                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


EAST BAY SANCTUARY COVENANT;          Nos. 19-16487
AL OTRO LADO; INNOVATION LAW               19-16773
LAB; CENTRAL AMERICAN
RESOURCE CENTER,                         D.C. No.
              Plaintiffs-Appellees,   4:19-cv-04073-
                                            JST
                v.

WILLIAM P. BARR, Attorney               OPINION
General; UNITED STATES
DEPARTMENT OF JUSTICE; JAMES
MCHENRY, Director of the
Executive Office for Immigration
Review, in his official capacity;
EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW; CHAD WOLF,
Acting Secretary of Homeland
Security, in his official capacity;
U.S. DEPARTMENT OF HOMELAND
SECURITY; L. FRANCIS CISSNA,
Acting Director of the U.S.
Citizenship and Immigration
Services, in his official capacity;
MARK A. MORGAN, Senior Official
Performing the Duties of the
Commissioner of U.S. Customs and
Border Protection, in his official
capacity; UNITED STATES
CITIZENSHIP AND IMMIGRATION
2        EAST BAY SANCTUARY COVENANT V. BARR

SERVICES; U.S. CUSTOMS AND
BORDER PROTECTION; MATTHEW
ALBENCE, Acting Director of
Immigration and Customs
Enforcement, in his official capacity;
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

           Argued and Submitted December 2, 2019
                  San Francisco, California

                      Filed July 6, 2020

       Before: William A. Fletcher, Richard R. Clifton,
              and Eric D. Miller, Circuit Judges.

                Opinion by Judge W. Fletcher;
                Concurrence by Judge Clifton;
    Partial Concurrence and Partial Dissent by Judge Miller
         EAST BAY SANCTUARY COVENANT V. BARR                            3

                            SUMMARY*


            Immigration / Preliminary Injunction

    The panel affirmed the district court’s grant of a
preliminary injunction against enforcement, in the four states
on the United States-Mexico border, of a Department of
Justice and Department of Homeland Security joint interim
final rule, entitled “Asylum Eligibility and Procedural
Modifications” (the “Rule”), which—with limited
exceptions—categorically denies asylum to aliens arriving at
the border with Mexico unless they have first applied for, and
have been denied, asylum in Mexico or another country
through which they have traveled.

    Previously, a motions panel denied in part and granted in
part the government’s request for an emergency stay pending
appeal, staying the injunction only insofar as it applied to
states outside the Ninth Circuit. The district court later
reinstated its previous preliminary injunction, but the
Supreme Court stayed the injunction pending disposition of
the appeal in this court and disposition of the government’s
petition for a writ of certiorari, if such a writ is filed.

    The panel concluded that plaintiffs—nonprofit
organizations that represent asylum seekers—had established
Article III standing, explaining that the Rule requires a
diversion of resources from plaintiffs’ other initiatives, and
that three of the plaintiffs showed they would lose significant
funding due to the Rule.

    *
      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. BARR

    With respect to the likelihood of success on the merits,
the government justified the Rule by relying on 8 U.S.C.
§ 1158(b)(2)(C), which provides that the “Attorney General
may by regulation establish additional limitations and
conditions, consistent with this section, under which an alien
shall be ineligible for asylum.” Specifically, the government
argued that the Rule is consistent with § 1158(a)(2)(A), which
bars an alien who can be removed to a safe third country from
applying for asylum (“safe-third-country bar”), and 8 U.S.C.
§ 1158(b)(2)(A)(vi), which bars a grant of asylum to an alien
who was firmly resettled in another country prior to arriving
in the United States (“firm-resettlement bar”).

    The panel held that the Rule is unlawful under the
Administrative Procedures Act (“APA”) on the ground that
the Rule is not in accordance with law and is in excess of
statutory limitations because it is not consistent with 8 U.S.C.
§ 1158. The panel observed that the government had not
asked for deference under Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, 467 U.S. 837 (1984), to the agencies’
interpretation of § 1158. However, the panel held,
independently of Chevron, that the Rule is not consistent with
§ 1158. The panel also noted that it would come to the same
conclusion even if it were to apply Chevron because the Rule
is contrary to the unambiguous language of § 1158.

    The panel concluded that the Rule is not consistent with
§ 1158 because the Rule does virtually nothing to ensure that
a third country is a safe option. In so concluding, the panel
explained that: 1) the sole protection in the Rule is the
requirement that the country be a “signatory” to the 1951
Convention Relating to the Status of Refugees and the 1967
Protocol Relating to the Status of Refugees, neither of which
requires a signatory to submit to any meaningful procedures
        EAST BAY SANCTUARY COVENANT V. BARR                  5

to ensure its obligations are discharged; 2) the Rule lacks the
requirements of the safe-third-country bar that there be a
formal agreement between the United States and a third
country, and that there be a “full and fair” procedure for
applying for asylum in that country; and 3) that aliens subject
to the Rule cannot conceivably be regarded as firmly resettled
in Mexico, as they do not intend to settle in Mexico and have
not received an offer of resettlement, as required by the firm-
resettlement bar. Moreover, the panel explained that the Rule
would make superfluous the protection provided by the safe-
third-country and firm-resettlement bars.

     The panel also concluded that the Rule is arbitrary and
capricious because: 1) evidence in the record contradicted the
agencies’ conclusion that aliens have safe options in Mexico;
2) the agencies had not justified the Rule’s assumption that an
alien who has failed to apply for asylum in a third country is,
for that reason, not likely to have a meritorious asylum claim;
and 3) the agencies failed to adequately consider the effect of
the Rule on unaccompanied minors.

    Next, the panel agreed with the district court that
plaintiffs established a sufficient likelihood of irreparable
harm through diversion of resources and the non-speculative
loss of substantial funding from other sources. The panel also
held that the district court did not abuse its discretion in
weighing the balance of equities and the public interest.

    Finally, with respect to the scope of the injunction, the
panel concluded that the district court did not abuse its
discretion in entering an injunction covering the four states
along the Mexican border. First, the panel concluded that a
limited injunction would not offer complete relief from the
harms plaintiffs suffer from their inability to represent and
6       EAST BAY SANCTUARY COVENANT V. BARR

protect aliens seeking to enter the country through Texas or
New Mexico. Second, the panel explained that the APA
provides that a reviewing court shall hold unlawful and set
aside agency action not in accordance with the law; it does
not tell a circuit to set aside unlawful agency only within the
geographic boundaries of that circuit. Moreover, the panel
noted that cases implicating immigration policy have a
particularly strong claim for uniform, nationwide relief, and
that the government had failed to distinguish this case from
the court’s uncontroverted line of precedent.

    Concurring, Judge Clifton wrote that he concurred in the
court’s opinion except as to its discussion in part V.D of the
scope of the injunction. However, he concurred in the
conclusion reached in that section, but only because there did
not appear to be sufficient distinction between this case and
precedents. To the extent that the opinion in this case
expressed agreement with or affirmative support for the
reasoning behind the relevant portions of those opinions,
Judge Clifton did not join the opinion.

    Concurring in part and dissenting in part, Judge Miller
wrote that he agreed with the court that the rule is invalid, and
concurred in the court’s opinion except as to part V.C.1.a,
addressing the Attorney General’s statutory authority, and
part V.D, addressing the scope of the injunction. Judge
Miller wrote separately to elaborate on why, in his view, the
rule is arbitrary and capricious, and to explain why the
injunction should be limited to asylum seekers having a bona
fide client relationship with the plaintiff organizations. Judge
Miller also wrote that he would refrain from deciding whether
Chevron is subject to waiver or whether the Rule exceeds the
scope of the Attorney General’s statutory authority.
       EAST BAY SANCTUARY COVENANT V. BARR               7

                       COUNSEL

Scott G. Stewart (argued), Deputy Assistant Attorney
General; Erez Reuveni, Assistant Director; William C.
Peachey, Director; Joseph H. Hunt, Assistant Attorney
General; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Defendants-Appellants.

Lee Gelernt (argued), Omar C. Jadwat, and Anand
Balakrishnan, American Civil Liberties Union Foundation
Immigrants’ Rights Project, New York, New York; Katrina
Eiland, Cody Wofsy, Spencer Amdur, Julie Veroff, and
Morgan Russell, American Civil Liberties Union Foundation
Immigrants’ Rights Project, San Francisco, California;
Melissa Crow, Southern Poverty Law Center, Washington,
D.C.; Baher Azmy, Angelo Guisado, and Ghita Schwarz,
Center for Constitutional Rights, New York, New York;
Vasudha Talla and Angélica Salceda, American Civil
Liberties Union Foundation of Northern California Inc., San
Francisco, California; for Plaintiffs-Appellees.

Alan E. Schoenfeld and Tara E. Levens, Wilmer Cutler
Pickering Hale and Dorr LLP, New York, New York; Peter
S. Margulies, Roger Williams University School of Law,
Bristol, Rhode Island; Shoba Sivaprasad Wadhia, University
Park, Pennsylvania; for Amici Curiae Professors of
Immigration Law.

Christopher J. Hajec, Director of Litigation, Immigration
Reform Law Institute, Washington, D.C.; Lawrence J.
Joseph, Washington, D.C.; for Amicus Curiae Immigration
Reform Law Institute.
8      EAST BAY SANCTUARY COVENANT V. BARR

Xavier Becerra, Attorney General; Michael L. Newman,
Senior Assistant Attorney General; Susan Slager, Supervising
Deputy Attorney General; Marissa Malouff and Erandi
Zamora, Deputy Attorneys General; Attorney General’s
Office, Los Angeles, California; Maura Healey, Attorney
General; David C. Kravitz, Deputy Solicitor General; Abigail
B. Taylor, Chief, Civil Rights Division; Office of the
Attorney General, Boston, Massachusetts; Philip J. Weiser,
Attorney General, Colorado; William Tong, Attorney
General, Connecticut; Karl A. Racine, Attorney General,
District of Columbia; Kathleen Jennings, Attorney General,
Delaware; Clare E. Connors, Attorney General, Hawai‘i;
Kwame Raoul, Attorney General, Illinois; Aaron M. Frey,
Attorney General, Maine; Brian E. Frosh, Attorney General,
Maryland; Dana Nessel, Attorney General, Michigan; Keith
Ellison, Attorney General, Minnesota; Aaron D. Ford,
Attorney General, Nevada; Gurbir S. Grewal, Attorney
General, New Jersey; Hector Balderas, Attorney General,
New Mexico; Letitia James, Attorney General, New York;
Joshua H. Stein, Attorney General, North Carolina; Ellen F.
Rosenblum, Attorney General, Oregon; sJosh Shapiro,
Attorney General, Pennsylania; Peter F. Neronha, Attorney
General, Rhode Island; Thomas J. Donovan Jr., Attorney
General, Vermont; Mark R. Herring, Attorney General,
Virginia; Robert W. Ferguson, Attorney General,
Washington; for Amici Curiae States of California,
Massachusetts, Colorado, Connecticut, Delaware, Hawai‘i,
Illinois, Maine, Maryland, Michigan, Minnesota, Nevada,
New Jersey, New Mexico, New York, North Carolina,
Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and
Washington, and the District of Columbia.
        EAST BAY SANCTUARY COVENANT V. BARR                 9

Muhammad U. Faridi, Stephanie Teplin, and A. Robert
Quirk, Patterson Belknap Webb & Tyler LLP, New York,
New York, for Amicus Curiae National Citizenship and
Immigration Services Council 119.

Barbara J. Parker, City Attorney; Maria Bee, Erin Bernstein,
and Malia McPherson, Attorneys; Office of the City
Attorney, Oakland, California; Margaret L. Carter and Daniel
R. Suvor, O’Melveny & Myers LLP, Los Angeles, California;
Anne L. Morgan, City Attorney, Austin, Texas; Andre M.
Davis, City Solicitor, Law Department, Baltimore, Maryland;
Eugene L. O’Flaherty, Corporation Counsel, Boston,
Massachusetts; Mark A. Flessner, Corporation Counsel,
Chicago, Illinois; Leslie J. Girard, Acting County Counsel,
County of Monterey, Salinas, California; Marc P. Hansen,
County Attorney, County of Montgomery, Rockville,
Maryland; Georgia M. Pestana, Acting Corporation Counsel,
New York, New York; Lyndsey M. Olson, City Attorney, St.
Paul, Minnesota; Zach Klein, City Attorney, Columbus,
Ohio; Kimberly M. Foxx, States Attorney, County of Cook,
Chicago, Illinois; Christopher J. Caso, Interim City Attorney,
Dallas, Texas; Angela Wheeler, City Attorney, Flint,
Michigan; Dennis J. Herrera, City Attorney, San Francisco,
California; James R. Williams, County Counsel, County of
Santa Clara, San Jose, California; Erin K. McSherry, City
Attorney, Santa Fe, New Mexico; Peter S. Holmes, City
Attorney, Seattle, Washington; Eleanor M. Dilkes, City
Attorney, Iowa City, Iowa; Michael N. Feuer, City Attorney,
Los Angeles, California; Susan Segal, City Attorney,
Minneapolis, Minnesota; Francis X. Wright Jr., City Solicitor,
Somerville, Massachusetts; William Fosbre, City Attorney,
Tacoma, Washington; Michael Rankin, City Attorney,
Tucson, Arizona; for Amici Curiae 24 Counties and Cities.
10     EAST BAY SANCTUARY COVENANT V. BARR

Blaine Bookey, Anne Peterson, Karen Musalo, and Kate
Jastram, Center for Gender & Refugee Studies, U.C. Hastings
College of Law, San Francisco, California, for Amici Curiae
Non-Profit Organizations and Law School Clinics.

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

Harold Hongju Koh, Peter Gruber Rule of Law Clinic, New
Haven, Connecticut; Phillip Spector, Messing & Spector
LLP, Baltimore, Maryland; for Amici Curiae Former
National Security Officials.

Scott Shuchart, Kids in Need of Defense, Washington, D.C.;
Ilissa S. Samplin and Jennafer Tryck, Gibson Dunn &
Crutcher LLP, Los Angeles, California; Rachel S. Brass,
Gibson Dunn & Crutcher LLP, San Francisco, California; for
Amicus Curiae Kids in Need of Defense.
        EAST BAY SANCTUARY COVENANT V. BARR                11

                         OPINION

W. FLETCHER, Circuit Judge:

     On July 16, 2019, the Department of Justice and the
Department of Homeland Security published a joint interim
final Rule without notice and comment, entitled “Asylum
Eligibility and Procedural Modifications” (the “Rule”). With
limited exceptions, the Rule categorically denies asylum to
aliens arriving at our border with Mexico unless they have
first applied for, and have been denied, asylum in Mexico or
another country through which they have traveled. We
describe the Rule in detail below.

    Plaintiffs are nonprofit organizations that represent
asylum seekers. They brought suit in district court seeking an
injunction against enforcement of the Rule, contending that
the Rule is invalid on three grounds: first, the Rule is not
“consistent with” Section 208 of the Immigration and
Nationality Act, 8 U.S.C. § 1158; second, the Rule is
arbitrary and capricious; third, the Rule was adopted without
notice and comment. The district court found that plaintiffs
had a likelihood of success on all three grounds and entered
a preliminary injunction against enforcement of the Rule,
with effect in the four states on our border with Mexico.

    We hold that plaintiffs have shown a likelihood of success
on the first and second grounds. We do not reach the third
ground. We affirm.

                 I. Procedural Background

   The district court entered a published order on July 24,
2019, granting relief to plaintiffs. E. Bay Sanctuary
12      EAST BAY SANCTUARY COVENANT V. BARR

Covenant v. Barr, 385 F. Supp. 3d 922, 960 (N.D. Cal. 2019)
(“E. Bay I”). The government appealed and sought an
emergency stay pending appeal. A motions panel of our
court denied in part and granted in part the requested stay. E.
Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1028 (9th
Cir. 2019) (“E. Bay II”). The motions panel concluded that
the government had not made a “strong showing” that it was
likely to succeed on its contention that the Rule was properly
issued without notice and comment. Id. The panel did not
address the government’s other contentions on the merits. It
declined to stay the operation of the district court’s injunction
within the Ninth Circuit, but granted the stay “insofar as the
injunction applies outside the Ninth Circuit, because the
nationwide scope of the injunction is not supported by the
record as it stands.” Id. One member of the motions panel
would have denied the stay request in its entirety. Id. at 1031
(Tashima, J., concurring in part and dissenting in part).

    After the motions panel granted the stay with respect to
the geographical scope of the injunction, the district court
took additional evidence to expand the record. On September
9, 2019, the district court reinstated its previously entered
injunction. E. Bay Sanctuary Covenant v. Barr, 391 F. Supp.
3d 974, 985 (N.D. Cal. 2019) (“E. Bay III”). The government
again sought an emergency stay pending appeal. By the time
the government sought the second stay, the appeal had been
assigned to a merits panel. On September 10, the merits
panel issued a clerk order administratively staying the district
court’s injunction in order to allow consideration of the
government’s second stay request. On September 11, the
Supreme Court issued a one-paragraph order pretermitting
any decision by the merits panel on the second stay request.
Without addressing either the substantive merits or the scope
of the injunction, the Court stayed the district court’s order
        EAST BAY SANCTUARY COVENANT V. BARR                13

“in full pending disposition of the Government’s appeal in the
United States Court of Appeals for the Ninth Circuit and
disposition of the Government’s petition for a writ of
certiorari, if such writ is sought.” Barr v. E. Bay Sanctuary
Covenant, 140 S. Ct. 3 (2019). The merits panel heard
argument on the government’s appeal on December 2, 2019.

  II. Background of the Immigration and Nationality Act

    In 1967, the United Nations adopted the Protocol Relating
to the Status of Refugees, 606 U.N.T.S. 267, 19 U.S.T. 6223,
T.I.A.S. No. 6577 (“1967 Protocol”), which largely
incorporated the United Nation’s 1951 Convention Relating
to the Status of Refugees, 189 U.N.T.S. 137 (“1951
Convention”). The 1967 Protocol and the 1951 Convention
defined a “refugee” as someone who is “unable” or
“unwilling” to return to his or her country of origin due to a
“well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group
or political opinion.” See 1951 Convention, art. 1(A); 1967
Protocol, art. 1. In 1968, the United States acceded to the
1967 Protocol, and by extension, the incorporated 1951
Convention. See INS v. Cardoza-Fonseca, 480 U.S. 421,
436–37 (1987).

    A decade later, Congress passed the Refugee Act of 1980,
Pub. L. No. 96–212, 94 Stat. 102 (1980), amending the
Immigration and Nationality Act (“INA”). “As [the U.S.
Supreme Court] has twice recognized, one of Congress’
primary purposes in passing the Refugee Act was to
implement the principles agreed to in the [1967 Protocol] as
well as the [1951 Convention].” Negusie v. Holder, 555 U.S.
511, 520 (2009) (internal quotations and citations omitted);
see generally Deborah E. Anker & Michael H. Posner, The
14      EAST BAY SANCTUARY COVENANT V. BARR

Forty Year Crisis: A Legislative History of the Refugee Act of
1980, 19 San Diego L. Rev. 9, 46 (1981) (“Anker & Posner”);
Stephen H. Legomsky & Cristina M. Rodríguez, Immigration
and Refugee Law and Policy 883 (5th ed. 2009) (“Legomsky
& Rodríguez”).

    Among other reforms, the Refugee Act codified the 1967
Protocol’s definition of “refugee.” See Pub. L. No. 96–212,
§ 201(a), 94 Stat. 102, 102. In relevant part, the INA defines
refugees as persons outside of their own country who are
“unable or unwilling to return to . . . that country because of
persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42).

    The Refugee Act also codified procedures for determining
eligibility for asylum. It required the Attorney General to
create an “asylum procedure” under which any alien
“physically present in the United States or at a land border or
port of entry, irrespective of such alien’s status” could apply
for asylum. Pub. L. No. 96–212, § 208, 94 Stat. 102, 105; cf.
8 U.S.C. § 1158(a)(1) (modern equivalent). In explaining this
provision, the House Report emphasized that the Act’s
asylum procedure was designed to give full effect to our
treaty obligations:

       The Committee wishes to insure a fair and
       workable asylum policy which is consistent
       with this country’s tradition of welcoming the
       oppressed of other nations and with our
       obligations under international law . . . . The
       Committee intends to monitor closely the
       Attorney General’s implementation of the
        EAST BAY SANCTUARY COVENANT V. BARR                   15

        section so as to insure the rights of those it
        seeks to protect.

H.R. Rep. No. 96–608 (“H.R. Rep.”) at 17–18 (1979)
(emphasis added).

    Finally, the Refugee Act codified exceptions to eligibility
for asylum. As discussed in detail below, the codified
exceptions paralleled exceptions to removal relief contained
in the 1951 Convention. See H.R. Rep. at 18 (“The
exceptions [to withholding of removal] are those provided in
the [1951] Convention.”); Legomsky & Rodríguez at 1016.

 III. Asylum Under the Immigration and Nationality Act

    Refugees, as defined in 8 U.S.C. § 1101(a)(42)(A), are
eligible to apply for asylum. The burden of proof to show
refugee status falls on the applicant. “To establish that the
applicant is a refugee . . . , the applicant must establish that
race, religion, nationality, membership in a particular social
group, or political opinion was or will be at least one central
reason for persecuting the applicant.”               8 U.S.C.
§ 1158(b)(1)(B)(i).

       Subject to certain statutory exceptions, an alien “who is
physically present in the United States or who arrives in the
United States (whether or not at a designated port of arrival
. . . )” is eligible to apply for asylum. Id. § 1158(a)(1). Those
exceptions include: aliens who may be “removed” to a “safe
third country”; aliens who did not apply for asylum within
one year after arrival in the United States; and aliens who
previously applied for, and were denied, asylum. See id.
§ 1158(a)(2)(A)–(C). The safe-third-country provision and
16      EAST BAY SANCTUARY COVENANT V. BARR

the one-year filing deadline do not apply to unaccompanied
children. Id. § 1158(a)(2)(E).

    Again subject to certain statutory exceptions, the Attorney
General or the Secretary of Homeland Security may grant
asylum to refugees who are eligible to apply for asylum. Id.
§ 1158(b)(1). Those exceptions include aliens who have
persecuted others on account of a protected ground; aliens
who have been convicted of particularly dangerous crimes;
aliens for whom there are serious reasons to believe they have
committed serious nonpolitical crimes outside the United
States; aliens for whom there are reasonable grounds to
believe they are terrorists or a danger to the security of the
United States; and aliens who have “firmly resettled in
another country prior to arriving in the United States.” See
id. § 1158(b)(2)(A)(i)–(vi).

    Two of the exceptions—or asylum bars—are directly
relevant to the appeal before us. First, an alien subject to the
“safe third country” provision may not apply for asylum. Id.
§ 1158(a)(2)(A). Second, neither the Attorney General nor
the Secretary of Homeland Security may grant asylum to an
alien who was “firmly resettled” in another country prior to
arriving in the United States. Id. § 1158(b)(2)(A)(vi). We
describe these two asylum bars in turn.

                 A. Safe-Third-Country Bar

    In 1995, the Attorney General promulgated a regulation
allowing discretionary denials of asylum in certain
circumstances where asylum or its near equivalent was
available in a safe third country. 8 C.F.R. § 208.15 (1995).
A year later, in the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, § 604, Pub. L. No.
        EAST BAY SANCTUARY COVENANT V. BARR                 17

104–208, 110 Stat. 3009, 3009–690 (1996) (“IIRIRA”),
Congress codified, with some changes, the Attorney
General’s regulation. Section 1158(a)(2)(A), the safe-third-
country bar, provides:

       Paragraph [a](1) [authorizing refugees to
       apply for asylum] shall not apply to an alien if
       the Attorney General determines that the alien
       may be removed, pursuant to a bilateral or
       multilateral agreement, to a country . . . in
       which the alien’s life or freedom would not be
       threatened on account of race, religion,
       nationality, membership in a particular social
       group, or political opinion, and where the
       alien would have access to a full and fair
       procedure for determining a claim to asylum
       or equivalent temporary protection . . . .

(emphases added.)

    As indicated by the italicized language, there are two core
requirements that must be satisfied before the safe-third-
country bar applies. First, there must be an agreement
between the United States and another country to which the
alien would be removed and in which the alien would not be
subject to persecution. Second, the country with which the
United States has such an agreement must allow access to a
“full and fair” procedure for determining eligibility for
asylum or equivalent temporary protection.

   In 2002, the United States entered into a safe-third-
country agreement with Canada. See Agreement Between the
Government of the United States of America and the
Government of Canada for Cooperation in the Examination
18      EAST BAY SANCTUARY COVENANT V. BARR

of Refugee Status Claims from Nationals of Third Countries,
Can.–U.S., Dec. 5, 2002, T.I.A.S. No. 04-1229 (2004). When
the Rule was issued, the United States had entered into no
other safe-third-country agreement.

                 B. Firm-Resettlement Bar

    A firm-resettlement bar was first incorporated into United
States law in the Displaced Persons Act of 1948. See Pub. L.
No. 80–774, 62 Stat. 1009 (1948); Rosenberg v. Woo,
402 U.S. 49, 53–54 (1971). The bar was carried over into the
Refugee Relief Act of 1953. See Pub. L. No. 83–203, 67 Stat.
400 (1953). The firm resettlement language was dropped
from the Refugee Relief Act of 1957, see Pub. L. No. 85–316,
71 Stat. 639 (1957), but the concept of firm resettlement
remained in refugee admissions even without an explicit
statutory reference. See Rosenberg, 402 U.S. at 53–58. The
Refugee Act of 1980 again codified the firm-resettlement bar.
Pub. L. No. 96–212, § 207(c)(1), 94 Stat. 102, 103.

    In 1996, Congress included the firm-resettlement bar in
IIRIRA. The current statutory language provides:

       Paragraph [b](1) [authorizing discretionary
       grants of asylum] shall not apply to an alien if
       the Attorney General determines that—

           ...

           (vi) the alien was firmly resettled in
           another country prior to arriving in the
           United States.
      EAST BAY SANCTUARY COVENANT V. BARR                19

8 U.S.C. § 1158(b)(2)(A).       The current implementing
regulation provides:

          An alien is considered to be firmly
      resettled if, prior to arrival in the United
      States, he or she entered into another country
      with, or while in that country received, an
      offer of permanent resident status, citizenship,
      or some other type of permanent resettlement
      unless he or she establishes:

              (a) That his or her entry into that
          country was a necessary consequence of
          his or her flight from persecution, that he
          or she remained in that country only as
          long as was necessary to arrange onward
          travel, and that he or she did not establish
          significant ties in that country; or

              (b) That the conditions of his or her
          residence in that country were so
          substantially and consciously restricted by
          the authority of the country of refuge that
          he or she was not in fact resettled. In
          making his or her determination, the
          asylum officer or immigration judge shall
          consider the conditions under which other
          residents of the country live; the type of
          housing, whether permanent or temporary,
          made available to the refugee; the types
          and extent of employment available to the
          refugee; and the extent to which the
          refugee received permission to hold
          property and to enjoy other rights and
20      EAST BAY SANCTUARY COVENANT V. BARR

            privileges, such as travel documentation
            that includes a right of entry or reentry,
            education, public relief, or naturalization,
            ordinarily available to others resident in
            the country.

8 C.F.R. § 208.15.

     A determination whether the firm-resettlement bar applies
entails a two-step process. First, the government has the
“initial burden of showing that the government of the third
country issued to the alien a formal offer of some type of
official status permitting the alien to reside in that country
indefinitely.” Maharaj v. Gonzales, 450 F.3d 961, 976 (9th
Cir. 2006) (en banc). Second, if the government has carried
its initial burden, “the burden shifts to the applicant to show
that the nature of his stay and ties was too tenuous, or the
conditions of his residence too restricted, for him to be firmly
resettled.” Id. at 976–77. See also Arrey v. Barr, 916 F.3d
1149, 1159 (9th Cir. 2019) (reciting the two-step process
outlined in Maharaj).

                        IV. The Rule

    On July 16, 2019, the Departments of Justice and
Homeland Security jointly issued an interim final Rule
governing aliens who travel through a “third country” before
reaching the southern land border of the United States. See
Asylum Eligibility and Procedural Modifications, 84 Fed.
Reg. 33,829, 33,830 (July 16, 2019) (codified at 8 C.F.R.
§§ 208, 1003, 1208). The Rule provides:

        Notwithstanding the provisions of [8 C.F.R.]
        § 208.15 [the regulation implementing the
EAST BAY SANCTUARY COVENANT V. BARR                21

firm-resettlement bar], any alien who enters,
attempts to enter, or arrives in the United
States across the southern land border on or
after July 16, 2019 after transiting through at
least one country outside the alien’s country
of citizenship, nationality, or last lawful
habitual residence en route to the United
States, shall be found ineligible for asylum
unless:

    (i) The alien demonstrates that he or she
applied for protection from persecution or
torture in at least one country outside the
alien’s country of citizenship, nationality, or
last lawful habitual residence through which
the alien transited en route to the United
States, and the alien received a final judgment
denying the alien protection in such country;

    (ii) The alien demonstrates that he or she
satisfies the definition of “victim of a severe
form of trafficking in persons” provided in
8 CFR 214.11; or

    (iii) The only countries through which the
alien transited en route to the United States
were, at the time of the transit, not parties to
the 1951 United Nations Convention relating
to the Status of Refugees, the 1967 Protocol
Relating to the Status of Refugees, or the
United Nations Convention against Torture
22      EAST BAY SANCTUARY COVENANT V. BARR

       and Other Cruel, Inhuman or Degrading
       Treatment or Punishment.

8 C.F.R. § 208.13(c)(4); see also id. § 1208.13(c)(4).

    In effect, the Rule requires Guatemalan aliens reaching
our southern border to apply for, and then be finally denied,
asylum by Mexico before they are eligible to apply for
asylum in the United States. The same requirement applies
to aliens who arrived in Mexico from other countries by plane
or ship before traveling to our southern border. Aliens
traveling overland from El Salvador, Honduras, or other
countries south of Guatemala, must apply for and be finally
denied asylum by Mexico, Guatemala, or another country
through which they traveled.

    The Rule further provides that aliens ineligible for asylum
under § 208.13(c)(4) are automatically and conclusively
determined not to have a “credible fear” of persecution in
their home countries:

       If the alien is found to be an alien described as
       ineligible for asylum in § 208.13(c)(4), then
       the asylum officer shall enter a negative
       credible fear determination with respect to the
       alien’s application for asylum.

8 C.F.R. § 208.30(e)(5)(iii).

    The Rule applies only to aliens seeking asylum. It does
not apply to aliens seeking withholding of removal or relief
under the Convention Against Torture (“CAT”). The
standards for granting withholding or CAT relief are higher
than those governing a grant of asylum. See Ling Huang v.
        EAST BAY SANCTUARY COVENANT V. BARR                   23

Holder, 744 F.3d 1149, 1152 (9th Cir. 2014). Most
important, an applicant for withholding or CAT relief must
establish a “reasonable fear” of persecution or torture rather
than merely a “credible fear.”                See 8 C.F.R.
§§ 208.30(e)(5)(iii), 1208.16(c)(2). Further, relief under
withholding of removal and under CAT is less advantageous
than asylum relief. For example, “[u]nlike an application for
asylum, [] a grant of an alien’s application for withholding is
not a basis for adjustment to legal permanent resident status,
family members are not granted derivative status, and [the
relief] only prohibits removal of the petitioner to the country
of risk, but does not prohibit removal to a non-risk country.”
Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004) (citation
omitted and alteration in original).

                        V. Discussion

                   A. Standard of Review

    We review “the district court’s decision to grant or deny
a preliminary injunction for abuse of discretion.”
Hernandez v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017)
(internal quotation marks omitted). “The scope of the
preliminary injunction, such as its nationwide effect, is . . .
reviewed for abuse of discretion.” California v. Azar,
911 F.3d 558, 568 (9th Cir. 2018). We review legal
conclusions de novo and underlying factual findings for clear
error. Hernandez, 872 F.3d at 987.

                   B. Article III Standing

     The government challenged plaintiffs’ Article III standing
in the district court. In this court, it challenges their Article
III standing only in a footnote. We sometimes treat as waived
24      EAST BAY SANCTUARY COVENANT V. BARR

arguments that are made in such a perfunctory manner, see
Estate of Saunders v. Comm’r, 745 F.3d 953, 962 n.8 (9th
Cir. 2014), but we have an independent obligation to
determine our jurisdiction under Article III.

     An organization can assert Article III standing on behalf
of either its members or the organization itself. Havens
Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982). An
organization may establish standing on its own behalf by
showing that the defendant’s conduct resulted in “a diversion
of its resources and frustration of its mission,” Fair Hous. of
Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)
(discussing Havens Realty), or caused a substantial loss in
organizational funding, East Bay Sanctuary Covenant v.
Trump, 932 F.3d 742, 766–67 (9th Cir. 2018) (“Trump I”).
Of course, an organization cannot “manufacture the injury by
incurring litigation costs or simply choosing to spend money
fixing a problem that would not affect the organization at all.”
La Asociacion de Trabajadores de Lake Forest v. Lake
Forest, 624 F.3d 1083, 1088 (9th Cir. 2010). “It must instead
show that it would have suffered some other injury if it had
not diverted resources to counteracting the problem.” Id.

    Plaintiffs are nonprofit organizations that represent and
assist asylum seekers in the United States and in Mexico.
Plaintiffs argue that the Rule frustrates their mission of
providing legal aid to affirmative asylum applicants because
it renders “a large number” of potential applicants
categorically ineligible for asylum and thus “significantly
discourages” them from applying. Trump I, 932 F.3d at 766.
The district court found that plaintiffs “offered uncontradicted
evidence that enforcement of the Rule has required, and will
continue to require, a diversion of resources . . . from their
other initiatives.” E. Bay I, 385 F. Supp. 3d at 937. For
        EAST BAY SANCTUARY COVENANT V. BARR                    25

example, East Bay Sanctuary Covenant, which focuses on
filing affirmative asylum applications, would have to
“overhaul” its affirmative asylum practice into a removal
defense program, diverting resources to develop new
materials and train existing staff. Trump I, 932 F.3d at 766.
Because forms of relief from removal other than asylum do
not allow applicants to file derivative applications for family
members, plaintiffs must divert resources to filing a greater
number of applications for each family-unit client. Id. The
district court also found that three of the plaintiffs showed
that they would lose significant funding because a large
portion of their funding was tied to the number of asylum
applications pursued, and a significant majority of their
clients were now categorically ineligible for asylum. E. Bay
I, 385 F. Supp. 3d at 937; see also Trump I, 932 F.3d at 767.

    Plaintiffs’ injuries are not “manufacture[d] . . . injur[ies]”
addressing “a problem that would not affect the organization
at all.” Lake Forest, 624 F.3d at 1088. The injuries affect
plaintiffs’ core mission and their organizational funding, and
are sufficient to establish standing. We note that we recently
held that the same four plaintiffs, asserting the same harms
resulting from a different agency rule limiting asylum
eligibility, had standing to challenge that rule. See E. Bay
Sanctuary Covenant v. Trump, 950 F.3d 1242, 1265–68 (9th
Cir. 2020) (“Trump II”).

                  C. Preliminary Injunction

    On a motion for a preliminary injunction, plaintiffs must
make a “threshold showing” of four factors. Leiva-Perez v.
Holder, 640 F.3d 962, 966 (9th Cir. 2011) (per curiam).
Plaintiffs must show that (1) they are likely to succeed on the
merits, (2) they are likely to “suffer irreparable harm” without
26       EAST BAY SANCTUARY COVENANT V. BARR

relief, (3) the balance of equities tips in their favor, and (4) an
injunction is in the public interest. Am. Trucking Ass’ns,
Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.
2009) (quoting Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008)). “When the government is a party,
these last two factors merge.” Drakes Bay Oyster Co. v.
Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).

     We consider them in turn.

           1. Likelihood of Success on the Merits

    To show a likelihood of success on the merits, plaintiffs
must show that the Rule is likely to be held unlawful agency
action under the Administrative Procedure Act (“APA”). In
relevant part, the APA provides:

        The reviewing court shall—

            ...

            (2) hold unlawful and set aside agency
            action, findings, and conclusions found to
            be—

                  (A) arbitrary, capricious, an abuse of
                  discretion, or otherwise not in
                  accordance with law;

                  ...

                  (C) in excess of statutory jurisdiction,
                  authority, or limitations, or short of
                  statutory right; [or]
        EAST BAY SANCTUARY COVENANT V. BARR                27

               (D) without observance of procedure
               required by law[.]

5 U.S.C. § 706(2).

     Plaintiffs allege that the Rule is unlawful under the APA
on three grounds. First, under § 706(2)(A) and (C), the Rule
is “not in accordance with law” and is “in excess of statutory
. . . limitations” because it is not “consistent with” § 1158.
8 U.S.C. § 1158(b)(2)(C). Second, under § 706(2)(A), the
Rule is “arbitrary” and “capricious” because it “runs counter
to the evidence before the agency” and because the agencies
“entirely failed to consider an important aspect of the
problem.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“State
Farm”). Third, under § 706(2)(D), the Rule was adopted
“without observance of procedure required by law” because
it was adopted without notice and comment. The district
court agreed with plaintiffs on all three grounds. We affirm
on the first two. We do not reach the third.

           a. “Not in Accordance with Law” or
            “in Excess of Statutory Limitations”

    The Rule creates a bar to asylum, in addition to the
asylum bars that already exist in § 1158. To justify the
additional bar, the government relies on § 1158(b)(2)(C),
which provides that “[t]he Attorney General may by
regulation establish additional limitations and conditions,
consistent with this section, under which an alien shall be
ineligible for asylum under paragraph [b](1).” (emphasis
added).
28      EAST BAY SANCTUARY COVENANT V. BARR

    An agency action must be “set aside” if it is “not in
accordance with law,” or “in excess of statutory jurisdiction,
authority, or limitations.” 5 U.S.C. § 706(2)(A), (C). When
a plaintiff alleges a violation of a statute by a federal agency,
we generally apply Chevron to determine whether to defer to
the agency’s interpretation of the statute. See, e.g., Nw.
Envt’l Advocates v. EPA, 537 F.3d 1006, 1014 (9th Cir.
2008) (citing Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
467 U.S. 837 (1984)). In the case before us, however, the
government has not asked for deference under Chevron to the
agencies’ interpretation of § 1158. The government did not
mention Chevron in its briefs and specifically disclaimed
reliance on Chevron during oral argument. We hold,
independently of Chevron, that the Rule is not “consistent
with” § 1158. We note, however, that we would come to the
same conclusion even if we were to apply Chevron, for the
Rule is contrary to the unambiguous language of § 1158.

    The question before us is whether the Rule is “consistent
with” § 1158, as required by § 1158(b)(2)(C). For the
reasons that follow, we conclude that it is not, and the Rule is
therefore “not in accordance with law,” and is “in excess of
statutory . . . limitations.” 5 U.S.C. § 706(2)(A), (C).

    Asylum bars under § 1158 fall into two broad categories.
As relevant here, the first category covers aliens who may
otherwise be entitled to asylum but who pose a threat to
society—aliens who have persecuted others, aliens who have
been convicted of particularly serious crimes, aliens who may
have committed serious non-political crimes outside the
United States, and aliens who may be terrorists or a danger to
the security of the United States.            See 8 U.S.C.
§ 1158(b)(2)(A)(i)–(iv). The second category covers aliens
who do not need the protection of asylum in the United
        EAST BAY SANCTUARY COVENANT V. BARR                 29

States—aliens who may be removed to a safe third country,
and aliens who have firmly resettled in another country. See
id. § 1158(a)(2)(A) and (b)(2)(A)(vi).

    Section 1158 is rooted in the 1951 Convention, which
excludes from protection two broad categories of
aliens—those persons “considered not to be deserving of
international protection,” and those persons “not considered
to be in need of international protection.” U.N. High
Commissioner for Refugees (“UNHCR”) Handbook on
Procedures and Criteria for Determining Refugee Status
(Geneva, 1979) (“Handbook”), ch. 4, ¶¶ 144–63 (emphases
added); see Cardoza-Fonseca, 480 U.S. at 439 n.22 (noting
that Handbook provides “significant guidance” in interpreting
refugee law); Mohammed v. Gonzales, 400 F.3d 785, 798 (9th
Cir. 2005) (same). Specifically, the 1951 Convention
recognizes that a nation may justifiably exclude persons
convicted of certain crimes, such as a “serious non-political
crime” from entering its borders, 1951 Convention, art.
1(F)(b), and persons who have found full “rights and
obligations” in a third country, id., art. 1(E). See Hernandez-
Ortiz v. INS, 777 F.2d 509, 519 (9th Cir. 1985) (noting that
denial of asylum must be on grounds either “involving the
national interest or the welfare of the community, or . . .
relating to the existence of other means of ensuring the safety
and security of the alien.”), superseded on other grounds by
statute, see Parussimova v. Mukasey, 555 F.3d 734, 739–40
(9th Cir. 2009). Scholars have noted that the bars of § 1158
“rough[ly] parallel[]” the bars of the 1951 Convention.
Legomsky & Rodríguez at 1016; see also Deborah E. Anker,
Discretionary Asylum: A Protection Remedy for Refugees
Under the Refugee Act of 1980, 28 Va. J. Int’l L. 1, 50–51,
55–60 (1987).
30      EAST BAY SANCTUARY COVENANT V. BARR

    The government does not argue that aliens subject to the
Rule are similar to aliens barred because they are persecutors,
criminals, or a threat to national security. That is, it does not
argue that the Rule furthers the purpose and is therefore
“consistent with” § 1158(b)(2)(A)(i)–(iv). Rather, the
government argues that the Rule is “consistent with” the safe-
third-country and firm-resettlement bars. See 8 U.S.C.
§ 1158(a)(2)(A) and (b)(2)(A)(vi).

    The safe-third-country and firm-resettlement bars “limit
an alien’s ability to claim asylum in the United States when
other safe options are available.” Matter of B-R-, 26 I. & N.
Dec. 119, 122 (BIA 2013). These two asylum bars are
consistent with the “core regulatory purpose of asylum,”
which is “to protect [refugees] with nowhere else to turn,”
because “by definition” an applicant barred by a safe-place
provision has somewhere else to turn. Id.; Yang v. INS,
79 F.3d 932, 939 (9th Cir. 1996).

    A critical component of both bars is the requirement that
the alien’s “safe option” be genuinely safe. The safe-third-
country bar requires that the third country enter into a formal
agreement with the United States; that the alien will not be
persecuted on account of a protected ground in that country;
and that the alien will have access to a “full and fair” asylum
procedure in that country. 8 U.S.C. § 1158(a)(2)(A). “The
requirement of a pre-existing [safe-third-country] agreement
was an essential procedural safeguard agreed to among
members of Congress to prevent arbitrary denials of asylum.”
Understanding the 1996 Immigration Act § 2–6 (Juan P.
Osuna ed., 1997). The firm-resettlement bar requires the
government to make an individualized determination whether
an alien has truly been firmly resettled, or, if only an offer of
permanent resettlement has been made, an individualized
        EAST BAY SANCTUARY COVENANT V. BARR                  31

determination whether an alien has too tenuous a tie to the
country making the offer or is too restricted by that country’s
authorities. 8 C.F.R. § 208.15(a), (b); Arrey, 916 F.3d
at 1159. The safe-place requirements embedded in the safe-
third-country and firm-resettlement bars “ensure that if [the
United States] denies a refugee asylum, the refugee will not
be forced to return to a land where he would once again
become a victim of harm or persecution”—an outcome which
“would totally undermine the humanitarian policy underlying
the regulation.” Andriasian v. INS, 180 F.3d 1033, 1046–47
(9th Cir. 1999).

    In stark contrast to the safe-third-country and firm-
resettlement bars, “the Rule does virtually nothing to ensure
that a third country is a ‘safe option.’” E. Bay I, 385 F. Supp.
3d at 944. The sole protection provided by the Rule is its
requirement that the country through which the barred alien
has traveled be a “signatory” to the 1951 Convention and the
1967 Protocol. This requirement does not remotely resemble
the assurances of safety built into the two safe-place bars of
§ 1158. A country becomes a signatory to the Convention
and the Protocol merely by submitting an instrument of
accession to the U.N. Secretary General. It need not “submit
to any meaningful international procedure to ensure that its
obligations are in fact discharged.” See Declaration of
Deborah Anker, Harvard Law School, & James C. Hathaway,
University of Michigan Law School, ¶¶ 5, 7. Many of the
aliens subject to the Rule are now in Mexico. They have fled
from Guatemala, Honduras, and El Salvador. All four of
these countries are parties to the Convention and Protocol.
84 Fed. Reg. at 33,839.

    The Rule superficially resembles the safe-third-country
bar in that aliens subject to the Rule are in a third country,
32      EAST BAY SANCTUARY COVENANT V. BARR

and they must apply for asylum in that country (Mexico) or
must have previously applied for asylum in another third
country (Guatemala). Similarly, the safe-third-country bar
under § 1158(a)(2)(A) allows the United States to deny
asylum on the ground that the alien may be removed to and
apply for asylum in a safe third country. But entirely absent
from the Rule are the requirements under § 1158(a)(2)(A)
that there be a formal agreement between the United States
and the third country, and that there be a “full and fair”
procedure for applying for asylum in that country.

    The Rule does not even superficially resemble the firm-
resettlement bar. The firm-resettlement bar denies asylum to
aliens who have either truly resettled in a third country, or
have received an actual offer of firm resettlement in a country
where they have ties and will be provided appropriate status.
Aliens subject to the Rule cannot conceivably be regarded as
firmly resettled in Mexico. They do not intend to settle in
Mexico. They have been there only for the time necessary to
reach our border and apply for asylum. Nor have they
received an offer of resettlement. Even if they were to
receive such an offer, they have no ties to Mexico. The
Supreme Court has long recognized that the firm-resettlement
bar does not bar aliens who have merely traveled through
third countries, since “many refugees make their escape to
freedom from persecution in successive stages and come to
this country only after stops along the way.” Rosenberg,
402 U.S. at 57 n.6. The BIA has likewise understood that
denial of asylum cannot be predicated solely on an alien’s
transit through a third country. See Matter of Soleimani, 20 I.
& N. Dec. 99, 103 (BIA 1989); see also Matter of Pula, 19 I.
& N. Dec. 467, 473–74 (BIA 1987); E. Bay I, 385 F. Supp.
3d at 940.
        EAST BAY SANCTUARY COVENANT V. BARR                  33

    “A statute should be construed so that . . . no part will be
inoperative or superfluous, void or insignificant.” Hibbs v.
Winn, 542 U.S. 88, 101 (2004) (quoting 2A N. Singer,
Statutes and Statutory Construction § 46.06, at 181–86 (rev.
6th ed. 2000)). In enacting the two safe-place bars, Congress
specifically addressed the circumstances in which an alien
who has traveled through, or stayed in, a third country can be
deemed sufficiently safe in that country to warrant a denial of
asylum in the United States. The administration’s new Rule
would make entirely superfluous the protection provided by
the two safe-place bars in § 1158. Under the Rule, the
government need neither enter into a safe-third-country
agreement, nor show firm resettlement in Mexico, in order to
deny asylum. The government need only show that an alien
from Guatemala, Honduras, or El Salvador has arrived at our
southern border with Mexico.

   The government makes essentially two arguments in
favor of the Rule. Neither argument is convincing.

    First, the government argues that a holding that the Rule
is not “consistent with” § 1158 would require a “field-
preemptive” reading of § 1158, restricting the Attorney
General to limiting eligibility for asylum only as specifically
provided by its two safe-place provisions. The government
argues that such a “field-preemptive” reading is inconsistent
with the statute’s grant of authority to the Attorney General
in § 1158(b)(2)(C) to establish by regulation “additional
limitations and conditions, consistent with this section, under
which an alien shall be ineligible for asylum under paragraph
[b](1).”

   Contrary to the government’s argument, § 1158(b)(2)(C)
need not be read—and we do not read it—as preempting the
34      EAST BAY SANCTUARY COVENANT V. BARR

field, such that the government is entirely disabled from
promulgating regulations with “additional limitations and
conditions” under which an alien would be ineligible for
asylum. That is, we do not read the “consistent with”
language of § 1158(b)(2)(C) as limiting the Attorney
General’s authority to the literal terms of the two safe-place
statutory bars. But we do read the words “consistent with” as
limiting the scope of that authority. We put to one side as
irrelevant for present purposes the one-year time bar and
regulations that are directed to persecutors, criminals, and
threats to national security. For the rest, regulations imposing
additional limitations and conditions under § 1158(b)(2)(C)
must be consistent with the core principle of § 1158(a)(2)(A)
and (b)(2)(A)(vi)—that an otherwise qualified alien can be
denied asylum only if there is a “safe option” in another
country. If such a regulation ensures a genuinely safe option
in another country, that regulation would be “consistent with”
§ 1158. However, the challenged Rule does no such thing.

    Second, pointing to the Attorney General’s discretion to
deny asylum to eligible aliens, the government suggests that
the Attorney General has equivalent discretion to establish
criteria for asylum eligibility. The government writes in its
brief, “The asylum statute makes clear that asylum is always
a matter of executive ‘discretion’ and never a matter of
‘entitlement.’” 1 Gov’t Br. 26 (quoting Cardoza-Fonseca,
480 U.S. at 428 n.6 and citing 8 U.S.C. § 1158(b)(1)(A))
(emphasis added). The government writes in the next
sentence: “The asylum statute also makes clear that the
Executive may exercise its discretion through categorical
rules, not just through case-by-case adjudication.” Id.
(emphasis added).
        EAST BAY SANCTUARY COVENANT V. BARR                   35

    In juxtaposing these two sentences, the government
suggests that the Attorney General’s discretion to deny
asylum under § 1158(b)(1)(A) is equal in scope to his
discretion to prescribe criteria for eligibility for asylum. This
suggestion is based on a misunderstanding of the Attorney
General’s discretion to deny asylum under § 1158(b)(1)(A).
The Supreme Court in Cardoza-Fonseca noted that the
Attorney General has broad discretion to deny asylum under
§ 1158(b)(1)(A), but it made clear that this discretion may be
exercised only with respect to aliens who are eligible for
asylum: “[A]n alien who satisfies the applicable standard
under § [1158](a) does not have a right to remain in the
United States; he or she simply is eligible for asylum, if the
Attorney General, in his discretion, chooses to grant it.”
Cardoza-Fonseca, 480 U.S. at 443 (emphasis in original).
Discretion to deny asylum to eligible aliens, as in Cardoza-
Fonseca, is different from discretion to prescribe criteria for
asylum eligibility. Unlike the broad discretion to deny
asylum to aliens who are eligible for asylum, the discretion to
prescribe criteria for eligibility is constrained by
§ 1158(b)(2)(C), which allows the Attorney General to
“establish additional limitations and conditions . . . under
which an alien shall be ineligible for asylum” only so long as
those limitations and conditions are “consistent with” § 1158.

    If the Attorney General’s discretion to add limitations and
conditions for asylum eligibility were the same as his
discretion to deny asylum to eligible aliens, the “consistent
with” language in § 1158(b)(2)(C) would be superfluous.
Under the canons of construction, we should avoid an
interpretation of statutory language that would produce
superfluity. But even without resort to the canons, we can be
confident that the “consistent with” language is not, and was
not intended to be, superfluous. The legislative history of
36      EAST BAY SANCTUARY COVENANT V. BARR

IIRIRA emphasizes the importance Congress attached to the
constraints on the Attorney General’s discretion to prescribe
criteria for asylum eligibility. When enacting IIRIRA,
Congress went out of its way to insert the “consistent with”
language into § 1158(b)(2)(C), adding it to an earlier draft of
IIRIRA that had not contained that language. Compare H.R.
Rep. No. 104-469, at 80 (1996), with H.R. Rep. No. 104-828,
at 164 (1996) (Conf. Rep.).

                b. Arbitrary and Capricious

   “[T]he touchstone of ‘arbitrary and capricious’ review . . .
is ‘reasoned decisionmaking.’”           Altera Corp. &
Subsidiaries v. Comm’r of Internal Revenue, 926 F.3d 1061,
1080 (9th Cir. 2019) (quoting State Farm, 463 U.S. at 52).

    The Rule is arbitrary and capricious for three reasons.
First, evidence in the record contradicts the agencies’
conclusion that aliens barred by the Rule have safe options in
Mexico. Second, the agencies have not justified the Rule’s
assumption that an alien who has failed to apply for asylum
in a third country is, for that reason, not likely to have a
meritorious asylum claim. Finally, the agencies failed to
adequately consider the effect of the Rule on unaccompanied
minors.

                       i. Safe Option

    Consistent with the “core regulatory purpose” of asylum
to “protect [refugees] with nowhere else to turn,” Matter of B-
R-, 26 I. & N. Dec at 122, the Rule must ensure some degree
of safety for aliens barred from asylum. Quoting from the
agencies’ analysis of, and justification for, the Rule, the
government argues in its brief that “applicants covered by the
        EAST BAY SANCTUARY COVENANT V. BARR                37

bar do ‘have [an] alternative country where they can escape
persecution or torture.’” 1 Gov’t Br. 16 (quoting 84 Fed.
Reg. at 33,840); see also 84 Fed. Reg. at 33,840
(characterizing aliens subject to the Rule as “aliens without
a genuine need for asylum”). The government contends that
Mexico offers a “feasible alternative” to relief in the United
States. 1 Gov’t Br. 39–41. At oral argument, the government
stated that the Rule is “consistent with the aim and thrust of
those other two bars,” which “set out situations where
somebody has such a good circumstance or . . . place to live,
that they categorically do not need asylum from this country.”
The government writes further in its brief, “[A]s even the
district court’s review shows, Mexico has a robust refugee-
protection system, which is improving in conjunction with
guidance from international partners.” 1 Gov’t Br. 40. (citing
E. Bay I, 385 F. Supp. 3d at 952–54).

    The government misrepresents both the record and the
district court’s opinion.

    In the pages of its opinion cited by the government, the
district court described and analyzed the record:

           The statistics regarding the number of
       claims submitted in Mexico contradict the
       government’s suggestion that Mexico
       provides an adequate alternative. . . . [T]he
       administrative record fails to support the
       conclusion that asylum in Mexico is a
       “feasible alternative.”

           . . . [N]owhere in the Rule do the agencies
       find that Mexico “in compliance with the
       relevant international instruments governing
38   EAST BAY SANCTUARY COVENANT V. BARR

     consideration of refugee claims.” Nor does
     the government cite any finding in the Rule
     that Mexico’s “domestic law and procedures
     regarding such relief are robust and capable of
     handling claims made by Central American
     aliens in transit to the United States.” . . .
     With limited exceptions that are at best
     unresponsive to the question, the cited
     evidence consists simply of an unbroken
     succession of humanitarian organizations
     explaining why the government’s contention
     is ungrounded in reality.

          First, the government cites a report from
     the international organization, Médecins Sans
     Frontières, Forced to Flee Central America’s
     Northern Triangle: A Neglected Crisis (May
     2017). AR 286–317. The report found that,
     during transit through Mexico, “68.3 percent
     of people from the [Northern Triangle]
     reported that they were victims of violence,”
     and that “31.4 percent of women and
     17.2 percent of men had been sexually
     abused.” AR 296–97. . . .

         Second, an April 2019 factsheet from the
     United Nations High Commissioner for
     Refugees (“UNHCR”) lists “strong obstacles
     to accessing the asylum procedure” in
     Mexico[.] . . . AR 534. . . . The UNHCR
     also observed that . . . “[w]omen and girls in
     particular are at risk of sexual and gender-
     based violence. Id. . . .
EAST BAY SANCTUARY COVENANT V. BARR               39

     Third, the government cites to the
UNHCR’s July 2018 review of Mexico’s
refugee process. AR 638–57. The report
notes two positive developments in response
to a prior round of recommendations, AR 639,
but documents a host of additional
problems. . . . [T]he UNHCR highlighted
ongoing problems in the areas of (1) “[s]exual
and gender-based violence against migrants,
asylum-seekers, and refugees”;
(2) “[d]etention of migrants and asylum
seekers, particularly children and other
vulnerable persons”; and (3) “[a]ccess to
economic, social and cultural rights for
asylum-seekers and refugees.” AR 640–42.

    Fourth, the government relies on a
November 2018 factsheet from Human Rights
First, which asks: “Is Mexico Safe for
Refugees and Asylum Seekers?” AR 702.
Answering in the negative, the factsheet
explains that “many refugees face deadly
dangers in Mexico. For many, the country is
not at all safe.” Id. (emphasis in original).
Human Rights First notes that “refugees and
migrants face acute risks of kidnapping,
disappearance, sexual assault, trafficking, and
other grave harms in Mexico[.]” . . .

   Fifth, the government cites to a 2018
report from Amnesty International entitled
“Overlooked, Under-Protected: Mexico’s
Deadly Refoulement of Central Americans
Seeking Asylum.” AR 704–27. As its title
40   EAST BAY SANCTUARY COVENANT V. BARR

     suggests, the report concluded that “the
     Mexican government is routinely failing in its
     obligations under international law to protect
     those who are in need of international
     protection[.] . . .

         Sixth, the government points to a New
     York Times article, ‘They Were Abusing Us
     the Whole Way’: A Tough Path for Gay and
     Trans Migrants (July 11, 2018). AR 756–66.
     The article notes that “[t]rans women in
     particular encounter persistent abuse and
     harassment in Mexico at the hands of drug
     traffickers, rogue immigration agents and
     other migrants.” AR 758. . . .

         Additional portions of the administrative
     record not cited by the government bolster the
     already overwhelming evidence on this
     point. . . .

         In sum, the bulk of the administrative
     record consists of human rights organizations
     documenting in exhaustive detail the ways in
     which those seeking asylum in Mexico are
     (1) subject to violence and abuse from third
     parties and government officials, (2) denied
     their rights under Mexican and international
     law, and (3) wrongly returned to countries
     from which they fled persecution. Yet, even
     though this mountain of evidence points one
        EAST BAY SANCTUARY COVENANT V. BARR                41

       way, the agencies went the other—with no
       explanation.

E. Bay I, 385 F. Supp. 3d at 952–55 (emphases in original).

    An agency must “examine the relevant data and articulate
a satisfactory explanation for its action.” State Farm,
463 U.S. at 43. “Normally, an agency rule would be arbitrary
and capricious if the agency has relied on factors which
Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an
explanation for its decision that runs counter to the evidence
before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency
expertise.” Id. In promulgating the Rule, the agencies
“entirely failed to consider an important aspect of the
problem.” Id. Further, the agencies’ conclusion that aliens
barred by the Rule have a safe alternative in Mexico “runs
counter to the evidence before the agency.” Id.

      ii. Likely Merit of the Aliens’ Asylum Claims

    The government argues that the Rule relieves strain on an
overburdened asylum system by screening out meritless
asylum claims. In support of the Rule, the agencies wrote:

       By deterring meritless asylum claims and de-
       prioritizing the applications of individuals
       who could have sought protection in another
       country before reaching the United States, the
       Departments seek to ensure that those asylees
       who need relief most urgently are better able
       to obtain it.
42      EAST BAY SANCTUARY COVENANT V. BARR

           The interim rule would further this
       objective by restricting the claims of aliens
       who, while ostensibly fleeing persecution,
       chose not to seek protection at the earliest
       opportunity, . . . and instead wait for the more
       preferred destination of the United States,
       raises questions about the validity and
       urgency of the alien’s claim and may mean
       that the claim is less likely to be successful.

84 Fed. Reg. at 33,839. The Rule assumes, based solely on
the fact that an alien has not applied for asylum in Mexico or
Guatemala, that the alien’s asylum claim in the United States
is “less likely to be successful.” Based on that assumption,
the Rule categorically requires that an asylum officer “enter
a negative credible fear determination with respect to the
alien’s application for asylum.” 8 C.F.R. § 208.30(e)(5)(iii).
That is, the Rule categorically requires an asylum officer to
disbelieve aliens from Guatemala, Honduras, or El Salvador
who have not applied for asylum in Mexico or Guatemala and
who claim to have a fear that would justify a grant of asylum.
There is no evidence in the record to support the Rule’s
assumption that such aliens are not credible.

    We have held in a long line of cases that the failure to
apply for asylum in a country through which an alien has
traveled has no bearing on the validity of an alien’s claim for
asylum in the United States. For example, we wrote in
Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir. 1986),
that an asylum applicant’s “failure to apply for asylum in any
of the countries through which he passed or in which he
worked prior to his arrival in the United States does not
provide a valid basis for questioning the validity of his
persecution claims.” The fact that an alien might prefer to
        EAST BAY SANCTUARY COVENANT V. BARR                  43

seek asylum in the United States rather than Mexico or
Guatemala may be reflective of the relative desirability of
asylum in these countries, but it has no bearing on the validity
of the alien’s underlying asylum claim. See, e.g., Garcia-
Ramos v. INS, 775 F.2d 1370, 1374–75 (9th Cir. 1985) (“We
do not find it inconsistent with a claimed fear of persecution
that a refugee, after he flees his homeland, goes to the country
where he believes his opportunities will be best.”); see also
Dai v. Sessions, 884 F.3d 858, 873 (9th Cir. 2018); Li v.
Holder, 559 F.3d 1096, 1105 (9th Cir. 2009); Melkonian v.
Ashcroft, 320 F.3d 1061, 1068 (9th Cir. 2003).

    The government argued in the district court that an alien’s
failure to apply for asylum in a country through which the
alien had passed can be a legitimate—indeed the sole—factor
to be considered in determining whether the alien has a
credible fear of persecution and is thus eligible to apply for
asylum in the United States. The sole case relied upon by the
government to support this argument was Matter of Pula,
19 I. & N. Dec. 467 (BIA 1987). See E. Bay I, 385 F. Supp.
3d at 946–47. The agencies had similarly relied on Matter of
Pula in support of the Rule. See 84 Fed. Reg. at 33,839 n.8.
The district court pointed out that Matter of Pula has been
superseded by the firm-resettlement bar. See E. Bay I, 385 F.
Supp. 3d at 946. In its briefing to us, the government has not
relied on, or even cited, Matter of Pula.

    The government provides to us only a single record
citation in support of the Rule’s categorical assumption that
aliens subject to the Rule do not have a valid asylum claim if
they have not previously applied for asylum in either Mexico
or Guatemala. The citation is to a newspaper article reporting
that Central American migrants traveling through Mexico
stated that their ultimate destination was the United States.
44      EAST BAY SANCTUARY COVENANT V. BARR

The article does nothing to support the Rule’s assumption.
The article does not even remotely suggest that the aliens’
preference to apply for asylum in the United States rather
than Mexico had any bearing on whether they had a credible
fear of persecution that could support a valid claim to asylum.

    Evidence in the administrative record establishes that
Mexico and Guatemala are dangerous places for aliens
subject to the Rule. See also Innovation Law Lab v. Wolf,
951 F.3d 1073, 1090–93 (9th Cir. 2020). This evidence
strongly suggests a reason other than invalidity of their
underlying asylum claims why the aliens subject to the Rule
would not apply for asylum in either of those countries. In
the course of promulgating the Rule, the agencies did not
discuss or even acknowledge this evidence.

    In sum, the agencies’ conclusion that an alien’s failure to
apply for asylum in Guatemala or Mexico justifies an
assumption that the alien does not have a valid asylum claim,
and a categorical adverse credibility finding, ignores a long
line of cases holding that aliens are not required to apply for
asylum in countries they pass through on their way to the
United States; ignores the fact that a preference for asylum in
the United States rather than Mexico or Guatemala is
irrelevant to the merits of an alien’s asylum claim; and
ignores extensive evidence in the record documenting the
dangerous conditions in Mexico and Guatemala that would
lead aliens with valid asylum claims to pursue those claims in
the United States rather than in those countries.

   In failing to consider an alternative (and very likely)
explanation for aliens’ failure to apply for asylum in Mexico
or Guatemala, the agencies “entirely failed to consider an
important aspect of the problem.” State Farm, 463 U.S.
        EAST BAY SANCTUARY COVENANT V. BARR                45

at 43. Further, given the strength of this alternative
explanation, as shown by evidence in the record, the
agencies’ assumption “runs counter to the evidence before the
agency.” Id.

                iii. Unaccompanied Minors

    In 2008, in recognition of the vulnerability of
unaccompanied minors seeking asylum, Congress amended
the INA to provide them special protection. See Trafficking
Victims Protection Reauthorization Act, Pub. L. No.
110–457, 122 Stat. 5044 (2008). Congress added two
provisions to § 1158 to ensure “children . . . who have
escaped traumatic situations” would not be “forced to
struggle through an immigration system designed for adults.”
154 Cong. Rec. S10,886 (Dec. 10, 2008) (statement of
Senator Feinstein). First, unaccompanied minors are
expressly exempted from the safe-third-country bar. 8 U.S.C.
§ 1158(a)(2)(E). Second, they are entitled to present their
asylum claims in the first instance to an asylum officer in a
non-adversarial interview instead of to an immigration court.
Id. § 1158(b)(3)(C).

    The Rule does not exempt unaccompanied minors. The
agencies’ only explanation for the Rule’s failure to do so is
that while unaccompanied minors are given special protection
by § 1158(a)(2)(E) and (b)(3)(C), they are not exempt from
other provisions of § 1158. See 84 Fed. Reg. at 33,839 n.7.
This explanation in no way addresses the special vulnerability
of unaccompanied minors and the failure of the Rule to take
that vulnerability into account.

    In failing to explain why the Rule provides no special
protection for unaccompanied minors, the agencies “entirely
46      EAST BAY SANCTUARY COVENANT V. BARR

failed to consider an important aspect of the problem.” State
Farm, 463 U.S. at 43.

                     2. Irreparable Harm

    Plaintiffs must also show that “irreparable injury is likely
in the absence of an injunction.” Winter, 555 U.S. at 22.
Organizations may establish irreparable harm by showing
“ongoing harms to their organizational missions.” Valle del
Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013). In
the APA context, economic harms may be irreparable
because plaintiffs are otherwise unable to recover monetary
damages. See Azar, 911 F.3d at 581; 5 U.S.C. § 702
(providing for relief “other than monetary damages”).
Although the government argues that monetary harms are not
irreparable, controlling circuit precedent establishes
otherwise. See Azar, 911 F.3d at 581.

    As discussed above, plaintiffs established that the Rule
harms their mission of representing and assisting asylum
seekers and results in a substantial loss of organizational
funding. The government does not dispute these factual
findings. The Rule forces plaintiffs to overhaul their
programs and pursue more complex and time-and-resource
intensive forms of relief, resulting in plaintiffs’ providing
fewer services to fewer individuals. The Rule also
jeopardizes the plaintiffs’ funding streams. For example,
plaintiff East Bay Sanctuary Covenant receives a fixed per-
case amount for each affirmative asylum case it files. Decl.
Michael Smith, East Bay Sanctuary Covenant ¶ 16. Plaintiff
Al Otro Lado receives funding at a fixed per-case rate to
represent individuals in bond proceedings, but applicants
affected by the Rule are ineligible for bond for at least six
months after entry. Decl. Erika Pinheiro, Al Otro Lado ¶ 18.
        EAST BAY SANCTUARY COVENANT V. BARR                    47

Because the Rule renders a substantial portion of plaintiffs’
clients categorically ineligible for asylum, it directly threatens
their standard caseload, and consequently, their caseload-
dependent funding.

    We agree with the district court that the plaintiffs
“established a sufficient likelihood of irreparable harm
through diversion of resources and the non-speculative loss
of substantial funding from other sources.” E. Bay I, 385 F.
Supp. 3d at 957 (internal quotation marks omitted); see also
Trump II, 950 F.3d at 1280.

         3. Balance of Equities and Public Interest

    When the government is a party, the third and fourth
preliminary injunction factors merge. Drakes Bay Oyster
Co., 747 F.3d at 1092.

    On the side of the plaintiffs, the district court found that
there was a public interest in not returning refugees to their
persecutors or to a country where they would be endangered.
E. Bay I, 385 F. Supp. 3d at 958 (citing Leiva-Perez, 640 F.3d
at 971); see also Nken v. Holder, 556 U.S. 418, 436 (2009)
(“[T]here is a public interest in preventing aliens from being
wrongfully removed, particularly to countries where they are
likely to face substantial harm.”). This concern is especially
pressing here, where the government concedes that
potentially meritorious asylum claims will be “channeled”
away from the United State and into Mexico. 1 Gov’t Br. 4,
39.

   Next, the district court noted that the government has
implemented a new policy under which aliens potentially
subject to the Rule must wait “weeks or months” in Mexico
48      EAST BAY SANCTUARY COVENANT V. BARR

before they are permitted to initiate an application for asylum
in the United States. E. Bay I, 385 F. Supp. 3d at 959. At the
same time, Mexico has a 30-day filing deadline for asylum
applications. Id. “For asylum seekers that forfeited their
ability to seek protection in Mexico but fell victim to the
government’s . . . policy, the equities weigh particularly
strongly in favor” of an injunction. Id.

    The district court also noted the public interest in
“ensuring that ‘statutes enacted by [their] representatives’ are
not imperiled by executive fiat.” Id. at 958 (quoting
Maryland v. King, 567 U.S. 1301, 1301 (2012)). As
discussed earlier, the Rule is contrary to the asylum statute
and contravenes clear congressional intent to give effect to
our international treaty obligations.

    On the side of the government, the public has an interest
in relieving burdens on the asylum system and the efficient
conduct of foreign affairs. But, as the district court noted,
“shortcutting the law, or weakening the boundary between
Congress and the Executive, are not the solutions to these
problems.” Id. at 959 (citing Food & Drug Admin. v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 125 (2000)
(“Regardless of how serious the problem an administrative
agency seeks to address, however, it may not exercise its
authority in a manner that is inconsistent with the
administrative structure that Congress enacted into law.”)).

    We hold that the district court did not abuse its discretion
in weighing these factors in favor of plaintiffs. Cf. Trump II,
950 F.3d at 1280–82.
        EAST BAY SANCTUARY COVENANT V. BARR                  49

                 D. Scope of the Injunction

    Finally, we consider the proper scope of the injunction.
A motions panel of this court stayed the injunction, pending
the district court’s further development of the record, insofar
as it operated outside the Ninth Circuit. E. Bay II, 932 F.3d
at 1030–31.

    That decision does not bind this court when sitting as a
merits panel. As we explained in Trump II, “[g]iven the
preliminary stage of the appellate process” at which a
motions panel considers a stay motion, a subsequent merits
panel may “treat the motions panel’s decision as persuasive,
but not binding.” Trump II, 950 F.3d at 1264–65; see
generally id. at 1261–65; Innovation Law Lab, 951 F.3d at
1081.

    We note initially that although injunctions with broad
geographic scope are often referred to as “nationwide”
injunctions, that is a misnomer in this case. See Innovation
Law Lab, 951 F.3d at 1094. The Rule targets only asylum
applicants entering at our southern border with Mexico, and
the district court’s injunction affects the government’s actions
in only four states within three circuits: California and
Arizona (Ninth Circuit), New Mexico (Tenth Circuit), and
Texas (Fifth Circuit).

    We analyze the proper scope of the injunction in this case
from two perspectives—first, the scope of the harm to
plaintiffs; and, second, the nature of the case before us.

    First, nationwide or other broad injunctions are
appropriate when necessary to remedy a plaintiff’s harm.
City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1244
50      EAST BAY SANCTUARY COVENANT V. BARR

(9th Cir. 2018). The requested relief should be “no more
burdensome to the defendant than necessary to provide
complete relief to the plaintiffs before the court.” Regents of
the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d
476, 511 (9th Cir. 2018) (internal quotations omitted), rev’d
in part, vacated in part No. 18-587, 2020 WL 3271746 (U.S.
June 18, 2020). However, there is “no general requirement
that an injunction affect only the parties in the suit.”
Bresgal v. Brock, 843 F.2d 1163, 1169–70 (9th Cir. 1987).
“[T]he scope of injunctive relief is dictated by the extent of
the violation established, not by the geographical extent of the
plaintiff class.” Califano v. Yamasaki, 442 U.S. 682, 702
(1979).

    As discussed above, the Rule interferes with plaintiffs’
organizational missions and causes them to lose funding.
“Complete relief” for plaintiffs must remedy both harms. In
fulfilling their missions to assist asylum seekers throughout
the lifetime of their cases, plaintiffs “do not operate in a
fashion that permits neat geographic boundaries.” Trump II,
950 F.3d at 1282–83. For example, plaintiff Innovation Law
Lab is a legal service organization representing aliens
applying for asylum both inside and outside the Ninth Circuit.
Some of these aliens move between jurisdictions throughout
the lifetime of their asylum case. Innovation Law Lab has
offices in California, Oregon, Missouri, Texas, and Georgia,
and it provides workshops and offers support to aliens and
pro bono attorneys in Georgia, Kansas, Missouri, North
Carolina, and Oregon. E. Bay III, 391 F. Supp. 3d at 982–83.
Besides the harm to organizational purpose, the loss of
potential clients jeopardizes funding streams that are tied to
the number of asylum applications a Plaintiff organization
files.
        EAST BAY SANCTUARY COVENANT V. BARR                  51

    In response to the district court’s initial order, the
government issued guidance (the “Guidance”) providing that
in some circumstances the district court’s order would enjoin
enforcement of the Rule outside the Ninth Circuit. The
Guidance generally requires the relevant enforcement
agencies to treat an individual alien as protected by the
injunction if “(1) the alien was apprehended in the Ninth
Circuit, (2) the alien is detained in the Ninth Circuit, or
(3) the [credible fear] interview or adjudication itself occurs
in the Ninth Circuit.” Id. at 977.

    The district court found that, despite the Guidance,
Innovation Law Lab would have to divert resources to
determine which of their clients were subject to the Rule,
which could change during the lifetime of their case; they
would have to redesign centralized workshops and templates;
and they would have to change practices of synchronizing
work across sites. Id. at 983.

    Moreover, a limited injunction would not offer “complete
relief” from the harms plaintiffs suffer from their inability to
represent, and to protect, aliens seeking to enter the United
States through Texas or New Mexico. As we have noted in
a recent case, this would “result[] 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).”
Trump II, 950 F.3d at 1283.

    Second, as we have previously observed in an APA case,
§ 706(2)(A) provides that a “reviewing court shall . . . hold
unlawful and set aside agency action . . . not in accordance
with law.” Innovation Law Lab, 951 F.3d at 1094 (quoting
5 U.S.C. § 706(2)(A)). Section 706(2) does not tell a circuit
52      EAST BAY SANCTUARY COVENANT V. BARR

court to “set aside” unlawful agency action only within the
geographic boundaries of that circuit. Vacatur of an agency
rule prevents its application to all those who would otherwise
be subject to its operation. See generally id.; Regents of the
Univ. of Cal., 908 F.3d at 511 (“[W]hen a reviewing court
determines that agency regulations are unlawful, the ordinary
result is that rules are vacated—not that their application to
the individual petitioners is proscribed.”) (internal quotation
marks omitted); Cal. Wilderness Coalition v. U.S. Dep’t of
Energy, 631 F.3d 1072, 1095 (9th Cir. 2011) (“When a court
determines that an agency’s action failed to follow
Congress’s clear mandate the appropriate remedy is to vacate
that action.”); see also Gen. Chem. Corp. v. United States,
817 F.2d 844, 848 (D.C. Cir. 1987) (“The APA requires us to
vacate the agency’s decision if it is ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law’. . . .”); United Steel v. Mine Safety & Health Admin.,
925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice
is to vacate unlawful agency action.”). Because the Rule is
“not in accordance” with 8 U.S.C. § 1158, our obligation as
a reviewing court is to vacate the unlawful agency action.

    Moreover, “cases implicating immigration policy have a
particularly strong claim for uniform, nationwide relief.”
Innovation Law Lab, 951 F.3d at 1094–95; see Arizona v.
United States, 567 U.S. 387, 401 (2012) (federal law
contemplates a “comprehensive and unified” immigration
policy); Trump I, 932 F.3d at 779 (“In immigration matters,
we have consistently recognized the authority of district
courts to enjoin unlawful policies on a universal basis.”);
Regents of the Univ. of Cal., 908 F.3d at 511 (“A final
principle is also relevant: the need for uniformity in
immigration policy . . . . Allowing uneven application of
nationwide immigration policy flies in the face of these
        EAST BAY SANCTUARY COVENANT V. BARR                  53

requirements.”); Washington v. Trump, 847 F.3d 1151,
1166–67 (9th Cir. 2017) (per curiam) (“[A] fragmented
immigration policy would run afoul of the constitutional and
statutory requirement for uniform immigration law and
policy.”); Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017)
(per curiam), rev’d on other grounds, — U.S. —, 138 S. Ct.
2392 (2018) (“Because this case implicates immigration
policy, a nationwide injunction was necessary to give
Plaintiffs a full expression of their rights.”). The Fifth
Circuit, one of the only two other federal circuits with a state
affected by the Rule, agrees with the Ninth Circuit that
nationwide injunctions are uniquely appropriate in
immigration cases. See Texas v. United States, 809 F.3d 134,
187–88 (5th Cir. 2015) (“[T]he Constitution requires ‘an
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.’”) (emphases in original; citations omitted).

    The government “raises no grounds on which to
distinguish this case from our uncontroverted line of
precedent.” Trump I, 932 F.3d at 779. Indeed, we recently
held that a nationwide scope was necessary to offer adequate
relief to the same four plaintiffs asserting the same
organizational harms resulting from a different rule limiting
asylum eligibility. See Trump II, 950 F.3d at 1284; see also
Innovation Law Lab, 951 F.3d at 1094–95.
54      EAST BAY SANCTUARY COVENANT V. BARR

                          Conclusion

     We hold that plaintiffs are likely to succeed on the merits
of their claims. The Rule is “not in accordance with law” and
“in excess of statutory limitations” because it is not
“consistent with” 8 U.S.C. § 1158. State Farm, 463 U.S.
at 43. The Rule is also “arbitrary and capricious” because it
“runs counter to the evidence before the agency” and
“entirely failed to consider . . . important aspect[s] of the
problem.” Id. We hold further that plaintiffs have shown that
they will suffer irreparable harm, that the balance of equities
lies in their favor, and that an injunction is in the public
interest. Finally, we hold that the district court did not abuse
its discretion in entering an injunction covering the four states
along our border with Mexico.

     AFFIRMED.



CLIFTON, Circuit Judge, concurring:

    I concur in the court’s opinion except as to its discussion
in part V.D (pages 49–53) of the scope of the injunction. I
concur in the conclusion reached in that portion of the
opinion, that the district court did not abuse its discretion in
entering an injunction that extends beyond the territory of the
Ninth Circuit and covers every person seeking asylum at the
southern border, even persons with no connection to any of
the plaintiffs in this case. I do so, however, only because there
does not appear to me to be a sufficient distinction between
this case and precedents that bind this panel, notably East Bay
Sanctuary Covenant v. Trump (“Trump II”), 950 F.3d 1242,
1282-84 (9th Cir. 2020), and Innovation Law Lab. v. Wolf,
        EAST BAY SANCTUARY COVENANT V. BARR                   55

951 F.3d 1073, 1094-95 (9th Cir. 2020), to support a different
conclusion. To the extent that our opinion in this case
expresses agreement with or affirmative support for the
reasoning behind the relevant portions of those opinions, I do
not join this opinion.



MILLER, Circuit Judge, concurring in part and dissenting in
part:

    I agree with the court that the rule is invalid, and I concur
in the court’s opinion except as to part V.C.1.a, which
addresses the Attorney General’s statutory authority, and part
V.D, which addresses the scope of the injunction. I write
separately to elaborate on why, in my view, the rule is
arbitrary and capricious, and to explain why the injunction
should be limited to asylum seekers having a bona fide client
relationship with the plaintiff organizations.

                                I

    The court holds that the rule exceeds the Attorney
General’s authority under 8 U.S.C. § 1158. In doing so, the
court reasons that the Attorney General’s interpretation of the
statute is not entitled to deference under Chevron USA Inc. v.
NRDC, Inc., 467 U.S. 837 (1984), because the Attorney
General did not make a Chevron argument in his brief. But
we have never held that Chevron is subject to waiver, and the
District of Columbia Circuit has held that it is not. See
Guedes v. Bureau of Alcohol, Tobacco, Firearms &
Explosives, 920 F.3d 1, 22–23 (D.C. Cir. 2019) (per curiam),
cert. denied, 140 S. Ct. 789 (2020). I would refrain from
deciding either that issue or the scope of the Attorney
56      EAST BAY SANCTUARY COVENANT V. BARR

General’s statutory authority. The court’s conclusion that the
rule is arbitrary and capricious is sufficient to resolve this
case, and it is unnecessary for us to say more.

                               II

    I agree with the court’s analysis of why the rule is
arbitrary and capricious. I think it is worth emphasizing a few
additional points about the administrative record and the
agencies’ explanation of their decision-making process.

    Under the Administrative Procedure Act, “[w]hen an
administrative agency sets policy, it must provide a reasoned
explanation for its action.” Judulang v. Holder, 565 U.S. 42,
45 (2011). “That is not a high bar, but it is an unwavering
one.” Id. To clear it, an agency must “articulate a satisfactory
explanation for its action including a ‘rational connection
between the facts found and the choice made,’” and it may
not “entirely fail[] to consider an important aspect of the
problem” or “offer[] an explanation for its decision that runs
counter to the evidence before the agency.” Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962)).

    The stated purpose of the rule is to “more efficiently
identify[] aliens who are misusing the asylum system to enter
and remain in the United States rather than legitimately
seeking urgent protection from persecution or torture.”
Asylum Eligibility and Procedural Modifications, 84 Fed.
Reg. 33,829, 33,831 (July 16, 2019) (codified at 8 C.F.R.
§§ 208, 1003, 1208). The rule seeks to accomplish that
objective by “restricting the claims of aliens who, while
ostensibly fleeing persecution, chose not to seek protection at
        EAST BAY SANCTUARY COVENANT V. BARR                  57

the earliest possible opportunity.” Id. at 33,839. The agencies
reasoned that “[a]n alien’s decision not to apply for protection
at the first available opportunity, and instead wait for the
more preferred destination of the United States, raises
questions about the validity and urgency of the alien’s claim
and may mean that the claim is less likely to be successful.”
Id. The key factual premise of that reasoning is that asylum
in Mexico (or Guatemala) is indeed an “available”
opportunity, so that legitimate asylum seekers can reasonably
be expected to apply for protection there. But that premise is
contradicted by the agencies’ own record.

     First, as the district court correctly observed, “the
unrefuted record establishes that [Mexico] is categorically not
a ‘safe option[]’ for the majority of asylum seekers.” E. Bay
Sanctuary Covenant v. Barr, 385 F. Supp. 3d 922, 956 (N.D.
Cal. 2019) (quoting Matter of B-R-, 26 I. & N. Dec. 119, 122
(B.I.A. 2013)). To be clear, the district court based that
conclusion not on evidence submitted by the plaintiffs in this
litigation, but on the administrative record compiled by the
agencies themselves. That record contains numerous reports
from nongovernmental organizations describing the risks
faced by asylum seekers in Mexico. For example, one notes
that “[t]orture is inflicted by governmental security actors,
while criminal organizations inflict extreme degrees of
violence on these already vulnerable populations,” adding
that “[m]igrants and refugees are often easy prey.” Another
explains that “the prospect of being unlawfully detained [in
Mexico] often pushes asylum-seekers to return to their
country of origin, despite the risks they face upon return.”
The United Nations High Commissioner for Refugees found
“that almost 7 out of 10 women in Mexico have suffered
violence,” and that “migrant, asylum-seeking, and refugee
women are particularly vulnerable due to their national origin
58      EAST BAY SANCTUARY COVENANT V. BARR

and their legal status in Mexico.” Another report echoed those
concerns for children: “Many migrants are arbitrarily
detained in poor conditions in processing facilities upon
apprehension. . . . Particularly for children, the length and
conditions of detention deter them from seeking asylum.”

    Second, the district court correctly recognized that
applicants seeking asylum in Mexico are often “wrongly
returned to countries from which they fled persecution.” E.
Bay Sanctuary Covenant, 385 F. Supp. 3d at 955. The district
court cited a report from the administrative record that
discussed how “the non-refoulement principle is
systematically violated in Mexico,” often through “swift
repatriations” taking place in less than 36 hours. Despite the
rule’s conclusory statement that Mexico has a “robust
protection regime,” 84 Fed. Reg. at 33,835, record evidence
shows not only that conditions in Mexico are dire enough to
discourage applicants from seeking asylum, but also that
many who do are subject to refoulement.

    When asked at oral argument where the agencies
addressed the issue of safety in Mexico, the government
referred us to a single paragraph in the rule. That paragraph
notes that Mexico “has expanded its capacity to adjudicate
asylum claims” and has received an increasing number of
such claims, but an increase in capacity or volume has little
relevance to the issue of safety. 84 Fed. Reg. at 33,839–40. It
also observes that Mexico is a party to the Refugee
Convention and the Refugee Protocol. Id. at 33,839. That
Mexico has joined those agreements bears little weight in the
face of record evidence showing that it does not comply with
them in practice.
        EAST BAY SANCTUARY COVENANT V. BARR                 59

    Of course, the agencies do not have to agree with the
reports of nongovernmental organizations. Had the agencies
determined that the reports in the record were wrong, they
could have said so. We would then have reviewed their
factual determination for substantial evidence—a deferential
standard under which we would have been required to accept
the agencies’ finding unless the record compelled a contrary
conclusion. See Dickinson v. Zurko, 527 U.S. 150, 162–63
(1999); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).
In this context, that review would have been especially
deferential because an agency’s assessment of conditions in
another country involves an exercise of judgment on matters
of foreign relations that we are poorly suited to second-guess.
See Holder v. Humanitarian Law Project, 561 U.S. 1, 33–34
(2010); cf. INS v. Abudu, 485 U.S. 94, 110 (1988) (explaining
that the administration of immigration laws can involve
“sensitive political functions that implicate questions of
foreign relations”). But we cannot defer to a finding the
agencies never made.

    Alternatively, the agencies could have determined that,
notwithstanding the safety risks to asylum seekers in Mexico,
a bright-line rule like the one here offers offsetting
advantages in ease of adjudication—a significant
consideration given the overburdened immigration system at
the southern border. It is up to the agencies, in the first
instance, to balance the costs (denying meritorious claims of
asylum seekers who were afraid to seek asylum in Mexico)
and benefits (relieving burdens on the asylum system) of their
actions. That balancing involves the exercise of policy
judgment. Had the agencies engaged in it—offering “reasons
that [could] be scrutinized by courts and the interested
public,” Dep’t of Commerce v. New York, 139 S. Ct. 2551,
2576 (2019)—our review of their decision would be
60      EAST BAY SANCTUARY COVENANT V. BARR

deferential. As long as an agency has “examine[d] the
relevant data and articulate[d] a satisfactory explanation for
its action,” the Supreme Court has made clear that “a court is
not to substitute its judgment for that of the agency.” State
Farm, 463 U.S. at 43; accord FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 513 (2009). But while the agencies
discussed the “extraordinary strain on the nation’s
immigration system” caused by asylum seekers at the
southern border, that is only one side of the balance. 84 Fed.
Reg. at 33,831. They said nothing at all about the other.
Reasoned decision making requires consideration of the
tradeoffs that accompany an exercise of policy judgment, and
we cannot defer to a choice the agencies did not acknowledge
making. See Dep’t of Homeland Sec. v. Regents of Univ. of
Cal., No. 18-587, 2020 WL 3271746, *15 (U.S. June 18,
2020); Dep’t of Commerce, 139 S. Ct. at 2576; Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016).

     The agencies’ deficient explanation is particularly
troubling because the rule represents such a major change in
policy—perhaps the most significant change to American
asylum policy in a generation. Having compiled a record that
contained extensive evidence of safety concerns, particularly
with respect to Mexico, the agencies were required to give the
safety issues more consideration than a single paragraph in
the rulemaking that does not meaningfully engage with the
critical question: whether an applicant could safely apply for
asylum in Mexico. Because the agencies “entirely failed to
consider an important aspect of the problem,” the rule is
arbitrary and capricious. State Farm, 463 U.S. at 43.
        EAST BAY SANCTUARY COVENANT V. BARR                   61

                               III

    Although I agree with the court that the rule is invalid, I
do not agree that it was appropriate for the district court to
enjoin its application to every person seeking asylum at the
southern border, whether or not that person has any
connection to the plaintiffs in this case.

    In defending the scope of the injunction, the court
emphasizes that it is not “nationwide” because it does not
apply throughout the entire country but instead applies in
“only four” States. Slip op. 49. The distinction is not
reassuring. Although only four in number, those States
include every part of the country in which the rule
applies—all 1,954 miles of the United States-Mexico border,
about 75 percent of which is outside of the Ninth Circuit.
More importantly, the injunction is broad not only in a
geographic sense but also because it applies universally to
everyone affected by the rule, not just to the plaintiffs in this
case. See Trump v. Hawaii, 138 S. Ct. 2392, 2425 n.1 (2018)
(Thomas, J., concurring) (distinguishing “nationwide”
injunctions from “universal” injunctions).

    There are reasons to question the appropriateness of
universal injunctions. See, e.g., Dep’t of Homeland Sec. v.
New York, 140 S. Ct. 599, 599–601 (2020) (Gorsuch, J.,
concurring in the grant of a stay); Trump v. Hawaii,
138 S. Ct. at 2424–29 (Thomas, J., concurring). Injunctions
“must comply with longstanding principles of equity,” and
courts of equity traditionally “did not provide relief beyond
the parties to the case.” Trump v. Hawaii, 138 S. Ct.
at 2426–27 (Thomas, J., concurring); see also Dep’t of
Homeland Sec. v. New York, 140 S. Ct. at 600 (Gorsuch, J.,
concurring in the grant of a stay) (“Equitable remedies . . . are
62      EAST BAY SANCTUARY COVENANT V. BARR

meant to redress the injuries sustained by a particular plaintiff
in a particular lawsuit.”).

    When a defendant’s conduct has injured a large class of
potential plaintiffs, making “injunctive relief . . . appropriate
respecting the class as whole,” the federal civil rules permit
the certification of a class action. Fed. R. Civ. P. 23(b)(2).
Such a class may be nationwide in scope. See Califano v.
Yamasaki, 442 U.S. 682, 702 (1979). But when the criteria of
Rule 23 are not satisfied, granting class-wide relief anyway
sidesteps that rule and its requirement that the district court
conduct a “rigorous analysis” before certifying a class. Wal-
Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (quoting
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982)); see
Zepeda v. INS, 753 F.2d 719, 730 n.1 (9th Cir. 1983)
(explaining that plaintiffs “are not entitled to relief for people
whom they do not represent,” and “[i]f this elementary
principle were not true, there would be no need for class
actions”).

    Even accepting that a district court may sometimes enter
an injunction that prohibits the government from applying a
policy to persons other than the plaintiff, it remains the case
that “injunctive relief should be no more burdensome to the
defendant than necessary to provide complete relief to the
plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S.
753, 765 (1994) (quoting Califano, 442 U.S. at 702); cf.
Lewis v. Casey, 518 U.S. 343, 349–50 (1996). The injunction
here does not satisfy that requirement.

    Significantly, the plaintiffs are not themselves asylum
seekers who are subject to the rule. Rather, they are
organizations that provide assistance, advocacy, and legal
services to potentially affected applicants. As the court
        EAST BAY SANCTUARY COVENANT V. BARR                   63

explains, the plaintiffs allege that the rule will harm them by
causing “a substantial loss of organizational funding” and by
requiring them “to overhaul their programs and pursue more
complex and time-and-resource intensive forms of relief,
resulting in plaintiffs’ providing fewer services to fewer
individuals.” Slip op. 46. The court approvingly cites the
district court’s conclusion, based on those allegations, that a
universal injunction is necessary because a more limited
injunction would require the plaintiffs “to divert resources to
determine which of their clients were subject to the Rule” and
“to redesign centralized workshops and templates.” Slip
op. 51. But those harms are no different from those that
would be suffered by any advocacy organization practicing in
an area relevant to a challenged government policy. They are
insufficient to support the grant of a universal injunction here.

    Under Kowalski v. Tesmer, 543 U.S. 125 (2004),
organizations do not have third-party standing to assert the
rights of potential future clients. Id. at 134 & n.5. If the
plaintiff organizations cannot rely on the substantial harms
suffered by individual non-clients who will be barred from
seeking asylum under the rule, they should not be allowed to
rely on the derivative—and far less substantial—harm that
the organizations will suffer from not representing those
potential clients in asylum proceedings. The harms suffered
directly by the organizations, such as having to redesign
workshops by providing different kinds of training, are
similarly inadequate. It is surely easier to provide legal
training when the law is uniform nationwide, but if that were
enough, any plaintiff asserting an interest in teaching about
the law would be entitled to a universal injunction. To the
contrary, a plaintiff who lacks standing to challenge a
government policy may not “manufacture standing” simply
by “making an expenditure,” including an expenditure to
64      EAST BAY SANCTUARY COVENANT V. BARR

teach others about the policy. Clapper v. Amnesty Int’l USA,
568 U.S. 398, 416 (2013).

    Even if the harms asserted by the plaintiffs were sufficient
to establish Article III standing with respect to the application
of the rule to non-clients, they still must be weighed against
the competing interests on the other side. See Madsen,
512 U.S. at 765. Because the plaintiffs’ harms supporting a
universal injunction are so attenuated, they do not outweigh
the government’s interest in a narrower one.

    In upholding a universal injunction, the court relies
heavily on our decision in Innovation Law Lab v. Wolf,
951 F.3d 1073 (9th Cir. 2020), petition for cert. filed
(Apr. 10, 2020) (No. 19-1212). The Supreme Court has
stayed the universal injunction that we affirmed in that case,
which should perhaps give us pause about extending the
decision to affirm a universal injunction here. Wolf v.
Innovation Law Lab, 140 S. Ct. 1564 (2020). In any event,
although we remain bound by Innovation Law Lab as circuit
precedent, I disagree that it requires us to affirm an injunction
as broad as the one imposed by the district court.

     As relevant here, in Innovation Law Lab we made two
points. First, we reasoned that 5 U.S.C. § 706(2)(A), which
directs a reviewing court to “set aside” agency action found
to be unlawful, militates in favor of an injunction setting
aside agency action across the board, not simply with respect
to a specific plaintiff. 951 F.3d at 1094. That is a questionable
interpretation of section 706, which is more naturally read not
as a remedial provision but simply as an instruction to courts
to disregard unlawful agency actions when deciding cases.
See John Harrison, Section 706 of the Administrative
Procedure Act Does Not Call for Universal Injunctions or
        EAST BAY SANCTUARY COVENANT V. BARR                65

Other Universal Remedies, Yale J. on Reg. (Apr. 12, 2020),
https://www.yalejreg.com/?bulletin/section-706-of-the-
administrative-procedure-act?-does-not-call-for-universal-
injunctions?-or-other-universal-remedies/. Indeed, we have
not construed section 706 to require vacatur in every case in
which an agency action is determined to be unlawful. See,
e.g., Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989, 992
(9th Cir. 2012) (per curiam); accord Allied-Signal, Inc. v.
NRC, 988 F.2d 146, 150–51 (D.C. Cir. 1993). Nor have we
held that whenever vacatur is appropriate, a universal
injunction is mandatory, a holding that would represent a
major departure from historical practice. See Trump v.
Hawaii, 138 S. Ct. at 2428–29 (Thomas, J., concurring).

    Second, we noted in Innovation Law Lab that
immigration law, in particular, is characterized by a need for
uniformity such that an injunction should apply more broadly
than might be appropriate in other contexts. 951 F.3d
at 1094–95. Specifically, we reasoned that “the immigration
laws of the United States should be enforced vigorously and
uniformly.” Id. at 1095 (quoting Texas v. United States,
809 F.3d 134, 187–88 (5th Cir. 2015)). A concern for uniform
administration of the immigration laws is a doubtful basis for
imposing a universal injunction in the face of opposition from
the agencies that have been charged by Congress with
administering those laws, and that would bear the cost of the
fragmented application of the rule they have promulgated.
But again, even accepting the reasoning of Immigration Law
Lab, it establishes only that “cases implicating immigration
policy have a particularly strong claim for uniform relief,”
not that a universal injunction is mandatory in every
immigration case. Id. at 1094–95.
66      EAST BAY SANCTUARY COVENANT V. BARR

    Thus, while Innovation Law Lab precludes us from saying
that universal injunctions are never appropriate, it does not
require us to say that they are always appropriate. We
concluded in Innovation Law Lab only that the district court
had not abused its discretion in entering an injunction in that
case. And, crucially, in discussing the scope of the injunction,
we said nothing at all about the harms asserted by the
plaintiffs. The case involved both organizational and
individual plaintiffs, but the government did not challenge
their standing, and we discussed their claimed injuries only
briefly. 951 F.3d at 1078–79. We did not evaluate their
interest in a universal injunction or compare it to the
government’s interest in a more limited one, and the other
decisions cited by the court did not undertake such a
comparison either. See, e.g., E. Bay Sanctuary Covenant v.
Trump, 950 F.3d 1242, 1265–68 (9th Cir. 2020); E. Bay
Sanctuary Covenant v. Trump, 932 F.3d 742, 766–67 (9th
Cir. 2018). Our precedent therefore does not compel us to say
that the harms asserted by these plaintiffs are sufficient to
support the issuance of a universal injunction. For the reasons
explained above, they are not.

    I would restrict the injunction along the lines suggested
by the government, so that it prohibits the application of the
rule only to asylum seekers who are bona fide clients of the
plaintiff organizations.
