## Facts

- The Department of Homeland Security (DHS) and the Department of Justice (DOJ) issued a 2023 final rule titled “Circumvention of Lawful Pathways,” creating a rebuttable presumption of asylum ineligibility for many noncitizens arriving at the U.S.-Mexico land border after traveling through a third country.
- The rule contained limited exceptions, including for certain noncitizens who: (1) had advance authorization to travel to the United States for parole purposes under designated programs, (2) presented at a port of entry with a pre-scheduled appointment (primarily through the CBP One smartphone application), or (3) had sought and been denied asylum (or other protection) in a transit country. Unaccompanied children were also exempted.
- For those who did not meet an exception, the rule allowed the presumption to be rebutted only by showing “exceptionally compelling circumstances” at the time of entry.
- Nonprofit organizations that provide legal services to asylum seekers sued the President and responsible federal agencies and officials, challenging the rule under the Immigration and Nationality Act (INA) and the Administrative Procedure Act (APA).
- The government argued the rule was needed to manage migration following the end of Title 42 and asserted that migrants could seek protection in transit countries such as Belize, Colombia, and Mexico.
- The administrative record included evidence of major barriers to obtaining protection in transit countries, including limits in asylum systems and safety concerns, as well as evidence that many migrants could not reliably use CBP One because of technological and other access problems.
- The parties filed cross-motions for summary judgment in the Northern District of California before Judge Jon S. Tigar.

## Issues

1. Whether the nonprofit plaintiffs had Article III standing and fell within the INA’s zone of interests to challenge the rule under the APA.
2. Whether the rule’s presumption of asylum ineligibility conflicted with the INA’s asylum framework, including the statutory provision allowing a noncitizen to apply for asylum “whether or not” they arrive at a designated port of entry, and the statute’s specified asylum bars.
3. Whether DHS and DOJ acted unlawfully under the APA by issuing a rule that was arbitrary and capricious, including by failing to adequately account for record evidence about (a) access to protection in transit countries and (b) barriers to obtaining port-of-entry appointments through CBP One.
4. What remedy was appropriate if the rule was unlawful, including whether to vacate the rule and whether any vacatur should be stayed to allow appellate review.

## Decision

- The court granted plaintiffs’ motion for summary judgment and denied the government’s cross-motion.
- The court held the rule was unlawful under the INA because it imposed a broad restriction on asylum eligibility that could not be squared with Congress’s statutory design, which permits asylum applications regardless of manner of entry, subject to the specific limits Congress enacted.
- The court also held the rule was arbitrary and capricious under the APA, finding the agencies did not adequately justify key assumptions in light of contrary evidence in the administrative record, including evidence about the lack of meaningful access to protection in transit countries and obstacles to using CBP One to obtain appointments.
- The court vacated the rule on a nationwide basis as the APA remedy for the rule’s substantive and procedural defects.
- The court stayed vacatur for 14 days to allow the government time to seek relief from the Ninth Circuit.

## Legal Principles

- Under Article III, organizational plaintiffs may establish standing when a challenged government policy causes them to divert resources or otherwise injures their operations, and APA plaintiffs must also fall within the relevant statute’s zone of interests.
- The INA provides that a noncitizen who is physically present in the United States or who arrives in the United States may apply for asylum regardless of whether the person arrives at a designated port of entry, subject to the eligibility limits and bars Congress specified.
- Statutory authority to set “additional limitations and conditions” on asylum eligibility does not permit agencies to create a sweeping bar that effectively defeats the baseline statutory right to apply for asylum.
- Under the APA, agency action is unlawful if it is arbitrary and capricious, including when the agency fails to consider important aspects of the problem, relies on unsupported assumptions, or inadequately addresses significant contrary evidence in the record.
- When an agency adopts a policy that resembles prior policies found unlawful, the agency must provide a reasoned explanation that addresses why the new policy is lawful and justified on the record.
- Vacatur is a standard APA remedy for unlawful rules; a court may also grant a temporary stay of vacatur to allow time for appellate review.

## Conclusion

The district court granted summary judgment for nonprofit plaintiffs challenging DHS and DOJ’s 2023 “Circumvention of Lawful Pathways” rule, holding the rule’s presumption of asylum ineligibility conflicted with the INA’s asylum scheme and was also arbitrary and capricious under the APA, then vacated the rule nationwide while staying the vacatur for 14 days to permit the government to seek appellate relief.


East Bay Sanctuary Covenant, et al. v. Joseph R. Biden, et al., Case No. 18-cv-06810-JST, 2023 U.S. Dist. LEXIS 128360 (2023)