court . . . such
broad relief must be necessary to give prevailing parties the
relief to which they are entitled.” (internal quotation marks
and alterations omitted) (quoting Bresgal, 843 F.2d at 1170–
71)). These are, however, “exceptional cases.” Trump,
897 F.3d at 1244. To permit such broad injunctions as a
general rule, without an articulated connection to a
plaintiff’s particular harm, would unnecessarily “stymie
novel legal challenges and robust debate” arising in different
judicial districts. Id.; see also Azar, 911 F.3d at 583 (“The
Supreme Court has repeatedly emphasized that nationwide
injunctions have detrimental consequences to the
development of law and deprive appellate courts of a wider
range of perspectives.”).
Here, the district court failed to discuss whether a
nationwide injunction is necessary to remedy Plaintiffs’
alleged harm. Instead, in conclusory fashion, the district
court stated that nationwide relief is warranted simply
because district courts have the authority to impose such
relief in some cases and because such relief has been applied
in the immigration context. The district court clearly erred
by failing to consider whether nationwide relief is necessary
to remedy Plaintiffs’ alleged harms. And, based on the
limited record before us, we do not believe a nationwide
injunction is justified.
Our dissenting colleague believes that a nationwide
injunction is appropriate simply because this case presents a
rule that applies nationwide. That view, however, ignores
our well-established rule that injunctive relief “must be
tailored to remedy the specific harm alleged.” Lamb-
Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th
Cir. 1991) (citations omitted). Indeed, were we to adopt the
dissent’s view, a nationwide injunction would result any

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EAST B AY S ANCTUARY C OVENANT V . B ARR 9
time an enjoined action has potential nationwide effects.
Such an approach would turn broad injunctions into the rule
rather than the exception. Under our case law, however, all
injunctions—even ones involving national policies—must
be “narrowly tailored to remedy the specific harm shown.”
Trump, 897 F.3d at 1244 (quoting Bresgal, 843 F.2d
at 1170).
We agree with our dissenting colleague that “time does
not permit a full exploration of the merits of the ‘nationwide’
issue.” But whereas he believes that such a factor supports
the granting of a nationwide injunction until a merits panel
can address the case, we reach precisely the opposite
conclusion. “National injunctions interfere with good
decisionmaking by the federal judiciary.” Samuel L. Bray,
Multiple Chancellors: Reforming the National Injunction,
131 Harv. L. Rev. 417, 461 (2017). They “deprive” other
parties of “the right to litigate in other forums.” Azar,
911 F.3d at 583. Based on the briefing and limited record
before us, and absent an explanation by the district court as
to why a nationwide injunction is necessary to remedy
Plaintiffs’ alleged harm in this case, we must grant the
motion for stay pending appeal insofar as the injunction
applies outside the Ninth Circuit.
Our dissenting colleague also argues that it is
“perplexing” that the government’s failure to demonstrate a
strong showing of likelihood of success on the merits “does
not . . . require that a stay of the nationwide aspect of the
injunction [] be denied.” That contention misses the mark,
however, by conflating the merits of the government’s
position with the district court’s authority to issue a
nationwide injunction. Whether Appellants have made a
strong showing of likelihood of success on the merits
entitling them to a stay of the preliminary injunction is a

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separate question from whether the scope of the injunction
is appropriate. In Azar, for example, we affirmed the
preliminary injunction because, among other things, we
found that the plaintiffs were likely to succeed on their claim
that the rules were invalid. 911 F.3d at 575–81. Despite our
conclusion that the rules were likely invalid, however, we
also determined that the injunction’s nationwide scope was
not supported by the record. Id. at 584–85. Azar illustrates
that, beyond examining the merits of a party’s arguments, a
district court must separately analyze whether nationwide
relief is “necessary to give prevailing parties the relief to
which they are entitled” before issuing such an injunction.
Id. at 582 (quoting Bresgal, 843 F.2d at 1170–71).
Our approach—granting a more limited injunction—
allows other litigants wishing to challenge the Rule to do so.
Indeed, several already have.6 Litigation over the Rule’s
lawfulness will promote “the development of the law and the
percolation of legal issues in the lower courts” and allow the
Supreme Court, if it chooses to address the Rule, to do so
“[with] the benefit of additional viewpoints from other lower
federal courts and [with] a fully developed factual record.”
Amanda Frost, In Defense of Nationwide Injunctions,
93 N.Y.U. L. REV. 1065, 1107–08 (2018).7
6 As Appellants point out, hours before the district court ruled here,
a District of Columbia district court, presented with the same Rule,
denied materially identical relief to organizations similar to the Plaintiffs
here. See CAIR v. Trump, No. 1:19-CV-02117-TJK, 2019 WL 3436501
(D.D.C. July 24, 2019).
7 Accord United States v. Mendoza, 464 U.S. 154, 160 (1984)
(“[O]nly one final adjudication would deprive this Court of the benefit it

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In sum, our decision to partially grant the stay simply
upholds the law of our circuit by ensuring that injunctive
relief is properly tailored to the alleged harm.8
While this appeal proceeds, the district court retains
jurisdiction to further develop the record in support of a
preliminary injunction extending beyond the Ninth Circuit.
Cf. Trump, 897 F.3d at 1245 (“Because the record is
insufficiently developed as to the question of the national
scope of the injunction, we vacate the injunction to the extent
that it applies outside California and remand to the district
court for a more searching inquiry into whether this case
justifies the breadth of the injunction imposed.”).
The opening brief is due September 3, 2019; the
answering brief is due October 1, 2019; and the optional
reply is due within 21 days after service of the answering
brief. This case will be placed on a December 2019
argument calendar.
receives from permitting several courts of appeals to explore a difficult
question.”).
8 Contrary to the dissent’s position, the fact that injunctive relief may
temporarily cause the Rule to be administered inconsistently in different
locations is not a sound reason for imposing relief that is broader than
necessary. As we explain above, our law requires that injunctive relief
be narrowly tailored to remedy the plaintiffs’ alleged harm, and it may
only be broadened “if such breadth is necessary to give prevailing parties
the relief to which they are entitled.” Bresgal, 843 F.2d at 1170–71
(emphasis added).

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TASHIMA, Circuit Judge, concurring in part and dissenting
in part:
I concur in the portion of the order denying the motion
for stay pending appeal [Dkt. 3] insofar as the injunction
applies within the Ninth Circuit, but dissent from the balance
of the order.
Acting as a motions panel, all we have before us is the
government’s motion for a stay. I do not believe that it is
within a motions panel’s province to parse the record for
error at this stage, which is what the majority does in
concluding that “the nationwide scope of the injunction is
not supported by the record as it stands.” (Citation omitted.)
But the majority then goes beyond the recognized authority
of a motions panel by concluding that “[t]he district court
clearly erred by failing to consider whether nationwide relief
is necessary to remedy Plaintiffs’ alleged harms,” and, on
that basis “grant[s] the motion for stay pending appeal
insofar as the injunction applies outside the Ninth Circuit.”
It then, in the penultimate paragraph of the Order, in effect,
remands the case to the district court for a partial do-over:
While this appeal proceeds, the district court
retains jurisdiction to further develop the
record in support of a preliminary injunction
extending beyond the Ninth Circuit.1
1 The majority relies on City & County of San Francisco v. Trump,
897 F.3d 1225, 1245 (9th Cir. 2018), but the citation is completely
inapposite. That was an opinion by a merits panel charged with deciding
the appeal, not a motions panel charged with deciding a stay motion, and
the merits panel did exactly what it was charged with, i.e., it decided the

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But vacating and remanding it to the district court for a more
searching inquiry into whether this case justifies the breadth
of the injunction is indubitably an action within the province
of a merits panel—not a motions panel.2
At the same time, the order places the merits briefing (of
this appeal) on an expedited schedule for placement “on a
December 2019 argument calendar.” What issues are the
parties expected to brief, assuming that parallel proceedings
in the district court are still ongoing? And if the district court
completes its second-look remand proceedings within the
next few weeks or months and issues a modified injunction,
or issues the same nationwide injunction, but one which is
supported by supplemental findings of fact, should the
parties seek to file supplemental briefs on the newly-raised
and newly-decided issues in this appeal to the merits panel
assigned to this appeal, or should a new notice of appeal be
filed, giving rise to a new appeal? These are some of the
new and difficult questions raised by the majority’s split-
decision.
While time does not permit a full exploration of the
merits of the “nationwide” issue, some problems posed by
the majority’s Ninth Circuit-only injunction are apparent.
Perhaps, the district court did not make detailed findings in
appeal; it “AFFIRMED in part; VACATED in part; and REMANDED.”
Id. We, as a motions panel, have no equivalent charge.
2 Because the issue has been decided, applying the clear error
standard of review, the injunction vacated and remanded to the district
court, the merits panel, presumably has been deprived of deciding this
issue. The majority’s assertion, in footnote 2, that its action “does not
bind the merits panel,” is an empty promise. Deciding the case on the
merits, vacating and remanding the injunction is not in accord with the
dictates of Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

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support of a nationwide injunction because the need for one
in the circumstances of this case is obvious. For starters, the
joint interim final rule, “Asylum Eligibility and Procedural
Modifications,” will affect asylum applications across the
breadth of the southern border. Should asylum law be
administered differently in Texas than in California? These
issues and problems illustrate why tinkering with the merits
on a limited stay motion record can be risky. And it is why
such issues are reserved for the more deliberate examination
that a merits panel can give them.
There is also a glaring inconsistency—a contradiction—
in the majority’s split-the-baby approach. If, as the majority
and I agree, the government’s failure to meet the first Hilton
v. Braunskill, 481 U.S. 770, 776 (1987), factor—likelihood
of success on the merits, because of its failure to comply with
the APA—means that its stay motion with respect to the
preliminary injunction’s application within the Ninth Circuit
fails, it is perplexing to me why that failure does not infect
the balance of its stay motion and require that a stay of the
nationwide aspect of the injunction also be denied.3 The
majority, in its rush to address the merits of the nationwide
aspect of the injunction, simply elides this contradiction.
Because I would not peel off part of the preliminary
injunction and remand that portion to the district court,
3 The majority’s answer to this point is to state that “Whether
Appellants have made a strong showing of likelihood of success on the
merits entitling them to a stay of the preliminary injunction is a separate
question from whether the scope of the injunction is appropriate.” But
that doesn’t answer (or even try to answer) my question of why the
government’s failure to meet the likelihood-of-success factor doesn’t
doom its motion to stay the nationwide portion of the injunction, as well
as the California portion.

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EAST B AY S ANCTUARY C OVENANT V . B ARR 15
“[b]ecause the record is insufficiently developed as to the
question of the national scope of the injunction” (quoting
San Francisco v. Trump, 897 F.3d at 1245), while retaining
jurisdiction over the remainder, I dissent from the remand4
of the nationwide scope of the preliminary injunction to the
district court.
I would simply deny the stay motion.
4 The Order does not use the word “remand,” but the majority does
not quarrel with the obvious inference from its statement that “the district
court retains jurisdiction to further develop the record in support of a
preliminary injunction extending beyond the Ninth Circuit,” is, in
substance, a remand.

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