East Bay Sanctuary, et al., v. Joseph R. Biden, President of the United States, et al., No. 4:18-cv-06810 (N.D. Cal., amended complaint filed May 11, 2023) and No. 23-16032 (9th Cir., filed July 26, 2023)

Anticipating the end of the policy that allowed for the expulsion of asylum-seekers arriving at the U.S./Mexico border under Title 42, on May 10, 2023, the Biden administration issued a new final rule that bars certain asylum seekers from asylum if they did not apply for asylum in a country they passed through on their way to the United States or failed to obtain advance permission to arrive at a port of entry or travel to the United States. The exceptions to this new asylum ban are extremely narrow. This is the third in a string of asylum bans attempting to bar many people from the asylum process. The first two originated under the Trump administration and were found unlawful by the district court in this case and the Ninth Circuit.

Plaintiffs originally filed this lawsuit on November 9, 2018, in response to the Trump administration’s first asylum ban, which barred anyone who did not enter the United States at a port of entry from receiving asylum. The district court found this first ban unlawful and enjoined it. The Ninth Circuit affirmed those orders on February 28, 2020, (and in an amended opinion on March 24, 2021). The case was stayed.

On July 16, 2019, East Bay Sanctuary and others filed a related lawsuit in the same court challenging the second asylum ban, which barred those who did not apply for asylum in a country they transited through on their way to the United States from seeking asylum in the United States. The district court similarly preliminarily enjoined the second asylum rule as likely unlawful and the Ninth Circuit ultimately affirmed that order on July 6, 2020, (amended April 8, 2021).

On May 11, 2023, Plaintiffs sought leave to amend their complaint in this case to challenge the third asylum ban. Defendants consented to the filing of the amended complaint and to lifting the stay on the case. Plaintiffs argue that the new rule is unlawful for the same reasons the first two asylum bans were unlawful. It will effectively eliminate asylum for nearly all non-Mexican asylum seekers who enter between designated ports of entry, and even for those who present at a port of entry if they have not first secured an appointment.

On July 25, 2023, the district court granted Plaintiffs’ motion for summary judgment and denied Defendants’ cross-motion, vacating the rule yet again. The government appealed the order, and on August 3, the Ninth Circuit ruled that the administration’s transit ban can continue through September, staying the lower court decision. The Ninth Circuit held oral argument on November 7, 2023, and the parties await a decision of the court.

Documents:

• Complaint
• Motion for Temporary Restraining Order on First Asylum Ban
• Motion for Preliminary Injunction of First Asylum Ban
• Ninth Circuit Order Upholding Injunctions on First Asylum Ban
• Related Complaint on Second Asylum Ban
• Motion for Preliminary Injunction of Second Asylum Ban
• Ninth Circuit Order Upholding Injunction on Second Asylum Ban
• Second Amended Complaint on Third Asylum Ban
• Order Granting Plaintiffs’ Motion for Summary Judgment and Denying Defendants’ Motion for Summary Judgment
• Ninth Circuit Order Upholding Asylum Ban
• Appellant’s Opening Brief
• Appellant’s Reply Brief

Counsel: ACLU Immigrant Rights Project; Center for Gender & Refugee Studies; National Immigrant Justice Center; ACLU of Northern California

Contact: Katrina Eiland | ACLU Immigrant Rights Project | keiland@aclu.org

Press:

• Ariana Figueroa, Court Allows Biden Rule Limiting Asylum at the Border to Be Kept in Place for Now, Iowa Capital Dispatch, Aug. 4, 2023.