                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


EAST BAY SANCTUARY COVENANT;            No. 18-17274
AL OTRO LADO; INNOVATION LAW                18-17436
LAB; CENTRAL AMERICAN
RESOURCE CENTER,                           D.C. No.
              Plaintiffs-Appellees,     4:18-cv-06810-
                                             JST
                 v.

DONALD J. TRUMP, President of the          OPINION
United States; WILLIAM P. BARR,
Attorney General; JAMES MCHENRY,
Director, Executive Office for
Immigration Review (EOIR); CHAD
WOLF, Acting Secretary, U.S.
Department of Homeland Security;
KENNETH T. CUCCINELLI, Acting
Director, U.S. Citizenship and
Immigration Services; MARK A.
MORGAN, Acting Commissioner,
U.S. Customs and Border Protection;
MATTHEW T. ALBENCE, Acting
Director, U.S. Immigration and
Customs Enforcement,
              Defendants-Appellants.

      Appeal from the United States District Court
        for the Northern District of California
        Jon S. Tigar, District Judge, Presiding
2       EAST BAY SANCTUARY COVENANT V. TRUMP

           Argued and Submitted October 1, 2019
                 San Francisco, California

                  Filed February 28, 2020

    Before: Ferdinand F. Fernandez, William A. Fletcher,
            and Richard A. Paez, Circuit Judges.

                  Opinion by Judge Paez;
              Concurrence by Judge Fernandez
        EAST BAY SANCTUARY COVENANT V. TRUMP                        3

                          SUMMARY *


          Immigration / Preliminary Injunctions

    The panel affirmed the district court’s grant of a
temporary restraining order and a subsequent grant of a
preliminary injunction enjoining enforcement of a rule and
presidential proclamation that, together, strip asylum
eligibility from every migrant who crosses into the United
States along the southern border of Mexico between
designated ports of entry.

    In November 2018, the Department of Justice and
Department of Homeland Security adopted an interim final
rule (“the Rule”) that makes migrants who enter the United
States in violation of a “a presidential proclamation or other
presidential order suspending or limiting the entry of aliens
along the southern border with Mexico” categorically
ineligible for asylum. The same day, President Trump
issued a presidential proclamation (“the Proclamation”) that
suspends the entry of all migrants along the southern border
of the United States for ninety days, except for any migrant
who enters at a port of entry and properly presents for
inspection.

    Legal services organizations that represent asylum-
seekers (“the Organizations”) sued to prevent enforcement
of the Rule. The district court entered a temporary
restraining order enjoining the Rule, concluding that it
irreconcilably conflicted with the Immigration and
Nationality Act (“INA”). The government appealed and

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4      EAST BAY SANCTUARY COVENANT V. TRUMP

sought an immediate stay in this court of the district court’s
order pending appeal. In a published order, a motions panel
of this court denied the government’s request for a stay, and
the government’s application for a stay from the Supreme
Court was also denied. The district court issued an
injunction barring enforcement of the Rule, the government
appealed, and this court consolidated the two appeals.

    First, the panel held that—given the preliminary stage of
the appellate process at which the motions panel issued its
order—the motions panel’s decision did not bind the present
panel. The panel explained that, under the law-of-the-case
doctrine, courts—at their own discretion—will generally
refuse to reconsider an issue that has already been decided
by the same court or a higher court in the same case. The
panel noted, however, that the court sometimes exercises its
discretion to reconsider issues within the same case and that
merits panels tend not to extend the doctrine to a prior
motions panel’s decision in the same case. Further, the panel
explained that a decision by a motions panel is a probabilistic
endeavor, doctrinally distinct from the question considered
by the later merits panel and issued without oral argument
on limited briefing. Addressing the court’s recent statement,
in Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015), that “a
motions panel’s published opinion binds future panels the
same as does a merits panel’s published opinion,” the panel
concluded that the language was dicta.

    The panel also noted that its holding was consistent with
the court’s general rules governing law of the circuit, which
provide that the first panel to consider an issue sets the law
for all inferior courts and future panels of the court.
Specifically, the panel explained that tentative conclusions
that are not law of the case do not bind later panels in the
same case as law of the circuit, and that any other rule would
       EAST BAY SANCTUARY COVENANT V. TRUMP                5

paradoxically provide that a merits panel would be bound by
a motions panel’s opinion—because it is law of the circuit—
and not bound by the same opinion—because it is not law of
the case.

    Next, the panel re-evaluated the government’s challenge
to the court’s jurisdiction. First, the panel held that the
Organizations had established organizational standing by
showing that their ability to perform services had been
impaired by the Rule. Second, the panel rejected the
government’s argument that the court should avoid
interfering with the Rule on the ground that the power to
expel or exclude aliens is a fundamental sovereign attribute
exercised by the government’s political departments largely
immune from judicial control. The panel explained it was
responsible for reviewing whether the government has
overstepped its delegated authority under the INA and
encroached upon Congress’s legislative prerogative. Third,
the panel rejected the government’s argument that three
statutory provisions, 8 U.S.C. §§ 1252(e)(3), 1252(a)(5), and
1252(b)(9), divested this court of jurisdiction. The panel
explained that none of these provisions have any bearing on
the Rule because they govern judicial review of removal
orders or challenges inextricably linked with actions taken
to remove migrants from the country. The panel also
concluded that the Organizations continued to fall within the
zones of interests of the INA.

    The panel next addressed the Organizations’ likelihood
of success on the merits of their claims, under the
Administrative Procedure Act (“APA”). Applying the
framework established in Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837 (1984), the panel held that
the Rule conflicts with the INA’s section on asylum, which
begins by stating that an undocumented migrant may apply
6      EAST BAY SANCTUARY COVENANT V. TRUMP

for asylum when she is “physically present in the United
States” or “arrives in the United States (whether or not at a
designated port of arrival . . . )[.]” 8 U.S.C. § 1158(a)(1).
The panel explained that, because the Rule requires migrants
to enter the United States at ports of entry to preserve their
eligibility for asylum, it is effectively a categorical ban on
migrants who use a method of entry explicitly authorized by
Congress in § 1158(a).

    The panel further concluded that, even if the text of
section 1158(a) were ambiguous, the Rule fails at the second
step of Chevron because it is an arbitrary and capricious
interpretation of that statutory provision. The panel
explained that the BIA and this court have long recognized
that a refugee’s method of entering the country is a
discretionary factor in determining whether the migrant
should be granted humanitarian relief, but that the method of
entry should be carefully evaluated in light of the harsh
consequences that may befall an alien. Thus, the panel
concluded that, given the Rule’s effect of conditioning
asylum eligibility on a factor that has long been understood
as worth little if any weight in adjudicating whether a
migrant should be granted asylum, it is an arbitrary and
capricious interpretation of § 1158(a).

    The panel also concluded that the Rule is unreasonable
in light of the United States’s treaty obligations under the
1951 United Nations Convention Relating to the Status of
Refugees (“1951 Convention”) and the 1967 United Nations
Protocol Relating to the Status of Refugees. Specifically, the
panel concluded that the Rule runs afoul of three codified
rules: 1) the right to seek asylum; 2) the prohibition against
penalties for irregular entry; and 3) principles of non-
refoulement, which prohibit signatories to the 1951
       EAST BAY SANCTUARY COVENANT V. TRUMP                  7

Convention from returning a refugee to the frontiers of
territories where his life or freedom would be threatened.

    The panel briefly addressed the procedural arguments
raised by the parties regarding whether the Rule was invalid
because it was issued without public notice and comment or
complying with the thirty-day grace period required by the
APA. The panel concluded that the Rule likely does not
properly fall under the good-cause exception or the foreign-
affairs exception to these procedural requirements.

    Next, the panel concluded that the Organizations had
demonstrated a sufficient likelihood of irreparable injury to
warrant injunctive relief, explaining that the Organizations
had shown that they will suffer a significant change in their
programs and a concomitant loss of funding absent a
preliminary injunction.

    The panel next concluded that the public interest weights
sharply in the Organizations’ favor, noting that: 1) the public
interest is served by compliance with the APA; 2) the public
has an interest in ensuring that this country does not deliver
aliens into the hands of their persecutors; 3) the public has
an interest in ensuring that the statutes enacted by their
representatives are not imperiled by executive fiat; and 4)
while the government and the public have an interest in the
efficient administration of the immigration laws at the
border, this factor was not entitled to much weight because
the Organizations had established that the Rule is invalid.

    Finally, addressing the scope of the remedy, the panel
concluded that the district court did not abuse its discretion
in issuing an injunction preventing any action to implement
the Rule. The panel noted that the Organizations do not limit
their potential clients to refugees who enter only at the
Mexican border with California and Arizona, and that the
8       EAST BAY SANCTUARY COVENANT V. TRUMP

government had not proposed an alternative form of the
injunction that accounts for the scope of the Organizations’
harms, but applies only within the Ninth Circuit. The panel
also noted that two other factors supported the scope of the
district court’s injunction: 1) when a regulation is found
unlawful, the typical result is to vacate and remand, not to
attempt to fashion a valid regulation from the remnants of
the old rule; and 2) there is an important need for uniformity
in immigration policy—which supports the authority of
district courts to enjoin unlawful policies on a universal
basis.

    Concurring, Judge Fernandez wrote that he concurred in
the majority opinion because, and for the most part only
because, he believes that this panel is bound by the motions
panel’s published decision in this case. Judge Fernandez
wrote that the panel is bound by the law of the circuit, which
binds all courts within a particular circuit, including the court
of appeals itself, and remains binding unless overruled by
the court sitting en banc, or by the Supreme Court. Further,
Judge Fernandez wrote that, insofar as factual differences
might allow precedent to be distinguished on a principled
basis, in this case, the situation before this panel was in every
material way the same as that before the motions panel.
Judge Fernandez also stated that, in Lair v. Bullock, this
court held that a motions panel’s published opinion binds
future panels the same as does a merits panel’s published
opinion, disagreeing with the majority’s characterization of
this language as dicta. Judge Fernandez also concluded that
the law of the case doctrine binds this panel, noting that he
did not perceive any of the exceptions to the doctrine to be
involved here.

    Applying those doctrines, Judge Fernandez concluded
that: 1) the Organizations have standing; 2) the
       EAST BAY SANCTUARY COVENANT V. TRUMP               9

Organizations are likely to succeed on the substantive
merits; 3) the motions panel’s decisions on harm and balance
of hardship are also binding; and 4) the scope of the
injunction is not overly broad.


                       COUNSEL

Scott Grant Stewart (argued), Deputy Assistant Attorney
General; Francesca Genova and T. Benton York, Trial
Attorneys; Erez Reuveni, Assistant Director; William C.
Peachey, Director; August E. Flentje, Special Counsel;
Joseph H. Hunt, Assistant Attorney General; Office of
Immigration Litigation, United States Department of Justice,
Washington, D.C.; for Defendants-Appellants.

Lee P. Gelernt (argued), Judy Rabinovitz, Omar C. Jadwat,
Anand Balakrishnan, Daniel Galindo, and Celso Perez,
American Civil Liberties Union Foundation, Immigrants’
Rights Project, New York, New York; Jennifer Chang
Newell, Cody Wofsy, Spencer Amdur, and Julie Veroff,
American Civil Liberties Union Foundation, Immigrants’
Rights Project, San Francisco, California; Melissa Crow,
Southern Poverty Law Center, Washington, D.C.; Mary
Bauer, Southern Poverty Law Center, Charlottesville,
Virginia; Gracie Willis, Southern Poverty Law Center,
Decatur, Georgia; Baher Azmy, Angelo Guisado, and Ghita
Schwarz, Center for Constitutional Rights, New York, New
York; Christine P. Sun and Vasudha Talla, American Civil
Liberties Union Foundation of Northern California Inc., San
Francisco, California; for Plaintiffs-Appellees.

Lawrence J. Joseph, Washington, D.C.; Christopher J.
Hajec, Director of Litigation, Immigration Reform Law
10     EAST BAY SANCTUARY COVENANT V. TRUMP

Institute, Washington, D.C.; for Amicus Curiae Immigration
Reform Law Institute.

Patrick W. Pearsall, Karthik P. Reddy, and Vaishalee V.
Yeldandi, Jenner & Block LLP, Washington, D.C.; Alice
Farmer, Office of the United Nations High Commissioner
for Refugees, Washington, D.C.; for Amicus Curiae Office
of the United Nations High Commissioner for Refugees.

Richard D. Bernstein, Washington, D.C.; Richard Mancino,
Willkie Farr & Gallagher LLP, New York, New York; for
Amici Curiae Peter Keisler, Stuart Gerson, Carter Phillips,
John Bellinger III, Samuel Witten, Ray Lahood, Brackett
Denniston, Stanley Twardy, and Richard Bernstein.

Alan E. Schoenfeld, Wilmer Cutler Pickering Hale and Dorr
LLP, New York, New York; Alex Gazikas, Wilmer Cutler
Pickering Hale and Dorr LLP, Washington, D.C.; Peter S.
Margulies, Bristol, Rhode Island; Shoba Sivaprasad Wadhia,
University Park, Pennsylvania; for Amici Curiae Professors
of Immigration Law.

Margaret L. Carter, Dmitiri D. Portnoi, and Daniel R. Suvor,
O’Melveny & Myers LLP, Los Angeles, California; Barbara
J. Parker, City Attorney; Maria Bee, Erin Bernstein, Malia
McPherson, Zarah Rahman, and Suzanne Dershowitz;
Office of the City Attorney Oakland, California; Edward N.
Siskel, Corporation Counsel, City of Chicago Department of
Law, Chicago, Illinois; Zachary W. Carter, Corporation
Counsel, New York City Law Department, New York, New
York; for Amici Curiae 21 Counties, Cities, and Local
Officials.

Xavier Becerra, Attorney General; Michael L. Newman,
Senior Assistant Attorney General; Christine Chuang,
       EAST BAY SANCTUARY COVENANT V. TRUMP            11

Supervising Deputy Attorney General; Shubhra Shivpuri
and James F. Zahradka II, Deputy Attorneys General; Office
of the Attorney General, Oakland, California; Philip J.
Weiser, Attorney General, Denver, Colorado; William
Tong, Attorney General, Hartford, Connecticut; Kathleen
Jennings, Attorney General, Wilmington, Delaware; Karl A.
Racine, Attorney General, Washington, D.C.; Clare E.
Connors, Attorney General, Honolulu, Hawaii; Kwame
Raoul, Attorney General, Chicago, Illinois; Tom Miller,
Attorney General, Des Moines, Iowa; Brian E. Frosh,
Attorney General, Baltimore, Maryland; Maura 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,
Attorney General, 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; for Amici Curiae
California, Colorado, Connecticut, Delaware, District of
Columbia, Hawaii, Illinois, Iowa, Maryland, Massachusetts,
Michigan, Minnesota, Nevada, New Jersey, New Mexico,
New York, Oregon, Pennsylvania, Rhode Island, Vermont,
Virginia, and Washington.
12     EAST BAY SANCTUARY COVENANT V. TRUMP

                         OPINION

PAEZ, Circuit Judge:

    Forty years ago, Congress recognized that refugees
fleeing imminent persecution do not have the luxury of
choosing their escape route into the United States. It
mandated equity in its treatment of all refugees, however
they arrived. 1

    This principle is embedded in the Refugee Act of 1980,
which established an asylum procedure available to any
migrant, “irrespective of such alien’s status,” and
irrespective of whether the migrant arrived “at a land border
or port of entry.” Pub. L. No. 96-212, § 208(a), 94 Stat. 102,
105 (1980). Today’s Immigration and Nationality Act
(“INA”) preserves that principle. It states that a migrant who
arrives in the United States—“whether or not at a designated
port of arrival”—may apply for asylum. See 8 U.S.C.
§ 1158(a).

    In November 2018, the Departments of Justice and
Homeland Security jointly adopted an interim final rule (“the
Rule”) which, coupled with a presidential proclamation
issued the same day (“the Proclamation”), strips asylum
eligibility from every migrant who crosses into the United
States between designated ports of entry. In this appeal, we
consider whether, among other matters, the Rule unlawfully
conflicts with the text and congressional purpose of the INA.
We conclude that it does.



    1
      See 125 Cong. Rec. 35,813–14 (1979) (statement of Rep.
Holtzman).
       EAST BAY SANCTUARY COVENANT V. TRUMP               13

                             I.

    The Rule announces a new bar to asylum eligibility. It
makes migrants who enter the United States in violation of
“a presidential proclamation or other presidential order
suspending or limiting the entry of aliens along the southern
border with Mexico” categorically ineligible for asylum.
See Aliens Subject to a Bar on Entry Under Certain
Presidential Proclamations; Procedures for Protection
Claims, 83 Fed. Reg. 55,934, 55,952 (Nov. 9, 2018)
(codified at 8 C.F.R. §§ 208.13, 208.30). Migrants who are
ineligible for asylum under the Rule will also automatically
receive negative credible-fear determinations in expedited-
removal proceedings. See id. at 55,935, 55,952. Typically,
a migrant in expedited-removal proceedings who
demonstrates a “credible fear” of persecution must be
allowed to present her asylum claim before an immigration
judge. See 8 U.S.C. § 1225(b)(1)(A)(ii), (B)(v). A migrant
who enters the United States in contravention of a
proclamation will instead need to demonstrate a “reasonable
fear” of persecution or torture—which is more difficult than
establishing a credible fear of persecution—to obtain other
forms of relief. See 83 Fed. Reg. at 55,936, 55,952; see also
8 C.F.R. § 208.31(c); 8 U.S.C. § 1225(b)(1)(B)(v).

    The same day the Departments of Justice (“DHS”) and
Homeland Security (“DHS”) adopted the Rule, President
Trump issued the Proclamation. The Proclamation suspends
the entry of all migrants along the southern border of the
United States for ninety days, except for any migrant who
“enters the United States at a port of entry and properly
presents for inspection.” See Presidential Proclamation No.
9,822, Addressing Mass Migration Through the Southern
Border of the United States, 83 Fed. Reg. 57,661, 57,663
(Nov. 9, 2018).
14     EAST BAY SANCTUARY COVENANT V. TRUMP

    Individually, the Rule and Proclamation have little
effect. The Proclamation does not have the force of law, and
the Rule only effectuates proclamations. But together, the
Rule and Proclamation make asylum entirely unavailable to
migrants who enter the country between ports of entry. The
magnitude of the Rule’s effect is staggering: its most direct
consequence falls on “the more than approximately 70,000
aliens a year (as of FY 2018) estimated to enter between the
ports of entry [who] then assert a credible fear in expedited-
removal proceedings.” 83 Fed. Reg. at 55,948. These
migrants would typically proceed to an asylum hearing
before an immigration judge but will now be unable to do so
because they have entered the country at a place other than a
port of entry.

    The day the Proclamation and Rule issued, four legal
services organizations that represent current and future
asylum-seekers sued to prevent enforcement of the Rule.
East Bay Sanctuary Covenant, Al Otro Lado, Innovation
Law Lab, and Central American Resource Center of Los
Angeles (collectively, “the Organizations”) argued that the
Rule was likely unlawful because it was issued without
public notice and comment or complying with the thirty-day
grace period required by the Administrative Procedure Act
(“APA”), see 5 U.S.C. § 553(b)–(d). The Organizations also
argued that the Rule conflicts with the plain text of the INA
and is arbitrary and capricious because it constitutes a severe
departure from the Board of Immigration Appeals’s and the
Ninth Circuit’s interpretation of asylum practices in the
United States.

   The district court agreed that the Rule “irreconcilably
conflicts with the INA and the expressed intent of Congress”
and entered a temporary restraining order enjoining the
Rule’s enforcement and ordering the government “to return
       EAST BAY SANCTUARY COVENANT V. TRUMP                 15

to the pre-Rule practices for processing asylum
applications.” See E. Bay Sanctuary Covenant v. Trump
(EBSC I), 349 F. Supp. 3d 838, 844, 868–69 (N.D. Cal.
2018). Eight days after the court’s order, the government
filed an appeal and an emergency motion in the district court
to stay the temporary restraining order pending appeal. The
court denied the stay motion three days later.

    The following day, the government sought an immediate
stay in our court of the district court’s order pending appeal.
In a lengthy published order, a motions panel of this court
denied the government’s request to stay enforcement of the
court’s order. See E. Bay Sanctuary Covenant v. Trump
(EBSC II), 932 F.3d 742, 755, 762 (9th Cir. 2018). Although
temporary restraining orders are typically not appealable, the
panel concluded that appellate jurisdiction existed under
28 U.S.C. § 1292(a)(1) because the temporary restraining
order was effective for thirty days, well beyond the fourteen-
day limit imposed by Federal Rule of Civil Procedure 65(b).
Id. at 762–63. The government’s application for a stay from
the Supreme Court was also denied. See Trump v. E. Bay
Sanctuary Covenant, 139 S. Ct. 782 (2018).

    While the government’s stay application was pending
before the Supreme Court, the Organizations filed a motion
for a preliminary injunction in the district court. The
arguments presented during the second round of litigation
were “nearly identical” to those made during the first. See
E. Bay Sanctuary Covenant v. Trump (EBSC III), 354 F.
Supp. 3d 1094, 1102 (N.D. Cal. 2018). Relying heavily on
the motions panel’s published order, the district court again
issued an injunction barring enforcement of the Rule. See
id. at 1121.

   The government again appeals, arguing that the district
court erred when it entered the injunction or that the
16       EAST BAY SANCTUARY COVENANT V. TRUMP

injunction should at least be narrowed. We consolidated the
government’s appeal from the temporary restraining order
with the appeal from the preliminary injunction. 2 For the
reasons explained below, we agree with the district court that
the Rule is inconsistent with the INA, and we affirm the
district court’s orders granting preliminary injunctive relief.

                                   II.

    We first consider the effect of the motions panel’s order
on the present panel’s decision. How strictly the order binds
this court depends on whether it is law of the case, law of the
circuit, or both.

    Law of the circuit is stare decisis, by another name. The
doctrine requires that we “stand by yesterday’s decisions”—
even when doing so “means sticking to some wrong
decisions.” Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401,
2409 (2015). Published decisions of this court become law
of the circuit, which is binding authority that we and district
courts must follow until overruled. Gonzalez v. Arizona,
677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc).
Controlling, overruling authority includes only intervening
statutes or Supreme Court opinions that create “clearly



     2
       Although the Proclamation expired by its terms in February 2019,
the President issued a new Proclamation, which did not substantially
change the terms of the original Proclamation and extended its effect for
an additional ninety days. When that Proclamation expired in May, the
President again re-issued it and extended the effect of the initial
Proclamation “for an additional 90 days beyond the date when the United
States obtains relief from the preliminary injunction of the interim final
rule[.]” See Presidential Proclamation No. 9,880, Addressing Mass
Migration Through the Southern Border of the United States, 84 Fed.
Reg. 21,229, 21,229 (May 8, 2019).
       EAST BAY SANCTUARY COVENANT V. TRUMP                17

irreconcilable” conflicts with our caselaw. Miller v.
Gammie, 335 F.3d 889, 893, 900 (9th Cir. 2003) (en banc).

    Under the law-of-the-case doctrine, instead, courts—at
their own discretion—“will generally refuse to reconsider an
issue that has already been decided by the same court or a
higher court in the same case.” Gonzalez, 677 F.3d at 389
n.4; see also United States v. Houser, 804 F.2d 565, 567 (9th
Cir. 1986). The doctrine encourages the conservation of
limited judicial resources and promotes consistency by
allowing court decisions to govern the same issues in
subsequent stages of the same case. See Am. Civil Liberties
Union v. F.C.C., 523 F.2d 1344, 1346 (9th Cir. 1975).

    We do sometimes exercise our discretion to reconsider
issues within the same case. Most often, we recognize
exceptions to the law-of-the-case doctrine where the prior
decision is “clearly erroneous” and enforcing it would create
“manifest injustice”; intervening, controlling authority
encourages reconsideration; or substantially different
evidence is produced at a later merits trial. See In Re
Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir. 1996).
This list is narrow but nonexhaustive. The legal context of
the prior decision also affects whether and to what extent it
may be treated as law of the case. We generally do not, for
example, apply the doctrine to administrative proceedings
because agencies are sometimes vested with explicit
authority to reconsider their own decisions. See, e.g., Silva-
Pereira v. Lynch, 827 F.3d 1176, 1190 (9th Cir. 2016). Our
review of district court orders denying or granting
preliminary-injunction requests also does not typically
become law of the case; the record before a later panel may
materially differ from the record before the first panel, such
that the first panel’s decision eventually provides “little
guidance as to the appropriate disposition on the merits.”
18     EAST BAY SANCTUARY COVENANT V. TRUMP

Sports Form, Inc. v. United Press Intern., Inc., 686 F.2d 750,
753 (9th Cir. 1982).

    Merits panels also tend not to extend the doctrine to a
prior motions panel’s decision in the same case. See, e.g.,
United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th
Cir. 2005) (explaining that a prior motions panel’s denial of
a motion to dismiss did not “preclude [the panel] from
reaching a contrary decision”); In re Castro, 919 F.2d 107,
108 (9th Cir. 1990) (per curiam) (holding that a motions
panel’s denial of a dispositive motion without an opinion
was not binding on a later merits panel); Stifel, Nicolaus &
Co., Inc. v. Woolsey & Co., Inc., 81 F.3d 1540, 1543–44
(10th Cir. 1996) (concluding that the law-of-the-case
doctrine did not prevent the panel from reconsidering a
motions panel’s application of res judicata to a relevant
state-court decision). A later merits panel should not “lightly
overturn a decision made by a motions panel,” but “we do
not apply the law of the case doctrine as strictly in that
instance as we do when a second merits panel is asked to
reconsider a decision reached by the first merits panel on an
earlier appeal.” Houser, 804 F.2d at 568.

    Our caselaw interpreting the relationship between
motions and merits panels’ opinions has not always been
clear. Citing to Miller v. Gammie, 335 F.3d 889 (9th Cir.
2003), we recently stated that “a motions panel’s published
opinion binds future panels the same as does a merits panel’s
published opinion.” Lair v. Bullock, 798 F.3d 736, 747 (9th
Cir. 2015). But this observation was not germane to the
eventual resolution of Lair; the panel noted that the effect of
the motions panel’s decision was not necessary to its
holding, see id., and it was not reached after “reasoned
consideration,” so its law-of-the-case discussion is dicta and
       EAST BAY SANCTUARY COVENANT V. TRUMP                  19

not binding on subsequent cases. See United States v.
McAdory, 935 F.3d 838, 843 (9th Cir. 2019).

    Gammie encouraged a “pragmatic” approach to “an
evolving body of common law.” 335 F.3d at 899–900. Our
own practice has frequently indicated that we have not, and
do not, follow the summary language in Lair: merits panels
of this court frequently depart from published decisions
issued by motions panels in the same case. See, e.g., Nat.
Res. Def. Council, Inc. v. Winter, 508 F.3d 885, 886–87 (9th
Cir. 2007) (vacating a stay of a preliminary injunction issued
in an opinion by a motions panel); Golden Gate Rest. Ass’n
v. City and Cty. of San Francisco, 546 F.3d 639, 643–61 (9th
Cir. 2008) (reaching the merits of an appeal without reliance
on a previous motions panel’s order entering a stay of a
district court judgment pending appeal); see also Nelson v.
Nat’l Aeronautics & Space Admin., 530 F.3d 865, 873 (9th
Cir. 2008), rev’d on other grounds by 562 U.S. 134 (re-
reviewing the merits of the case and generally treating a
motions panel’s opinion as nonbinding); Innovation Law
Lab v. McAleenan, 924 F.3d 503, 518 (9th Cir. 2019)
(Fletcher, J., concurring in the judgment) (stating that a later
merits panel may, “with the benefit of full briefing and
regularly scheduled oral argument,” depart from the legal
conclusions reached by the motions panel). At least four
other circuits have agreed that later panels may review the
merits of a case “uninhibited” by a motions panel’s earlier
decision in the same case. Stifel, Nicolaus & Co., Inc.,
81 F.3d at 1544 (10th Cir. 1996); see also Rezzonico v. H&R
Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999); Cimino v.
Raymark Indus., Inc., 151 F.3d 297, 311 n.26 (5th Cir.
1998); Vann v. Citicorp Sav. of Illinois, 891 F.2d 1507, 1509
n.2 (11th Cir. 1990).          Two others have held that
jurisdictional determinations by motions panels do not bind
later merits panels. See Council Tree Commc’ns, Inc. v.
20     EAST BAY SANCTUARY COVENANT V. TRUMP

F.C.C., 503 F.3d 284, 291–92 (3d Cir. 2007); United States
v. Henderson, 536 F.3d 776, 778 (7th Cir. 2008).

    There are good policy and practical reasons for departing
from Lair’s dicta. Motions panels’ orders are generally
issued without oral argument, on limited timelines, and in
reliance on limited briefing. See Fed. R. App. P. 27(e)
(motions are decided without oral argument unless the court
orders otherwise); compare also Rule 27(a)(3)–(4)
(responses to motions and replies to responses must be filed
within ten days of service of the motion) and 27(d)(2)
(motions or responses to motions are limited to 5,200 words;
replies are limited to 2,600 words) with Ninth Circuit Rule 3-
3 (in preliminary injunction appeal, opening brief must be
filed within 28 days of notice of appeal; response must be
filed 28 days thereafter; reply may be filed 21 days
thereafter) and Ninth Circuit Rule 32-1 (opening and
response briefs limited to 14,000 words). The record before
a motions panel, much like the record before a district court
deciding a preliminary injunction, is often incomplete. Cf.
Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981) (“In
light of these considerations, it is generally inappropriate for
a federal court at the preliminary-injunction stage to give a
final judgment on the merits.”). Constrained by timing
demands, motions panels’ decisions are often issued without
opinions and explanations. See, e.g., Haggard v. Curry,
631 F.3d 931, 933 n.1 (9th Cir. 2010) (per curiam). A panel
operating with the benefit of a complete record and
additional time to consider the merits of the case may
“conclude that the motions decision was improvident and
should be reconsidered.” Houser, 804 F.2d at 568 (citing
E.E.O.C. v. Neches Butane Prod. Co., 704 F.2d 144, 147 (5th
Cir. 1983)).
         EAST BAY SANCTUARY COVENANT V. TRUMP                              21

     Reconsideration of a motions panel’s decision by a
merits panel also “differs in a significant way” from
reconsideration of a merits panel’s decision. Id. A party that
receives an unfavorable decision by a merits panel will have
the opportunity to file a petition for panel rehearing,
rehearing en banc, or petition for certiorari. Motions for
reconsideration or modification of a motions panel’s order
are “discouraged,” “disfavored by the court[,] and rarely
granted.” Ninth Circuit Rule 27-1 advisory committee note.
For this reason, motions panel decisions are “rarely
subjected” to a thorough reconsideration process; “[f]ull
review of a motions panel decision will more likely occur
only after the merits panel has acted.” Houser, 804 F.2d at
568. Unilaterally binding later merits panels to the
preliminary decisions made by motions panels prevents
litigants from fully vindicating their appellate rights. 3

    These concerns are particularly heightened here, where
the motions panel considered whether to grant the
government’s request for a stay of the district court’s
preliminary injunction. The decision whether to grant a

    3
       Our holding is consistent with our general rules governing law of
the circuit. “[T]he first panel to consider an issue sets the law . . . for all
the inferior courts in the circuit” and “future panels of the court of
appeals,” Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001), but
motions panels’ conclusions do not “set the law” for later merits panels
in the same case, see, e.g., Askins v. U.S. Dep’t of Homeland Sec.,
899 F.3d 1035, 1042 (9th Cir. 2018) (“The law of the case doctrine does
not preclude a court from reassessing its own legal rulings in the same
case.”). Tentative conclusions that are not law of the case do not bind
later panels in the same case as law of the circuit. Any other rule would
paradoxically require that a merits panel treat a motions panel’s
published decision that does not constitute law of the case as binding. A
merits panel cannot be simultaneously bound by the motions panel’s
opinion—because it is law of the circuit—and not bound by the
opinion—because it is not law of the case.
22     EAST BAY SANCTUARY COVENANT V. TRUMP

stay—much like the decision whether to grant a preliminary
injunction—is a “probabilistic” endeavor. Sierra Club v.
Trump, 929 F.3d 670, 688 (9th Cir. 2019). We discuss the
merits of a stay request in “likelihood terms,” and exercise a
“restrained approach to assessing the merits.”             Id.
(quotations omitted). Such a predictive analysis should not,
and does not, forever bind the merits of the parties’ claims.
This sort of “pre-adjudication adjudication 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)).

     Notably, when acting on the government’s stay motion
in this case, the motions panel acknowledged the preliminary
nature of the stay proceedings. The panel issued a lengthy
opinion with detailed analysis, but repeatedly “stress[ed]”
that the case was still “at a very preliminary stage of the
proceedings,” and expected that “[f]urther development of
the record as the case progresses may alter [their]
conclusions.” EBSC II, 932 F.3d at 780. The panel also left
open various mixed questions of law and fact for a later
court—pointing out, for example, that if “facts develop in
the district court that cast doubt on the Organizations’
standing, the district court is, of course, free to revisit this
question,” id. at 763 n.6, and reiterating that its conclusions
were reached “at [the current] stage of the proceedings,” see
id. at 763, 767, 778, 779.

    The question before us now is also doctrinally distinct
from the question considered by the motions panel. A stay
does have “some functional overlap with an injunction,
particularly a preliminary one”; both “can have the practical
effect of preventing some action before the legality of that
action has been conclusively determined.” Nken, 556 U.S.
       EAST BAY SANCTUARY COVENANT V. TRUMP                  23

at 428. But, as we have noted, “there are important
differences between a preliminary injunction and a stay
pending review.” Leiva-Perez, 640 F.3d at 966 (citing Nken,
556 U.S. at 425–30). A stay “operates upon the judicial
proceeding itself,” while a preliminary injunction “direct[s]
an actor’s conduct.” Nken, 556 U.S. at 428, 429. In the
government’s appeal, we are charged with determining
whether the district court abused its discretion in granting the
preliminary injunction, see All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011); the motions
panel, instead, considered whether the government raised
serious questions relating to the propriety of the district
court’s preliminary injunction and whether the government
would likely prevail on appeal, see Leiva-Perez, 640 F.3d
at 965–66. The question presented to the motions panel is
an additional step removed from the underlying merits of the
district court’s preliminary injunction. We exercise restraint
in assessing the merits of either question, see Sierra Club,
929 F.3d at 688, but particularly so when considering the
“extraordinary request” to stay a preliminary injunction
granted by a district court. Barr v. E. Bay Sanctuary
Covenant, No. 19A230, 2019 WL 4292781, at *1 (Sept. 11,
2019) (Sotomayor, J., dissenting from grant of a stay).

    Given the preliminary stage of the appellate process at
which the motions panel issued the order denying the
government’s stay motion and the panel’s stated
reservations, we treat the motions panel’s decision as
persuasive, but not binding.

                              III.

    We next re-evaluate the government’s challenge to our
jurisdiction. The government argues, as it did previously
before the district court and before the motions panel, that
the Organizations lack Article III standing because they have
24      EAST BAY SANCTUARY COVENANT V. TRUMP

not suffered a cognizable injury and are outside the zone of
interests protected by the INA. The government also renews
three arguments before this court: (1) the Organizations lack
a “legally protected interest in maintaining their current
organizational structure or in the [R]ule’s application to third
parties,” Op. Br. of Gov’t at 29, 4 (2) the “immigration
context” of the Rule counsels against judicial intrusion, and
(3) various portions of the INA divest this court of
jurisdiction to entertain this appeal. We address each
argument in turn.

                                  A.

    The Article III standing inquiry serves a single purpose:
to maintain the limited role of courts by ensuring they protect
against only concrete, non-speculative injuries. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 583 (1992). Parties
must have a “personal stake in the outcome” sufficient to
ensure the court that, absent judicial review, they will suffer
or have suffered some direct injury. See id.

    Organizations can assert standing on behalf of their own
members, see Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 181 (2000), or in their own
right, Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–
79 (1982). To determine whether organizational standing
requirements have been satisfied, we “conduct the same
inquiry as in the case of an individual: Has the plaintiff
‘alleged such a personal stake in the outcome of the
controversy as to warrant his invocation of federal-court
jurisdiction?’”   Havens, 455 U.S. at 378–79.             The
Organizations therefore have the burden of demonstrating

    4
      We refer to the government’s opening brief as “Op. Br. of Gov’t,”
and to the government’s reply brief as “Reply Br. of Gov’t.”
       EAST BAY SANCTUARY COVENANT V. TRUMP                 25

that (1) they have suffered an injury-in-fact, meaning an
injury that is “concrete and particularized” and “actual and
imminent,” (2) the alleged injury is “fairly traceable” to the
defendants’ conduct, and (3) it is “more than speculative”
that the injury is judicially redressable. Lujan, 504 U.S.
at 560–61.

    In Havens, the Supreme Court held that a fair housing
organization had standing under the Fair Housing Act where
the defendants’ allegedly racial steering practices had
frustrated the organization’s ability to assist equal access to
housing, and it had to devote “significant resources” to
identify and counteract those practices. 455 U.S. at 379.
Because the defendants’ practices had “perceptibly
impaired” the organization’s ability to provide its services,
the Court explained, “there can be no question that the
organization has suffered injury in fact.” Id.

    We have read Havens to hold that an organization has
direct standing to sue where it establishes that the
defendant’s behavior has frustrated its mission and caused it
to divert resources in response to that frustration of purpose.
See Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th
Cir. 2002). Of course, organizations cannot “manufacture
the injury by incurring litigation costs or simply choosing to
spend money fixing a problem that otherwise would not
affect the organization at all,” but they can show they “would
have suffered some other injury” had they “not diverted
resources to counteracting the problem.” La Asociacion de
Trabajadores de Lake Forest v. Lake Forest, 624 F.3d 1083,
1088 (9th Cir. 2010); see also, e.g., El Rescate Legal Servs.,
Inc. v. Exec. Office of Immigration Review, 959 F.2d 742,
745, 748 (9th Cir. 1991).

    We agree with the motions panel and the district court
that the Organizations have established that the Rule has
26     EAST BAY SANCTUARY COVENANT V. TRUMP

“perceptibly impaired” their ability to perform the services
they were formed to provide. EBSC II, 932 F.3d at 765. This
is sufficient for organizational standing. See Combs,
285 F.3d at 904–05.

    The Organizations share the same mission of assisting
migrants seeking asylum. “[B]ecause the Rule significantly
discourages a large number of [asylum-seekers] from
seeking asylum given their ineligibility,” the Rule frustrates
their mission. EBSC II, 932 F.3d at 766. The Rule has also
caused the Organizations to divert their already limited
resources in response to the collateral obstacles it introduces
for asylum-seekers.         East Bay Sanctuary Covenant
(“EBSC”) and Innovation Law Lab (“ILL”), for example,
are located near Berkeley, California, and in Oregon,
respectively, and because most asylum-seekers who enter at
a designated port of entry will “remain detained in detention
facilities near the border hundreds of miles away,” EBSC III,
354 F. Supp. 3d at 1109 (internal quotation marks omitted),
those organizations “cannot represent asylum seekers.”
Decl. of Michael Smith at ¶ 6. Unaccompanied minors are
now often unable to seek asylum alone, and “[s]ince the new
rule was announced, Al Otro Lado [(“AOL”)] has been
overwhelmed with children who traveled to the southern
border of the United States to apply for asylum but now
cannot do so.” Supp. Decl. of Erika Pinheiro at ¶¶ 4, 15.
Caring for the often nonlegal needs of these unaccompanied
children is not part of AOL’s core mission and is “causing a
near complete diversion of [AOL’s] resources.” Id. ¶ 16. It
has “expended significant resources to send staff to the
border as it attempts to shift its programs.” EBSC III, 354 F.
Supp. 3d at 1109.

   The funding on which the Organizations critically
depend is also jeopardized by the Rule. EBSC only “rarely”
         EAST BAY SANCTUARY COVENANT V. TRUMP                         27

represents people in removal proceedings. Decl. of Michael
Smith at ¶ 8. Because 80 percent of its clients have entered
without stopping at a port of entry in the past, EBSC stands
to “lose a significant amount of business and suffer a
concomitant loss of funding” if these individuals are deemed
categorically ineligible for asylum. EBSC III, 354 F. Supp.
3d at 1109 (citing EBSC II, 932 F.3d at 767). AOL and
CARECEN explain that the Rule decreases the funding they
stand to receive from the California Department of Social
Services. AOL often represents detained immigrants in their
bond proceedings, and “[s]ince the [R]ule went into effect,”
AOL has “not received a single referral for a bond case, as
persons who enter without inspection are ostensibly being
put into ‘Withholding-only’ proceedings and no longer
initially eligible for bond.” Supp. Decl. of Erika Pinheiro
at ¶ 22. CARECEN receives from the Department a flat
amount of funding per client it assists, and because more of
its clients are being put into more time- and resource-
intensive withholding proceedings, it will assist less clients
and receive less funding. Decl. of Daniel Sharp at ¶ 7.

    Each organization would have lost clients seeking refuge
in the United States had it not diverted resources toward
counteracting the effect of the Rule. La Asociacion de
Trabajadores de Lake Forest, 624 F.3d at 1088. The
Organizations are not required to demonstrate some
threshold magnitude of their injuries; 5 one less client that

    5
       The government notes that “East Bay Sanctuary Covenant has only
‘around 35 clients who have entered without inspection and [who] expect
to file for affirmative asylum in the upcoming months,’” while, “[b]y
comparison, the ‘current backlog of asylum cases exceeds 200,000’ and
more than 200,000 inadmissible aliens present themselves for inspection
at ports of entry annually (even without the additional incentive to do so
that the Rule will create).” Op. Br. of Gov’t at 27 n.4.
28       EAST BAY SANCTUARY COVENANT V. TRUMP

they may have had but-for the Rule’s issuance is enough. In
other words, plaintiffs who suffer concrete, redressable
harms that amount to pennies are still entitled to relief.

    The government advances three additional justiciability
arguments.       First, the government argues that the
Organizations have “no legally protected interest in
maintaining their current organizational structure or in the
Rule’s application to third parties, which the motions panel
did not consider in its analysis.” Op. Br. of Gov’t at 28. This
position misunderstands the injury-in-fact inquiry and
conflates organizational standing with third-party standing,
which the Organizations have conceded is not at issue. 6 An
injury-in-fact is “an invasion of a legally protected interest,”
see Lujan, 504 U.S. at 560, but this means an interest that is
only concrete and particularized and actual or imminent—

     The comparative magnitude of the harms alleged by the parties,
however, is not relevant for standing purposes; “a loss of even a small
amount of money is ordinarily an ‘injury.’” Czyzewski v. Jevic Holding
Corp., 137 S. Ct. 973, 983 (2017); see also Wallace v. ConAgra Foods,
Inc., 747 F.3d 1025, 1029 (8th Cir. 2014) (“The consumers’ alleged
economic harm—even if only a few pennies each—is a concrete, non-
speculative injury.”); Carpenters Indus. Council v. Zinke, 854 F.3d 1, 5
(D.C. Cir. 2017) (“A dollar of economic harm is still an injury-in-fact for
standing purposes.”).
     6
      Many of the cases cited by the government in support of this
proposition do not concern organizational standing under Article III. In
O’Bannon v. Town Court Nursing Center, 447 U.S. 773 (1980), the
Court addressed whether nursing home residents have a right to an
administrative hearing before a state or federal agency hearing before the
agency revokes the home’s authority to provide them with nursing care
at government expense. Linda R.S. v. Richard D., 410 U.S. 614 (1973),
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), Arpaio v. Obama,
797 F.3d 11 (D.C. Cir. 2015), and Sure-Tan, Inc. v. N.L.R.B., 467 U.S.
883 (1984) all describe limitations on third-party, not organizational,
standing.
        EAST BAY SANCTUARY COVENANT V. TRUMP                  29

not an interest protected by statute. This distinction prevents
Article III standing requirements from collapsing into the
merits of a plaintiff’s claim; “a petitioner’s ‘legally protected
interest’ need not be a statutorily created interest,” Ass’n of
Pub. Agency Customers v. Bonneville Power Admin.,
733 F.3d 939, 950 (9th Cir. 2013), and a plaintiff can have
standing despite losing on the merits. See also In re Special
Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir. 2006)
(citing Warth v. Seldin, 422 U.S. 490, 500 (1975)
(“[S]tanding in no way depends on the merits of the
plaintiff’s contention that particular conduct is illegal
. . . .”)).

    More recent Supreme Court opinions have described
injury-in-fact as “a judicially cognizable interest”—
implying that “an interest can support standing even if it is
not protected by law . . . so long as it is the sort of interest
that courts think to be of sufficient moment to justify judicial
intervention.” In re Special Grand Jury 89-2, 450 F.3d
at 1172 (citing Bennett v. Spear, 520 U.S. 154, 167 (1997));
see also, e.g., Hollingsworth v. Perry, 570 U.S. 693, 707
(2013). Whether the Organizations have a sufficient
statutory or otherwise legal basis for their claims is irrelevant
at this threshold stage.

     The government next argues that we should avoid
interfering with DOJ’s and DHS’s decision to adopt the Rule
because “[t]he Supreme Court has ‘long recognized the
power to expel or exclude aliens as a fundamental sovereign
attribute exercised by the Government’s political
departments largely immune from judicial control.’” See
Op. Br. of Gov’t at 30 (quoting Fiallo v. Bell, 430 U.S. 787,
792 (1977)).

   We do not conduct independent policy analyses of
executive decisions. But we do “police the separation of
30       EAST BAY SANCTUARY COVENANT V. TRUMP

powers in litigation involving the executive[.]” In re
Cheney, 334 F.3d 1096, 1106 (D.C. Cir. 2003), vacated and
remanded on other grounds, 542 U.S. 367 (2004). For this
reason, there is a strong presumption favoring judicial
review of administrative action, see Bowen v. Mich. Acad. of
Family Phys., 476 U.S. 667, 670 (1986); non-reviewability
is an exception that must be clearly evidenced in the statute,
see Barlow v. Collins, 397 U.S. 159, 166–67 (1970).
Without such review, “statutes would in effect be blank
checks drawn to the credit of some administrative officer or
board.” Bowen, 476 U.S. at 671 (citing S. Rep. No. 752,
79th Cong., 1st Sess., 26 (1945)). Efficient agency
administration always requires some authority and
responsibility to resolve questions left unanswered by
Congress. It does not include the “power to revise clear
statutory terms.” 7 Utility Air Reg. Grp. v. E.P.A., 573 U.S.
302, 327 (2014).

    We are therefore responsible for reviewing whether the
government has overstepped its delegated authority under
the INA and encroached upon Congress’s legislative
prerogative. See 5 U.S.C. § 706(2)(A).

   Finally, the government argues that three provisions of
the Illegal Immigration Reform and Immigration
Responsibility Act (“IIRIRA”), 8 U.S.C. §§ 1252(e)(3),

     7
          The irony of the government’s position is that
section 1158(b)(2)(C)—the INA rule-making delegation upon which it
relies—is based on a congressional mandate that was intended, at least
in part, to curtail “unfettered executive discretion” and assure Congress’s
“proper and substantial role in refugee admissions, given [its] plenary
power over immigration.” 125 Cong. Rec. 35,814–15 (1979) (statement
of Rep. Holtzman) (emphasis added). “[I]f there is a separation-of-
powers concern here, it is between the President and Congress.”
EBSC II, 932 F.3d at 774.
        EAST BAY SANCTUARY COVENANT V. TRUMP                        31

1252(a)(5), and 1252(b)(9), divest this court of jurisdiction
to entertain this appeal. These statutes, in the government’s
view, require the Organizations to bring their claims in
individual-removal proceedings or in the District Court for
the District of Columbia.

    Section 1252(e)(3) authorizes a limited court review of
expedited-removal proceedings. The statute requires that
judicial review of such administrative decisions be initiated
in the District Court for the District of Columbia, and limits
review to “determinations of (i) whether such section, or any
regulation issued to implement such section, is
constitutional; or (ii) whether such a regulation . . . is not
consistent with applicable provisions of this subchapter or is
otherwise in violation of law.” 8 Section 1252(e)(3), in short,
limits jurisdiction over challenges to regulations
implementing expedited-removal orders. See Barajas-
Alvarado, 655 F.3d at 1086 n.10.

    Section 1252(a)(5) operates in conjunction with section
1252(e). It limits review of expedited-removal orders to
habeas review under 1252(e) and further restricts any
appellate habeas review to considering only whether the
migrant is lawfully in the country. See id. at 1082; 8 U.S.C.
§ 1252(e)(2). Section 1252(b)(9) also applies only to
removal orders, but instead channels “[j]udicial review of all
questions of law and fact . . . arising from any action taken
or proceeding brought to remove an alien from the United

    8
       Migrants can be placed in expedited removal proceedings when
they arrive at ports of entry without documents, misrepresent their
identities, or present fraudulent documents. See United States v.
Barajas-Alvarado, 655 F.3d 1077, 1081 (9th Cir. 2011). Undocumented
migrants who receive removal orders but indicate an intention to apply
for asylum or a fear of persecution may still be considered for asylum.
See id. (citing 8 U.S.C. § 1225(b)(1)(A)(i)).
32       EAST BAY SANCTUARY COVENANT V. TRUMP

States[,]” to the courts of appeals. 8 U.S.C. § 1252(b)(9);
see also I.N.S. v. St. Cyr, 533 U.S. 289, 313 (2001).

    In the APA context, these provisions prohibit “a claim
by an alien, however it is framed, [that] challenges the
procedure and substance of an agency determination that is
‘inextricably linked’ to the order of removal[.]” Martinez v.
Napolitano, 704 F.3d 620, 623 (9th Cir. 2012). “[C]laims
that are independent of or collateral to the removal process”
are not actions taken to “remove an alien from the United
States.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir.
2016); 8 U.S.C. § 1252(b)(9). The purpose of these claim-
channeling provisions is to “limit all aliens to one bite of the
apple with regard to challenging an order of removal.”
Martinez, 704 F.3d at 622.

    None of these provisions have any bearing on the Rule.
Sections 1252(a)(5), (b)(9), and (e)(3) govern judicial
review of removal orders or challenges inextricably linked
with actions taken to remove migrants from the country. The
Rule “governs eligibility for asylum and screening
procedures for aliens subject to a presidential proclamation
or order restricting entry[.]” 83 Fed. Reg. at 55,934
(emphasis added). Bars to asylum eligibility may eventually
be relevant to removal proceedings, but they are not
“regulation[s] . . . to implement [removal orders]” or
otherwise entirely linked with removal orders. 9 8 U.S.C.

     9
       In another, strikingly similar context, the government appears to
agree with this interpretation of section 1252(e)(3). Before the District
Court for the District of Columbia, the government argued that section
1252(e)(3) divested the court of jurisdiction to hear an APA challenge to
an immigration decision issued by the Attorney General. See Grace v.
Whitaker, 344 F. Supp. 3d 96, 105 (D.D.C. 2018). The Attorney
General’s decision, and a policy memorandum that adopted the standards
in the decision, invoked the expedited-removal statute and required that
         EAST BAY SANCTUARY COVENANT V. TRUMP                         33

§ 1252(e)(3); see also Martinez, 704 F.3d at 623; O.A. v.
Trump, 404 F. Supp. 3d 109, 141 (D.D.C. 2019)
(“§ 1252(e)(3) is about challenges to expedited removal
orders and the implementation of the expedited removal
provisions that Congress enacted in IIRIRA.”). This is
consistent with the purposes of these jurisdictional
limitations: allowing collateral APA challenges to an
asylum-eligibility rule does not undermine Congress’s
desire to “limit all aliens to one bite of the apple with regard
to challenging” their removal orders. See Martinez, 704 F.3d
at 622.

    At best, the law governing asylum is collateral to the
process of removal. Migrants in the country who file
affirmatively for asylum, or who are otherwise lawfully in
the country—such as those who have a valid visa, maintain
Temporary Protected Status, or are given parole, for
example—can apply and be eligible for asylum and never
encounter any of the statutory provisions governing
removal. See 8 C.F.R. § 208.4(a)(5)(iv). Other subsections
of the INA explicitly grant this court jurisdiction to review
denials of individual asylum applications, further reinforcing
that the jurisdiction-stripping provisions cited by the
government were not intended to apply at all to challenges
to asylum eligibility rules.               See 8 U.S.C.
§§ 1252(a)(2)(B)(ii), (a)(2)(D); see also Morales v.
Gonzales, 478 F.3d 972, 978–79 (9th Cir. 2007).


“claims based on membership in a putative particular social group
defined by the members’ vulnerability to harm . . . will not establish the
basis for asylum, refugee status, or a credible or reasonable fear of
persecution.” Id. at 110. The government there argued that the policy
memorandum and the Attorney General’s decision did not “implement”
section 1225(b) because it “was a decision about petitions for asylum
under section 1158.” Id. at 115–16 (emphasis added).
34     EAST BAY SANCTUARY COVENANT V. TRUMP

    We again hold that the Organizations’ claims are
justiciable and they have otherwise satisfied the Article III
standing requirements.

                              B.

    We generally also require that plaintiffs fall within the
“zone of interests” protected by the statute in question to
bring their claims in federal court. Lexmark Int’l, Inc., v.
Static Control Components, Inc., 572 U.S. 118, 129 (2014).
The breadth of the zone-of-interests test varies, depending
on the provisions of law at issue. Id. Under the APA, the
test is not “especially demanding.” Id. at 130 (quotations
and citations omitted). The zone-of-interests analysis
forecloses suit “only when a plaintiff’s interests are so
marginally related to or inconsistent with the purposes
implicit in the statute that it cannot reasonably be assumed
that Congress authorized that plaintiff to sue.” Id.
(quotations and citations omitted).

    The Organizations bring their claims under the APA, but
because the APA provides a cause of action only to those
“suffering legal wrong because of agency action . . . within
the meaning of a relevant statute,” 5 U.S.C. § 702, the
relevant zone of interest is that of the INA. EBSC II,
932 F.3d at 767–68. And the relevant purpose is not that of
the entire INA; it is “by reference to the particular provision
of law upon on which the plaintiff relies.” Bennett, 520 U.S.
at 175–76.

    In our review, we are “not limited to considering the
[specific] statute under which [plaintiffs] sued, but may
consider any provision that helps us to understand Congress’
overall purposes” in enacting the statute. Clarke v. Sec.
Indus. Ass’n, 479 U.S. 388, 401 (1987); see also EBSC II,
932 F.3d at 768. This inquiry is intended only to help clarify
         EAST BAY SANCTUARY COVENANT V. TRUMP                          35

the act’s scope—not determine whether Congress intended a
cause of action to arise for the plaintiff in question. See
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians
v. Patchak, 567 U.S. 209, 225 (2012) (“We do not require
any indication of congressional purpose to benefit the
would-be plaintiff.”) (internal quotation marks omitted).

    The Organizations’ claims continue to fall within the
zone of interests of the INA and of the regulatory
amendments implemented by the Rule. The Rule, much like
the scope of section 1158(b) of the INA, shapes asylum
eligibility requirements for migrants. The Organizations’
purpose is to help individuals apply for and obtain asylum,
provide low-cost immigration services, and carry out
community education programs with respect to those
services. EBSC III, 354 F. Supp. 3d at 1108–10. This is
sufficient for the Court’s lenient APA test: at the very least,
the Organizations’ interests are “marginally related to” and
“arguably within” the scope of the statute. See Patchak,
567 U.S. at 224, 225.

                                   IV.

    We turn to the merits of the preliminary injunction 10
entered by the district court. A plaintiff seeking a
preliminary injunction must establish that (1) he is likely to
succeed on the merits, (2) he is likely to suffer irreparable
harm in the absence of preliminary relief, (3) the balance of
equities tips in his favor, and (4) an injunction is in the public
interest. All. for the Wild Rockies, 632 F.3d at 1131 (citing
    10
       The terms of the temporary restraining order entered by the district
court in EBSC I technically differ from the terms of the preliminary
injunction entered by the court in EBSC III, but the difference has no
practical effect: both injunctions prevent enforcement of the Rule and are
identical in scope. Therefore, we review them together.
36     EAST BAY SANCTUARY COVENANT V. TRUMP

Winter v. National Res. Def. Council, 555 U.S. 7, 20 (2008)).
When the government is a party, the last two factors (equities
and public interest) merge. Nken, 556 U.S. at 435. These
factors are evaluated on a sliding scale. All. for the Wild
Rockies, 632 F.3d. at 1131–34.

    We review for abuse of discretion the district court’s
grant of a preliminary injunction. Arc of Cal. v. Douglas,
757 F.3d 975, 983 (9th Cir. 2014). District courts abuse their
discretion when they rely on an erroneous legal standard or
clearly erroneous finding of fact. Id. (internal quotations
omitted).

                             A.

    The likelihood of the Organizations’ success on the
merits depends on the substantive and procedural validity of
the Rule. See EBSC III, 354 F. Supp. 3d at 1111–12. They
must establish a likelihood that the Rule is either
substantively or procedurally invalid. See EBSC II, 932 F.3d
at 770. Because the record on appeal is now “fully
developed,” and the substantive validity of the Rule “rest[s]
primarily on interpretations of law, not the resolution of
factual issues, we may consider the merits of the case and
enter a final judgment to the extent appropriate.” Beno v.
Shalala, 30 F.3d 1057, 1063 (9th Cir. 1994) (internal
quotation marks omitted).

                              1.

    The APA requires that we “hold unlawful and set aside
agency action, findings, and conclusions found to be . . . an
abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). Presidential action is not
ordinarily “agency action,” and is typically unreviewable
under the APA. Franklin v. Massachusetts, 505 U.S. 788,
       EAST BAY SANCTUARY COVENANT V. TRUMP                 37

796 (1992). But the Proclamation and Rule together create
an “operative rule of decision” for asylum eligibility that is
reviewable by this court. EBSC II, 932 F.3d at 770; see also
City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d
1142, 1166 (9th Cir. 1997) (holding that executive orders
with “specific statutory foundation[s]” that do not expressly
preclude judicial review are treated as agency action and
reviewed under the APA); Public Citizen v. U.S. Trade Rep.,
5 F.3d 549, 552 (D.C. Cir. 1993) (“Franklin is limited to
those cases in which the President has final constitutional or
statutory responsibility for the final step necessary for the
agency action directly to affect the parties.”).

    To determine whether the Rule is “not in accordance
with law,” we apply the framework established in Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842
(1984). Under Chevron, we first consider “whether
Congress has directly spoken to the precise question at issue.
If the intent of Congress is clear, that is the end of the
matter.” Campos-Hernandez v. Sessions, 889 F.3d 564, 568
(9th Cir. 2018) (quoting Chevron, 467 U.S. at 842). Federal
courts are “the final authority on issues of statutory
construction and must reject administrative constructions
which are contrary to clear congressional intent.” Chevron,
467 U.S. at 843 n.9.

                              a.

    We consider, then, whether the Rule conflicts with
Congress’s intent. The only section of the INA implicated
by the Rule is section 1158 (“Asylum”). That section begins
by stating that an undocumented migrant may apply for
asylum when she is “physically present in the United States”
or “arrives in the United States (whether or not at a
designated port of arrival . . . )[.]” 8 U.S.C. § 1158(a)(1).
DOJ and DHS adopted the Rule under section
38       EAST BAY SANCTUARY COVENANT V. TRUMP

1158(b)(2)(C)’s grant of authority to the Attorney General
to “establish additional limitations and conditions, consistent
with this section, under which an alien shall be ineligible for
asylum[.]” 11

    We agree with the district court that the Rule is “not in
accordance with law.” 5 U.S.C. § 706(2)(A). Section
1158(a) provides that migrants arriving anywhere along the
United States’s borders may apply for asylum. The Rule
requires migrants to enter the United States at ports of entry
to preserve their eligibility for asylum. It is effectively a
categorical ban on migrants who use a method of entry
explicitly authorized by Congress in section 1158(a). As the
district court stated, “[i]t would be hard to imagine a more
direct conflict” than the one presented here. EBSC III,
354 F. Supp. 3d at 1112.

    The government argues that the structure of section 1158
mandates a different result. Critical to the government’s
argument is that section 1158 splits asylum applications
(§ 1158(a)) and eligibility (§ 1158(b)) into two different
subsections; therefore, the government explains, Congress
intended to allow DOJ to promulgate limitations on asylum
eligibility without regard to the procedures and
authorizations governing asylum applications. The text in
section 1158(a) requires only that migrants arriving between

     11
        A separate subsection of section 1158, 1158(d)(5)(B), grants the
Attorney General authority to impose “conditions or limitations on the
consideration of an application for asylum not inconsistent with this
chapter.” As the motions panel observed, had the Rule explicitly
conditioned applications for asylum (instead of eligibility for asylum) on
arriving at a designated point of entry, the Rule would be “quite
obviously, ‘not in accordance with law,’” EBSC II, 932 F.3d at 770
(quoting 5 U.S.C. § 706(2)(A)), because 1158(a) directs migrants to
“apply for asylum” in accordance with section 1158.
       EAST BAY SANCTUARY COVENANT V. TRUMP                39

ports of entry be permitted to “apply for asylum,” and the
Rule does not prevent migrants from submitting futile
asylum applications. (emphasis added).

    This argument is unconvincing. We avoid absurd results
when interpreting statutes. Rowland v. Cal. Men’s Colony,
Unit II Men’s Adv. Council, 506 U.S. 194, 200–01 (1993).
Explicitly authorizing a refugee to file an asylum application
because he arrived between ports of entry and then
summarily denying the application for the same reason
borders on absurdity. The consequences of denial at the
application or eligibility stage are, to a refugee, the same.
See EBSC II, 932 F.3d at 771. Had Congress intended to
allow DOJ and DHS to override this provision, it could have
said so in its delegation of authority to the Attorney General
or in the statutory provisions governing asylum applications.
And Congress signaled its desire that any eligibility
limitations be consistent with application requirements;
limitations promulgated under the eligibility subsection of
the statute must be “consistent with this section”—meaning
the entirety of section 1158—not just consistent with this
subsection.

    The other categorical bars to asylum in section 1158(b)
of the INA do not meaningfully inform our reading of the
statute and the Rule. See EBSC II, 932 F.3d at 771 n.12. The
INA contains various provisions making ineligible asylum
applicants who committed a serious, nonpolitical crime
outside the United States prior to arrival (8 U.S.C.
§ 1158(b)(2)(A)(iii)), assisted or otherwise participated in
the persecution of another person (8 U.S.C.
§ 1158(b)(2)(A(i)), or were firmly resettled in another
country prior to arriving in the United States (8 U.S.C.
§ 1158(b)(2)(A)(vi)), among other things. The government
again suggests that the existence of these eligibility bars in
40     EAST BAY SANCTUARY COVENANT V. TRUMP

the INA demonstrates that Congress intended certain
categories of migrants to be permitted to apply for asylum
even though they are categorically ineligible. A migrant
who was firmly resettled in another country, for example, is
still free to complete an asylum application, even though she
will be barred from seeking asylum under section
1158(b)(2)(A)(vi).

     But—unlike the eligibility bar effected by the Rule—the
statutory asylum bars in the INA do not separately conflict
with explicit text in section 1158(a). There is no provision
in section 1158(a), for example, that affirmatively requires
that migrants who were firmly resettled in another country
be permitted to apply for asylum. The Rule creates the only
bar to eligibility under section 1158(b) that directly conflicts
with language in section 1158(a). The statutory eligibility
bars noted above do not suggest Congress intended that
migrants who are subject to them be permitted to apply for
asylum. See also EBSC II, 932 F.3d at 772 (“‘[t]o say that
one may apply for something that one has no right to receive
is to render the right to apply a dead letter.’”) (quoting EBSC
I, 349 F. Supp. 3d at 857). The district court correctly
concluded that the Rule is substantively invalid because it
conflicts with the plain congressional intent instilled in
8 U.S.C. § 1158(a), and is therefore “not in accordance with
law,” 5 U.S.C. § 706(2)(A).

                              b.

    But even if the text of section 1158(a) were ambiguous,
the Rule fails at the second step of Chevron because it is an
arbitrary and capricious interpretation of that statutory
provision. If the statute is “silent or ambiguous with respect
to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of
the statute.” Campos-Hernandez, 889 F.3d at 568 (quoting
         EAST BAY SANCTUARY COVENANT V. TRUMP                        41

Chevron, 467 U.S. at 843). Under this standard, we must
give effect to an agency’s reasonable interpretation of a
statute, unless the interpretation is inconsistent with clearly
expressed congressional intent. See United States v. Fulton,
475 U.S. 657, 666–67 (1986).

     The Board of Immigration Appeals (“BIA”) and this
court have long recognized that a refugee’s method of
entering the country is a discretionary factor in determining
whether the migrant should be granted humanitarian relief.
EBSC II, 932 F.3d at 772. More than thirty years ago, the
BIA stated that “an alien’s manner of entry or attempted
entry is a proper and relevant discretionary factor” to
adjudicating asylum applications under section 1158(a), but
“it should not be considered in such a way that the practical
effect is to deny relief in virtually all cases.” 12 Matter of
Pula, 19 I. & N. Dec. 467, 473 (B.I.A. 1987), superseded in
part by statute on other grounds as stated in Andriasian v.
I.N.S., 180 F.3d 1033, 1043–44 (9th Cir. 1999); see also
EBSC II, 932 F.3d at 772. The court explained that it would
instead evaluate “the totality of the circumstances and
actions of an alien in his flight from the country where he
fears persecution,” rather than deny asylum outright because
of a single procedural flaw in the migrant’s application.
Matter of Pula, 19 I. & N. Dec. at 473–74.

    Especially where a migrant may be eligible only for
asylum and cannot establish the more stringent criteria for

    12
        The BIA in Pula interpreted section 1158(a) before it was
amended to include the particular phrase at issue (“whether or not at a
designated port of arrival”). At the time, the relevant sentence stated
“The Attorney General shall establish a procedure for an alien physically
present in the United States or at a land border or port of entry,
irrespective of such alien’s status, to apply for asylum[.]” 8 U.S.C.
§ 1158(a) (1980).
42     EAST BAY SANCTUARY COVENANT V. TRUMP

withholding-of-removal, the discretionary factors—
including method of entry—should be “carefully evaluated
in light of the unusually harsh consequences which may
befall an alien[.]” Id. at 474. Indeed, “the danger of
persecution should generally outweigh all but the most
egregious of adverse factors.” Id.

      We have supported the BIA’s understanding of section
1158(a). The most vulnerable refugees are perhaps those
fleeing across the border through the point physically closest
to them. That a refugee crosses a land border instead of a
port-of-entry says little about the ultimate merits of her
asylum application; “if illegal manner of flight and entry
were enough independently to support a denial of asylum,
. . . virtually no persecuted refugee would obtain asylum.”
EBSC II, 932 F.3d at 773 (quoting Huang v. I.N.S., 436 F.3d
89, 100 (2d Cir. 2006)). Given the Rule’s effect of
conditioning asylum eligibility on a factor that has long been
understood as “worth little if any weight,” see Mamouzian v.
Ashcroft, 390 F.3d 1129, 1138 (9th Cir. 2004), in
adjudicating whether a migrant should be granted asylum, it
is an arbitrary and capricious interpretation of section
1158(a).

    The Attorney General’s interpretation of section 1158(a)
is also unreasonable, as the motions panel and district court
discussed, in light of the United States’s treaty obligations.
See EBSC II, 932 F.3d at 772–73; EBSC III, 354 F. Supp. 3d
at 1112–13. The United States agreed to comply with
Articles 2 through 34 of the 1951 United Nations
Convention Relating to the Status of Refugees (“1951
Convention”) and the 1967 United Nations Protocol
Relating to the Status of Refugees (“1967 Protocol”) in
1968. H.R. Rep. 96-781 (Conf. Rep.), at 19–20 (1980), as
reprinted in 1980 U.S.C.C.A.N. 160, 160–62; see also I.N.S.
         EAST BAY SANCTUARY COVENANT V. TRUMP                        43

v. Cardoza-Fonseca, 480 U.S. 421, 429, 436–37 (1987). To
streamline the United States’s refugee procedures and
implement the country’s new treaty commitments, Congress
passed the Refugee Act of 1980, which amended the INA
and created the country’s first codified rules governing
asylum. S. Rep. No. 96-256, at 1 (1979), as reprinted in
1980 U.S.C.C.A.N. 141, 141–42, 144; H.R. Doc. No. 96-
608, at 17–18 (1979); see also Negusie v. Holder, 555 U.S.
511, 535–36 (2009).

    As the United Nations High Commissioner of Refugees
(“UNHCR”) explains, 13 the Rule runs afoul of three of these
codified rules: the right to seek asylum, the prohibition
against penalties for irregular entry, and the principle of non-
refoulement embodied in Article 31(1) of the 1951
Convention. Neither the 1967 Protocol nor the 1951
Convention require countries to accept refugees, but they do
ensure that refugees at each signatory’s borders have legal
and political rights and protections. See Cong. Research
Serv. S522-10, Review of U.S. Refugee Resettlement
Programs and Policies 15–16 (1980).

    The definition of “refugee” used in the 1951 Convention
is “virtually identical” to the one adopted by Congress in the
INA. Cardoza-Fonseca, 480 U.S. at 437. Under both the

     13
        The arguments presented by the United Nations in its amicus brief
on how the 1951 Convention and 1967 Protocol should be construed are
not binding on this court. See Cardoza-Fonseca, 480 U.S. at 439 n.22.
But they do “provide[] significant guidance in construing the [1967]
Protocol, to which Congress sought to conform[,]” and are “useful in
giving content to the obligations that the Protocol establishes.” Id; see
also Miguel-Miguel v. Gonzales, 500 F.3d 941, 949 (9th Cir. 2007) (“We
view the UNHCR Handbook as persuasive authority in interpreting the
scope of refugee status under domestic asylum law.”) (internal quotation
marks and citation omitted).
44     EAST BAY SANCTUARY COVENANT V. TRUMP

INA and the 1951 Convention, refugees are all individuals
who—because of a “well-founded fear of being persecuted
for reasons of race, religion, nationality, membership in a
particular social group or political opinion”—are “unable,”
or, because of such fear, “unwilling to return” to their home
countries. See 8 U.S.C. § 1101(a)(42); 1951 Convention,
Art. 1(A)(2). Once individuals meet the statutory definition
of a “refugee,” they may be granted asylum under the INA.
See 8 U.S.C. § 1158(b)(1)(A).

    Both the INA and the 1951 Convention acknowledge
that individuals may be stripped of their refugee status even
when they meet the other eligibility criteria for asylum. The
refugee provisions of the 1951 Convention “shall not apply”
to “any person with respect to whom there are serious
reasons for considering” that such a person has committed a
crime against peace, a war crime, a crime against humanity,
a non-political crime outside of the country of refuge, prior
to their admission as a refugee, or has been “guilty of acts
contrary to the purposes and principles of the United
Nations.” 1951 Convention, Art. 1(F)(a)–(c). The statutory
bars for eligibility in the INA are similarly severe.
Individuals who are otherwise refugees may not apply for
asylum if the Attorney General determines that they
“ordered, incited, assisted, or otherwise participated” in the
persecution of another, based on a trait protected by the INA;
“constitute[] a danger to the community of the United
States”; committed a “serious nonpolitical crime” outside
the country; are a “danger to the security” of the country;
have engaged in terrorist activities; or were “firmly resettled
in another country prior to arriving in the United States.”
8 U.S.C. § 1158(b)(2)(A)(i)–(vi).

    The exceptions listed in the 1951 Convention “require
individualized assessments and ‘must be [interpreted]
       EAST BAY SANCTUARY COVENANT V. TRUMP                 45

restrictive[ly].” Br. for UNHCR as Amicus Curiae at 14 n.6
(quoting Office of the United Nations High Commissioner
for Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status ¶ 149 (Geneva, 1979)). So too
the categorical bars on eligibility in the INA are interpreted
with lenience toward migrants to avoid infringing on the
commitments set forth in the 1951 Convention and 1967
Protocol. See, e.g., Ali v. Ashcroft, 394 F.3d 780, 790 (9th
Cir. 2005) (A “narrow interpretation of the firm resettlement
bar would limit asylum to refugees from nations contiguous
to the United States or to those wealthy enough to afford to
fly here in search of refuge. The international obligation our
nation agreed to share when we enacted the Refugee
Convention into law knows no such limits.”); Cardoza-
Fonseca, 480 U.S. at 449.

    The asylum bars in the INA and in the 1951 Convention
appear to serve either the safety of those already in the
United States or, in the case of the firm-resettlement bar, the
safety of refugees. The Rule ensures neither. Even a broad
interpretation of these eligibility bars does not naturally
encompass a refugee’s method of entry. Illegal entry is not
ordinarily considered a “serious crime.”           See Pena-
Cabanillas v. United States, 394 F.2d 785, 788 (9th Cir.
1968) (stating that the statute criminalizing entry into the
United States “is not based on any common law crime, but
is a regulatory statute enacted to assist in the control of
unlawful immigration by aliens” and “is a typical mala
prohibita offense”). Nor does a migrant’s method of entry
per se create a danger to the United States, serve as a useful
proxy for terrorist activity, or suggest the persecution of
another.

    And the Rule surely does not suggest that the migrant has
received protection in a third country. Many migrants enter
46     EAST BAY SANCTUARY COVENANT V. TRUMP

between ports of entry out of necessity: they “cannot satisfy
regular exit and entry requirements and have no choice but
to cross into a safe country irregularly prior to making an
asylum claim.” Br. for UNHCR as Amicus Curiae at 15
(citing Memorandum by the Secretary-General, Ad Hoc
Comm. on Statelessness, Status of Refugees & Stateless
Persons, at Annex Art. 24, cmt. ¶ 2, U.N. Doc. E/AC.32/2
(Jan. 3, 1950); UNHCR Executive Committee Conclusion
No. 58 (XL) ¶ (i) (Oct. 13, 1989)). This was well recognized
when the Refugee Act of 1980 was drafted. See Pub. L. No.
96-212, § 208(a), 94 Stat. 102, 105 (1980). Prior to the
passage of the Act, migrants who arrived at a port of entry
were “given an opportunity to have their [asylum]
applications heard in a hearing before an immigration
judge,” but refugees arriving “at a land border of the United
States [we]re not given this right.” Refugee Act of 1979:
Hearing on H.R. 2816 before the Subcomm. on Immigration,
Refugees, and Int’l Law of the Comm. on the Judiciary, 96th
Cong. 190 (1979) (testimony of David Carliner, American
Civil Liberties Union). In its attempt to streamline the
country’s refugee and asylum laws, Congress was urged to
consider that “persons who seek any benefits under [the
INA] should be entitled to a uniform procedure.” Id.
Congress heeded this consideration during the drafting of the
Refugee Act, eventually describing it as “establish[ing] a
more uniform basis for the provision of assistance to
refugees, and [] other purposes.” Refugee Act of 1980, Pub.
L. No. 96-212, 94 Stat. 102 (1980). The Rule defies this
desire for uniformity and denies refuge to those crossing a
land border. The effects of the Rule contravene the United
States’s commitments in the 1951 Convention.

    Article 31(1) of the 1951 Convention also explains that
signatories “shall not impose penalties” on account of
refugees’ “illegal entry or presence,” 1951 Convention
         EAST BAY SANCTUARY COVENANT V. TRUMP                        47

Art 31(1).         Notwithstanding     the     government’s
interpretations otherwise, “deportation is an integral part—
indeed, sometimes the most important part—of the penalty
that may be imposed” on migrants who are found guilty of
specified crimes, or for other reasons are barred from
seeking asylum. 14 See Padilla v. Kentucky, 559 U.S. 356,
364 (2010) (footnote omitted). The Rule imposes an
additional penalty on refugees because of their “illegal
entry” by risking the deportation of migrants who enter the
country at a land border. 1951 Convention Art. 31(1).

     And by categorically denying refugees an opportunity to
seek asylum only because of their method of entry, the Rule
is also in tension with the United States’s commitment to
avoid refouling individuals to countries where their lives are
threatened. Article 31(1) of the 1951 Convention prohibits
signatories from “expel[ling] or return[ing] (‘refouler’) a
refugee in any manner whatsoever to the frontiers of
territories where his life or freedom would be threatened[.]”
The INA’s withholding-of-removal, 8 U.S.C. § 1231(b)(1),
and Convention Against Torture (“CAT”) protections,
8 C.F.R. § 1208.16–18, are not as great as those conferred
by the INA’s asylum provisions. The evidentiary standard
that applicants must meet for either withholding-of-removal
or CAT relief is higher than the evidentiary standard for
asylum. See, e.g., Ling Huang v. Holder, 744 F.3d 1149,
1152 (9th Cir. 2014). Applicants for withholding-of-
removal and CAT relief must establish a “clear probability”
that they would be persecuted or tortured, respectively, if
they were removed to their home countries. See Korablina
v. I.N.S., 158 F.3d 1038, 1045–46 (9th Cir. 1998); Wakkary

    14
        The UNHCR’s view is that “penalties” in Article 31(1)
“encompasses civil or administrative penalties as well as criminal ones.”
Br. for UNHCR as Amicus Curiae at 20.
48     EAST BAY SANCTUARY COVENANT V. TRUMP

v. Holder, 558 F.3d 1049, 1053 (9th Cir. 2009). A “clear
probability” of persecution or torture means that it is “more
likely than not” that applicants will be persecuted upon their
removal. I.N.S. v. Stevic, 467 U.S. 407, 424, 429–30 (1984).

    Applicants for asylum instead must demonstrate only
that they are “unable or unwilling” to return to their home
countries “because of persecution or a well-founded fear of
persecution[.]” 8 U.S.C. § 1101(a)(42)(A). “One can
certainly have a well-founded fear of an event happening
when there is less than a 50% chance of the occurrence
taking place”; it would only be “too apparent,” for example,
for a refugee to have a “well-founded fear of being
persecuted” where “every tenth adult male person is either
put to death or sent to some remote labor camp” in the
applicant’s home country. Cardoza-Fonseca, 480 U.S.
at 431 (citing 1 A. Grahl-Madsen, The Status of Refugees in
International Law 180 (1966)). The Rule, then, risks the
removal of individuals with meritorious asylum claims who
cannot petition for withholding of removal or CAT relief.
By doing so, it is inconsistent with our treaty commitment to
non-refoulement.

    The Rule is “arbitrary, capricious, or manifestly contrary
to the statute,” Chevron, 467 U.S. at 844, both because it is
contrary to plain congressional intent, and because it is an
arbitrary and capricious interpretation of section 1158(a).
Even if we agreed that the text of section 1158(a) is
ambiguous, the Rule flouts this court’s and the BIA’s
discretionary, individualized treatment of refugees’ methods
of entry, and infringes upon treaty commitments we have
stood by for over fifty years.
         EAST BAY SANCTUARY COVENANT V. TRUMP                          49

                                    2.

    Because we conclude that the Rule is substantively
invalid, we only briefly address the procedural arguments
raised by the parties. The APA requires public notice and
comment and a thirty-day grace period before a proposed
rule takes effect. 5 U.S.C. § 553(b)–(d). The notice-and-
comment requirements are exempted when “there is
involved a military or foreign affairs function of the United
States[,]” id. § 553(a), or when “the agency for good cause
finds . . . that notice and public procedure thereon are
impracticable, unnecessary or contrary to the public
interest.” Id. § 553(b)(B). The thirty-day lag in publication
can be waived where “good cause [is] found.” 15 Id.
§ 553(d)(3).

   The Rule was issued without notice and comment or the
grace period. The government argues that the Rule was
properly issued because it falls under either the good-cause
or the foreign-affairs exceptions to these procedural
requirements.

                                    a.

    Proper invocation of the good-cause exception is
“sensitive to the totality of the factors at play.” United States
v. Valverde, 628 F.3d 1159, 1164 (9th Cir. 2010). The

    15
        “Different policies” underlie the good-cause exception for the
thirty-day grace period and the good-cause exception for the notice-and-
comment requirement, and “they can be invoked for different reasons.”
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992).
Notice-and-comment requirements are intended to ensure public
participation in rulemaking, and the thirty-day waiting period is
“intended to give affected parties time to adjust their behavior before the
final rule takes effect.” Id.
50     EAST BAY SANCTUARY COVENANT V. TRUMP

exception is a “high bar” because it is “essentially an
emergency procedure.” Id. at 1164, 1165. The government
must make a sufficient showing that “‘delay would do real
harm’ to life, property, or public safety,” EBSC II, 932 F.3d
at 777 (quoting Valverde, 628 F.3d at 1164–65), or that
“some exigency” interferes with its ability to carry out its
mission. Nat. Res. Def. Council, Inc. v. Evans, 316 F.3d 904,
911 (9th Cir. 2003).

    In support of its reliance on the exception, the
government now cites a Washington Post article indicating
that when the United States stopped its policy of separating
migrant parents from their children, smugglers told asylum-
seekers that “the Americans do not jail parents who bring
children—and to hurry up before they might start doing so
again.” See Nick Miroff and Carolyn Van Houten, The
Border is Tougher to Cross Than Ever. But There’s Still One
Way into America, Wash. Post (Oct. 24, 2018). The district
court concluded that the article “at least supports the
inference” that the Rule might result in similar changes in
immigration policy, and held that the government had
“identified a ‘rational connection between the facts found
and the choice made’ to promulgate the interim Rule on an
emergency basis.” EBSC III, 354 F. Supp. 3d at 1115
(quoting Valverde, 628 F.3d at 1168).

    A citation to this single article is not sufficient to
demonstrate that the delay caused by notice-and-comment or
the grace period might do harm to life, property, or public
safety. See EBSC II, 932 F.3d at 777. The government’s
reasoning continues to be largely speculative, see id. at 778;
no evidence has been offered to suggest that any of its
predictions are rationally likely to be true. The article does
not directly relate to the Rule, the consequences of the Rule,
or anything related to asylum eligibility.
       EAST BAY SANCTUARY COVENANT V. TRUMP                 51

    Even if it did, that “the very announcement of [the]
proposed rule itself can be expected to precipitate activity by
affected parties that would harm the public welfare,” Reply
Br. of Gov’t at 21, is likely often, or even always true. The
lag period before any regulation, statute, or proposed piece
of legislation allows parties to change their behavior in
response. If we were to agree with the government’s
assertion that notice-and-comment procedures increase the
potential harm the Rule is intended to regulate, these
procedures would often cede to the good-cause exception.
Because the government has failed to demonstrate the
existence of an exigency justifying good cause, we hold that
the Rule likely does not properly fall under the good cause
exception.

                              b.

    For the foreign affairs exception to apply, “the public
rulemaking provisions should provoke definitely
undesirable international consequences.”          Yassini v.
Crosland, 618 F.2d 1356, 1360 n.4 (9th Cir. 1980).
Otherwise, the exception “would become distended if
applied to INS actions generally, even though immigration
matters typically implicate foreign affairs.” Id. Use of the
exception is generally permissible where the international
consequences of the rule-making requirements are obvious
or thoroughly explained. We have rejected its use where the
government has failed to substantiate its reliance on the
exception or explain the detrimental effects of compliance
with the APA’s requirements. See EBSC II, 932 F.3d at 776–
77.

    The government cites to four documents in support of its
renewed argument that the foreign-affairs exception is
justified: a Memorandum of Understanding (“MOU”)
between DHS and the Mexican government, the Washington
52     EAST BAY SANCTUARY COVENANT V. TRUMP

Post article, credible-fear origin data published by the
Executive Office of Immigration Review (“EOIR”), and a
speech by President Trump. The four documents appear to
demonstrate that the Rule and Proclamation are related to
ongoing changes in the national immigration landscape, but
still fail to establish that adhering to notice and comment and
a thirty-day grace period will “provoke definitely
undesirable international consequences.” Yassini, 618 F.3d
at 1360 n.4.

    We agree with the government that the cited MOU does
broadly “show[] that [immigration] negotiations have
happened in the past,” Op. Br. of Gov’t at 49, but this is
insufficient to demonstrate that notice and comment will
provoke undesirable international consequences. Indeed,
the MOU’s substance seems to undermine the “broader
diplomatic program involving sensitive and ongoing
negotiations with Mexico.” Op. Br. of Gov’t at 47 (internal
quotations omitted). Article 3 of the MOU states that
“[l]ocal repatriation agreements should conform to mutually
established criteria and principles for the repatriation of
Mexican nationals being repatriated from the United States
to Mexico.” The unilateral repatriation of Mexican nationals
set forth by the Rule—without requesting public
participation—undermines these terms.

    The cited Washington Post page discusses an increase in
the proportion of families that seek asylum and the EOIR
data lists the country of origin of credible-fear cases and
summarizes the number of people that attempt to enter the
United States with an asylum application, the number of
cases completed in 2018, and the outcome of credible fear
cases. It is unclear how these data “reflect[] motivations for
crossing the border illegally,” Op. Br. of Gov’t at 49, and
even less clear how they demonstrate the consequences of
       EAST BAY SANCTUARY COVENANT V. TRUMP                53

requesting public notice-and-comment on foreign policy.
And the speech by President Trump, as the district court
noted, discusses the domestic consequences of foreign
immigration, not the foreign policy consequences of
immigration into the United States. See EBSC III, 354 F.
Supp. 3d at 1114. The speech—like the MOU, the article,
and the EOIR data—does not suggest that the APA’s
rulemaking provisions might trigger or even shape
immediate consequences in foreign affairs.

    The evidence relied on by the government here is largely
the same as the evidence previously before the motions panel
and the district court. While we remain “sensitive to the fact
that the President has access to information not available to
the public, and . . . [are] cautious about demanding
confidential information,” the connection between
negotiations with Mexico and the immediate
implementation of the Rule is still “not apparent.” EBSC II,
932 F.3d at 776. Broadly citing to the Rule’s immigration
context is insufficient to invoke the foreign-affairs
exception. See Yassini, 618 F.2d at 1360 n.4. The
government has not made a “sufficient showing” that “the
public rulemaking provisions should provoke definitely
undesirable international consequences.” Id.; see also
Evans, 316 F.3d at 912.

   In sum, we agree with the motions panel that the
government has not established that DOJ and DHS properly
invoked the foreign-affairs exception to the notice-and-
comment requirement and thirty-day grace period.

                             B.

    We next consider whether the Organizations have
established that, in the absence of a preliminary injunction,
they are likely to suffer irreparable harm. See Arizona
54     EAST BAY SANCTUARY COVENANT V. TRUMP

Dream Act Coalition v. Brewer, 757 F.3d 1053, 1068 (9th
Cir. 2014). Irreparable harm is “harm for which there is no
adequate legal remedy, such as an award for damages.” Id.
For this reason, economic harm is not generally considered
irreparable. But where parties cannot typically recover
monetary damages flowing from their injury—as is often the
case in APA cases—economic harm can be considered
irreparable. See California v. Azar, 911 F.3d 558, 581 (9th
Cir. 2018). Intangible injuries may also qualify as
irreparable harm, because such injuries “generally lack an
adequate legal remedy.” Brewer, 757 F.3d at 1068.

    We agree with the district court that the Organizations
have established that they will suffer a significant change in
their programs and a concomitant loss of funding absent a
preliminary injunction enjoining enforcement of the Rule.
EBSC II, 932 F.3d at 767. Both constitute irreparable
injuries: the first is an intangible injury, and the second is
economic harm for which the Organizations have no vehicle
for recovery.

    The Rule has already prompted the Organizations to
change their core missions. Since the Rule issued, ILL has
placed programmatic expansions on hold and has “had to
lessen its caseload[.]” Supp. Decl. of Stephen W. Manning
at ¶ 14. CARECEN notes that it will “divert significant
resources,” including “staff time and organizational
resources” to respond to the Rule. Decl. of Daniel Sharp at
¶¶ 11–13. EBSC has had to “divert resources away from its
core programs to address the new policy.” Decl. of Michael
Smith at ¶ 15. And, as discussed in Part III, supra, the
Organizations each stand to lose funding because of their
core changes in mission.

   Importantly, the Organizations also filed suit the same
day that the Rule and the first proclamation issued; while not
       EAST BAY SANCTUARY COVENANT V. TRUMP                55

dispositive, this suggests urgency and impending irreparable
harm. See Oakland Tribune, Inc. v. Chronicle Pub. Co., Inc.,
762 F.2d 1374, 1377 (9th Cir. 1985). We agree with the
district court that the Organizations have demonstrated a
sufficient likelihood of irreparable injury to warrant
injunctive relief. EBSC III, 354 F. Supp. 3d at 1116.

                             C.

   The government next argues that the harms it will suffer
because of the preliminary injunction—namely, the harm
caused by the injunction “undermin[ing] the Executive
Branch’s constitutional and statutory authority to secure the
Nation’s borders,” and the “entry of illegal aliens”—
outweigh the benefit to the public and the Organizations
conferred by the injunction. Op. Br. of Gov’t at 51–52.
Relevant equitable factors include the value of complying
with the APA, the public interest in preventing the deaths
and wrongful removal of asylum-seekers, preserving
congressional intent, and promoting the efficient
administration of our immigration laws at the border.

    First, “[t]he public interest is served by compliance with
the APA.” Azar, 911 F.3d at 581. Indeed, it “does not matter
that notice and comment could have changed the substantive
result; the public interest is served from the proper process
itself.” Id. at 581–82. The Organizations and various Amici
informed the district court that they would have submitted
comments explaining why the Rule disrupts their
organizational missions and fails to meet its intended
purpose, had they had the opportunity. The APA’s
requirements reflect “a judgment by Congress that the public
interest is served by a careful and open review of proposed
administrative rules and regulations.” Alcaraz v. Block,
746 F.2d 593, 610 (9th Cir. 1984) (citing Phil. Citizens in
Action v. Schweiker, 669 F.2d 877, 881 (9th Cir. 1982)). The
56     EAST BAY SANCTUARY COVENANT V. TRUMP

government’s failure to comply with the APA—particularly
given the strength of the Organizations’ procedural attack on
the Rule—weighs in favor of granting injunctive relief.

    Second, the public has an interest in “ensuring that we
do not deliver aliens into the hands of their persecutors,”
Leiva-Perez, 640 F.3d at 971, and “preventing aliens from
being wrongfully removed, particularly to countries where
they are likely to face substantial harm,” Nken, 556 U.S. at
436. The Rule will likely result in some migrants being
wrongfully denied refugee status in this country. For
migrants affected by the Rule, withholding of removal and
CAT protection are the only forms of relief available. As
discussed, these forms of relief demand a higher burden of
proof than an asylum claim. At the initial screening
interview with an asylum officer, an applicant seeking
asylum need only present a “credible fear” of persecution,
while an applicant seeking withholding of removal of CAT
protection must demonstrate the higher “reasonable fear” of
persecution or torture.

    The government’s opening brief notes that 17 percent of
the 34,158 migrants whose cases were completed in 2018
received asylum. See Op. Br. of Gov’t at 52. Assuming the
number of migrants remains constant, if even just 25 percent
of asylum-seekers with meritorious claims are denied
asylum because of their method of entry, over 1,000 people
will either be returned to home countries where they face
“persecution based on ‘race, religion, nationality,
membership in a political social group, or political
opinion,’” EBSC III, 354 F. Supp. 3d at 1117 n.15 (quoting
8 U.S.C. §§ 1101(a)(42), 1158(b)(1)), or forced to proceed
on limited-relief claims that demand more stringent
showings. If the rate of migration and the rate of migrants
claiming fear during the expedited removal process
       EAST BAY SANCTUARY COVENANT V. TRUMP                  57

continues to increase, see 84 Fed. Reg. at 21,229, the scale
of this wrongful removal will only worsen.

    Third, the public has an interest in ensuring that the
“statutes enacted by [their] representatives are not imperiled
by executive fiat.” EBSC II, 932 F.3d at 779 (internal
quotation marks omitted). The INA, and the United States’s
signatory status to the 1951 Convention, “reflect the balance
Congress struck between the public interests in rendering
aliens who enter illegally inadmissible and subject to
criminal and civil penalties, and . . . preserving their ability
to seek asylum.” EBSC III, 354 F. Supp. 3d at 1117–18
(citations omitted). The Rule and Proclamation disrupt that
balance by overriding plain congressional intent.

    Finally, the government and the public have an interest
in the “efficient administration of the immigration laws at
the border.” EBSC II, 932 F.3d at 779 (internal quotation
marks omitted). This interest is “weighty.” Landon v.
Plasencia, 459 U.S. 21, 34 (1982). “[C]ontrol over matters
of immigration is a sovereign prerogative, largely within the
control of the executive and the legislature.” Id. The
government has a compelling interest in ensuring that
injunctions—such as the one granted here—do not
undermine separation of powers by blocking the Executive’s
lawful ability to regulate immigration and rely on its
rulemaking to aid diplomacy.

    The role of the judiciary in reviewing such policies is
narrow. It is merely to ensure that executive procedures do
not violate principles of due process or “displace
congressional choices of policy.” Id. at 35. This executive
deference, then, is closely linked with our determination on
the substantive validity of the Rule. Essentially, the weight
we ascribe to this factor depends on the extent to which we
agree that the Rule overrides plain congressional intent.
58     EAST BAY SANCTUARY COVENANT V. TRUMP

Because the Organizations have established that the Rule is
invalid, we do not place much weight on this factor. As the
motions panel noted: “[t]here surely are enforcement
measures that the President and the Attorney General can
take to ameliorate the [immigration] crisis, but continued
inaction by Congress is not a sufficient basis under our
Constitution for the Executive to rewrite our immigration
laws.” EBSC II, 932 F.3d at 774.

    In sum, we agree with the district court that there is a
significant basis for concluding that the public interest
weighs “sharply” in the Organizations’ favor. See EBSC III,
354 F. Supp. 3d at 1111.

                              V.

    Finally, we turn to the remedy entered by the district
court: an injunction preventing enforcement of the Rule.
The injunction enjoins the part of the Rule that removes
asylum eligibility from migrants who fail to follow a
presidential proclamation. EBSC III, 354 F. Supp. 3d
at 1121. It does not enjoin the credible-fear amendments,
but “they have no independent effect,” so they are effectively
enjoined as well. Id. at 1121 n.22. We conclude that the
district court did not abuse its discretion in enjoining
enforcement of the Rule.

    Injunctive relief should be “no more burdensome to the
defendant than necessary to provide complete relief to the
plaintiffs before the court.” Univ. of Cal. v. U.S. Dep’t of
Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018) (internal
quotations omitted). “Where relief can be structured on an
individual basis, it must be narrowly tailored to remedy the
specific harm shown,” but there is “no general requirement
that an injunction affect only the parties in the suit.” Bresgal
v. Brock, 843 F.2d 1163, 1169–1170 (9th Cir. 1987). The
       EAST BAY SANCTUARY COVENANT V. TRUMP                 59

equitable relief granted by the district court is acceptable
where it is “necessary to give prevailing parties the relief to
which they are entitled.” Id. at 1170–71. District courts
have “considerable discretion” in crafting suitable equitable
relief; correspondingly, appellate review is “narrow.”
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970,
974 (9th Cir. 1991).

    As discussed, the harms caused to the Organizations as a
result of the Rule include a (1) loss of funding and
(2) disruption of organizational purpose.            Adequate
equitable relief must remedy both harms. Bresgal, 843 F.2d
at 1170–71. Both harms are due, in part, to the Rule’s likely
consequence of preventing asylum-seekers with meritorious
claims from entering the country along our southern border
and successfully obtaining asylum. The stymied flow of
refugees will result in less funding for the Organizations, and
a shift (sometimes wholesale) in their organizational
missions.

    The Organizations do not limit their potential clients to
refugees that enter the United States only at the California-
Mexico or Arizona-Mexico border; they represent “asylum
seekers” broadly. Unlike the plaintiffs in California v.
Azar—individual states seeking affirmance of an injunction
that applied past their borders—the Organizations here “do
not operate in a fashion that permits neat geographic
boundaries.” EBSC III, 354 F. Supp. 3d at 1120–21; see also
Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (The “scope
of injunctive relief is dictated by the extent of the violation
established, not by the geographical extent of the plaintiff
class.”). An injunction that, for example, limits the
application of the Rule to California, would not address the
harm that one of the Organizations suffers from losing
clients entering through the Texas-Mexico border. One
60     EAST BAY SANCTUARY COVENANT V. TRUMP

fewer asylum client, regardless of where the client entered
the United States, results in a frustration of purpose (by
preventing the organization from continuing to aid asylum
applicants who seek relief), and a loss of funding (by
decreasing the money it receives for completed cases).

    The government suggests that plaintiffs “identify actual
aliens in the United States who would otherwise be subject
to the Rule,” Op. Br. of Gov’t at 57, but this suggestion fails
to redress the scope of the Organizations’ harms. Part of the
harm the Organizations have alleged is the difficulty posed
by the Rule in helping them reach migrants who will cross
the border; their missions are not limited to helping
individuals currently present in the United States. Even if
their missions were so limited, asking the Organizations to
seek and list every person in the country they might help in
the coming months is infeasible and impracticable. The
“Government has not proposed a workable alternative form
of the [injunction] that accounts” for the harm at issue but
“nevertheless appl[ies] only within the [] borders” of the
Ninth Circuit. Washington v. Trump, 847 F.3d 1151, 1167
(9th Cir. 2017); see also EBSC II, 932 F.3d at 779; EBSC III,
354 F. Supp. 3d at 1121.

    Two other factors support the district court’s decision to
enjoin Defendants from taking any action to implement the
Rule. First, “[w]hen a reviewing court determines that
agency regulations are unlawful, the ordinary result is that
the rules are vacated—not that their application to the
individual petitioners is proscribed.” Univ. of Cal., 908 F.3d
at 511 (internal quotation marks omitted). Singular
equitable relief is “commonplace” in APA cases, and is often
“necessary to provide the plaintiffs” with “complete
redress.” Id. at 512. Our “typical response is to vacate the
rule and remand to the agency”; we “ordinarily do not
       EAST BAY SANCTUARY COVENANT V. TRUMP                 61

attempt, even with the assistance of agency counsel, to
fashion a valid regulation from the remnants of the old rule.”
Harmon v. Thornburgh, 878 F.2d 484, 494 (D.C. Cir. 1989).
Because of the broad equitable relief available in APA
challenges, a successful APA claim by a single individual
can affect an “entire” regulatory program. Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 890 n.2 (1990).

    Second, as the district court noted, there is an important
“need for uniformity in immigration policy.” Id. at 511; see
also EBSC III, 354 F. Supp. 3d at 1120–21. We previously
have recognized that the “Constitution requires a uniform
Rule of Naturalization; Congress has instructed that the
immigration laws of the United States should be enforced
vigorously and uniformly; and the Supreme Court has
described immigration policy as a comprehensive and
unified system.” Univ. of Cal., 908 F.3d at 511 (quoting
United States v. Texas, 809 F.3d 134, 187–88 (5th Cir. 2014)
(emphases in original)). The INA itself “was designed to
implement a uniform federal policy, and the meaning of
concepts important to its application are not to be determined
according to the law of the forum, but rather require[] a
uniform federal definition.” Kahn v. I.N.S., 36 F.3d 1412,
1414 (9th Cir. 1994) (internal quotation marks omitted).
Different interpretations of executive policy across circuit or
state lines will needlessly complicate agency and individual
action in response to the United States’s changing
immigration requirements.          For these reasons, in
immigration cases, we “consistently recognize[] the
authority of district courts to enjoin unlawful policies on a
universal basis.” EBSC II, 932 F.3d at 779 (citing Univ. of
Cal., 908 F.3d at 511).

    The government again “raises no grounds on which to
distinguish this case from our uncontroverted line of
62      EAST BAY SANCTUARY COVENANT V. TRUMP

precedent.” Id. Given the context of this case and the harm
the district court sought to address, we find no error or abuse
of discretion in the terms or scope of the preliminary
injunction.

                               VI.

   For the reasons discussed, the district court’s orders
granting preliminary injunctions are AFFIRMED.



FERNANDEZ, Circuit Judge, concurring in the result:

   I concur in the majority opinion because, and for the
most part only because, I believe that we are bound by the
published decision in East Bay Sanctuary Covenant v.
Trump (East Bay I), 932 F.3d 742 (9th Cir. 2018).

    More specifically, we are bound by both the law of the
circuit and the law of the case. Of course, the rules that
animate the former doctrine are not the same as those that
animate the latter. See Gonzalez v. Arizona, 677 F.3d 383,
389 n.4 (9th Cir. 2012) (en banc).

    As we have said: “Circuit law . . . binds all courts within
a particular circuit, including the court of appeals itself.
Thus, the first panel to consider an issue sets the law not only
for all the inferior courts in the circuit, but also future panels
of the court of appeals.” Hart v. Massanari, 266 F.3d 1155,
1171 (9th Cir. 2001). Moreover: “Once a panel resolves an
issue in a precedential opinion, the matter is deemed
resolved, unless overruled by the court itself sitting en banc,
or by the Supreme Court.” Id. (footnote omitted). Published
opinions are precedential. See id. at 1177; see also
Gonzalez, 667 F.3d at 389 n.4. That remains true, even if
           EAST BAY SANCTUARY COVENANT V. TRUMP                          63

some later panel is satisfied that “arguments have been
characterized differently or more persuasively by a new
litigant,” 1 or even if a later panel is convinced that the earlier
decision was “incorrectly decided” and “needs
reexamination.” 2 And those rules are not mere formalities
to be nodded to and avoided. Rather, “[i]nsofar as there may
be factual differences between the current case and the
earlier one, the court must determine whether those
differences are material to the application of the rule or allow
the precedent to be distinguished on a principled basis.”
Hart, 266 F.3d at 1172. In this case, there are no material
differences—in fact, the situation before this panel is in
every material way the same as that before the motions
panel. Furthermore, there is no doubt that motions panels
can publish their opinions, 3 even though they do not
generally do so. 4 Once published, there is no difference
between motions panel opinions and other opinions; all are
entitled to be considered with the same principles of
deference by ensuing panels. Thus, any hesitation about
whether they should be precedential must necessarily come
before the panel decides to publish, not after. As we held in
Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015):

           Lair contended at oral argument that a
           motions panel’s decision cannot bind a merits
           panel, and as a result we are not bound by the
           motions panel’s analysis in this case. Not so.

    1
        United States v. Ramos-Medina, 706 F.3d 932, 939 (9th Cir. 2013).
    2
        Naruto v. Slater, 888 F.3d 418, 425 n.7 (9th Cir. 2018).
    3
        See 9th Cir. Gen. Order 6.3(g)(3)(ii); see also id. at 6.4(b).
     4
       See Haggard v. Curry, 631 F.3d 931, 933 n.1 (9th Cir. 2010) (per
curiam).
64       EAST BAY SANCTUARY COVENANT V. TRUMP

         We have held that motions panels can issue
         published decisions. . . . [W]e are bound by
         a prior three-judge panel’s published
         opinions, and a motions panel’s published
         opinion binds future panels the same as does
         a merits panel’s published opinion.

Id. at 747 (citations omitted). 5 Therefore, the legal
determinations in East Bay I are the law of the circuit.

    We have explained the law of the case doctrine as “a
jurisprudential doctrine under which an appellate court does
not reconsider matters resolved on a prior appeal.” Jeffries
v. Wood, 114 F.3d 1484, 1488–89 (9th Cir. 1997) (en banc),
overruled on other grounds by Gonzalez, 677 F.3d at 389
n.4. While we do have discretion to decline application of
the doctrine, “[t]he prior decision should be followed unless:
(1) the decision is clearly erroneous and its enforcement
would work a manifest injustice, (2) intervening controlling
authority     makes      reconsideration    appropriate,    or
(3) substantially different evidence was adduced at a
subsequent trial.” Id. at 1489 (internal quotation marks and




     5
       The majority opines that in this respect Lair’s holding is dicta. Not
so. The court’s first basis for rejecting Lair’s contention was the basis
just quoted. Its second basis was then set forth. Id. It gave both of those
alternatives weight and attention. See Woods v. Interstate Realty Co.,
337 U.S. 535, 537, 69 S. Ct. 1235, 1237, 93 L. Ed. 1524 (1949) (holding
“where a decision rests on two or more grounds, none can be relegated
to the category of obiter dictum.”); see also United States v. Vidal-
Mendoza, 705 F.3d 1012, 1016 n.5 (9th Cir. 2013); Guadalupe-Cruz v.
INS, 240 F.3d 1209, 1211 & n.5 (9th Cir.), corrected, 250 F.3d 1271 (9th
Cir. 2001).
           EAST BAY SANCTUARY COVENANT V. TRUMP                         65

footnote omitted). 6 We have also indicated that, in general,
“our decisions at the preliminary injunction phase do not
constitute the law of the case,” 7 but that is principally
because the matter is at the preliminary injunction stage and
a further development of the factual record as the case
progresses to its conclusion may well require a change in the
result. 8 Even so, decisions “on pure issues of law . . . are
binding.” Ranchers Cattlemen, 499 F.3d at 1114. Of course,
the case at hand has not progressed beyond the preliminary
injunction stage. It is still at that stage, and the factual record
has not significantly changed between the record at the time
of the decision regarding the stay motion and the current
record. Therefore, as I see it, absent one of the listed
exceptions, which I do not perceive to be involved here, the
law of the case doctrine would also direct that we are bound
by much of the motions panel’s decision in East Bay I.

    Applying those doctrines:



    6
       The majority seems to add a fourth exception, that is, motions
panel decisions never constitute the law of the case. That would be
strange if those decisions can constitute the law of the circuit, which they
can. Moreover, the case primarily cited for that proposition did not
indicate it was dealing with a published motions panel decision or one
that set forth its reasoning. See United States v. Lopez-Armenta,
400 F.3d 1173, 1175 (9th Cir. 2005). It also dealt with the unique area
of jurisdiction. See id.
    7
      Ranchers Cattlemen Action Legal Fund United Stockgrowers of
Am. v. U.S. Dep’t of Agric., 499 F.3d 1108, 1114 (9th Cir. 2007); see
also Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1074, 1076 n.5 (9th Cir.
2015); Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1090 (9th
Cir. 2013).
    8
        See Ctr. for Biological Diversity, 706 F.3d at 1090.
66     EAST BAY SANCTUARY COVENANT V. TRUMP

   (1) The Organizations have standing.          East Bay I,
932 F.3d at 765–69.

    (2) The Organizations are likely to succeed on the
substantive merits. See id. at 770–74. As to procedural
validity regarding adoption of the regulation, the motions
panel decision that the foreign affairs exception to the notice
and comment procedures does not apply is binding. Id.
at 775–77. In addition, while the motions panel decision
regarding the good cause exceptions is not fully binding,
what it did determine was that the information then brought
to the attention of the panel and the district court did not
suffice. Id. at 777–78. In light of that, I agree with the
majority that merely adding the twenty-five-word sentence
from a Washington Post article was insufficient to justify
changing the motions panel result.

    (3) The decisions made by the motions panel regarding
harm to the Organizations and balance of hardships are also
binding decisions regarding the propriety of the preliminary
injunction. Id. at 767, 778–79.

    (4) The scope of the injunction is not overly broad. Id.
at 779–80.

   Thus, I respectfully concur in the result of the majority
opinion.
