FILED FOR PUBLICATION DEC 7 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EAST BAY SANCTUARY COVENANT; No. 18-17274 AL OTRO LADO; INNOVATION LAW LAB; CENTRAL AMERICAN D.C. No. 3:18-cv-06810-JST RESOURCE CENTER, Northern District of California, San Francisco Plaintiffs-Appellees, v. ORDER DONALD J. TRUMP, President of the United States; MATTHEW G. WHITAKER, Acting Attorney General; JAMES MCHENRY, Director, Executive Office for Immigration Review (EOIR); KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security; LEE FRANCIS CISSNA, Director, U.S. Citizenship and Immigration Services; KEVIN K. MCALEENAN, Commissioner, U.S. Customs and Border Protection; RONALD VITIELLO, Acting Director, U.S. Immigration and Customs Enforcement, Defendants-Appellants. Before: LEAVY, BYBEE, and HURWITZ, Circuit Judges. BYBEE, Circuit Judge: For more than 60 years, our country has agreed, by treaty, to accept refugees. In 1980, Congress codified our obligation to receive persons who are “unable or unwilling to return to” their home countries “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42), 1158(b)(1). Congress prescribed a mechanism for these refugees to apply for asylum and said that we would accept applications from any alien “physically present in the United States or who arrives in the United States whether or not at a designated port of arrival . . . irrespective of such alien’s status.” Id. § 1158(a)(1) (emphasis added) (internal punctuation marks omitted). We have experienced a staggering increase in asylum applications. Ten years ago we received about 5,000 applications for asylum. In fiscal year 2018 we received about 97,000—nearly a twenty-fold increase. Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934, 55,935 (Nov. 9, 2018). Our obligation to process these applications in a timely manner, consistent with our statutes and regulations, is overburdened. The current backlog of asylum cases exceeds 200,000—about 26% of the immigration courts’ total backlog of nearly 800,000 removal cases. Id. at 2 55,945. In the meantime, while applications are processed, thousands of applicants who had been detained by immigration authorities have been released into the United States. In an effort to contain this crisis, on November 9, 2018, the Attorney General and Secretary of Homeland Security proposed a new regulation that took immediate effect (“Rule”). Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims, 83 Fed. Reg. 55,934 (Nov. 9, 2018) (to be codified at 8 C.F.R. §§ 208, 1003, 1208). Under the Immigration and Nationality Act (“INA”), the Attorney General may “by regulation establish additional limitations and conditions . . . under which an alien shall be ineligible for asylum.” 8 U.S.C. § 1158(b)(2)(C). The regulation, however, must be “consistent with” existing law. Id. The new Rule proposes “additional limitations” on eligibility for asylum, but it does not spell out those limitations. Instead, it prescribes only that an alien entering “along the southern border with Mexico” may not ...
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