Al Otro Lado v. Chad Wolf

945 F.3d 1223

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2019
• Docket: 19-56417
• Status: Published

Opinion

FILED FOR PUBLICATION DEC 20 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AL OTRO LADO, a California corporation; No. 19-56417 et al., D.C. No. Plaintiffs-Appellees, 3:17-cv-02366-BAS-KSC Southern District of California, v. San Diego

CHAD F. WOLF, Acting Secretary, US ORDER Department of Homeland Security; et al.,

Defendants-Appellants.

Before: THOMAS, Chief Judge, BERZON and BRESS, Circuit Judges.

The government requests an emergency temporary stay of the district court’s

order provisionally certifying a class, and preliminarily enjoining the government

from enforcing the Third Country Transit Rule, 8 C.F.R. § 208.13(c)(4), against

non-Mexican nationals who were allegedly in the process of arriving at a port of

entry before the Third Country Transit Rule went into effect. The government also

seeks a stay of the district court’s order pending appeal.

A temporary stay in this context (sometimes referred to as an administrative

stay) is only intended to preserve the status quo until the substantive motion for a

stay pending appeal can be considered on the merits, and does not constitute in any

way a decision as to the merits of the motion for stay pending appeal. Because granting the stay request would preserve the status quo, we grant

the government’s motion for a temporary stay to preserve the status quo pending a

decision on the motion for stay pending appeal.

The Third Country Transit Rule has been in effect since July 16, 2019.

Prohibiting the government from applying the Rule to the proposed class members

could cause complications at the border in the period before the motion for stay

pending appeal is decided. Our ruling is based on these considerations and not in

any respect on the merits of the dispute.

Plaintiffs’ response to the motion for stay pending appeal is due December

23, 2019, and any government reply is due December 30, 2019.

The parties are directed to appear for oral argument on the motion for stay

pending appeal on Thursday, January 9, 2020, at 10:00 am in San Francisco,

California. Each side will be allotted 20 minutes of argument time. The parties are

encouraged to appear in person if possible. If any party wishes to appear by video,

that party must notify Kwame Copeland, 415.355.7888, no later than Friday,

January 3, 2020, and must coordinate with Mr. Copeland in making suitable

arrangements for an appearance by video.

The opening brief and excerpts of record are due January 2, 2020; the

answering brief is due January 30, 2020, or 28 days after service of the opening

brief, whichever is earlier; and the optional reply brief is due within 21 days after

2 service of the answering brief. This case will be assigned to the next available oral

argument panel for a decision on the merits of the appeal.

3 FILED Al Otro Lado, et al v. Chad Wolf, et al, No. 19-56417 DEC 20 2019 BRESS, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

Based on the standards that apply here, which includes consideration of the

likelihood of success on the merits, see Doe #1 v. Trump, No. 19-36020 (9th Cir.

Dec. 20, 2019) (Bress, J., dissenting), the government has demonstrated that a

temporary stay is warranted.