United States v. 2020-03-05 | 19-56417 | AL OTRO LADO V. CHAD WOLF | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

AL OTRO LADO, a California
corporation; ABIGAIL DOE;
BEATRICE DOE; CAROLINA DOE;
DINORA DOE; INGRID DOE; JOSE
DOE; URSULA DOE; VICTORIA DOE;
BIANCA DOE; JUAN DOE; ROBERTO
DOE; CESAR DOE; MARIA DOE;
EMILIANA DOE, individually and on
behalf of all others similarly situated,
Plaintiffs-Appellees,

v.

C
HAD F. WOLF, Acting Secretary,
U.S . Department of Homeland
Security; MARK A. MORGAN, Acting
Commissioner of U.S. Customs and
Border Protection; T
ODD C. OWEN,
Executive Assistant Commissioner,
Office of Field Operations, United
States Customs and Border
Protection, in his official capacity,
Defendants-Appellants.
No. 19-56417

D.C. No.
3:17-cv-02366-
BAS-KSC

ORDER

Filed March 5, 2020

2 AL OTRO LADO V. WOLF

Before: Sydney R. Thomas, Chief Judge, and Marsha S.
Berzon and Daniel A. Bress, Circuit Judges.

Order by Judge Berzon;
Dissent by Judge Bress

SUMMARY
*

Immigration
The panel denied the government’s motion for a stay,
pending appeal, of the district court’s order issuing a class-
wide preliminary injunction enjoining enforcement of a
regulation that provides, subject to narrow exceptions, that a
noncitizen who “enters, attempts to enter, or arrives in the
United States” at the southern border on or after July 16,
2019, is not eligible for asylum in the United States unless
they applied for asylum in another country, such as Mexico,
that they passed through on their way to the southern border.
8 C.F.R. § 208.13(c)(4) (“Third Country Transit Rule” or
“the Rule”).

Plaintiff Al Otro Lado—an organization dedicated to
helping individuals seek asylum in the United States—along
with thirteen individual plaintiffs (collectively, “Al Otro
Lado”), originally challenged in this case the government’s
policy of turning back asylum seekers at ports of entry on the
southern border and telling them to return later to file for
asylum, a policy the government refers to as “metering.”
However, the motion at issue in this order stemmed from the

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

AL OTRO LADO V. WOLF 3

impact of the Third Country Transit Rule on a subgroup of
metered asylum seekers. Al Otro Lado argued that, if the
Rule is applied to non-Mexican asylum seekers metered at
the border before July 16, 2019, the Rule will long delay
their ability to apply for asylum in the United States and, for
a large proportion of the class members, could preclude them
from accessing any asylum process altogether.

The district court granted a preliminary injunction
enjoining enforcement of the Rule against a provisionally
certified class of plaintiffs who arrived at the southern border
seeking asylum before July 16, 2019—when the Rule went
into effect—but were denied entry and prevented from
making an asylum claim under the metering policy, and
continue to seek access to the U.S. asylum process. The
district court explained that, because the Rule went into
effect after class members were subject to metering, class
members did not attempt to apply for asylum in Mexico, as
required by Mexican law, within 30 days of entry. Thus,
they unintentionally and irrevocably relinquished their right
to claim asylum in Mexico and, due to the Rule, their right
to claim asylum in the United States. This panel granted a
temporary stay of the preliminary injunction on December
20, 2019, in an order that was only intended to preserve the
status quo until the substantive motion for a stay pending
appeal could be considered on the merits.

The panel concluded that the administrative burdens the
government faces in implementing the injunction—by
identifying class members—are either not irreparable harm
of the kind that could justify a stay pending appeal, or,
“minimal” harm. The panel explained that the government
offered at best weak evidence that it will suffer significant
overall delay in processing asylum applications at the border
during the relatively short period before the appeal is

4 AL OTRO LADO V. WOLF

resolved, and that the government could significantly
mitigate the harm created by its own recordkeeping practices
by obtaining copies of waitlists of metered asylum seekers,
but has declined to do so.

Next, the panel concluded that the government had not
carried its burden to establish a sufficient likelihood of
success on the merits, noting that where, as here, the
showing of irreparable harm is weak, the government had to
make a commensurately strong showing of a likelihood of
success on the merits to prevail. The district court concluded
that aliens in the process of arriving, such as class
members—who approached the border, sought entry, but
were turned away from a port of entry—are covered by 8
U.S.C. § 1225(b)(1)(A)(ii), which requires immigration
officers to refer arriving migrants seeking asylum to asylum
officers. The government argued that, because class
members were in Mexico on the effective date of the Rule,
they will necessarily arrive in the United States after July 16,
2019, and the Rule by its plain terms will then apply. The
panel observed that, for the government to succeed on this
argument, one of two things must be true: 1) either the
district court must be wrong that class members were
“arriving in the United States” when they first attempted to
enter and were turned back, or, 2) if they were “arriving,”
the first arrival must no longer have any legal significance,
so any second arrival—governed by the Rule—will be the
only one that matters. The panel concluded that the district
court’s underlying statutory analysis was sufficiently sound
and persuasive as to both the meaning of “arriving in the
United States” and the legal significance of an arrival.

Because the Government did not satisfy the first two
factors, the panel concluded that it need not dwell on the
final two factors—harm to the opposing party and the public

AL OTRO LADO V. WOLF 5

interest. Even so, the panel concluded that the balance of
equities and public interest tip sharply in Al Otro Lado’s
favor. With respect to harm to Al Otro Lado, the panel
explained that enforcement of the Rule against the
provisionally certified class would cause not only substantial
but irreparable injury to them. The class relied to their
detriment on the government’s representations, returning to
Mexico reasonably believing that if they followed
procedures, they would eventually have an opportunity to
make a claim for asylum in the United States. However, the
Rule would now make them ineligible for asylum in the
United States, and they cannot in all probability pursue
asylum in Mexico due to the procedural limits on the
availability of asylum in Mexico. As to the fourth factor, the
panel noted that aspects of the public interest favor both
sides, but concluded that, when considered alongside the
government’s failure to show irreparable harm, the final two
factors did not weigh in favor of a stay.

Finally, the panel emphasized that the question whether
the injunction should be overturned—the merits of the
ultimate appeal—was not before this motions panel; it ruled
only on the motion to stay the injunction pending appeal.
The panel concluded that respecting the role of stay motions
required that the panel decline to usurp the role of the
preliminary injunction merits panel, explaining that
premature determination of complex legal and factual issues
will not in the long run produce well-considered and
dependable judicial decision-making. The panel also noted
that the appeal of the preliminary injunction has been
expedited, and that this case will be assigned to the next
available oral argument panel for a decision on the merits.

Dissenting, Judge Bress wrote that he would have
granted the stay, noting at the outset that the district court

6 AL OTRO LADO V. WOLF

enjoined a rule that the Supreme Court just months ago
ordered could go into effect pending appeal. Considering
the likelihood of success on the merits, Judge Bress first
concluded that there was no basis for the district court to
enjoin the Rule in this metering case—where the issue is
whether metering is lawful—and that the district court
greatly exceeded its powers. In this respect, Judge Bress
noted that courts do not have authority to issue an injunction
on claims not pled in the complaint, and that the All Writs
Act is not a grant of plenary power to the courts. Even
assuming that the focus of the merits analysis should be on
the Rule, Judge Bress wrote that the government had shown
a strong likelihood of success on its claim that the Rule does
apply to the plaintiff subclass. In this respect, Judge Bress
wrote that the district court erred in concluding that plaintiffs
had arrived in the United States when they were metered
such that the asylum laws applied to them at that time. Judge
Bress also wrote that the majority’s endorsement of the
district court’s ruling on that point, coupled with the
majority’s related holding that the immigration laws are
frozen at the time of metering, works a revolution in
immigration law.

Further, Judge Bress concluded that the factor of
irreparable harm also weighs strongly in favor of the
government, explaining the harm is the government’s
inability to apply the Rule to persons that the Rule covers,
where the Supreme Court has already held that this Rule may
be implemented pending appeal. Judge Bress also disagreed
with the majority’s assessment that the harm here is self-
inflicted and disagreed with the majority that the government
can easily comply with the injunction by relying on waitlists.
In light of the immigration crisis at the border, Judge Bress
concluded that the government had demonstrated that
complying with the injunction will create irreparable harm.

AL OTRO LADO V. WOLF 7

Finally, Judge Bress concluded that, for the same reasons set
out in his prior analysis, the final stay factors also favored
the government.

COUNSEL

Scott G. Stewart (argued), Deputy Assistant Attorney
General; Alexander J. Halaska, Trial Attorney; Katherine J.
Shinners, Senior Litigation Counsel; Erez Reuveni,
Assistant Director; William C. Peachey, Director, District
Court Section; Joseph H. Hunt, Assistant Attorney General;
Civil Division, United States Department of Justice,
Washington, D.C.; for Defendants-Appellants.

Ori Lev (argued), Stephen M. Medlock, and Eric Brooks,
Mayer Brown LLP, Washington, D.C.; Melissa E. Crow
(argued), Southern Povery Law Center, Washington, D.C.;
Baher Azmy and Angelo Guisado, Center for Constitutional
Rights, New York, New York; Matthew H. Marmolejo,
Mayer Brown LLP, Los Angeles, California; Sarah Rich and
Rebecca Cassler, Southern Poverty Law Center, Decatur,
Georgia; Karolina Walters, American Immigration Council,
Washington, D.C.; for Plaintiffs-Appellees.

Xavier Becerra, Attorney General; Michael L. Newman,
Senior Assistant Attorney General; Susan Slager,
Supervising Deputy Attorney General; Vilma Palma-Solana,
James F. Zahradka II, R. Erandi Zamora-Graziano, and
Marissa Malouff, Deputy Attorneys General; Office of the
Attorney General, Los Angeles, California; William Tong,
Attorney General, Hartford, Connecticut; Kathleen
Jennings, Attorney General, Wilmington, Delaware; Clare
E. Connors, Attorney General, Honolulu, Hawaii; Kwame
Raoul, Attorney General, Chicago, Illinois; Aaron M. Frey,

8 AL OTRO LADO V. WOLF

Attorney General, Augusta, Maine; Brian E. Frosh, Attorney
General, Baltimore, Maryland; Mauar Healey, Attorney
General, Boston, Massachusetts; Dana Nessel, Attorney
General, Lansing, Michigan; Keith Ellison, Attorney
General, St. Paul, Minnesota; Aaron D. Ford, Attorney
General, Carson City, Nevada; Gurbir S. Grewal, Trenton,
New Jersey; Hector Balderas, Attorney General, Santa Fe,
New Mexico; Letitia James, Attorney General, New York,
New York; Ellen F. Rosenblum, Attorney General, Salem,
Oregon; Josh Shapiro, Attorney General, Harrisburg,
Pennsylvania; Peter F. Neronha, Attorney General,
Providence, Rhode Island; Thomas J. Donovan Jr., Attorney
General, Montpelier, Vermont; Mark R. Herring, Attorney
General, Richmond, Virginia; Robert W. Ferguson,
Attorney General, Olympia, Washington; Karl A. Racine,
Attorney General, Washington, D.C.; for Amici Curiae
California, Connecticut, Delaware, Hawaii, Illinois, Maine,
Maryland, Massachusetts, Michigan, Minnesota, Nevada,
New Jersey, New Mexico, New York, Oregon,
Pennsylvania, Rhode Island, Vermont, Virginia,
Washington, and the District of Columbia.

Susan Baker Manning, Morgan Lewis & Bockius LLP,
Washington, D.C.; Sabin Willett, Morgan Lewis & Bockius
LLP, Boston, Massachusetts; for Amici Curiae Immigration
Law Professors.

Dimitri D. Portnoi, O’Melveny & Myers LLP, Los Angeles,
California, for Amici Curiae Law Professors.

Harrison J. Frahn, Simpson Thacher & Bartlett LLP, Palo
Alto, California, for Amici Curiae Eighteen Organizations
Representing Asylum Seekers.

AL OTRO LADO V. WOLF 9

ORDER
BERZON, Circuit Judge:
Plaintiff Al Otro Lado is an organization dedicated to
helping individuals seek asylum in the United States. Along
with thirteen Individual Plaintiffs (collectively, “Al Otro
Lado”), Al Otro Lado originally challenged in this case the
government’s policy of turning back asylum seekers at ports
of entry on the southern border and telling them to return
later to file for asylum, a policy the government refers to as
“metering.” Al Otro Lado’s complaint alleges that asylum
seekers are turned back to deter and discourage individuals
from seeking access to the asylum process, and not, as the
government maintains, because each port of entry lacks
capacity to process additional asylum seekers.
The current motion does not directly concern the validity
of the policy requiring asylum seekers to wait at or near the
border for some time before their asylum applications can be
filed and processed. Rather, this motion stems from the
impact of a separate regulation, promulgated while this
litigation was pending, on a subgroup of metered asylum
seekers. That regulation, known variously as the “Third
Country Transit Rule,” “transit rule,” and “asylum ban,”
(“the Rule”), provides, subject to narrow exceptions, that a
noncitizen who “enters, attempts to enter, or arrives in the
United States” at the southern border on or after July 16,
2019 is not eligible for asylum in the United States unless
they applied for asylum in another country, such as Mexico,
that they passed through on their way to the southern border.
8 C.F.R. § 208.13(c)(4).
The district court granted a preliminary injunction
enjoining enforcement of the Rule against a provisionally
certified class of plaintiffs who arrived at the southern border

10 AL OTRO LADO V. WOLF

seeking asylum before July 16, 2019 but were denied entry
and prevented from making an asylum claim under the
metering policy. The government appealed and moved this
court for a stay of the injunction pending appeal. Because the
government has not carried its burden of showing that a stay
is warranted, we deny the motion.
I.
Al Otro Lado’s putative class action complaint alleges
that Customs and Border Protection (“CBP”) uses various
unlawful tactics systematically to deny asylum seekers
access to the asylum process at Ports of Entry (“POEs”) on
the southern border. The complaint challenges the
Government’s so-called “Turnback Policy,” which includes
a “metering” or “waitlist” system. Under that system, the
complaint alleges, asylum seekers who arrive at or near the
southern border of the United States are instructed “to wait
on the bridge, in the pre-inspection area, or at a shelter,” or
are simply told that “they [could not] be processed because
the POE is ‘full’ or ‘at capacity.’” According to the
complaint and Al Otro Lado’s expert, under the
government’s current metering practices, “[w]hen a
pedestrian approaches the U.S.-Mexico dividing line”
without valid entry documents, CBP officers standing on the
international line “often physically block their passage into
U.S. territory by standing in the center of the pedestrian
walkway.”
Al Otro Lado introduced declarations in which asylum
seekers from a diverse set of countries and circumstances
reported that they were turned away from the border under
this metering policy and told to wait for an opportunity to
submit their applications for asylum. Members of the
provisionally certified class include Roberto Doe, who fled
Nicaragua after the police threatened to kill him and burn

AL OTRO LADO V. WOLF 11

down his business for participating in a strike against the
government; M.G., a Cuban citizen seeking asylum because
he was threatened and punched in the mouth by a political
official for calling his government corrupt; and Jordan Doe,
who fled Cameroon after his father was burned to death and
he was imprisoned and tortured by military officers who
accused him of being a separatist. They and the
approximately 26,000 other members of the provisionally
certified class approached the border to present themselves
before July 16, 2019 because they “wanted to do things the
right way,” but were turned away.
The government does not now keep records of the people
CPB officers turn back.
1
But other groups, with the United
States government’s knowledge and cooperation, have
created waitlists. The district court determined that
“[d]efendants do not . . . challenge[] that Grupo Beta, a
service run by the Mexican Government’s National Institute
of Migration, maintains a formalized list of asylum-seekers,
communicates with CBP regarding POE capacity, and
transports asylum-seekers from the top of the list to CBP.”
The record also shows that non-profit groups, shelters, and
small groups of asylum seekers maintain informal waitlists
in different locations. At each POE, CBP asks the list-keeper
in the area for a certain number of people each day based on
the POE’s alleged capacity, and the group then calls the
appropriate number of people from the top of its list. The
district court concluded that “CBP relied on these lists to

1
Under the initial metering practices instituted around the end of
2016, CBP officials at one POE were instructed “to provide the alien
with a piece of paper identifying a date and time for an appointment” “if
possible.” Although there were several documented instances of
migrants being turned back at that time, “[n]one of the asylum seekers
turned back from these ports of entry were provided with appointments.”

12 AL OTRO LADO V. WOLF

facilitate the process of metering,” and the record supports
that conclusion.
On July 16, 2019, the Department of Homeland Security
and the Department of Justice issued a joint interim final rule
entitled “Asylum Eligibility and Procedural Modifications.”
84 Fed. Reg. 33,829 (July 16, 2019), codified at 8 C.F.R.
§ 208.13(c)(4). In relevant part, the Rule provides:
(c) Mandatory denials—
(4) Additional limitation on eligibility for
asylum. Notwithstanding the provisions
of § 208.15, any alien who enters,
attempts to enter, or arrives in the United
States across the southern land border on
or after July 16, 2019, after transiting
through at least one country outside the
alien’s country of citizenship, nationality,
or last lawful habitual residence en route
to the United States, shall be found
ineligible for asylum unless:
(i) The alien demonstrates that he or
she applied for protection from
persecution or torture in at least one
country outside the alien’s country of
citizenship, nationality, or last lawful
habitual residence through which the
alien transited en route to the United
States, and the alien received a final

AL OTRO LADO V. WOLF 13

judgment denying the alien protection
in such country.
8 C.F.R. § 208.13(c)(4).
2

Al Otro Lado moved for a preliminary injunction to
prevent enforcement of the Rule against provisional class
members. It argued that if the Rule is applied to non-
Mexican asylum seekers metered at the border before July
16, 2019, the Rule will long delay their ability to apply for
asylum in the United States and, for a large proportion of the
class members, could preclude them from accessing any
asylum process altogether. This assertion has support in the
record. As the district court recognized, “Mexico’s
Commission to Assist Refugees, the administrative agency
responsible for processing asylum claims, requires that
applicants for asylum submit their petitions within 30 days

2
In separate litigation challenging the validity of the Rule, the
Supreme Court on September 11, 2019 stayed a district court’s
preliminary injunction precluding application of the Rule “pending
disposition of the Government’s appeal in the United States Court of
Appeals for the Ninth Circuit and disposition of the Government’s
petition for a writ of certiorari, if such a writ is sought.” Barr v. E. Bay
Sanctuary Covenant, 140 S. Ct. 3 (2019) (mem.). This court heard
argument on December 2, 2019 on the government’s appeal of the
injunction; the case is presently pending in this court. E. Bay Sanctuary
Covenant v. Barr, No. 19-16487. We note that the outcome of the East
Bay appeal could affect whether the issue before us remains a live
dispute.
Contrary to the Dissent’s suggestion, see Dissent at 51–54, the
district court’s injunction in this case is not precluded by the Supreme
Court’s stay of the injunction pending appeal in East Bay. That stay
order, like any other, is not a definitive resolution of the merits, and it
involved the substantive validity of the Rule, not application of the Rule,
if substantively valid, to the provisionally certified class in the particular
circumstances of this case.

14 AL OTRO LADO V. WOLF

of entering Mexico.” The district court then summarized the
bleak result for plaintiffs:
[B]ecause the [Rule] was not promulgated
until after the time these individuals were
subject to metering, none of the members of
the putative class attempted to exhaust
Mexico’s asylum procedures within the 30-
day window. In short, should the [Rule] apply
to these individuals, the situation would
effectively be this: Based on representations
of the Government they need only “wait in
line” to access the asylum process in the
United States, the members of the putative
class may have not filed an asylum petition in
Mexico within 30 days of entry, thus
unintentionally and irrevocably relinquishing
their right to claim asylum in Mexico and,
due to the [Rule], their right to claim asylum
in the United States.
3

Although it is possible to seek a waiver of Mexico’s 30-day
bar, Al Otro Lado maintains that “it is nearly impossible to
do so without legal counsel,” which most asylum seekers
cannot afford. Additionally, even if a waiver is granted,
according to evidence submitted by Al Otro Lado, it often

3
Al Otro Lado asserts that “nearly all provisional class members are
barred from even applying for asylum in Mexico.” The government
argued in the district court that class members could present evidence of
Mexico’s rejection of their asylum application, but made no
representation that such a rejection would in its view satisfy the Rule,
which requires a “final judgment” denying protection in another country.
8 C.F.R. § 2018.13(c)(4)(i). We do not decide whether Mexico’s
rejection of an asylum application under its 30-day bar would be a “final
judgment” satisfying the Rule.

AL OTRO LADO V. WOLF 15

takes two years for a Mexican asylum claim to be fully
adjudicated.
On November 19, 2019, the district court provisionally
certified for purposes of a preliminary injunction a class
consisting of “all non-Mexican asylum-seekers who were
unable to make a direct asylum claim at a U.S. POE before
July 16, 2019 because of the Government’s metering policy,
and who continue to seek access to the U.S. asylum
process.”
4
It granted a preliminary injunction, ordering that
“Defendants are hereby enjoined from applying the Asylum
Ban to members of the aforementioned provisionally
certified class and ordered to return to the pre-Asylum Ban
practices for processing the asylum applications of members
of the certified class.”
On December 4, 2019, the government appealed the
order granting the injunction, and asked the district court to
stay the preliminary injunction pending appeal. The
government simultaneously moved to expedite briefing on
its stay motion. The district court denied the motion to
expedite briefing and set a hearing on the briefing schedule
for the stay motion for January 3, 2020, so the motion would
not be decided before then.
Rather than wait for the district court’s ruling on the stay
motion, the government moved this court for a stay pending
appeal on December 12, 2019, three weeks after the

4
The government does not challenge the district court’s provisional
certification of the class for purposes of the preliminary injunction. We
have approved provisional class certification for purposes of preliminary
injunction proceedings. See Meyer v. Portfolio Recovery Assocs., LLC,
707 F.3d 1036, 1041–43 (9th Cir. 2012) (affirming provisional class
certification for purposes of a preliminary injunction).

16 AL OTRO LADO V. WOLF

injunction issued.
5
This panel granted a temporary stay on
December 20, 2019, in an order that was “only intended to
preserve the status quo until the substantive motion for a stay
pending appeal can be considered on the merits.” The panel
specified that the temporary stay “does not constitute in any
way a decision as to the merits of the motion for stay pending
appeal.”
The appeal of the preliminary injunction has been
expedited. The briefing was completed on February 20,
2020. The case will be assigned to the next available oral
argument panel for a decision on the merits of the appeal.
II.
“A stay is not a matter of right, even if irreparable injury
might otherwise result.” Virginian Ry. Co. v. United States,
272 U.S. 658, 672 (1926). “It is instead ‘an exercise of
judicial discretion,’ and ‘the propriety of its issue is
dependent upon the circumstances of the particular case.’”
6

5
A party may move this court for a stay pending appeal if it first
sought a stay in the district court, and the court “denied the motion or
failed to afford the relief requested.” Fed. R. App. P. 8(a)(2)(A)(ii). We
entertain the stay motion here even though the district court has not yet
ruled on it, because the delay in the district court was sufficiently long to
fall under Rule 8(a)(2)(A)(ii).
6
The Dissent questions the district court’s authority to grant the
injunction in this case because the Rule is not challenged in Al Otro
Lado’s operative complaint. See Dissent at 50–55. But it then
acknowledges the answer. Id. at 54. Having concluded that it would
interfere with the court’s jurisdiction for the Rule to extinguish some
provisional class members’ asylum claims while they sought access to
the asylum process through their metering challenge (even if other
metered asylum seekers’ claims would survive), the district court
properly issued an injunction under the All Writs Act. See 28 U.S.C.

AL OTRO LADO V. WOLF 17

Nken v. Holder, 556 U.S. 418, 433 (2009) (quoting Virginian
Ry. Co., 272 U. S. at 672–73) (alteration adopted). “The
party requesting a stay bears the burden of showing that the
circumstances justify an exercise of that discretion.” Id.
at 433–34.
In deciding a motion to stay an order pending appeal, we
consider: “(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured absent a
stay; (3) whether issuance of the stay will substantially injure
the other parties interested in the proceeding; and (4) where
the public interest lies.” Nken, 556 U.S. at 434 (citation
omitted). “The first two factors . . . are the most critical”; the
last two are reached only “[o]nce an applicant satisfies the
first two factors.” Id. at 434–35.
Under the “sliding scale” approach we use, “the elements
of the preliminary injunction test are balanced, so that a
stronger showing of one element may offset a weaker

§ 1651(a) (injunction may issue when “necessary or appropriate in aid of
[the court’s] jurisdiction”); FTC v. Dean Foods Co., 384 U.S. 597, 604
(1966) (a court has “express authority under the All Writs Act to issue
such temporary injunctions as may be necessary to protect its own
jurisdiction”); Michael v. INS, 48 F.3d 657, 659 (2d Cir. 1995) (All Writs
Act injunction of a prisoner’s deportation proper to preserve the court’s
jurisdiction over the pending appeal). The district court also properly
concluded that the operative complaint alleged an “unlawful, widespread
pattern and practice of denying asylum seekers access to the asylum
process.” Because the injunction sought to preserve class members’
access to the asylum process, there was a sufficient “relationship
between the injury claimed in the motion for injunctive relief and the
conduct asserted in the underlying complaint,” Pac. Radiation Oncology,
LLC v. Queen’s Med. Ctr., 810 F.3d 631, 636 (9th Cir. 2015), that a
preliminary injunction was a proper exercise of the court’s equitable
powers.

18 AL OTRO LADO V. WOLF

showing of another.” Alliance for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). The same
sliding scale approach applies to the consideration of stays
pending appeal. Leiva-Perez v. Holder, 640 F.3d 962, 966
(9th Cir. 2011) (per curiam). “If anything, a flexible
approach is even more appropriate in the stay context.” Id.
We first consider the government’s showing on
irreparable harm, then discuss the likelihood of success on
the merits under the sliding scale approach, and finally,
address the third and fourth elements together.
A.
An applicant for a stay pending appeal must show that a
stay is necessary to avoid likely irreparable injury to the
applicant while the appeal is pending. Nken, 556 U.S. at 434.
“[S]imply showing some possibility of irreparable injury” is
insufficient. Id. (internal quotation marks omitted). The
minimum threshold showing for a stay pending appeal
requires that irreparable injury is likely to occur during the
period before the appeal is likely to be decided. Leiva-Perez
v. Holder, 640 F.3d at 968. Thus, under the sliding scale
approach, a stay applicant’s “burden with regard to
irreparable harm is higher than it is on the likelihood of
success prong, as she must show that an irreparable injury is
the more probable or likely outcome.” Id.
The government has made a weak showing that it will
suffer harm over the requisite interim period. See Nken,
556 U.S. at 434. The injunction was in place for over three
weeks before the government sought a stay pending appeal.
It thus had available to it the best evidence of harms likely
to occur because of the injunction: evidence of harms that
did occur because of the injunction. Rather than submitting
evidence of actual burdens and delays it has experienced

AL OTRO LADO V. WOLF 19

since the injunction issued, the government’s declarations
contain only estimates, assumptions, and projections.
The government estimates that identifying class
members—that is, noncitizens who arrived at the border
before July 16, 2019 and whose entry into the United States
was refused by immigration officials—will burden the
efficiency of the asylum interview process overall. It
submitted a declaration by the Deputy Chief of the Asylum
Division, Ashley Caudill-Mirillo, which projects that
because DHS itself does not maintain lists of noncitizens
who were metered, the only way to identify class members
is for USCIS “to spend an additional estimated 15 to
30 minutes per person asking as many as 30 additional
questions during each credible fear screening interview.”
The government asserts that the cumulative effect of an
additional fifteen to thirty minutes per interview “would
have a significant negative impact on credible fear
processing times overall.” The government does not
represent that in any actual interview 15 to 30 minutes or
30 additional questions were devoted to whether the
individual asylum applicant sought entry at a POE before
July 16, 2019. Nor does it indicate what the “30 additional
questions” might be.
We are dubious that taking the time necessary to make
fairly simple factual determinations for a few months
constitutes the sort of irreparable harm that can support the
grant of a stay pending appeal. “The key word in this
consideration is irreparable. Mere injuries, however
substantial, in terms of money, time and energy necessarily
expended . . . are not enough.” Sampson v. Murray, 415 U.S.
61, 90 (1974) (quoting Virginia Petroleum Jobbers Ass’n v.
Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958)).
Applying this principle, we recently held that “diversion of

20 AL OTRO LADO V. WOLF

the [government] agencies’ time, resources, and personnel
from other pressing immigration adjudication and
enforcement priorities” due to the need to ask additional
questions and possibly review documentary evidence at
bond hearings was “minimal” evidence of harm to the
government. Hernandez v. Sessions, 872 F.3d 976, 995 (9th
Cir. 2017) (alterations adopted). The diversion of resources
projected here is no more persuasive as significant
irreparable harm than it was in Hernandez.
Even assuming that short term additional administrative
delays can in some circumstances constitute irreparable
harm, the record here does not show cognizable irreparable
harm to the government over the relatively short period
before the appeal of the preliminary injunction is resolved.
7

Any harm suffered is largely the result of the government’s
own failure to keep records of asylum seekers who have been
metered or to provide the asylum seekers with
documentation of their attempt to seek asylum. See n.1,
supra. That the government’s asserted harm is largely self-
inflicted “severely undermines” its claim for equitable relief.
See Hirschfeld v. Bd. of Elections in City of New York,
984 F.2d 35, 39 (2d Cir. 1993). “[S]elf-inflicted wounds are
not irreparable injury.” Second City Music, Inc. v. City of
Chicago, 333 F.3d 846, 850 (7th Cir. 2003); Caplan v.
Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 839
(3d Cir. 1995).

7
We deny Al Otro Lado’s motion to strike the Caudill-Mirillo and
other declarations, Dkt. 23. Even including the challenged declarations,
the government either does not show irreparable harm or makes a
marginal showing, insufficient in light of the failure to make a
particularly strong showing of likelihood of success on the merits. See
section I.B., infra.

AL OTRO LADO V. WOLF 21

Al Otro Lado’s second amended complaint challenging
the government’s metering policy was filed in November
2018, nine months before the Rule was issued in July 2019.
The complaint alleged that the applicants arriving at the
border seeking to enter the POEs to file asylum applications
had a statutory right to do so. The government called in
asylum seekers from the waitlists maintained by the Mexican
government and others. In doing so, the government
recognized—as its terms for the process, “metering” and
“queue management,” imply—the practical need to identify
which applicants had appeared at the border and in what
order rather than choosing each day from amassed crowds
which individuals to permit to file asylum applications. But
the government chose to implement the metering policy in a
way that, it maintains, could now cause administrative
burdens, because the government did not itself create or
administer the waitlists and so cannot rely on them
definitively to identify class members. That deficiency was
problematic even before the new Rule, and was avoidable
and so self-inflicted. Any delay caused is therefore not
irreparable harm that supports equitable relief.
In any event, the government’s guesses concerning the
likely burden of ascertaining class membership lack support
in the record for several reasons. For one thing, the
government could use the waitlists maintained by the
Mexican government and others—waitlists it relied on to
facilitate the metering policy—as a starting point in
determining whether a noncitizen is part of the provisional
class, even if the lists are “underinclusive.” See Dissent
at 85–87. Yet the government has declined to request copies
of the waitlists or to use them. Those lists are, Al Otro Lado
acknowledges, not entirely reliable. But the record
establishes that the government has been using them in
determining the order in which applicants for asylum are

22 AL OTRO LADO V. WOLF

allowed to enter, submit their asylum applications, and
undergo credible fear interviews. No reason appears why the
lists are adequate for those purposes but must be entirely
disregarded in identifying who came to the border when for
purposes of complying with the district court’s injunction.
Further, even apart from the availability of existing lists,
the additional time it is likely to take during interviews to
identify class members is almost surely considerably less
than the government supposes. The government provides no
basis, other than the supposition of some officials, for its
estimation that such interviews will take an additional fifteen
to thirty minutes and require as many as 30 additional
questions. Only Al Otro Lado submitted records from an
actual credible fear interview that occurred while the
injunction was in place. During that interview, USCIS
determined that applicant was not a member of the
provisional class by asking two questions.
8
More time may
be needed to establish that someone who claims to be a
member of the class actually is. But it is far from clear the
degree to which that is so, and the total number of interviews
likely to be affected before the appeal is decided is
circumscribed.
The injunction is also unlikely to cause major additional
delays because, once class members make it to the front of
the line, they must be interviewed by an asylum officer

8
Q: “What day did you cross the border from Mexico into the US?”
A: “10/27/2019.”
Q: “Did you ever seek to enter the United States before that time?
When?”
A: “No sir.”.

AL OTRO LADO V. WOLF 23

regardless of whether the Rule is applied. The Rule affects
only an applicant’s eligibility for asylum. See 8 C.F.R.
§ 208.13(c)(4). Because class members fear persecution,
they may still apply for withholding of removal or relief
under the Convention Against Torture (“CAT”). 8 U.S.C.
§ 1231(b)(3)(A); 8 C.F.R. § 208.16(c); see also 8 C.F.R.
§ 208.30 (if the applicant is ineligible for asylum under the
Rule, asylum officers must still refer the case to an IJ for
consideration of withholding and CAT relief “if the alien
establishes, respectively, a reasonable fear of persecution or
torture”). The standards differ for asylum, withholding, and
CAT relief, but they involve largely the same set of facts.
9

Finally, the government offers only speculation that
plaintiffs will cause further delays by requesting to
reschedule their interviews. It offers no support for the
statement in Caudill-Mirillo’s declaration that “individuals
are likely to seek to reschedule their credible fear interviews
to obtain documentary evidence or to consult with an
attorney to draft a declaration to submit in support of their
assertion that they . . . are a member of the provisional
class.” As class members could gather this evidence in
advance while they wait in Mexico if informed by public
announcements of the need for such evidence, this delay is
avoidable.

9
Because class members who have already had credible fear
interviews should have been considered for withholding even if the Rule
was applied to them, the government is unlikely to face an outsized
additional burden in determining whether they are eligible for asylum
with the preliminary injunction in place. These class members may still
be in the process of having their claims reviewed, as an asylum officer’s
negative fear determination is reviewable by an IJ, 8 C.F.R.
§ 1208.30(g), and the IJ’s determination is reviewable by the Ninth
Circuit. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016).

24 AL OTRO LADO V. WOLF

In sum, the government offered at best weak evidence
that it will suffer significant overall delay in processing
asylum applications at the border during the short period of
time at issue. The government could significantly mitigate
the harm created by its own recordkeeping practices by
obtaining copies of the waitlists but has declined to do so.
Thus, any administrative burdens the government faces in
implementing the injunction are either not irreparable harm
of the kind that could justify a stay pending appeal, or,
“minimal” harm as in Hernandez. See 872 F.3d at 995. That
the government’s irreparable harm showing is at best
marginal affects the level of likelihood of success on the
merits it must demonstrate, as we next discuss.
B.
Whether the government has failed to show any
irreparable harm during the pendency of the appeal or has
made only a minimal showing, it has not carried its burden
to establish a sufficient likelihood of success on the merits.
An applicant for a stay pending appeal must make “a
strong showing that he is likely to succeed on the merits.”
Nken, 556 U.S. at 434. Where, as here, the showing of
irreparable harm is weak at best, the government must make
a commensurately strong showing of a likelihood of success
on the merits to prevail under the sliding scale approach.
Only “a stronger showing of one element may offset a
weaker showing of another.” Wild Rockies, 632 F.3d
at 1131; Leiva-Perez, 640 F.3d at 966 (applying sliding scale
approach in the stay context).
The issue on appeal concerns the following statutory
framework. Section 1158 creates a right to apply for asylum:
“Any alien who is physically present in the Unites States or
who arrives in the United States . . . irrespective of such

AL OTRO LADO V. WOLF 25

alien’s status, may apply for asylum in accordance with this
section or, where applicable, section 1225(b) of this title.”
8 U.S.C. § 1158(a)(1). Section 1225 imposes two key
mandatory duties on immigration officers with respect to
potential asylum seekers. First, immigration officers have a
duty to inspect: “All aliens . . . who are applicants for
admission or otherwise seeking admission or readmission to
or transit through the United States shall be inspected by
immigration officers.” 8 U.S.C. § 1225(a)(3) (emphasis
added). Second, immigration officers have a duty to refer
arriving migrants seeking asylum to asylum officers for
assessment of their asylum applications:
If an immigration officer determines that an
alien . . . who is arriving in the United States
. . . is inadmissible under section
1182(a)(6)(C) or 1182(a)(7) of this title and
the alien indicates either an intention to apply
for asylum under section 1158 of this title or
a fear of persecution, the officer shall refer
the alien for an interview by an asylum
officer under subparagraph (B).
8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis added).
In its order denying the government’s motion to dismiss
the metering complaint, the district court observed that
“arriv[ing] in the United States” triggers a noncitizen’s right
to be inspected, apply for asylum, and be referred to an
asylum officer. Al Otro Lado v. McAleenan, 394 F. Supp. 3d
1168, 1199–1205 (S.D. Cal. 2019). The district court
concluded that “aliens in the process of arriving,” such as
class members—who approached the border, sought entry,
but were turned away from a POE—are covered by the
statutory asylum referral obligation. Id.

26 AL OTRO LADO V. WOLF

In its order granting a preliminary injunction, the district
court incorporated its earlier legal ruling regarding the reach
of the asylum referral obligation in section 1225. On that
basis, the court held that the provisional class of plaintiffs
did “arrive in the United States” before the effective date of
the Rule, so the Rule does not apply to the adjudication of
rights triggered by that arrival. The district court reached this
conclusion without deciding the legality of the government’s
metering policy, which causes a delay between class
members’ arrival and the submission and determination of
their asylum claim. Even if the asylum claim is processed
after July 16, 2019, the court concluded, its consideration is
governed by the law at the time the class member was
originally “arriving in the United States.”
The government argues that because class members were
in Mexico on the effective date of the Rule, they will
necessarily arrive in the United States after July 16, 2019,
and the Rule by its plain terms will then apply. For the
government to succeed on this argument, one of two things
must be true: either the district court must be wrong that
class members were “arriving in the United States” when
they first attempted to enter and were turned back, or, if they
were “arriving,” the first arrival must no longer have any
legal significance, so any second arrival—governed by the
Rule—will be the only one that matters.
The government has not made a strong showing—let
alone the especially strong showing required here in light of
the weak irreparable harm demonstration—that it is likely to
succeed on either available theory. The district court’s
underlying statutory analysis is sufficiently sound and
persuasive as to both the meaning of “arriving in the United
States” and the legal significance of an arrival.

AL OTRO LADO V. WOLF 27

First, the district court’s interpretation of “arrives in the
United States” is likely correct. As the court observed,
“[u]nder Section 1158(a)(1)’s plain language, two classes of
aliens may apply for asylum: (1) any alien ‘who is physically
present in the United States’ and (2) any alien ‘who arrives
in the United States.’” 394 F. Supp. 3d at 1199. “Applying
the rule against surplusage,” the court reasoned, we “must
presume that the phrases ‘mean different things.’” Id.
(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). The
district court also applied the Dictionary Act’s provision that
“[i]n determining the meaning of any Act of Congress,
unless the context indicates otherwise—words used in the
present tense include the future as well as the present.” Id.
at 1200 (quoting 1 U.S.C. § 1). The court went on to reason
that “accounting for the rule against surplusage, application
of the Dictionary Act readily leads to the conclusion that
Section 1158(a)(1)’s use of the present tense of ‘arrives’
plainly covers an alien who may not yet be in the United
States, but who is in the process of arriving in the United
States through a POE.” Id.
This conclusion is reinforced, the district court observed,
by the language of section 1225(b), the provision referenced
in section 1158(a)(1). See id. Section 1225(b) requires an
immigration officer to refer for an asylum interview any
inadmissible noncitizen “who is arriving in the United
States” and expresses a fear of persecution or the intention
to apply for asylum. 8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis
added). The district court recognized that “[t]he use of the
present progressive, like use of the present participle,
denotes an ongoing process.” 394 F. Supp. 3d at 1200 (citing
United States v. Balint, 201 F.3d 928, 933 (7th Cir. 2000)).

28 AL OTRO LADO V. WOLF

The district court also noted that the legislative history is
consistent with its interpretation of “arrives in” as denoting
an ongoing process.
Representative Lamar Smith, Chairman of
the House Judiciary Committee’s
Subcommittee on Immigration and Claims
. . . observed that the term “was selected
specifically by Congress in order to provide a
flexible concept that would include all aliens
who are in the process of physical entry past
our borders[.] . . . ‘Arrival’ in this context
should not be considered ephemeral or
instantaneous but, consistent with common
usage, as a process. An alien apprehended at
any stage of this process, whether attempting
to enter, at the point of entry, or just having
made entry, should be considered an ‘arriving
alien’ for the various purposes in which that
term is used in the newly revised provisions
of the INA.”
394 F. Supp. 3d at 1201 (quoting Implementation of Title III
of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996: Hearing Before the Subcomm.
on Immigration and Claims of the H. Comm. on the
Judiciary, 105th Cong. 17–18 (1997)).
10

10
The Dissent asserts that because Representative Smith, in
language elided from the district court’s block quotation and ours,
described a person who “penetrated several hundred yards or even
further into United States territory” as an example of an “arriving alien,”
the term must include only aliens within the United States. See Dissent
at 68–69. But this reading is inconsistent with the comments themselves,
which expressly recognize several “stage[s] of [the arriving] process,”

AL OTRO LADO V. WOLF 29

Historical changes to the statutory language further
support the distinction between “physically present in” and
“arrives in” the United States in section 1158. The Refugee
Act of 1980 originally provided that any alien who is
“physically present in the United States or at a land border
or port of entry, irrespective of such alien’s status,” could
apply for asylum. See 8 U.S.C. § 1158(a) (1980) (emphasis
added). In 1996, Congress replaced “at a land border or port
of entry” with “who arrives in the United States (whether or
not at a designated port of arrival and including an alien who
is brought to the United States after having been interdicted
in international or United States waters).” 8 U.S.C.
§ 1158(a); Pub. L. No. 104-208, 110 Stat. 3009 (1996). As
the Dissent recognizes, these “1996 amendments did not
somehow work a major change in the law,” Dissent at 63;
both versions draw a distinction between an alien who is
already “physically present in the United States” on the one
hand and arriving aliens on the other, including, in the earlier
version, aliens “at a land border,” in the process of arriving.
A person standing at the border is not necessarily across
it, so the original statutory phrase, like the newer one,
includes the penultimate stage in the process of arriving in
the United States. Under the metering policy, CBP officers
stationed just behind the limit line between Mexico and the
United States interacted with individuals standing at the
border; travelers with documentation were permitted to cross
into the United States, while others without
documentation—including provisional class members—

and that one such stage includes aliens “attempting to enter.” See
Implementation of Title III of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996: Hearing Before the Subcomm. on
Immigration and Claims of the H. Comm. on the Judiciary, 105th Cong.
17–18 (1997).

30 AL OTRO LADO V. WOLF

were turned back. Provisional class members were both “at
a land border” and “arriving” before being turned back.
The government’s central contention as to why the
district court’s statutory interpretation is wrong is that the
“statute confers a right to apply for asylum only on those
who are within the United States.” “A present-tense phrase
like ‘arrives in’ speaks to the present moment of arrival, not
some potential arrival in the future,” the government argues.
In support of its interpretation of “arrives in,” the
government relies principally on the presumption against
extraterritoriality as reason to disregard the rule against
surplusage, the Dictionary Act, section 1225’s “arriving in”
language, and the legislative history, which collectively led
the district court to the opposite conclusion. The district
court rejected application of the presumption against
extraterritoriality here, noting that “[i]t is natural to expect
that Congress intends for laws that regulate conduct that
occurs near international borders to apply to some activity
that takes place on the foreign side of those borders,” 394 F.
Supp. 3d at 1202 (quoting United States v. Villanueva,
408 F.3d 193, 199 (5th Cir. 2005)), and that the text of
sections 1158 and 1225 and the legislative history show that
Congress “intended the statute to apply to asylum seekers in
the process of arriving,” even if they are not yet quite within
our borders, id.
Notably, the district court’s analysis does not authorize
asylum seekers to submit an asylum application from outside
the United States; it recognizes only that the statutory right
to apply attaches once the asylum seeker is on the doorstep—
“at a land border,” in the words of the earlier iteration of the
statute—in the process of arriving. Despite the Dissent’s
protestations, see Dissent at 59–62 this reading is fully
consistent with the Supreme Court’s observation that section

AL OTRO LADO V. WOLF 31

1158 “sets out the process by which refugees currently in the
United States may be granted asylum,” INS v. Cardoza-
Fonseca, 480 U.S. 421, 433 (1987); aliens do not actually
submit an asylum application until after they have completed
the process of arriving in the United States.
The district court’s linguistic and contextual analysis has
considerable force. Although it is likely correct, we need not
decide at this juncture whether it is. We need only determine
whether, given the minimal—at best—showing of
irreparable harm, the government has made a particularly
strong showing that the district court’s statutory
interpretation will be disapproved on review of the
preliminary injunction. That the government has most
definitely failed to do.
As to the second government argument, the question is
whether there is a particularly strong likelihood that the
government will succeed in establishing on appeal that even
if the class members did arrive and so had a statutory right
to be considered for asylum under section 1158(a)(1), and
although they were “arriving in the United States” and so
should have been “refer[ed] . . . for an interview by an
asylum officer,” 8 U.S.C. § 1225(b)(1)(A)(ii), their right to
asylum must be determined not as of the time they met the
statutory requirements for consideration for asylum but as of
the time they are ultimately allowed to enter.
11

11
We note that the government may be right that, because the class
members were “metered,” they will arrive a second time when they get
to the top of the waitlist and are finally admitted and processed. And
because the district court has not yet decided whether the delay in
processing the class member’s asylum requests and requiring them to
stay in Mexico in the meanwhile is itself violative of their statutory or
constitutional rights, we assume for present purposes that it was not.

32 AL OTRO LADO V. WOLF

Under the statute as construed by the district court, each
arrival triggers a right to apply for asylum and be
interviewed by an asylum officer. The government does not
maintain otherwise—that is, it does not dispute that the INA
guarantees a right to apply for asylum to any noncitizen who
arrives in the United States. Rather, aside from its
disagreement with the district court’s conclusion that class
members did “arrive,” the government’s argument is that
“[n]othing in the Rule suggests that only an alien’s first
attempt at entry counts, and nothing makes prior attempts at
entry relevant.”
The government does not have a strong chance of
succeeding on this point. It is the INA, not the Rule, that
makes an alien’s first arrival legally significant. Under the
district court’s statutory interpretation, a class member’s first
arrival triggered a statutory right to apply for asylum and
have that application considered. See 8 U.S.C. §§ 1158,
1225(a)(3), 1225(b)(1)(A)(ii); 394 F. Supp. 3d at 1203–05.
Nothing in the INA or regulations suggests that a class
member loses her statutory right to apply for asylum as of
her arrival because there is a government-imposed delay
between when she arrives and when her application is
accepted and processed.
12
As the Rule was not in place at the

Neither of these considerations, however, affects whether the first arrival
triggered a statutory right to be considered for asylum even if that
consideration was not immediate.
12
The provisionally certified class is defined to include only those
asylum seekers who were involuntarily turned away “and who continue
to seek access to the U.S. asylum process.” Thus, there can be no
argument that class members abandoned their statutory right to submit
an asylum claim. In contrast, the Dissent’s hypothetical asylum seeker
who is metered “and then returns to a United States port of entry many

AL OTRO LADO V. WOLF 33

time each class member’s right to apply for asylum attached,
it makes sense that it would not apply.
The government’s premise—assuming acceptance of the
district court’s statutory interpretation of “arrives” and
“arriving in the United States”—must be that any second
arrival cancels out the statutory obligation that arose at the
time of the original arrival to receive and process the class
member’s asylum application. No reasoning is provided to
substantiate this cancellation theory. It is more likely that the
first arrival is governed by the eligibility requirements at the
time the right to be considered for asylum arose than that
regulations imposed after the fact will cancel out the earlier
eligibility. Put another way, class members will be governed
by the Rule if they seek asylum based on a second arrival,
but they also arrived earlier and, under the statute, were quite
likely entitled to asylum consideration triggered by that
arrival, even if that consideration was delayed. At least, the
government has not made a showing that this statutory
understanding is incorrect strong enough to counterbalance
its weak irreparable harm evidence.
In sum, the government has not met its burden to make a
sufficiently strong showing of a likelihood of success on the
merits. Even if its weak showing of harm met the minimum
threshold, the government has not made a sufficient showing
of likelihood of success on the merits strong enough to
warrant a stay pending appeal under the sliding scale
approach. See Nken, 556 U.S. at 434; Wild Rockies, 632 F.3d
at 1131.

years later,” see Dissent at 71, would likely have voluntarily abandoned
their right to submit an asylum claim by waiting many years to return.

34 AL OTRO LADO V. WOLF

C.
“Because the Government has not ‘satisfie[d] the first
two factors,’ we need not dwell on the final two factors—
‘harm to the opposing party’ and ‘the public interest.’” E.
Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 778 (9th
Cir. 2018) (quoting Nken, 556 U.S. at 435). Even so, the
balance of equities and public interest tip sharply in Al Otro
Lado’s favor.
The third factor, “whether issuance of the stay will
substantially injure the other parties interested in the
proceeding,” Nken, 556 U.S. at 434, weighs heavily against
granting the stay. In contrast to the showing of harm by the
government, Al Otro Lado has offered ample evidence that
enforcement of the Rule against the provisionally certified
class would cause not only substantial but irreparable injury
to them. See id. The class relied to their detriment on the
government’s representations. As the district court observed,
“[t]hey returned to Mexico reasonably believing that if they
followed these procedures, they would eventually have an
opportunity to make a claim for asylum in the United
States.” The Rule would now make them ineligible for
asylum in the United States, and they cannot in all
probability pursue asylum in Mexico “because they did as
the Government initially required and waited” for their
number to be called.
13
We agree with the district court that

13
The government argues that this harm is self-inflicted because
class members chose not to pursue asylum in Mexico. But the class
members were not required to do so when they approached the POE to
apply for asylum, and some class members face Mexico’s time bar
because they relied on the government’s representations that they could
apply for asylum in the United States if they waited in line.

AL OTRO LADO V. WOLF 35

“[t]his situation, at its core, is quintessentially inequitable,”
and likely will substantially injure class members.
As to the fourth factor, aspects of the public interest
favor both sides. The public has a “weighty” interest “in
efficient administration of the immigration laws at the
border.” Landon v. Plasencia, 459 U.S. 21, 34 (1982). “But
the public also has an interest in ensuring that ‘statutes
enacted by [their] representatives’ are not imperiled by
executive fiat.” E. Bay Sanctuary, 932 F.3d at 779 (quoting
Maryland v. King, 567 U.S. 1301, 1301 (2012) (Roberts,
C.J., in chambers)). “We need go no further than this; when
considered alongside the Government’s failure to show
irreparable harm, the final two factors do not weigh in favor
of a stay.” Id.
III.
We emphasize that the question whether the injunction
should be overturned—the merits of the ultimate appeal—is
not before this motions panel. We are ruling only on the
motion to stay the injunction pending appeal. “The decision
whether to grant a stay is a ‘probabilistic’ endeavor. We
discuss the merits of a stay request in ‘likelihood terms,’ and
exercise a ‘restrained approach to assessing the merits.’” E.
Bay Sanctuary Covenant v. Trump, 18-17274, __ F.3d __
(9th Cir. 2020) (quoting Sierra Club v. Trump, 929 F.3d 670,
688 (9th Cir. 2019)).
Judge Bress criticizes this restrained approach. See
Dissent at 49, 59. But the “pre-adjudication adjudication” he
advocates “would defeat the purpose of a stay, which is to
give the reviewing court the time to ‘act responsibly,’ rather
than doling out ‘justice on the fly.’” Leiva-Perez v. Holder,
640 F.3d 962, 967 (9th Cir. 2011) (quoting Nken v. Holder,
556 U.S. 418, 427 (2009)). Respecting the role of stay

36 AL OTRO LADO V. WOLF

motions requires that we decline to usurp the role of the
preliminary injunction merits panel—which, it bears noting,
is itself engaged in a probabilistic analysis preliminary to the
eventual consideration of any request for a permanent
injunction. Although seeking the collapse of these sequential
steps into one has become increasingly common, see Barr v.
E. Bay Sanctuary Covenant, 140 S. Ct. 3, 6 (2019)
(Sotomayor, J., dissenting); Stephen I. Vladeck, The
Solicitor General and the Shadow Docket, 133 Harv. L. Rev.
123 (2019), premature determination of complex legal and
factual issues will not in the long run produce well-
considered and dependable judicial decision-making.
The government has not carried its burden of showing
that a stay is warranted. Accordingly, we DENY the motion.

BRESS, Circuit Judge, dissenting:
In a case that does not challenge it, the district court
below partially enjoined an asylum rule that the Supreme
Court just months ago ordered could go into effect pending
appeal. See Barr v. East Bay Sanctuary Covenant, 140 S.
Ct. 3 (2019). How could this even happen?
This case, which was brought in 2017, is a challenge to
certain U.S. Customs and Border Protection “metering”
practices. Due to a massive influx of immigrants and severe
resource constraints at the southern border, CBP through
“metering” limits the number of aliens who can gain access
to U.S. ports of entry at a given time. The plaintiffs are
asylum seekers waiting in Mexico or other countries who
claim that metering violates our asylum laws.

AL OTRO LADO V. WOLF 37

In July 2019, and years after this metering case was filed,
the Attorney General and Acting Secretary of Homeland
Security promulgated the “Third Country Transit Rule,”
which generally bars asylum for persons who did not
previously seek protection in a third country through which
they journeyed on their way to the United States. See Asylum
Eligibility and Procedural Modifications, 84 Fed. Reg.
33,829 (2019), codified at 8 C.F.R. § 208.13(c)(4). This
Rule was challenged in a separate lawsuit. After a district
court in this circuit re-imposed a nationwide injunction
blocking its implementation, the Supreme Court stayed the
injunction, and allowed the Rule to go into effect pending
appeal. East Bay, 140 S. Ct. at 3.
Shortly after the Supreme Court’s ruling in East Bay, the
plaintiffs in this “metering” case—including Al Otro Lado,
an advocacy group that was also a plaintiff in East Bay—
asked the district court to enjoin the Third Country Transit
Rule as to persons who were metered. The district court
agreed and enjoined application of the Rule as to a 26,000-
person subclass who were metered prior to July 16, 2019, the
date that the Rule by its terms takes effect. Under the district
court’s injunction, the government may not apply the Third
Country Transit Rule to these persons, even though under
East Bay the Rule may otherwise be applied.
We originally granted a temporary stay of the district
court’s injunction, but my fine colleagues in the majority
now unfortunately reverse course and deny a stay pending
appeal. I would have granted the stay and so respectfully
dissent. The majority’s refusal to grant a stay is wrong on
many levels and forces immigration officials to undertake an
effectively impossible mission at our already overwhelmed
border with Mexico. Particularly where the Supreme Court
has recently stayed an injunction of the very same asylum

38 AL OTRO LADO V. WOLF

Rule, one would expect the district court’s subsequent
injunction of that Rule to be airtight. Instead, and
regrettably, both the district court’s injunction and today’s
decision reflect cascading legal error, wreaking further
havoc on a southern border already in crisis.
There was no basis for the district court to enjoin the
Third Country Transit Rule in this metering case. This case
is not about the Third Country Transit Rule, the validity of
which is not at issue. And the plaintiffs have not shown a
likelihood of success that metering is unlawful. Indeed, a
central premise of both the district court and the majority
opinion is that metering may well be legitimate. Lawsuits,
even putative class actions, are not an opportunity to declare
open season on the implementation of every new
government policy that comes along that bears some
tangential relationship to the subject matter of a case. And
courts cannot go around enjoining immigration rules in cases
that do not challenge them, particularly where the Supreme
Court has just allowed the rule to go into effect. The district
court below greatly exceeded its powers.
Even so, the Third Country Transit Rule plainly applies
to the plaintiffs in this case, so that enjoining it as to them
was legal error. The Third Country Transit Rule applies to
“any alien who enters, attempts to enter, or arrives in the
United States across the southern land border on or after July
16, 2019.” 8 C.F.R. § 208.13(c)(4). When plaintiffs reach
this country, they will be entering or arriving in the United
States after that date; the Rule thus plainly covers them. That
should have been the end of this case or, more accurately,
this issue, since this case is not about the Rule anyway. The
district court’s decision holding otherwise, which the
majority effectively endorses, is based on the theory that our
asylum laws apply not only to persons physically “in” the

AL OTRO LADO V. WOLF 39

United States, but to persons outside the United States who
are “in the processing of” arriving into it. That holding is
unprecedented, contradicts the statutory text and settled law,
and will create untold confusion in the interpretation of our
asylum laws.
The immense problems of administration that the district
court’s injunction will create are entirely predictable. Even
though neither the metering practices nor the Third Country
Transit Rule have been invalidated—and both are presently
in effect, the latter by order of the Supreme Court—some
26,000 persons who sought to enter the United States prior
to July 16, 2019 and were unable to do so due to metering
are now exempt from the Supreme Court’s order in East Bay.
Requiring the government to now apply different rules to
this subclass, and even figuring out who such persons are,
will be an enormous and arduous task, made only more
difficult by the lack of documentation and the incredible
strain under which our immigration system already labors.
Today’s decision will unfortunately cause only greater
difficulty and confusion at a border that desperately needs
neither.
The problems at our border with Mexico are among the
most difficult of the day. Fair debates may be had about how
to prioritize safety, humanitarian concerns, and costs. But
the questions before us are legal ones. Under the factors that
govern our review, we should have stayed the district court’s
injunction. I therefore respectfully dissent.
I
A
This putative class action lawsuit, filed in 2017,
challenges CBP’s practice of regulating the intake of aliens

40 AL OTRO LADO V. WOLF

arriving at U.S. ports of entry from Mexico. In response to
record numbers of aliens seeking entry into the United States
and substantial overcrowding at southern ports of entry, CBP
instituted a policy known as “metering” or “queue
management.” Metering policies limit the number of
persons who can gain access to the ports of entry at a given
time. When metering is in effect, CBP officers stand at the
boundary line between our country and Mexico to limit the
persons who may cross into the United States. Persons with
valid documents are allowed into the port of entry, but
persons who lack adequate documentation are not allowed
in until the port of entry has capacity to accommodate them.
Plaintiffs—a legal services organization named Al Otro
Lado and a group of asylum seekers—claim that metering
unlawfully denies access to the asylum process.
The allegations in plaintiffs’ operative complaint and
supporting materials reflect a far-reaching challenge to
metering practices across our country’s southern border.
The formal metering policies at issue were implemented and
enforced between 2016 and the present, though plaintiffs
appear to challenge metering practices that may date back
even farther. Plaintiffs challenge these policies at “Class A”
United States ports of entry at the United States-Mexico
border, which include the following locations from
California to Texas: San Ysidro, California; Otay Mesa,
California; Calexico, California; San Luis, Arizona;
Nogales, Arizona; El Paso, Texas; Del Rio, Texas; Eagle
Pass, Texas; Laredo, Texas; Roma, Texas; Hidalgo, Texas;
Los Indios, Texas; and Brownsville, Texas. Some of these
ports of entry, such as El Paso and Laredo, Texas are in more
urban areas. Others, such as Los Indios and Roma, Texas
are in more remote areas of the vast expanse that makes up
our country’s border with Mexico.

AL OTRO LADO V. WOLF 41

Based on plaintiffs’ allegations and supporting materials,
persons from Mexico, Central and South America, and “all
across the world,” have journeyed to our southern border
with the goal of gaining entry into the United States. The
record contains evidence that metering was applied to
persons from a wide range of countries, including Haiti,
Cuba, Venezuela, Iraq, Guatemala, Honduras, El Salvador,
Russia, Angola, Cameroon, and the Congo. Many of these
persons do not have proper documentation.
Plaintiffs further allege that aliens have often approached
the United States in large groups numbering in the hundreds
and thousands. For example, plaintiffs allege that from June
2016 to December 2016, “more than 15,000 Haitians
migrated to Tijuana with the intent to seek protection in the
United States.” Plaintiffs also allege that some formal
metering policies were issued in response to an approaching
group of roughly 1,500 immigrants from Central America
and Mexico in the spring of 2018.
When not allowed into the United States due to metering,
plaintiffs allege that putative class members either leave the
border area or remain in the vicinity of the border in the hope
of being allowed to pursue entry into this country. For
example, materials that plaintiffs submitted in connection
with their instant request for a preliminary injunction
indicate that in November 2018, there were 4,700 persons
from Central America, and perhaps many more, waiting in
the Tijuana area alone. A central point of disagreement
between the majority and this dissent centers on the
reliability of certain “waitlists” that have been created by
various groups in Mexico. I will have more to say about the
waitlists later.
While plaintiffs contend that metering unlawfully denies
them access to the asylum process in the United States, the

42 AL OTRO LADO V. WOLF

government maintains that metering is a necessary response
to an overwhelming situation at the border. According to the
government, in April 2019 alone, CBP encountered
approximately 100,000 individuals seeking entry into the
United States, often without documents. Randy Howe,
CBP’s Executive Director for Operations in the Office of
Field Operations, described this surge in migration as
“unprecedented” and as representing “the highest monthly
total in well over a decade.” It is the government’s position
that ports of entry were often stretched to the limits, with
ever-increasing numbers of aliens “surpass[ing] the physical
capacity” of various ports and “result[ing] in a tremendous
strain on all available local resources,” including personnel.
The government claims it authorized metering practices to
manage the large inflow of persons safely and properly.
The government moved to dismiss plaintiffs’ metering
case, arguing that because asylum is only available to aliens
“who [are] physically present in the United States or who
arrive[] in the United States,” 8 U.S.C. § 1158(a)(1), persons
who had been metered—and who thus had not entered the
United States—had no right to apply for asylum. For this
reason, the government argued that plaintiffs could not
challenge metering as a violation of the asylum laws.
The district court denied the government’s motion. As
discussed in greater detail below, the district court reasoned
that our asylum laws extended not only to persons who were
physically in the United States, but also aliens who were “in
the process of arriving in the United States.” Al Otro Lado,
Inc. v. McAleenan, 394 F. Supp. 3d 1168, 1199–1203 (S.D.
Cal. 2019). The district court thus held that plaintiffs had
stated a claim and allowed their metering lawsuit to proceed.
Importantly, the district court has not determined
whether metering is unlawful, either at any particular port of

AL OTRO LADO V. WOLF 43

entry or across all ports of entry. Instead, the district court
has “acknowledge[d] that it is entirely possible that there
may exist potentially legitimate factors that prevent CBP
officers from immediately discharging the mandatory
duties” in the asylum laws. Id. at 1212. Plaintiffs’ challenge
to CBP’s metering practices remains ongoing in the district
court.
B
Meanwhile, on July 16, 2019, and approximately two
years into this metering case, the Attorney General and
Acting Secretary of Homeland Security issued the Third
Country Transit Rule. See Asylum Eligibility and
Procedural Modifications, 84 Fed. Reg. 33,829 (2019),
codified at 8 C.F.R. § 208.13(c)(4). The Rule provides that
any alien who enters, attempts to enter, or
arrives in the United States across the
southern land border on or after July 16,
2019, after transiting through at least one
country outside the alien’s country of
citizenship, nationality, or last lawful
habitual residence in route to the United
States, shall be found ineligible for asylum.
Id. The Rule does not apply to aliens who show that they
applied for and were denied protection in a third country
through which they traveled en route to the United States.
Id. § 208.13(c)(4)(i). Nor does the Rule apply to asylum
seekers who are “victim[s] of a severe form of trafficking”
or if “[t]he only countries through which the alien transited
en route to the United States were, at the time of transit, not
parties to” certain international agreements. Id.
§ 208.13(c)(4)(ii)–(iii). The Rule also does not bar asylum
seekers from applying for withholding of removal or for

44 AL OTRO LADO V. WOLF

relief under the Convention Against Torture. Id.
§ 208.13(c)(1).
1

In a wholly separate lawsuit captioned East Bay
Sanctuary Covenant v. Barr, several organizations,
including Al Otro Lado, challenged the Third Country
Transit Rule on various grounds. See 385 F. Supp. 3d 922
(N.D. Cal. 2019). Eight days after the Third Country Transit
Rule was issued, a district court in our circuit entered a
nationwide injunction blocking the Rule’s implementation.
Id. Notably, the issue of metering factored into the district
court’s injunction. As the district court explained:
The Court notes one additional equitable
consideration suggested by the
administrative record. The administrative
record contains evidence that the government
has implemented a metering policy that
“force[s] migrants to wait weeks or months
before they can step onto US soil and exercise
their right to claim asylum.” At the same
time, the record also indicates that Mexico
requires refugees seeking protection to file
claims within 30 days of entering the country.
For asylum seekers that forfeited their ability
to seek protection in Mexico but fell victim
to the government’s metering policy, the
equities weigh particularly strongly in favor
of enjoining a rule that would now disqualify

1
The district court and plaintiffs refer to the Rule as the “Asylum
Ban.” But the Rule does not ban asylum. I will therefore refer to the
Rule as the Third Country Transit Rule, except when quoting to the
district court or plaintiffs’ submissions.

AL OTRO LADO V. WOLF 45

them from asylum on a potentially unlawful
basis.
Id. at 959 (record citations omitted).
The government sought a stay of the district court’s
injunction pending appeal. Our court rejected the
injunction’s national reach and limited its scope to the Ninth
Circuit only. East Bay Sanctuary Covenant v. Barr,
934 F.3d 1026 (9th Cir. 2019). Shortly thereafter, the district
court reissued its nationwide injunction. See East Bay
Sanctuary Covenant v. Barr, 391 F. Supp. 3d 974 (N.D. Cal.
2019). At that point, and although the majority relegates it
to a footnote, see Maj. Op. 13 n.2, the Supreme Court
stepped in and by a 7–2 vote stayed the district court’s orders
“in full.” Barr v. East Bay Sanctuary Covenant, 140 S. Ct.
3 (2019).
The Supreme Court thus allowed the Third Country
Transit Rule to take effect over the objection of Al Otro Lado
and others. The Supreme Court stayed the district court’s
injunction “in full pending disposition of the Government’s
appeal in the United States Court of Appeals for the Ninth
Circuit and disposition of the Government’s petition for writ
of certiorari, if such writ is sought.” Id. The government’s
appeal in East Bay remains pending in this court.
C
Just fifteen days after the Supreme Court issued its order
in East Bay, the plaintiffs in this metering case—including
Al Otro Lado—sought a partial injunction of the very same
Third Country Transit Rule that the Supreme Court had just
recently allowed to go into effect pending appeal. The
plaintiffs sought this injunction on behalf of a subclass of
some 26,000 non-Mexican aliens seeking asylum, who were

46 AL OTRO LADO V. WOLF

allegedly denied access to U.S. ports of entry prior to July
16, 2019 because of CBP’s metering policies.
The plaintiffs did not purport to challenge the Third
Country Transit Rule per se. Instead, the plaintiffs claimed
the Third Country Transit Rule should not apply to them. As
noted, that Rule applies to “any alien who enters, attempts to
enter, or arrives in the United States across the southern land
border on or after July 16, 2019.” 8 C.F.R. § 208.13(c)(4).
The plaintiffs claimed the Rule should not apply to them
because they had previously attempted to enter the United
States prior to July 16, 2019, but were prevented from doing
so due to metering.
In seeking an injunction, the plaintiffs likewise sought to
certify a subclass of “approximately 26,000 asylum
seekers,” who are “scattered in encampments and shelters in
Mexican border cities.” Consistent with their underlying
challenge to metering policies across the southern border,
the proposed 26,000-person subclass consists of aliens from
all over the world who sought entry over a period of years at
numerous points of entries at the United States-Mexico
border. This graphic from plaintiffs’ class motion shows the
breadth of the proposed subclass and U.S.-Mexico entry
points that are implicated:

AL OTRO LADO V. WOLF 47

On November 19, 2019, the district court granted
plaintiffs’ motion and certified a subclass consisting of “all
non-Mexican noncitizens who sought unsuccessfully to
make a direct asylum claim at a U.S. [port of entry] before
July 16, 2019, were instead required to wait in Mexico due
to the U.S. Government’s metering policy, and who continue
to seek access to the U.S. asylum process.” Al Otro Lado,
Inc. v. McAleenan, 2019 WL 6134601, at *16 (S.D. Cal.
Nov. 19, 2019). The district court also enjoined the Third
Country Transit Rule as to this subclass. Id. at *16–20.
The district court reasoned that, although plaintiffs did
not challenge the Third Country Transit Rule in their
operative complaint, the court could nonetheless enjoin the
Rule as to asylum seekers metered before July 16, 2019. Id.
at *10. The district court held that the Rule “by its express
terms, does not apply to those non-Mexican foreign
nationals in the subclass who attempted to enter or arrived at
the southern border before July 16, 2019 to seek asylum but
were prevented from making a direct claim at a [port of
entry] pursuant to the metering policy.” Id. at *17 (emphasis
in original). The district court also relied on its earlier ruling
on the government’s motion to dismiss, in which it had held
that the persons who had not yet entered the United States,
but who were “‘in the process of arriving in the United States
through a [port of entry],’” were covered under the asylum
statutes. Id. at *17 (quoting Al Otro Lado, 394 F. Supp. 3d
at 1200).
On December 4, 2019, the government filed a motion in
the district court for an emergency stay of the injunction
pending appeal, requesting a ruling by December 11, 2019.
After the district court signaled that it would not rule on the
stay motion by the requested date, the government filed in
this court a motion for stay pending appeal, along with an

48 AL OTRO LADO V. WOLF

emergency motion for an administrative stay.
Accompanying its motion, the government submitted
declarations from Randy Howe, Executive Director for
Operations, Office of Field Operations, U.S. Customs and
Border Protection; Ashley Caudill-Mirillo, Deputy Chief of
the Asylum Division with the U.S. Citizenship and
Immigration Services (USCIS), U.S. Department of
Homeland Security; and Sirce Owen, an Assistant Chief
Immigration Judge in the Executive Office for Immigration
Review. As described later, these declarations attested to the
government’s hardship in complying with the district court’s
injunction and the irreparable harm that the injunction
causes.
On December 20, 2019, we granted the government’s
motion for a temporary stay, noting, among other things that
“[p]rohibiting the government from applying the Rule to the
proposed class members could cause complications at the
border.” Al Otro Lado v. Wolf, 945 F.3d 1223, 1224 (9th
Cir. 2019). The court now goes in a different direction and
allows the district court’s injunction to go back into effect.
Because this decision is wrong as a matter of law, I
respectfully dissent.
II
The following familiar factors govern the government’s
request for a stay of the district court’s injunction pending
appeal:
(1) whether the stay applicant has made a
strong showing that he is likely to succeed on
the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure

AL OTRO LADO V. WOLF 49

the other parties interested in the proceeding;
and (4) where the public interest lies.
City & Cty. of S.F. v. USCIS, 944 F.3d 773, 789 (9th Cir.
2019) (quoting Nken v. Holder, 556 U.S. 418, 433–34
(2009)).
Usually—and nearly without fail—we analyze those
factors in order. See, e.g., id. at 790–807; FTC v. Qualcomm
Inc., 935 F.3d 752, 755–57 (9th Cir. 2019); Sierra Club v.
Trump, 929 F.3d 670, 687–707 (9th Cir. 2019); Innovation
Law Lab v. McAleenan, 924 F.3d 503, 506–10 (9th Cir.
2019) (per curiam); Lair v. Bullock, 697 F.3d 1200, 1203–
15 (9th Cir. 2012); Golden Gate Restaurant Ass’n v. City &
Cty. of S.F., 512 F.3d 1112, 1119–27 (9th Cir. 2008). In the
classic recitation of the factors governing a request for a stay,
likelihood of success on the merits is listed first. That is how
the majority itself lays out the standard. See Maj. Op. 17.
One will notice that the majority opinion inverts the
traditional stay analysis, beginning with irreparable harm
and demoting the merits to secondary status. This is not
accidental, but tactical. We are told that because “[t]he
government has made a weak showing that it will suffer
harm” pending appeal, Maj. Op. 18, it must not make merely
“a strong showing that [it] is likely to succeed on the merits,”
Nken, 556 U.S. at 434, but rather a showing that is “strong
enough to counterbalance its weak irreparable harm
evidence.” Maj. Op. 33. By seemingly inflating the
government’s required showing, the majority trends toward
a new, undefined standard that waters down the merits
analysis. And it is unclear how strong is “strong enough” in
a case like this one, where the government’s merits
arguments are purely legal in nature, turning on the
interpretation of statutes and regulations.

50 AL OTRO LADO V. WOLF

The sequencing of today’s opinion can only reflect the
majority’s implicit acknowledgement that the government’s
case is strongest where it most matters, namely, the
likelihood of success on the merits. That explains the
majority’s tepid endorsement of the district court’s merits
analysis, which the majority only describes as “likely
correct,” “sufficiently sound,” and having “considerable
force.” Maj. Op. 26–27, 31. The strength of the
government’s merits arguments likely explains why the
majority feels the apparent need to elevate the government’s
burden on likelihood of success on the merits before
addressing them. Hence the decision to lead with irreparable
harm first.
The issuance of a stay “is to be guided by sound legal
principles,” and “those legal principles have been distilled
into” the traditional four-factor test I quoted above, Nken,
556 U.S. at 434 (quotations omitted), not factors with new
modifiers around them. In this case, and under the governing
standards, the government has made both “a strong showing
that [it] is likely to succeed on the merits” and that it “will
be irreparably injured absent a stay.” City & Cty. of S.F.,
944 F.3d at 789.
III
A
I begin, as we usually do, with the merits. But the merits
of what exactly? Not the merits of CBP’s metering policies,
which is what this lawsuit is actually about. The legality of
metering remains a live issue in the district court, with the
district court acknowledging “it is entirely possible” that
metering could be founded on “legitimate factors.” Al Otro
Lado, Inc., 394 F. Supp. 3d at 1212. Indeed, the district court
issued its injunction “assuming the Government’s metering

AL OTRO LADO V. WOLF 51

practice was legal.” Al Otro Lado, 2019 WL 6134601,
at *13. The majority opinion rests on the same assumption:
“because the district court has not yet decided whether the
delay in processing the class member[s’] asylum requests
and requiring them to stay in Mexico in the meanwhile is
itself violative of their statutory or constitutional rights, we
assume for present purposes that it was not.” Maj. Op. 31
n.11.
But if metering is potentially lawful and not even at issue
in this preliminary injunction proceeding, on what basis
could the district court partially enjoin the wholly separate
and later-enacted Third Country Transit Rule, whose legality
is not questioned here either? Somehow a motion for
preliminary injunction that challenges neither metering nor
the Third Country Transit Rule has used the prospect of a
challenge to the former as a justification for partially
enjoining the latter.
The majority never explains why this is at all
appropriate. This metering case plodded along for years
until the government enacted the Third Country Transit
Rule. Then, and not long after the ink had dried on an
unsuccessful effort to obtain a preliminary injunction of that
Rule, see East Bay, 140 S. Ct. at 3, the plaintiffs—including
Al Otro Lado, a plaintiff from East Bay itself—tried to use
this metering case to accomplish, in part, what East Bay thus
far has not. Under the circumstances and our case law, the
district court’s partial injunction of the Third Country
Transit Rule exceeded the equitable powers of the federal
courts.
We have made clear that “[a] court’s equitable power lies
only over the merits of the case or controversy before it,” so
that “[w]hen a plaintiff seeks injunctive relief based on
claims not pled in the complaint, the court does not have the

52 AL OTRO LADO V. WOLF

authority to issue an injunction.” Pac. Radiation Oncology,
LLC v. Queen’s Med. Ctr., 810 F.3d 631, 632 (9th Cir.
2015). That principle of law is well-accepted. See, e.g.,
Alabama v. U.S. Army Corps of Eng’rs, 424 F.3d 1117, 1134
(11th Cir. 2005) (“To secure preliminary injunctive relief, a
petitioner must demonstrate a substantial likelihood of
prevailing on at least one of the causes of action he has
asserted.”); Omega World Travel, Inc. v. Trans World
Airlines, 111 F.3d 14, 16 (4th Cir. 1997) (“[A] preliminary
injunction may never issue to prevent an injury or harm
which not even the moving party contends was caused by the
wrong claimed in the underlying action.”); Devose v.
Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam)
(“[A] party moving for a preliminary injunction must
necessarily establish a relationship between the injury
claimed in the party’s motion and the conduct asserted in the
complaint.”). The district court’s injunction easily fails this
test, both because the Third Country Transit Rule was not
otherwise at issue in this case, and because the district
court’s partial injunction of that Rule does not turn on the
merits of plaintiffs’ metering claims.
The district court apparently believed that our decision
in Pacific Radiation was no obstacle to enjoining the Third
Country Transit Rule because, in its view, “Plaintiffs’ claims
regarding the [the Rule] and Plaintiffs’ underlying claims in
their [Second Amended Complaint] are so intertwined that
denying Plaintiffs’ Motion for Preliminary Injunction could
effectively eviscerate the asylum claims Plaintiffs seek to
preserve in their underlying lawsuit.” Al Otro Lado, 2019
WL 6134601, at *10. That is not correct.
For a federal court to issue an injunction, there must be
“a sufficient nexus between the claims raised in a motion for
injunctive relief and the claims set forth in the underlying

AL OTRO LADO V. WOLF 53

complaint itself.” Pac. Radiation, 810 F.3d at 636. Here
there is no claim in the operative complaint concerning the
Third Country Transit Rule, which did not come along until
years into this case. Under our precedent, moreover, “[t]he
relationship between the preliminary injunction and the
underlying complaint is sufficiently strong where the
preliminary injunction would grant ‘relief of the same
character as that which may be granted finally.’” Id.
(quoting De Beers Consol. Mines v. United States, 325 U.S.
212, 220 (1945)). In this case, the character of the relief
sought in the motion for preliminary injunction is entirely
different from that sought in the complaint: the complaint
concerns delays in processing asylum seekers, whereas the
Third Country Transit Rule concerns eligibility
requirements for asylum itself.
The majority opinion asserts that the operative complaint
and injunction both “sought to preserve class members’
access to the asylum process.” Maj. Op. 16 n.6. But the
injunction is not about “access to the asylum process,” but
claimed entitlement to asylum itself, which is not at issue in
this metering case. And even if it was, casting the complaint
and injunction at such a high level of generality would
undermine the limitations that Pacific Radiation imposes.
Indeed, Pacific Radiation expressly rejected an effort to
secure an injunction by “merely asserting that the claims are
related or incorporated into [the] complaint.” 810 F.3d
at 637.
The approach taken by the district court and majority
opinion is therefore dramatic in its potential: in a case that
does not challenge them, it would authorize injunctions of
any current or future asylum-related rule, the application of
which likewise “could” just as easily “eviscerate” plaintiffs’
eventual asylum claims. Al Otro Lado, 2019 WL 6134601,

54 AL OTRO LADO V. WOLF

at *10. And it would allow such injunctions on the
assumption that the governmental conduct at issue in the
case—here, metering—is lawful. Id. at *11, 13. The result
is a mission creep nowhere authorized in our precedents,
where an expansive and long-running lawsuit like this one
can become the forum for challenging any future
governmental action in the general subject area. That the
majority implicitly blesses this vast expansion of the federal
courts’ injunctive powers in a footnote, Maj. Op. 16 n.6, is
deeply troubling.
The majority and district court also justify the injunction
under the All Writs Act, 28 U.S.C. § 1651, on the theory that
the Third Country Transit Rule “would effectively moot
Plaintiffs’ request for relief in the underlying action by
extinguishing their asylum claims.” Al Otro Lado, 2019 WL
6134601, at *11; Maj. Op. 16 n.6. This is even farther afield
and clearly incorrect. This metering case does not concern
plaintiffs’ underlying asylum claims, which are not at issue
here. And the Third Country Transit Rule obviously does
not moot this metering case because it has no effect on
Mexican asylum seekers to whom the Rule does not apply.
Such Mexican asylum seekers are both named plaintiffs and
part of the putative class challenging CBP’s metering
practices.
The majority does not dispute this. Instead, it claims that
the Third Country Transit Rule “would extinguish some
provisional class members’ asylum claims.” Maj. Op. 16 n.6
(emphasis added). But neither the majority opinion nor the
district court provide any authority for the remarkable
proposition that the All Writs Act can be used as an all-
purpose bulwark against mootness. If a party’s claims
become moot, a court lacks jurisdiction to decide them. See,
e.g., Center for Biological Diversity v. Lohn, 511 F.3d 960,

AL OTRO LADO V. WOLF 55

963 (9th Cir. 2007). And the All Writs Act only allows a
court “to issu[e] process ‘in aid of’ its existing jurisdiction;
the Act does not enlarge that jurisdiction.” Clinton v.
Goldsmith, 526 U.S. 529, 534–35 (1999).
The notion that the All Writs Act could be used to enjoin
anything that would make even one of 26,000 provisional
class members’ claims moot reflects a sweeping theory of
judicial power with no basis in principle or precedent. As
the Supreme Court has explained in the context of similar
statutory language in the Anti-Injunction Act, “[n]o case of
this Court has ever held that an injunction to ‘preserve’ a
case or controversy fits within the ‘necessary in aid of its
jurisdiction’ exception.” Vendo Co. v. Lektro-Vend Corp.,
433 U.S. 623, 641 (1977) (plurality opinion); see also
Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir.
1988) (interpreting All Writs Act in light of Anti-Injunction
Act precedent). The All Writs Act “is not a grant of plenary
power to federal courts.” Doe v. INS, 120 F.3d 200, 205 (9th
Cir. 1997) (quotations omitted). Yet by today’s decision, it
is.
Because the district court could not enter this injunction
in this case, that should be the end of the matter and the
injunction should have been stayed for this reason alone.
B
But even assuming, as the majority does, that the
likelihood of success on the merits should focus instead on
whether the Third Country Transit Rule applies to the
plaintiff subclass, the government has shown a strong
likelihood of success on that front as well.
As I set forth above, the Third Country Transit Rule
provides that

56 AL OTRO LADO V. WOLF

any alien who enters, attempts to enter, or
arrives in the United States across the
southern land border on or after July 16,
2019, after transiting through at least one
country outside the alien’s country of
citizenship, nationality, or last lawful
habitual residence in route to the United
States, shall be found ineligible for asylum.
8 C.F.R. § 208.13(c)(4) (emphasis added). The district court
held that this Rule did not apply to persons who had been
metered prior to July 16, 2019. Al Otro Lado, 2019 WL
6134601, at *17. Its central reasoning was that the Rule “by
its express terms, does not apply to those non-Mexican
foreign nationals in the subclass who attempted to enter or
arrived at the southern border before July 16, 2019 to seek
asylum but were prevented from making a direct claim at a
[port of entry] pursuant to the metering policy.” Id.
(emphasis in original). In the district court’s view, “[t]he
Government’s position that the Asylum Ban applies to those
who attempted to enter or arrived at the southern border
seeking asylum before July 16, 2019 contradicts the plain
text of their own regulation.” Id.
The majority and I at least appear to agree on one thing:
this reasoning is definitely wrong. The Third Country
Transit Rule applies to “any alien who enters, attempts to
enter, or arrives in the United States across the southern land
border on or after July 16, 2019.” 8 C.F.R. § 208.13(c)(4).
It includes anyone, including the plaintiffs in this case, who
will be attempting to enter the United States after July 16,
2019. There is no exception for persons who previously tried
to enter the United States and who were unable to do so,
whether due to metering or any other reason. The district
court was thus mistaken to believe that the Third Country

AL OTRO LADO V. WOLF 57

Transit Rule “by its express” terms contains a carve-out for
metered persons. It does not. As the majority thus concedes,
“the government may be right that, because the class
members were ‘metered,’ they will arrive a second time
when they get to the top of the waitlist and are finally
admitted and processed.” Maj. Op. 31 n.11.
C
The majority nevertheless refuses to stay the district
court’s injunction. Why? Notwithstanding the language of
the Third Country Transit Rule, the majority holds that the
government still has not shown a strong likelihood of
success based on the district court’s earlier motion to dismiss
ruling. Maj. Op. 27–31. In that ruling, the district court held
that the asylum laws apply not only to persons physically
present inside the United States, but also to persons “who
[are] in the process of arriving in the United States through
a [port of entry].” Al Otro Lado, 394 F. Supp. 3d at 1200.
Extending this logic to plaintiffs’ request to enjoin the Third
Country Transit Rule, the district court held that persons who
were metered had arrived in the United States prior to July
16, 2019, such that the Rule does not apply to them. Al Otro
Lado, 2019 WL 6134601, at *17.
As I will now explain, the majority’s effective
endorsement of the district court’s unprecedented motion to
dismiss ruling works a revolution in immigration law. And
the majority’s related holding that our country’s immigration
laws are effectively frozen as of the time of metering, so that
no new immigration eligibility requirement could apply to
persons who had been metered, works an entirely new
revolution beyond that. The majority’s twin determinations
on this score contravene settled law, contradict our
precedents, and wrongly allow a partial injunction of the
very Third Country Transit Rule that the Supreme Court

58 AL OTRO LADO V. WOLF

recently allowed to go into effect pending appeal. See East
Bay, 140 S. Ct. at 3.
1
An alien “who is physically present in the United States
or who arrives in the United States” may apply for asylum.
8 U.S.C. § 1158(a)(1). Another provision of the statute
provides that aliens may receive asylum screening if they are
“arriving in the United States.” Id. § 1225(b)(1)(A)(i)–(ii).
Back when this case was about metering, the threshold legal
issue before the district court at the motion to dismiss stage
was whether metered persons could even claim a violation
of the asylum laws, given that they had never physically
entered the United States.
The district court held that they could. According to the
district court, persons “‘who may not yet be in the United
States, but who [are] in the process of arriving in the United
States through a [port of entry,]’ were ‘arriving in the United
States’ such that the statutory and regulatory provisions at
issue applied to them.” Al Otro Lado, 2019 WL 6134601,
at *17 (quoting Al Otro Lado, 394 F. Supp. 3d at 1199–
1205). To reach that conclusion, the district court reasoned
that under the canon against surplusage, § 1158(a)(1)’s
reference to a person “who arrives in the United States” must
have a different meaning than someone “who is physically
present in the United States.” Al Otro Lado, 394 F. Supp. 3d
at 1199–1200. Focusing then on the phrase “arrives in the
United States,” and while noting that “neither side raises
th[e] point,” the district court held that under the Dictionary
Act, “‘words used in the present tense include the future as
well as the present.’” Id. at 1200 (quoting 1 U.S.C. § 1).
From this the district court held that “Section 1158(a)(1)’s
use of the present tense of ‘arrives’ plainly covers an alien
who may not yet be in the United States, but who is the

AL OTRO LADO V. WOLF 59

process of arriving in the United States through a [port of
entry].” Id.
In its order partially enjoining the Third Country Transit
Rule, the district court relied on this earlier motion to dismiss
ruling to hold that the Rule did not apply to persons who
were metered prior to July 16, 2019. Al Otro Lado, 2019
WL 6134601, at *17. It is important to see at the outset that
whether or not the district court’s motion to dismiss ruling is
correct, its conclusion at the preliminary injunction stage did
not follow: even if the plaintiffs had previously attempted to
enter the United States prior to July 16, 2019, they are now
attempting to enter it again after July 16, 2019. 8 C.F.R.
§ 208.13(c)(4). As such, the Third Country Transit Rule
clearly applies to them, whether or not they previously
“arrived in” or were in the “process of arriving in” the United
States at some earlier point. I take up this issue further below
when addressing the majority’s apparent view that the
immigration laws should be considered frozen as of the time
plaintiffs were metered.
Regrettably, however, and with little independent
reasoning of its own, the majority endorses the district
court’s motion to dismiss ruling. Maj. Op. 27–31. After
describing the district court’s reasoning, the majority with
limited analysis states that “[t]he district court’s linguistic
and contextual analysis has considerable force” and “is
likely correct.” Maj. Op. 31.
In fact, however, the district court’s reasoning at the
motion to dismiss stage was not correct, and the majority errs
in giving it any credit. At the very least, the government has
made a strong showing that the district court’s motion to
dismiss ruling was not sound. This point should be very
clear: neither the majority, the district court, nor the
plaintiffs cite any authority for the proposition that our

60 AL OTRO LADO V. WOLF

country’s asylum laws apply to persons who are not
physically located in the United States, but who are outside
our borders yet “in the process of arriving in” the United
States. The district court’s holding in this regard is
unprecedented and runs counter to both the statutory text and
established case law.
Before 1980, “there was no statutory basis for granting
asylum to aliens who applied from within the United States.”
INS v. Cardoza-Fonseca, 480 U.S. 421, 433 (1987). In
1980, and as part of amendments to the Immigration and
Nationality Act (INA), Congress separately addressed
refugees applying for admission from outside the United
States, as distinguished from asylum seekers asking for
protection from within our borders. Id. As the Supreme
Court has explained in describing these reforms, “Section
207, 8 U.S.C. § 1157, governs the admission of refugees
who seek admission from foreign countries. Section 208,
8 U.S.C. § 1158, sets out the process by which refugees
currently in the United States may be granted asylum.” Id.
(emphasis added).
It has thus long been understood that unlike admission
for refugees, see 8 U.S.C. § 1157 (imposing certain
population caps for resettling refugees), asylum under
§ 1158 requires application from within the United States.
As we have explained, “Section 207 [8 U.S.C. § 1157]
establishes the procedure by which an alien not present in
the United States may apply for entry as a refugee. . . .
Section 208 [8 U.S.C. § 1158], on the other hand, sets out
the procedures for granting asylum to refugees within the
United States.” Yang v. INS, 79 F.3d 932, 938 (9th Cir.
1996) (emphasis in original); see also Singh v. Holder,
649 F.3d 1161, 1167 (9th Cir. 2011) (en banc) (“Th[e]
definition of a refugee contains no cross-reference to the

AL OTRO LADO V. WOLF 61

procedural requirements for asylum, such as being
physically present in the United States . . . .”); Halaim v.
INS, 358 F.3d 1128, 1133 (9th Cir. 2004) (“Because they are
physically present in the United States, however, Petitioners
are applying for asylum and withholding of deportation only
under Section 208 of the INA, 8 U.S.C. § 1158.”); Sadhvani
v. Holder, 596 F.3d 180, 183 (4th Cir. 2009) (“[T]he BIA
did not abuse its discretion in denying relief based on the
statutory requirement that one must be present in the United
States to eligible for asylum.”); Kiyemba v. Obama, 555 F.3d
1022, 1030 (D.C. Cir. 2009), vacated by 559 U.S. 131
(2010), and judgment reinstated as amended, 605 F.3d 1046
(D.C. Cir. 2010) (“[R]efugees apply from abroad; asylum
applicants apply when already here[.]”).
Consistent with the foregoing, the text, structure, and
history of the INA all confirm that an alien who approaches
a port of entry, but who does not enter the United States, is
not covered by the asylum laws. The INA’s asylum
provisions are limited to aliens who are “physically present
in the United States or who arrive[] in the United States” or
“who [are] arriving in the United States.” See 8 U.S.C.
§§ 1158(a)(1), 1225(b)(1)(B)(i)–(ii) (emphases added).
This language unambiguously requires an alien to be in the
United States to apply for asylum. The statute does not apply
by its terms to someone who is “in the process of arriving”
in the United States, but who is not yet here. One who
“arrives in the United States,” 8 U.S.C. § 1158(a)(1) is one
who, at the very least, has crossed into the United States.
See, e.g., The American Heritage Dictionary 102 (3d ed.
1992) (defining “arrive” as “[t]o reach a destination”); The
Oxford English Dictionary 651 (2d ed. 1989) (defining
“arrive” as “to come to land at, reach (a shore, port, etc.)”
and “[t]o come to the end of a journey, to a destination, or to
some definitive place”). When we say that a person

62 AL OTRO LADO V. WOLF

“arrives” in a location, we mean he reaches that location, not
that he is somewhere on his travels toward it. An alien thus
“arrives in” the United States or he does not; there is no in-
between.
The majority nevertheless relies on the district court’s
use of the canon against surplusage, which the district court
held requires that “arrives in the United States” must mean
something different than “physically present in the United
States.” Maj. Op. 27 (citing 8 U.S.C. § 1158(a)). The
district court’s surplusage analysis fails upon closer scrutiny.
The Refugee Act of 1980 originally ordered the Attorney
General to accept asylum applications from any alien
“physically present in the United States or at a land border
or port of entry, irrespective of such alien’s status.” 8 U.S.C.
§ 1158(a) (1980). The majority suggests without citation
that this earlier language covered “[a] person standing at the
border,” but who was “not necessarily across it.” Maj. Op.
29 (emphasis in original). The majority identifies no court
that has accepted this interpretation of the 1980 Act, nor does
it address the fact that both the Supreme Court and this court
have described the 1980 provision as applying to “refugees
currently in the United States,” Cardozo-Fonseca, 480 U.S.
at 433, and “refugees within the United States,” Yang,
79 F.3d at 938 (emphasis in original).
In the landmark Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No.
104-208, 110 Stat. 3009, Congress revised the statutory
language in § 1158(a)(1), so that it now provides that “[a]ny
alien who is physically present in the United States or who
arrives in the United States (whether or not at a designated
port of arrival and including an alien who is brought to the
United States after having been interdicted in international
or United States waters), irrespective of such alien’s status,

AL OTRO LADO V. WOLF 63

may apply for asylum.” 8 U.S.C. § 1158(a); see generally
East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 757–
58 (2018) (describing the IIRIRA changes to the statutory
scheme). The 1996 amendments did not somehow work a
major change in the law to enable persons who were outside
the United States, but “in the process” of arriving into it, to
apply for asylum.
Prior to 1996, our immigration laws set forth two types
of expulsion proceedings: deportation and exclusion. See
Vartelas v. Holder, 566 U.S. 257, 261 (2012); Jama v. ICE,
543 U.S. 335, 349 (2005); Lezama-Garcia v. Holder,
666 F.3d 518, 526 (9th Cir. 2011). In the 1996 immigration
reforms, Congress “abolished the distinction between
exclusion and deportation procedures and created a uniform
proceeding known as ‘removal.’” Vartelas, 566 U.S. at 262.
Congress also created expedited removal proceedings for
aliens “arriving in” the United States who seek to procure
entry through fraudulent means or who lack proper
documentation. 8 U.S.C. § 1225(b)(1)(A)(i). Congress
further authorized the Attorney General to place in expedited
removal proceedings certain persons who had been
physically present in the United States for less than two
years. Id. § 1225(b)(1)(iii). Nevertheless, most persons
subject to expedited removal can request asylum and be
referred for a credible fear interview “either at a port of entry
or at such other place designated by the Attorney General.”
Id. § 1225(b)(1)(A)(ii), (B)(i).
Properly considered, the phrases “arrives in the United
States,” 8 U.S.C. §§ 1158(a)(1), 1225(a)(1), or “arriving in
the United States,” id. § 1225(b)(1)(A)(i), did not extend our
asylum laws to persons outside the physical boundaries of
the United States. Instead, the point was to identify certain
persons who could be subject to expedited removal, while

64 AL OTRO LADO V. WOLF

ensuring that they could still pursue asylum.
Id. § 1225(b)(1)(A)–(B); see also Succar v. Ashcroft,
394 F.3d 8, 13 (1st Cir. 2005) (“Congress established
expedited removal proceedings for arriving non-citizens
who are charged as inadmissible due to lack of proper
documents or material misrepresentations at entry.
Expedited removal proceedings provide little opportunity
for relief; however, aliens in this situation can seek
asylum.”) (quotations omitted).
Nothing in these changes suggested that from the
perspective of whether the asylum applicant had to be
located in the United States, there was a difference between
a person “present in the United States” and one “who arrives
in the United States.” 8 U.S.C. § 1225(a)(1); see also
id. § 1158(a)(1). A change of that magnitude, and
particularly one made through the 1996 immigration
reforms—widely regarded as placing important new limits
on immigration, see Morales-Izquierdo v. Gonzales,
486 F.3d 484, 494 (9th Cir. 2007) (en banc); Avendano-
Ramirez v. Ashcroft, 365 F.3d 813, 819–20 (9th Cir. 2004)—
would surely have been made quite explicitly. The district
court’s invocation of the canon against surplusage was
therefore misplaced.
Not only was the district court incorrect to apply the
canon against surplusage, its effort to do so led it to misapply
the Dictionary Act, an error the majority unfortunately
credits. Maj. Op. 27. The district court relied upon a
provision in the Dictionary Act which states that “unless the
context indicates otherwise,” “words used in the present
tense include the future as well as the present.” 1 U.S.C. § 1.
From this it concluded that “arrives in”—which it believed
must have a different meaning than “physically present
in”—had to include “an alien who may not yet be in the

AL OTRO LADO V. WOLF 65

United States, but who is the process of arriving in the
United States through a [port of entry].” Al Otro Lado,
394 F. Supp. 3d at 1200.
The conclusion does not follow. Courts cannot
“invoke[] the Dictionary Act in an effort to convert an
unambiguous verb tense into claimed ambiguity,” and then
use “that manufactured ambiguity as a stepping stone to
altering the plain sense of a statute.” Guidiville Band of
Pomo Indians v. NGV Gaming, Ltd., 531 F.3d 767, 775 (9th
Cir. 2008). Here, the district court used the Dictionary Act
not to read “arrives” in both the present and future tense, but
to change the entire definition of “arrives” to include the
“process of arriving.” And if the phrase “arrives in” does
refer to something in the future, there is no reason to limit
that interpretation, as the district court did, to someone “in
the process of arriving in” the United States, as opposed to
someone who took some other antecedent step toward
arriving in this country. The uncertainty of what it means to
be “in the process of arriving” raises a host of interpretative
and practical issues that the majority does not address.
In all events, if the district court had been consistent in
its application of the Dictionary Act, it would have read “is
physically present in the United States”—also framed in the
present tense—to refer to the future as well. 8 U.S.C.
§ 1158(a)(1). But that would have erased the very
distinction that the surplusage canon supposedly required.
There too, of course, the statute in the future tense would
merely reflect the unremarkable proposition that one who
will be physically present in the United States will be able to
apply for asylum once they are here. It would not mean that
one who is in the process of becoming physically present
would have that same statutory right. This same logic
applies to the phrase “arrives in” as well.

66 AL OTRO LADO V. WOLF

The district court believed, and the majority apparently
agrees, that 8 U.S.C. § 1225(b) supported the district court’s
“in the process of” theory. Maj. Op. 27. As described above,
§ 1225(b)(1) references aliens “arriving in the United
States.” The district court held that this phrase supported its
interpretation of § 1158(a)(1), because § 1225(b)’s “use of
the present progressive, like use of the present participle,
denotes an ongoing process.” Al Otro Lado, 394 F. Supp. 3d
at 1200.
The district court’s (and majority’s) reading collapses
when § 1225 is read as a whole. See, e.g., Sturgeon v. Frost,
136 S. Ct. 1061, 1070 (2016) (“It is a fundamental canon of
statutory construction that the words of a statute must be read
in their context and with a view to their place in the overall
statutory scheme.”) (quotations omitted). In this case, the
very provision the district court relied upon states that “[i]f
an immigration officer determines that an alien ... who is
arriving in the United States ... is inadmissible, the officer
shall order the alien removed from the United States without
further hearing or review.” 8 U.S.C. § 1225(b)(1)(A)(i)
(emphasis added). For an alien to be “removed from the
United States,” the alien must of course have been in the
United States in the first place.
There are various other aspects of § 1225 and § 1158 that
likewise do not make sense if “arriving in” means something
short of setting foot in the United States. Section 1225(b),
for example, concerns the “inspection” of aliens “arriving in
the United States.” Aliens must be screened in inspections,
8 U.S.C. § 1225(b)(1)(A), before proceeding to asylum
interviews, id. § 1225(b)(1)(B). These inspections apply to
any person “present in the United States” or “who arrives in
the United States.” Id. § 1225(a)(1). There is no suggestion
in § 1225 that CBP officers could inspect persons who did

AL OTRO LADO V. WOLF 67

not enter the United States. Under § 1158(a)(2)(B), to give
another example, an alien must generally apply for asylum
“within 1 year after the date of the alien’s arrival in the
United States.” It is unclear how this and other provisions
would apply if arrival were an “ongoing process” that
includes periods prior to entering the United States. Maj.
Op. 27. The majority’s endorsement of the district court’s
reasoning thus injects confusion in our immigration laws,
with no basis in the statutory text.
Finally, relying upon the district court, the majority
states that “the legislative history is consistent with its
interpretation of ‘arrives in’ as denoting an ongoing
process.” Maj. Op. 28 & n.10. By “legislative history,” the
majority means the written statement of a single
congressman, Representative Lamar Smith of Texas. Al
Otro Lado, 394 F. Supp. 3d at 1201. It is difficult to call this
statement legislative history. The statement is in fact a letter
sent by Rep. Smith to the Director of the Immigration and
Naturalization Service (INS) about a proposed INS
rulemaking (the letter was later placed in the congressional
record). See Implementation of Title III of the Illegal
Immigration Reform and Immigration Responsibility Act of
1996: Hearing Before the Subcomm. On Immigration and
Claims of the H. Comm. On the Judiciary, 105th Cong.
(1997), at 13–28 (letter from Rep. Smith to INS). The letter
also post-dates the enactment of the IIRIRA. See Bruesewitz
v. Wyeth LLC, 562 U.S. 223, 242 (2011) (“Post-enactment
legislative history (a contradiction in terms) is not a
legitimate tool of statutory interpretation.”).
Even assuming this is true legislative history, the usual
warnings about its use would apply. See Conroy v. Aniskoff,
507 U.S. 511, 518–28 (1993) (Scalia, J., concurring). In this
case, however, there is a more fundamental problem, which

68 AL OTRO LADO V. WOLF

is that the majority block-quotes the district court’s opinion
discussing this “legislative history,” Maj. Op. 28, but the
district court in quoting that material used an ellipsis to omit
critical context from the quoted passage. The following is
the full quote from Rep. Smith’s letter. I have bolded the
text that the district court (and majority) omit with an
ellipsis; notably, most of that same material was italicized
for emphasis in Rep. Smith’s letter:
The term ‘arriving alien’ was specifically
selected by Congress in order to provide a
flexible concept that would include all aliens
who are in the process of physical entry past
our borders, regardless of whether they are
at a designated port of entry, on a seacoast,
or at a land border. Thus, an ‘arriving
alien’ will in many cases include an alien
who, under the current interpretation of
section 101(a)(13) of the INA definition of
‘entry’, would have been found to have
made an ‘entry.’ In specific terms, an alien
who has entered U.S. territory between ports
of entry on our land borders, or who has
come ashore on a smuggling boat, should be
considered an ‘arriving alien’ even if that
alien has penetrated several hundred yards
or even farther into United States territory
and has been in that territory for several
hours. ‘Arrival’ in this context should not be
considered ephemeral or instantaneous, but,
consistent with common usage, as a process.
An alien apprehended at any stage of this
process, whether attempting to enter, at the
point of entry, or just having made entry,
should be considered an ‘arriving alien’ for

AL OTRO LADO V. WOLF 69

the various purposes in which that term is
used in the newly revised portions of the
INA.
1997 IIRIRA Subcomm. Hrg. at 17–18 (bold added; italics in
original).
Rep. Smith was certainly not advocating for an
interpretation of “arriving” that would accord asylum
protection to persons who had not crossed into the United
States. Instead, and consistent with what he later describes
as “the pro-enforcement philosophy of” the INA, Rep. Smith
sought to ensure that aliens who had “entered U.S. territory”
and proceeded some ways past the border should still be
treated as “arriving” in the United States and subject to the
expedited procedures applicable to such persons. Id. at 17–
19. That is the stated “context” of Rep. Smith’s comments
about the word “arrival”—“context” that the ellipsis
eliminated. And that is why Rep. Smith elsewhere referred
to “physical entry past our borders” and persons “having
crossed the border.” Id. at 17–18 (emphasis in original).
The majority opinion acknowledges (but does not re-
produce) the “language elided from the district court’s block
quotation and ours,” but maintains that my reading of Rep.
Smith’s letter is “inconsistent with [his] comments
themselves.” Maj. Op. 28 n.10. That is not correct. As
explained above, Rep. Smith was referring to “arrival” as a
“process” that begins and continues after an alien has
crossed the border. Statements Rep. Smith made at the
congressional hearing in which he submitted his letter only
confirm what his letter plainly says. See, e.g., 1997 IIRIRA
Subcomm. Hrg. at 70 (“The problem that I hope you all will
address when we get to that definition of arriving alien is the
situation where you have someone crossing a land border

70 AL OTRO LADO V. WOLF

perhaps in a vehicle, and as soon as they travel, they’re going
north or south or east or west; 2 hours later they’re 120 miles
in the interior. Clearly, they’re still an arriving alien, and
you somehow need to have a broad enough net to catch those
individuals and apply that definition to them.”).
Rep. Smith’s statement thus provides no support for the
district court’s unprecedented holding that persons who are
not in the United States may invoke our asylum laws.
Because that holding was wrong, the injunction of the Third
Country Transit Rule upon which it was based should have
been stayed.
2
Of course, one does not need to agree with anything in
the preceding section to conclude that the district court’s
injunction of the Third Country Transit Rule was improper.
As I have explained, the government correctly argues (and
the majority seemingly agrees, Maj. Op. 31 n.11) that
regardless of whether plaintiffs attempted to enter the United
States prior to July 16, 2019, they would now be arriving
again after that date, so that the Third Country Transit Rule
on its face applies to them. The majority therefore
acknowledges that even if the district court’s “arriving in”
analysis were correct, the government would still succeed on
the merits if plaintiffs’ “first arrival” was not the proper
focus, so that “any second arrival . . . governed by the Rule”
is the “one that matters.” Maj. Op. 26.
The majority holds that the government has not made a
sufficient showing in this respect either, on the theory that
“[i]t is more likely that the first arrival is governed by the
eligibility requirements at the time the right to be considered
for asylum arose than that regulations imposed after the fact
will cancel out the earlier eligibility.” Maj. Op. 33. That is

AL OTRO LADO V. WOLF 71

the direct effect of the district court’s injunction as well,
which ordered the government “to return to the pre-Asylum
Ban practices for processing the asylum applications of
members of the certified class.” Al Otro Lado, 2019 WL
6134601, at *20. This, according to the majority, “makes
sense.” Maj. Op. 32–33.
This reasoning will drastically destabilize the law at the
border. What the majority is apparently saying is that
asylum eligibility rules should be frozen in time as of the
point that the plaintiffs were first arriving at a port of entry
(or, more accurately, in the process of arriving there). The
theory would extend to any change in the law after the
plaintiffs were first metered. The implications of this rule of
law are significant. By the logic of the majority’s opinion,
persons could be metered, deported from Mexico, and then
return to a United States port of entry many years later,
demanding that any new developments in immigration law
not apply to them. Indeed, any person who is “in the
processing of arriving in” the United States would seemingly
have a vested right to the eligibility requirements in place as
of that time. This would atomize the process for applying
immigration rules of supposed general applicability, with the
law in constant flux depending upon the person being
considered for admission. This would cause obvious and
enormous problems of administration at the border.
The majority’s determination that the Third Country
Transit Rule should not apply because it was not “in place”
“at the time each class member’s right to apply for asylum
attached” (the “first arrival”), Maj. Op. 32–33, also meets
serious resistance from our cases. We have repeatedly held
that a change in immigration law may apply to persons much
farther along in immigration proceedings than the plaintiffs
are here. As we explained long ago, where a “Petitioner had

72 AL OTRO LADO V. WOLF

been eligible for the relief sought when he first applied for
it” but “became ineligible by virtue of [a] change in the law,”
“[i]t is settled that when the law is changed before a decision
is handed down by an administrative agency, the agency
must apply the new law.” Talanoa v. INS, 397 F.2d 196, 200
(9th Cir. 1968); see also Vasquez-Zavala v. Ashcroft,
324 F.3d 1105, 1108 (9th Cir. 2003) (rejecting petitioners’
arguments based on allegedly “settled expectations” and
applying change in law that was made after petitioners filed
their asylum application); Ortiz v. INS, 179 F.3d 1148, 1156
(9th Cir. 1999) (holding that new definition of “aggravated
felony” that took effect after petitioners had filed an asylum
application applied, and “[t]he fact that the [petitioners’]
petition for asylum was filed prior to the effective date of the
IIRIRA does not help them”). In these cases, the new law
was “not in place” at the relevant time either, Maj. Op. 32–
33, but that did not change the court’s analysis.
To the extent the majority would allow new changes in
the law to apply to ongoing asylum proceedings, as our
precedent confirms can occur, the broader statements in the
majority’s opinion must give way to a more limited holding:
that when an alien was previously “in the process of
arriving” in the United States, the Third Country Transit
Rule does not apply to that person. But that returns us to the
beginning, namely, that the Third Country Transit Rule does
not exempt persons who previously attempted to enter the
country. And nothing in the INA says that when there are
multiple “arrivals” over time, it is the first one, and not the
later arrival in front of us (and immigration officials), that
matters.
The majority would presumably agree that if an alien
entered the United States prior to July 16, 2019, freely left
the United States on her own accord, and then returned after

AL OTRO LADO V. WOLF 73

July 16, 2019, the Third Country Transit Rule could apply to
her. That would be so notwithstanding her earlier pre-July
16, 2019 “arrival.” The majority would likewise seemingly
agree that if an alien entered the United States prior to July
16, 2019, was lawfully removed, and then attempted to
arrive again after July 16, 2019, the Third Country Transit
Rule could apply to that person too.
Then why is this case different? The only possible
reason could be that there is something wrong about the
combination of the government’s metering policies and the
Third Country Transit Rule, namely, that the government
turned people away through metering only to then subject
them to a new asylum eligibility requirement. The district
court was explicit on this point: it thought the government’s
metering policies had created a “legal bind” that was “at
best, misleading, and at worst, duplicitous.” Al Otro Lado,
2019 WL 6134601, at *1, 11. The majority makes the same
point, “agree[ing] with the district court that ‘[t]his situation,
at its core, is quintessentially inequitable.’” Maj. Op. 34–35.
The problem with these statements is that this entire
injunction—and the majority’s opinion refusing to stay it—
is premised on the assumption that metering is not unlawful.
Maj. Op. 9, 31 n.11; Al Otro Lado, 2019 WL 6134601,
at *11, 13. And if metering is lawful, as the district court
conceded may be the case, then the supposed “legal bind”
and “quintessentially inequitable” government behavior are
nothing of the sort, but rather a natural consequence of the
government’s valid enforcement of the immigration laws.
This really has now brought us back completely full circle:
the injunction does not turn on whether metering is lawful.
The majority and district court therefore cannot then
smuggle into the analysis an implicit and unproven judgment

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that metering is wrong. And they certainly cannot do so on
a classwide basis for all ports of entry at all times.
For all these reasons, the government has shown an
overwhelming likelihood of success on the merits and the
first stay factor thus tips decidedly in its favor. I am unsure
why the majority opinion suggests that I am criticizing what
the majority views as its “restrained approach.” Maj. Op.
35. The majority opinion is restrained only insofar as it fails
to confront the obvious legal deficiencies in the district
court’s injunction. The majority’s citation of a law review
article and the dissenting opinion in East Bay
notwithstanding, see Maj. Op. 36 (citing East Bay, 140 S. Ct.
at 6 (Sotomayor, J., joined by Ginsburg, J., dissenting), at
this stage of the process, we not only may consider the
likelihood of success on the merits, but are required to do so.
Nken, 556 U.S. at 433–34. We often do so extensively,
whether a stay is granted or denied. See, e.g., City & Cty. of
S.F., 944 F.3d at 790–805; Sierra Club v. Trump, 929 F.3d
670, 688–704 (9th Cir. 2019). That the inquiry at this stage
is probabilistic, Maj. Op. 35, does not mean we can shy away
from it.
IV
The second stay factor—irreparable harm—also weighs
strongly in favor of the government. See Nken, 556 U.S. at
424. We have previously explained that the harm analysis
“focuses on irreparability, irrespective of the magnitude of
the injury.” City & Cty. of S.F., 944 F.3d at 806 (quoting
California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018)). The
majority opinion is thus incorrect to insist on a showing of
“significant irreparable harm.” Maj. Op. 20. That is not the
governing standard. Here, however, the harm of complying
with the district court’s injunction is both irreparable and
significant, requiring a stay of the injunction.

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Although the majority does not mention it, the initial
harm here is the government’s inability to apply the Third
Country Transit Rule to persons that the Rule covers, where
the Supreme Court has already held that this Rule may be
implemented pending appeal. See East Bay, 140 S. Ct. at 3.
Citing an exponential increase in persons approaching our
border and the fact that many asylum claims are later found
to be “meritless,” the Third Country Transit Rule sought to
focus the country’s immigration resources on those
applicants who are more likely to present meritorious asylum
claims. See 84 Fed. Reg. at 33,839. The district court’s
injunction thus disallows the government from denying
asylum on a presently permitted ground. This constitutes an
irreparable harm. See City & Cty. of S.F., 944 F.3d at 806.
But in all events, it is not for us to debate whether the
government’s inability to enforce the Third Country Transit
Rule creates such harm. The Supreme Court—in staying an
injunction of that very Rule—has already found that the
government met its burden on the stay factors. East Bay,
140 S. Ct. at 3.
The irreparable harm here, however, runs deeper. Under
the district court’s injunction, the government is obligated to
identify and treat differently an estimated 26,000 persons
who were metered during a several-year period at various
points of entry across our southern border. Many of these
persons will lack proper documentation. While the Third
Country Transit Rule may now be applied to everyone else
entering this country, see East Bay, 140 S. Ct. at 3, officials
at our already overburdened border will now face the
additional task of exempting a 26,000-person subclass from
the Rule.
To hear the majority tell it, this will be straightforward.
All that is needed are “fairly simple factual determinations.”

76 AL OTRO LADO V. WOLF

Maj. Op. 19. The record refutes that characterization. The
majority opinion turns on the government’s supposed ability
to rely upon certain lists of metered persons prepared by
different groups in Mexico, lists the majority says border
officials could use to identify those persons who had been
metered prior to July 16, 2019. Id. at 21. The majority goes
so far as to assert that the government has in fact relied on
these lists in the past, and that the government’s failure to
create its own lists of metered aliens is the government’s
own fault. Id. at 20.
The record does not support these assertions. What the
record instead reveals is that based on materials that
plaintiffs themselves have put forward in this litigation—
including expert opinion—the various lists are highly
unreliable and underinclusive. The government represents
that it does not view the lists as reliable. Given plaintiffs’
own positions on the lists in this litigation, it cannot be that
the government should be expected to rely upon them in
complying with the district court’s order.
The district court’s injunction does not require “fairly
simple factual determinations.” Maj. Op. 19. It instead
creates an administrative dilemma of the highest order,
across every port of entry at the United States-Mexico
border. Although the majority dismisses it as “the
supposition of some officials,” Maj. Op. 22, the government
has come forward with the declarations of high-ranking
immigration personnel attesting to the serious problems of
administration and delays that the district court’s injunction
will cause. The majority therefore errs in concluding that the
government’s showing of irreparable harm is “weak.” Id.
at 24. The record shows that the government has made a
more than sufficient showing of irreparable harm,
warranting a stay.

AL OTRO LADO V. WOLF 77

A
I must first address the majority’s claim that the
irreparable harm here is “self-inflicted” based on “the
government’s own failure to keep records of asylum seekers
who have been metered.” Maj. Op. 20. In the majority’s
view, “[t]hat the government’s asserted harm is largely self-
inflicted ‘severely undermines’ its claim for equitable
relief.” Id. This position is not justified and improperly
substitutes the court’s judgment for that of immigration
officials.
As an initial matter, nothing required the government to
maintain lists of persons who approached the United States
border but could not enter due to metering. Neither plaintiffs
nor the majority cite any statute, regulation, or other
requirement imposing such a record-keeping obligation.
When rejecting the argument that plaintiffs’ harm was self-
inflicted because class members did not pursue asylum in
Mexico, the majority holds that “the class members were not
required to do so.” Maj. Op. 34 n.13. It is unclear why this
same rationale would not apply to the government’s alleged
failure to create lists of metered persons, which it was not
required to do either.
Equally unavailing is the majority’s claim that the
government’s harm is self-inflicted because it was
foreseeable. Maj. Op. 20. The chain of events that would
make this true is far too unlikely. The government would
have had to presume that its metering practices, dating back
many years, would be challenged and result in a novel
decision holding that persons outside the United States could
claim a violation of our asylum statutes. The government
would then have had to predict the enactment of the Third
Country Transit Rule two years into this case. And it would
then have to envision that the Supreme Court would allow

78 AL OTRO LADO V. WOLF

this Rule to go into effect pending appeal, see East Bay,
140 S. Ct. at 3, but that the Rule could then be partially
enjoined in a metering lawsuit that does not directly
challenge it. It is hard to see how this unusual sequence
could be regarded as foreseeable such that the government
must now be faulted for failing to prepare lists that it was not
required to prepare in the first place.
Finally, the majority ignores evidence in the record as to
the government’s reasons for not creating such lists. As
Randy Howe, Executive Director for Operations, Office of
Field Operations, U.S. Customs and Border Protection, has
explained, CBP officers’ interactions with persons at the
border line are “not intended to be a detailed encounter;
memorializing a great deal of information at this time would
be not only impracticable but potentially dangerous to the
personnel and the port.” As Mr. Howe explains in greater
detail,
Personnel at the limit line are in a constant or
near-constant cycle of encountering dozens
or hundreds of travelers a day, some of whom
may be seeking to cause harm or evade the
law. For these reasons, forcing limit line
personnel to halt their present duties and
memorialize the counter, when those
travelers may or may not need interpretative
assistance to engage in thorough dialogue,
including collecting biographical
information about that individual or family
unit (along with at least some measure of
verification), would weaken the operational
posture of the remainder of the limit line and
could pose a threat to safety.

AL OTRO LADO V. WOLF 79

The majority opinion tries to shift responsibility back to
the government by referencing the fact that at “one [port of
entry]” “around the end of 2016,” CBP officials were
instructed to provide aliens with pieces of paper identifying
appointment times “if possible.” Maj. Op. 19; id. at 11 n.1.
The record shows that the government ultimately concluded
that “giving out tickets would just lead to a lot of fake tickets
and a lot of misuse of [the] system.” The government’s
official metering guidance thus prohibited the provision of
any “tickets or appointments” or other means of scheduling
persons for entry.
The difficulty the government would face in creating
records of persons approaching the border during periods of
metering was also exacerbated by evidence in the record of
large groups of immigrants approaching U.S. ports of entry.
Plaintiffs’ expert witness claims, for example, that certain
formal metering guidance was issued in response to “surge
events,” such as a large group of approximately 1,500
asylum seekers traveling through Mexico toward the United
States in 2018. The majority opinion fails to appreciate the
reality on the ground, which is that documenting large
volumes of persons during periods of metering would raise
significant logistical and other issues.
These safety and logistical issues easily distinguish this
case from the cases the majority cites involving self-inflicted
harms. In Hirschfeld v. Board of Elections in City of New
York, 984 F.2d 35 (2d Cir. 1993), the court denied a stay
because of the applicant’s “inexcusable delay” in seeking it,
which reflected a “misuse of the judicial process.” Id. at 37–
39. In Second City Music, Inc. v. City of Chicago, 333 F.3d
846 (7th Cir. 2003), the court denied a stay of a licensing
requirement because the applicant had not even sought the
“readily available license” and “would incur no detriment by

80 AL OTRO LADO V. WOLF

the act of applying” for it. Id. at 849–50. And in Caplan v.
Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828 (3d
Cir. 1995), the court held that the defendant law firm seeking
an injunction could not show irreparable injury from its
insurer settling a claim, because the law firm had contracted
with the insurer to do just that. Id. at 839. These cases all
involved easily foreseeable or readily avoidable harms. And
none involved situations remotely as dynamic or difficult as
the United States’ border with Mexico.
B
The majority asserts that because the government
supposedly “relied on [the waitlists] to facilitate the metering
policy,” “[n]o reason appears why the lists are adequate for
those purposes but must be entirely disregarded in
identifying who came to the border when for purposes of
complying with the district court’s injunction.” Maj. Op.
21–22. The record does not support either conclusion.
It is not accurate to claim, as the majority does, that “the
record establishes that the government has been using [the
waitlists] in determining the order in which applicants for
asylum are allowed to enter, submit their asylum
applications, and undergo credible fear interviews.” Maj.
Op. 21–22 (emphasis added). For this proposition the
majority cites the report of plaintiffs’ expert witness,
Stephanie Leutert. But the relevant portions of that report,
which may be found at pages ER 996–1001 of plaintiffs’
excerpts of record, do not support the majority’s statement.
After discussing metering practices generally and the
creation of certain lists in Mexico, Ms. Leutert states that
Once asylum seekers get on a waitlist, they
have to wait until their number is called.

AL OTRO LADO V. WOLF 81

Every day, a CBP official communicates the
number of people that they will receive that
day to an individual in Mexico. This exact
process depends on the port of entry and the
waitlist structure in each Mexican city.
According to list managers in cities such as
Ciudad Juárez, Ciudad Acuña, and Piedras
Negras, CBP officers directly call the
Mexican individuals who manage the lists.
As this passage shows, Ms. Leutert’s report does not say that
the government is relying upon the waitlists themselves (and
certainly not all of them), but rather that when capacity frees
up at a port of entry, CBP will contact some of the persons
who allegedly manage the lists to let them know. The
Leutert report also does not suggest, as the majority claims,
that the government has been using the waitlists “in
determining the order in which applications for asylum are
allowed to enter.” Maj. Op. 21–22 (emphasis added).
Ms. Leutert offers no opinion as to whether CBP is relying
upon persons managing the waitlists to provide names in a
particular order. And there would be obvious questions
whether Ms. Leutert would even have a basis to offer such
an opinion, particularly across the many different ports of
entry.
The majority also states that “[t]he district court
concluded that ‘CBP relied on these lists to facilitate the
process of metering,’ and the record supports this
conclusion.” Maj. Op. 11–12 (quoting Al Otro Lado, 2019
WL 6134601, at *15). What the district court relied upon
for this statement, and what the majority relies upon as well,
are the declarations of Nicole Ramos of Al Otro Lado and
J.R., an asylum-seeker from Cuba. Id. at 10. The majority
provides no explanation as to why an employee of Al Otro

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Lado or a person seeking entry into this country can be the
authority on what CBP does or does not rely upon. But even
so, these declarations on their face do not support the notion
that CBP has broadly relied on lists of metered persons that
various outside groups have generated, or that it has relied
on these lists to sequence entry of persons in any particular
order.
Ms. Ramos, Al Otro Lado’s Border Rights Project
Director, states only that Grupo Beta maintains a list and that
“CBP communicates its daily capacity to Grupo Beta, which
uses that information to call the appropriate numbers from
the top of the list.” Ms. Ramos is here referring to only one
group (Grupo Beta, a Mexican governmental entity) for one
port of entry (Tijuana). Her declaration thus does not
support the majority’s description of what CBP supposedly
does “[a]t each” port of entry. Maj. Op. 11. Nor does it
support the majority’s suggestion that CBP’s purpose in
contacting Grupo Beta was to receive asylum seekers in a
certain order. Once again, that CBP would contact Grupo
Beta to let it know about capacity at a border station is not
the same as CBP relying upon the accuracy or ordering of
Grupo Beta’s list—a list that Ms. Ramos herself says was
subject to “corruption,” a point I will discuss further below.
J.R.’s declaration likewise does not support the majority.
J.R. is a Cuban citizen who sought to enter the United States
at Brownsville, Texas and was put on a waitlist. According
to J.R., “[t]he list was controlled by Mexican immigration
officials, and they were in touch with U.S. officials who
would ask every day for a certain number of people to
present themselves at the U.S. offices.” J.R.’s declaration is
limited to one port of entry and also does not support the
majority’s position that CBP “has been using [the waitlists]

AL OTRO LADO V. WOLF 83

in determining the order in which applicants for asylum are
allowed to enter.” Maj. Op. 21–22.
Nor is it correct, as the majority opinion states, that
through the use of the “terms” “metering and queue
management,” the “government recognized” and
“impl[ied]” “the practical need to identify which applicants
had appeared at the border and in what order.” Maj. Op. 21.
This point has little to do with whether the government
previously relied upon waitlists that others generated. But
even so, the terms “metering” and “queue management” do
not have the implication that the majority suggests. To the
contrary, government witnesses have explained that
metering was not a “scheduling system,” but a means of
“controlling the flow based on our operation.”
The upshot is that the government’s ability to comply
with the injunction without irreparable harm cannot depend
upon what the government has already done (supposed
reliance on the lists) or not done (alleged self-inflicted
failure to create its own lists). Instead, it must turn on
whether the lists are themselves capable of being used to
comply with the district court’s order. I turn now to that
issue.
C
Can waitlists that various groups in Mexico prepared be
used to separate out the 26,000 class members from all other
asylum seekers who would otherwise be subject to the Third
Country Transit Rule? On this critical point, the majority
says very little. It acknowledges that the lists are “not
entirely reliable,” but says there is no reason why the lists
“must be entirely disregarded in identifying who came to the
border when for purposes of complying with the district
court’s injunction.” Maj. Op. 21–22. But the question is not

84 AL OTRO LADO V. WOLF

whether the lists should be “entirely disregarded.” It is
whether the lists can be relied upon to any meaningful
extent, so that the government would not be put to a
significant burden of determining whether each asylum
applicant is a class member. The record does not support the
majority’s apparent theory that the government can easily
comply with the district court’s injunction by relying upon
the waitlists.
I conclude this based on materials that plaintiffs
themselves have put forward, in an evident effort to support
their underlying claims about metering. This includes, but
is not limited to, the expert report of Stephanie Leutert, the
Director of the Central America & Mexico Policy Initiative
at the Strauss Center for International Security and Law at
the University of Texas. The point here is not to credit any
particular evidence, but to show that the government should
not be expected to rely upon the various lists when plaintiffs
in this case have sharply impugned the integrity of those very
lists.
At the outset, it is important to recognize that there is no
single waitlist, but many different waitlists in many different
locations along the Mexico border. This begins to show
some of the serious problems with using the lists to comply
with the district court’s injunction. According to plaintiffs’
expert, Ms. Leutert, waitlists are “in place in every city with
waiting asylum seekers.” Ms. Leutert formally identifies as
of November 2019 twenty-two such waitlists, which were in
place in eleven different border locations. According to her
report, some areas have more than one list. Nuevo Laredo,
opposite Laredo, Texas, has six different lists. Brownsville
has three.
According to Ms. Leutert, lists are maintained by a
variety of different groups, such as “the asylum seekers

AL OTRO LADO V. WOLF 85

themselves, Mexican government officials, or humanitarian
workers.” The details vary in every location. For example,
a Strauss Center report upon which plaintiffs and Ms. Leutert
rely indicates that in Nuevo Laredo, six different shelters
each operate their own list, with “[t]he shelters select[ing]
which asylum seekers will cross” into the United States. In
Tijuana, the list operating as of July 16, 2019 was a physical
notebook containing tens of thousands of names, with
asylum seekers themselves serving as “list managers.” In
Reynosa, Mexico, and again based on the same report,
approximately 3,600 asylum seekers are organized into
different lists for single men, single women, families, and
pregnant women.
As a result, and contrary to the apparent assumption in
the majority’s opinion, according to Ms. Leutert, the
“asylum waitlists have no standardized procedure or
structure,” and “there is no standardized Mexican or U.S.
regulation of the asylum waitlists nor their managers.” That
is the case even as to lists that the Mexican government
maintains. Ms. Leutert reports that “[d]espite Mexican
government entities managing the lists in certain cities, there
does not appear to be any standardized guidance,” which “is
evidenced by the different list formats and processes in
different cities even when the same federal government
agency is running the asylum waitlist.” The majority does
not explain whether any or all of the different waitlists would
indicate when a person was metered, much less reliably so
across every border location.
Equally problematic, plaintiffs maintain that for many
different reasons the waitlists are underinclusive of persons
who were metered. A December 2018 Strauss Center
report—which lists Ms. Leutert as the lead author—notes
that various lists were not enacted until the summer of 2018,

86 AL OTRO LADO V. WOLF

and so would evidently not capture persons metered before
then. In addition, according to Ms. Leutert, “the lack of
regulations means that some cities can stop asylum seekers
from joining waitlists altogether.” In a border town opposite
Del Rio, Texas, for example, “the asylum waitlists for both
individuals and families have been ‘closed’ since March
2019.” There are other reasons the lists are underinclusive
as well. An August 2019 Strauss Center report (upon which
Ms. Leutert also relies) describes that in Matamoros,
Mexico, “there have been reports that asylum seekers who
lack documentation and legal status in Mexico are being
barred from signing up on the list, and are instead being
deported.” There are other similar examples in the record
involving other border locations.
Plaintiffs further put forward evidence that the lists are
underinclusive for more malign reasons. Ms. Leutert reports
that there are “no controls to guarantee that these waitlists
are being run transparently or without corruption,” and that
corruption is an issue. Ms. Leutert recounts that “some list
managers charge asylum seekers to get on the asylum
waitlist, including in Piedras Negas, Reynosa, and
Matamoros.” Ms. Leutert also relies upon a news article
reporting that when an individual in Tijuana misses his
number being called, the individual may be reassigned a new
number at the end of the line. Her expert report also recounts
allegations in Tijuana “that black asylum seekers were at
times excluded from waitlists, and as such would not be
counted.”
A declaration from Nicole Ramos, Al Otro Lado’s
Border Rights Director, gives deeper insight into some of
these issues in Tijuana, where Grupo Beta runs the list. As
with Ms. Leutert’s expert report, the plaintiffs relied upon
Ms. Ramos’ declaration in seeking the injunction at issue.

AL OTRO LADO V. WOLF 87

The majority also specifically references Grupo Beta’s
“‘formalized list,’” thereby suggesting it is reliable. Maj.
Op. 11. But Ms. Ramos’ declaration tells a different story.
An entire heading in Ms. Ramos’ declaration is that “The
Waitlist in Tijuana, Mexico is Underinclusive.” Grupo
Beta’s rules “require that each asylum seeker present
identification, which has prevented asylum seekers who lack
identification from being added to the list.” Ms. Ramos
reports that these requirements “disproportionately affect
Black migrants,” who are less likely to possess identifying
documents. Like Ms. Leutert, Ms. Ramos cites “numerous
reports of corruption of the list administered by Grupo Beta,”
including “several asylum seekers who paid to have their
names added to the list while still in South America.”
Given everything plaintiffs have said about the various
lists, it is difficult to understand why the government should
now be expected to rely upon them, particularly for purposes
of complying with a court order. A declaration from Ashley
Caudill-Mirillo, the Deputy Chief of the Asylum Division
with U.S. Citizenship and Immigration Services (USCIS)
who “oversee[s] all Asylum Offices nationwide,” explains
that “[e]ven if USCIS had access to any lists[] purportedly
maintained by shelters or otherwise,” “USCIS has no
definitive way to verify the accuracy or authenticity of any
such lists.” As a result, Ms. Caudill-Mirillo attests, “asylum
officers would still need to question the interviewees to
assess the veracity of any documentation provided and
determine whether or not they are class members.”
The Supreme Court has reminded us that “[t]he
Government’s interest in preventing the entry of unwanted
persons and effects is at its zenith at the international
border.” United States v. Flores-Montano, 541 U.S. 149,
152 (2004). The government personnel in charge of

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managing our borders and maintaining their safety are surely
due some degree of deference on the operational issue of
whether certain lists are reliable for determining if asylum
seekers were metered prior to July 16, 2019. See, e.g.,
Tabbaa v. Chertoff, 509 F.3d 89, 106 (2d Cir. 2007)
(“[S]ome measure of deference is owed to CBP due to its
considered expertise in carrying out its mission of protecting
the border.”).
The lists may be the product of well-meaning efforts to
help those in need, or the unfortunate result of persons taking
advantage of the downtrodden. But given plaintiffs’ own
positions on the various lists, I am hard-pressed to
understand how the majority can conclude that the
government can be expected to use them, so that its burden
in complying with the district court’s injunction would be
minimal.
D
With the lists unable to ease the government’s burden,
the enormity of the government’s task in complying with the
district court’s injunction pending appeal reveals itself in
stark relief. Just this Term, the Supreme Court reiterated that
patrolling our border with Mexico is “a daunting task.”
Hernandez v. Mesa, No. 17-1678, slip op. at 11 (S. Ct. Feb.
25, 2020). Today’s decision makes this work only more
daunting.
Immigration officials at an already overburdened border
must now somehow identify the 26,000 persons among the
easily hundreds of thousands more who, per a court order,
cannot be subject to the Third Country Transit Rule. CBP
officers must determine those asylum seekers who
previously approached a port of entry and were turned away
due to metering, a practice that took place over a period of

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years and at many different entry locations. Immigration
officers will have to make these determinations without
reliable records of who previously approached border limit
lines or when they may have done so. And officials must
undertake this effort at every United States port of entry
across the southern border, as to persons who frequently lack
proper documentation and who speak a diversity of
languages. As CBP’s Randy Howe explains, “[w]ere any
individual to come forward and assert that they had been
encountered at the limit line, CBP would have no way to
either confirm or refute that individual’s own statements.”
The result is that as immigration officials inspect people
every day in locations from San Diego to Brownsville, they
will have to undertake an entirely new and unfamiliar
inquiry to determine if persons were previously metered.
The government has submitted declarations from high-
ranking immigration personnel attesting to the serious
problems this will create at the border. This includes CBP’s
Mr. Howe, who oversees 23,000 immigration employees at
20 major field offices and 328 U.S. ports of entry. Based on
his three decades of service in our country’s immigration
system, Mr. Howe explains that based on the lack of
documentation, “there is no way for CBP to determine who
may or may not have been encountered at the limit line
historically. Indeed, there is no way to even calculate, with
any degree of accuracy, how many individuals have been
encountered in the limit line.”
A declaration from Ashley Caudill-Mirillo, the USCIS
official who oversees all Asylum Offices across the country,
gives color to what immigration officers on the ground will
need to do to even attempt to comply with the injunction.
CBP officers at the border will be required to question
asylum applicants to determine if they are members of the

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26,000-person subclass. Ms. Caudill-Mirillo explains that
this additional questioning will lengthen credible fear
interviews, which in turn reduces the number of interviews
that can be conducted, prolonging wait times at the border.
Some applicants are likely to reschedule their interviews to
obtain proof of past metering, and their interview slots may
go then go unfilled. Because “[m]ost individuals are
detained throughout the credible fear process,” longer
processing times will lead to longer periods of detention in
Immigration and Customs Enforcement (ICE) or CBP
custody.
Ms. Caudill-Mirillo further explains how additional
problems arise when it comes to persons who already went
through credible fear screening interviews, where the Third
Country Transit Rule was applied but where the person has
not yet been removed from the United States. In
coordination with ICE, detained persons would need to be
identified and then re-interviewed to determine if they are
class members. If persons turn out to be class members, the
credible fear interview process would need to be conducted
anew. Ms. Caudill-Mirillo reports that USCIS in 2019
received over 100,000 credible fear referrals. Complying
with the district court’s injunction as to persons who had
already gone through this process would only add to the
irreparable harm.
The irreparable harm would extend to proceedings
before immigration judges. As a separate declaration from
Assistant Chief Immigration Judge Sirce Owen explains, if
USCIS goes through the above-described process and issues
a new negative credible fear determination, the applicant
“will again be entitled to immigration judge review.”
Immigration judges will then be tasked with evaluating the
applicant’s membership in the subclass and conducting

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further reviews of credible fear determinations. The bottom
line is that as the government’s declarations amply
demonstrate, the district court’s injunction will have a
domino effect at the border, imposing new and difficult
requirements on an immigration system that is constantly
struggling to keep up.
I disagree with the majority’s refusal to recognize the
irreparable harms that the government’s declarations make
plain, and which resonate based on any reasonable
understanding of how our immigration process works. To
cast off the declarations as the mere “supposition of some
officials,” as the majority does, Maj. Op. 22, fails to
acknowledge that the government’s declarants are high-
ranking persons with a collective decades of experience
dealing with some of the most intractable problems at our
border. “[G]overnance of immigration and alien status is
extensive and complex,” and trained immigration officials
play a “major role” in “determining the admissibility of
aliens and securing the country’s borders.” Arizona v.
United States, 567 U.S. 387, 395, 397 (2012). I therefore
believe the views of the government declarants in this case
should not be so lightly cast aside. See Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 24, 27 (2008).
Nor is there anything wrong or insufficient in this
context with declarations that set forth the anticipated effect
of an injunction. See id. at 28 (“The lower courts failed
properly to defer to senior Navy officers’ specific, predictive
judgments about how the preliminary injunction would
reduce the effectiveness of the Navy’s SOCAL training
exercises.”). To minimize the government’s declarations as
setting forth only “guesses concerning the likely burden of
ascertaining class membership,” as the majority does, does
not seem at all fair. Maj. Op. 21–22. The majority does not

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question the declarants’ qualifications or their explanation
for how the district court’s injunction will generally affect
processes at the border. The declarations are not based on
guesswork, but the informed views of experienced personnel
who set forth a valid and detailed basis for their stated
concerns.
I also do not find persuasive the majority’s quibbles with
the government declarants’ time estimates for the additional
questioning of asylum applicants that the district court’s
injunction will necessitate. See Maj. Op. 19–20, 21–22. I
find it difficult to substitute our judgment on such
operational issues for that of immigration officials who have
a greater on-the-ground understanding of how much time
particular lines of questioning in asylum interviews will
take. But the debate over minutes is not a helpful one,
because it cannot be denied that the district court’s
injunction will require immigration officials to conduct an
entirely new line of inquiry to reach an entirely new type of
determination about past metering.
The majority notes that in one asylum interview, USCIS
was able quickly to determine that the applicant was not a
subclass member. Maj. Op. 22 & n.8. But in that case, the
applicant clearly stated that he had not tried to enter the
United States prior to October 2019, and so by his own
admission was not a member of the class. Id. at 22. As the
majority acknowledges with considerable understatement,
“[m]ore time may be needed to establish that someone who
claims to be a member of the class actually is.” Id. Once it
becomes widely known that persons can avoid the Third
Country Transit Rule if they can claim they were metered
prior to July 16, 2019, one can expect many people to claim
class membership during their asylum interviews. Whether
or not these assertions would be bona fide, the point is that

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they will take time for immigration officials to review and
verify, at a substantial cost to the overall system.
The majority does not dispute that frustrating the
government’s ability to process persons at the border can
create irreparable harm. See, e.g., Innovation Law Lab,
924 F.3d at 510. Indeed, we previously granted an
administrative stay in this case because “[p]rohibiting the
government from applying [the Third Country Transit Rule]
to the proposed class members could cause complications at
the border.” Al Otro Lado v. Wolf, 945 F.3d at 1224. Now,
the majority claims that this case is akin to Hernandez v.
Sessions, 872 F.3d 976 (9th 2017). Maj. Op. 20. The
comparison to Hernandez, however, is inapt.
In Hernandez, we held that a district court did not abuse
its discretion in entering an injunction that required
immigration officials to consider a non-citizen’s financial
circumstances in setting the amount of bond. Hernandez,
872 F.3d at 982–83. We determined that the government had
not demonstrated irreparable harm because the government
already had discretion to consider a non-citizen’s financial
circumstances, and therefore “the district court’s injunction
imposes only a minor change on the preexisting bond
determination process.” Id. at 995. Considering these
financial circumstances was also “not overly complicated or
complex.” Id. (quotations omitted).
As this description of the case shows, the majority is not
correct that the asserted diversion of resources in this case
“is no more persuasive as significant irreparable harm than
it was in Hernandez.” Maj. Op. 20. Suffice to say, requiring
the government to identify 26,000 persons at the southern
border who were previously metered at numerous ports of
entry over a period of years is considerably more
complicated and burdensome than requiring the government

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to consider a non-citizen’s financial circumstances during
bond hearings. Hernandez, unlike here, also did not involve
an injunction that imposed collateral consequences on other
aspects of the immigration system.
There is a recognized immigration crisis at our southern
border. City & Cty. of S.F., 944 F.3d at 808 (Bybee, J.,
concurring); East Bay Sanctuary Covenant, 932 F.3d at 774.
Hernandez did not implicate it; this case does. The
government has demonstrated that complying with the
district court’s injunction will create irreparable harm.
V
The final stay factors are “whether issuance of the stay
will substantially injure the other parties interested in the
proceeding” and “where the public interest lies.” Nken,
556 U.S. at 434. For the same reasons I have already set
forth above, these factors favor the government. See also
Landon v. Plasencia, 459 U.S. 21, 34 (1982) (“The
government’s interest in efficient administration of the
immigration laws at the border is also weighty.”).
The majority concludes otherwise based on harms
plaintiffs claim they will experience from the Third Country
Transit Rule and metering. Maj. Op. 34–35. But the validity
of the Third Country Transit Rule is not at issue here, and
the same arguments plaintiffs now make about the harm this
Rule allegedly causes were also made in East Bay, where the
Supreme Court stayed the injunction and allowed the Rule
to go into effect. With respect to metering, the majority
repeats the point that the combination of metering and the
Third Country Transit Rule creates a “‘quintessentially
inequitable’” situation. Maj. Op. 35. But the problem once
again is that there has been no determination that metering is
unlawful.

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In a similar vein, the majority endorses the district
court’s view that class members “relied to their detriment on
the government’s representations,” because class members
“‘returned to Mexico reasonably believing that if they
followed these procedures, they would eventually have the
opportunity to make a claim for asylum in the United
States.’” Maj. Op. at 34 (quoting Al Otro Lado, 2019 WL
6134601, at *19). But there is no indication that the
government informed persons who were metered that their
asylum applications would be adjudged under the law that
existed at the time of metering. The district court’s analysis
on this point again assumes that metering is invalid. The
injunction cannot be justified on that basis.
* * *
When the Supreme Court allows an immigration rule to
go into effect nationwide pending appeal, it is not for
litigants or lower courts to find creative and legally
unjustified ways to circumvent that ruling. The problems at
our border are undeniable, but the policy issues they raise are
committed to other branches of our government. Our review
is limited to evaluating immigration rules under law. And in
this case, the district court’s injunction was wrong as a
matter of law. Because the injunction works a radical and
improper expansion of our asylum laws and will create
irreparable harm at a border that is already under great strain,
the injunction should have been stayed pending appeal. I
respectfully dissent.