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East Bay Sanctuary Covenant v. Trump

In November 2018, the Trump Administration issued an executive order “closing” the Mexican border, and simultaneously issued a regulation purporting to prevent noncitizens who crossed the border in violation of the executive order from obtaining political asylum. The regulation not only conflicts with a statute entitling noncitizens within the United States from applying for asylum regardless of how they entered the country, but was also issued without notice-and-comment rulemaking procedures. Organizations that assist migrants sued to enjoin the regulation, and the district court entered a temporary restraining order against its enforcement and set a briefing schedule and hearing date for the plaintiffs’ motion for a preliminary injunction. Public Citizen filed a brief as amicus curiae supporting the motion for a preliminary injunction, explaining the importance of notice-and-comment rulemaking and the principle that exceptions to notice-and-comment rulemaking are narrowly construed, and arguing that the exceptions claimed by the government (for matters involving “foreign affairs” and for cases where rulemaking would be “impracticable” or “contrary to the public interest”) are inapplicable to this case. The district court granted the preliminary injunction as well holding that the rule was inconsistent with the Immigration and Nationality Act. The government appealed, and in February 2020, the Ninth Circuit affirmed the district court’s orders.