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Al Otro Lado v. Wolf

United States District Court, S.D. California

January 6, 2020

AL OTRO LADO, et al., Plaintiffs,
CHAD F. WOLF, Acting Secretary of Homeland Security, et al., Defendants.


          Hon. Cynthia Bashant, United States District Judge

         On December 6, 2019, Plaintiffs moved for a temporary restraining order (“TRO”) prohibiting the Government from applying a new regulation, “Implementing Bilateral and Multilateral Asylum Cooperative Agreements Under the Immigration and Nationality Act” (“ACA Rule”), to provisional class members who were metered by the U.S. Government at a port of entry before the effective date of the regulation. (Mot. for TRO, ECF No. 344; Mot. for Provisional Class Certification, ECF No. 352.) Defendants oppose the Motion and have submitted Motion amending their Opposition. (ECF Nos. 352, 362.) For the reasons stated below, the Court GRANTS Defendants' Motion to Amend/Correct their Opposition and DENIES WITHOUT PREJUDICE Plaintiffs' Motion for a TRO.

         I. BACKGROUND

         The Rule implements a statutory exception to asylum in the Immigration and Nationality Act known as the “Safe third country” provision. 8 U.S.C. § 1158(a)(2)(A). Under this provision, the Attorney General can remove a foreign national otherwise eligible for asylum,

pursuant to a bilateral or multilateral agreement, to a country (other than the country of the alien's nationality or, in the case of an alien having no nationality, the country of the alien's last habitual residence) in which the alien's life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the Attorney General finds that it is in the public interest for the alien to receive asylum in the United States.

Id. The United States recently entered into ACAs with El Salvador, Guatemala, and Honduras which constitute such “bilateral or multilateral agreement[s]” to which the statutory exception applies, and the ACA Rule “modif[ies] existing regulations to provide for the implementation of” these ACAs.[1] 84 Fed. Reg. 63994 (Nov. 19, 2019) (to be codified at 8 C.F.R. §§ 208.4, 208.30, 1003.42, 1208.4, and 1240.11).

         In addition to implementing the three aforementioned ACAs, the ACA Rule creates a bar that restricts “whether an alien may even apply for asylum.” Id. at 63996 (emphasis original). To do so, the rule establishes “a screening mechanism” to evaluate an alien's likelihood of torture or of persecution based on race, religion, nationality, political opinion, or membership in a particular social group if removed a “third country”-in this case, El Salvador, Guatemala, or Honduras.

         This threshold inquiry is conducted by an asylum officer or immigration judge who must determine: (1) if a foreign national is subject to the terms of an existing ACA; and (2) if the individual, should he or she state an affirmative fear of removal to a signatory third country, is more likely than not to be persecuted or tortured in that country. Id. at 63998. The inquiry occurs directly after an initial inadmissibility or deportability determination is made during either an expedited removal proceeding or a “regular removal proceeding” under § 240 of the INA. Id.


         If the nonmovant has received notice of a TRO, the standard for issuing a temporary restraining order is the same as that for issuing a preliminary injunction. See Brown Jordan Int'l, Inc. v. Mind's Eye Interiors, Inc., 236 F.Supp.2d 1152, 1154 (D. Haw. 2002); Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F.Supp. 1320, 1323 (N.D. Cal. 1995). “[A] preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 98, 972 (1997) (emphasis original) (quotation omitted). “[T]he burden of proof at the preliminary injunction stage tracks the burden of proof at trial.” Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011).

         To obtain preliminary injunctive relief, a movant must “meet one of two variants of the same standard.” All for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017.) Under the first standard, the movant must show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).

         Under the second standard, the movant must show “that there are serious questions going to the merits-a lesser showing than likelihood of success on the merits, ” that the “balance of hardships tips sharply in the Plaintiff's favor, ” and that “the other two Winter factors are satisfied.” Id. (quotation omitted). The balance of equities and public interest factors merge “[w]hen the government is a party.” Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). Under the second standard, when the government is a party, the movant must show serious questions going to the merits; a balance of hardships, merged with public interest considerations, tipping sharply in the movant's favor; and a likelihood of irreparable harm absent preliminary relief.

         III. ANALYSIS

         Plaintiffs allege that the application of the ACA Rule to the class members will result in irreparable injury because removal to a third country would extinguish their ability to obtain relief in the underlying action. (Mem. of P. & A. In Support of Mot. for TRO at 4, ECF No. 344-1.) However, the Court does not find that Plaintiffs have met this burden ...

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