AOL Govt Reply BR

Case: 22-55988, 03/30/2023, ID: 12685985, DktEntry: 62, Page 1 of 71
Nos. 22-55988, 56036

__________________________________________________________________
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
__________________________________________________________________
AL OTRO LADO, INC., et al.,

Plaintiffs-Appellees/Cross-Appellants,
v.
ALEJANDRO MAYORKAS, Secretary of Homeland Security, et al.
Defendants-Appellants/Cross-Appellees,
and
the EXECUTIVE OFFICE FOR IMMIGRATION REVIEW,
Appellant/Cross-Appellee.
__________________________________________________________________
On Appeal from a Final Judgment Issued by the U.S. District Court for the
Southern District of California (Civil Action No. 3:17-cv-02366-BAS-KSC)
__________________________________________________________________
REPLY AND RESPONSE BRIEF FOR THE GOVERNMENT

__________________________________________________________________
BRIAN M. BOYNTON ALEXANDER J. HALASKA

Principal Deputy Assistant Senior Litigation Counsel
Attorney General U.S. Department of Justice
Civil Division
WILLIAM C. PEACHEY Office of Immigration Litigation -
Director District Court Section
P.O. Box 868, Ben Franklin Station
KATHERINE J. SHINNERS Washington, D.C. 20044
Senior Litigation Counsel Tel: (202) 307-8704 | Fax: (202) 305-7000
Email: alexander.j.halaska@usdoj.gov
Counsel for the Government

TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION .....................................................................................................1
STATEMENT OF THE ISSUES...............................................................................2
SUMMARY OF THE ARGUMENT ........................................................................4
ARGUMENT .............................................................................................................6
I. The District Court Erred in Holding That Metering “Unlawfully

Withheld” Mandatory Agency Action...........................................................6
A. Sections 1158 and 1225 Do Not Apply to Noncitizens

Outside the United States. .......................................................................6
B. Metering Does Not “Unlawfully Withhold” Any Mandatory

Agency Action on a Class-Wide Basis. ................................................24
II. The District Court Erred in Concluding That Metering Violates

Procedural Due Process. ..............................................................................26
III. The District Court Erred in Granting Burdensome Class-Wide

Injunctive and Declaratory Relief. ..............................................................29
A. The District Court Abused its Discretion. .............................................29
B. The INA Bars the Injunctive Relief Ordered. .......................................32
IV. This Court Should Not Reach Plaintiffs’ Section 706(2) Claim. ................35
A. Plaintiffs’ Section 706(2) Claim is Moot. .............................................35
B. Metering is Within the Executive’s Authority, and the

Metering Memoranda Were Reasonable and Reasonably
Explained. ..............................................................................................37
V. The District Court Correctly Granted Summary Judgment for the
Government on Plaintiffs’ Standalone INA Claim. ....................................44
VI. The District Court Correctly Granted Summary Judgment for the
Government on Plaintiffs’ International-Law Claim. .................................46
i
CONCLUSION ........................................................................................................57
CERTIFICATE OF SERVICE ................................................................................59
CERTIFICATE OF COMPLIANCE .......................................................................60
ii
TABLE OF AUTHORITIES
Federal Cases
Agency for International Development v. Alliance for Open Society

International, Inc.,
140 S. Ct. 2082 (2020)...................................................................................28
Akiachak Native Community v. Dep’t of Interior,

827 F.3d 100 (D.C. Cir. 2016) .......................................................................36
Al Otro Lado v. Wolf,

952 F.3d 999 (9th Cir. 2020) .........................................................................12
Barrera-Echavarria v. Rison,
44 F.3d 1441 (9th Cir. 1995) .........................................................................10
Barrios v. Holder,
581 F.3d 849 (9th Cir. 2009) ...........................................................................8
BedRoc Ltd., LLC v. United States,

541 U.S. 176 (2004).........................................................................................7
Biden v. Texas,
142 S. Ct. 2528 (2022)...................................................................... 34, 35, 43
Blazevska v. Raytheon Aircraft Co.,

522 F.3d 948 (9th Cir. 2008) .........................................................................52
Boumediene v. Bush,
553 U.S. 723 (2008).......................................................................... 26, 27, 28
Bruesewitz v. Wyeth LLC,

562 U.S. 223 (2011).......................................................................................23
California v. Trump,
963 F.3d 926 (9th Cir. 2020) .........................................................................46
Carr v. United States,

560 U.S. 438 (2010).......................................................................................17
Catholic Social Services, Inc. v. INS,

232 F.3d 1139 (9th Cir. 2000) .......................................................................33
iii
Cetacean Community v. Bush,

386 F.3d 1169 (9th Cir. 2004) .......................................................................15
Clark v. Smith,
967 F.2d 1329 (9th Cir. 1992) .........................................................................9
Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019)............................................................................ 40, 43
Dep’t of Homeland Security v. Thuraissigiam,

140 S. Ct. 1959 (2020)...................................................................... 27, 28, 29
E.V. v. Robinson,
906 F.3d 1082 (9th Cir. 2018) .......................................................................45
East Bay Sanctuary Covenant v. Biden,

993 F.3d 640 (9th Cir. 2021) .........................................................................12
Filartiga v. Pena-Irala,
630 F.2d 876 (2d Cir. 1980) ..........................................................................48
Garcia v. Lawn,
805 F.2d 1400 (9th Cir. 1986) .......................................................................31
Garland v. Aleman Gonzalez,

142 S. Ct. 2057 (2022)...................................................................... 32, 33, 34
Goldstar (Panama) S.A. v. United States,

967 F.2d 965 (4th Cir. 1992) .........................................................................54
Gonzales v. DHS,
508 F.3d 1227 (9th Cir. 2007) .......................................................................33
Gonzalez v. ICE,
975 F.3d 788 (9th Cir. 2020) .........................................................................33
Gorbach v. Reno,
219 F.3d 1087 (9th Cir. 2000) .......................................................................38
Graham v. FEMA,
149 F.3d 997 (9th Cir. 1998) .........................................................................44
iv
Guidiville Band of Pomo Indians v. NGV Gaming, Ltd.,

531 F.3d 767 (9th Cir. 2008) .................................................................. 16, 17
Henderson v. United States,

568 U.S. 266 (2013).......................................................................................31
Hernandez v. Mesa,
140 S. Ct. 735 (2020)................................................................................ 1, 55
Hing Sum v. Holder,

602 F.3d 1092 (9th Cir. 2010) .......................................................................11
Hourani v. Mirtchev,
796 F.3d 1 (D.C. Cir. 2015) ...........................................................................57
Ibrahim v. Dep’t of Homeland Security,

669 F.3d 983 (9th Cir. 2012) .................................................................. 27, 28
INS v. Stevic,
467 U.S. 407 (1984).......................................................................................53
Jafarzadeh v. Duke,
270 F. Supp. 3d 296 (D.D.C. 2017)...............................................................45
Jesner v. Arab Bank,

138 S. Ct. 1386 (2018)................................................................ 46, 47, 53, 55
Johnson v. Eisentrager,
339 U.S. 763 (1950).......................................................................................27
Khan v. Holder,
584 F.3d 773 (9th Cir. 2009) .........................................................................53
Langere v. Verizon Wireless Services, LLC,

983 F.3d 1115 (9th Cir. 2020) .......................................................................27
Lorillard v. Pons,
434 U.S 575 (1978)........................................................................................12
Morrison v. National Australia Bank Ltd.,

561 U.S. 247 (2010).......................................................................................13
v
Navajo Nation v. Dep’t of the Interior,

876 F.3d 1144 (9th Cir. 2017) .......................................................................54
NEDC v. Gordon,
849 F.2d 1241 (9th Cir. 1988) .......................................................................31
Nestle USA, Inc. v. Doe,

141 S. Ct 1931 (2021)....................................................................................47
Ninilchik Traditional Council v. United States,

227 F.3d 1186 (9th Cir. 2000) .......................................................................44
Norton v. Southern Utah Wilderness Association,

542 U.S. 55 (2004).................................................................................. 29, 30
Presbyterian Church of Sudan v. Talisman Energy, Inc.,

582 F.3d 244 (2d Cir. 2009) ..........................................................................48
Quintero Perez v. United States,

8 F. 4th 1095 (9th Cir. 2021) .................................................................. 49, 54
Rasul v. Bush,
542 U.S. 466 (2004).......................................................................................27
Rasul v. Myers,
563 F.3d 527 (D.C. Cir. 2009) .......................................................................27
Rowland v. California Men’s Colony, Unit II Men’s Advisory Council,

506 U.S. 194 (1993).......................................................................................16
Sale v. Haitian Centers Council, Inc.,

509 U.S. 155 (1993)............................................................................... passim
Sanchez-Espinoza v. Reagan,
770 F.2d 202 (D.C. Cir. 1985) .......................................................................54
Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206 (1953)............................................................................... passim
Siderman de Blake v. Republic of Argentina,

965 F.2d 699 (9th Cir. 1992) .........................................................................50
vi
Sierra Club v. Trump,

929 F.3d 670 (9th Cir. 2019) .........................................................................44
Singleton v. Wulff,
428 U.S. 106 (1976)................................................................................ 26, 37
Snowden v. Hughes,
321 U.S. 1 (1944)...........................................................................................29
Sosa v. Alvarez-Machain,
542 U.S. 692 (2004)............................................................................... passim
Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers,

486 F.3d 638 (9th Cir. 2007) .........................................................................36
Steam Press Holdings, Inc. v. Hawaii Teamsters, Allied Workers Union,

Local 996,
302 F.3d 998 (9th Cir. 2002) .................................................................. 25, 26
Telecommunications Research and Action Center v. FCC,

750 F.2d 70 (D.C. Cir. 1984) .........................................................................25
Tobar v. United States,

639 F.3d 1191 (9th Cir. 2011) .......................................................................54
Torres v. Barr,
976 F.3d 918 (9th Cir. 2020) .................................................................. 10, 24
United States ex rel. Knauff v. Shaughnessy,

338 U.S. 537 (1950)................................................................................ 31, 39
United States v. Delgado-Garcia,

374 F.3d 1337 (D.C. Cir. 2004).....................................................................15
United States v. Jackson,

480 F.3d 1014 (9th Cir. 2007) .................................................................. 7, 18
United States v. Ju Toy,

198 U.S. 253 (1905).........................................................................................9
United States v. Lopez-Perara,

438 F.3d 932 (9th Cir. 2006) .................................................................. 10, 12
vii
United States v. Montero-Camargo,

208 F.3d 1122 (9th Cir. 2000) .......................................................................15
United States v. Zavala-Mendez,

411 F.3d 1116 (9th Cir. 2005) .......................................................................10
Vazquez Romero v. Garland,

999 F.3d 656 (9th Cir. 2021) .........................................................................19
Webster v. Doe,
486 U.S. 592 (1988).......................................................................................44
WesternGeco LLC v. ION Geophysical Corp.,

138 S. Ct. 2129 (2018)............................................................................ 13, 14
Winston Research Corp. v. Minnesota Mining & Manufacturing Co.,

350 F.2d 134 (9th Cir. 1965) .........................................................................30
Xi v. INS,
298 F.3d 832 (9th Cir. 2002) ...........................................................................9
Zadvydas v. Davis,
533 U.S. 678 (2001).........................................................................................9
Federal Statutes
1 U.S.C. § 1 ....................................................................................................... 15, 16
5 U.S.C. § 702 ................................................................................................... 45, 54
5 U.S.C. § 706 .................................................................................................. passim
6 U.S.C. § 111(b)(1).......................................................................................... 37, 39
6 U.S.C. § 202 ................................................................................................... 37, 39
6 U.S.C. § 211(c) .....................................................................................................37
6 U.S.C. § 211(g)(3).................................................................................... 37, 38, 39
8 U.S.C. § 1101(a)(13)(C) .......................................................................................19
8 U.S.C. § 1158(a)(1) ....................................................................................... passim
viii
8 U.S.C. § 1225(a)(1) ....................................................................................... passim
8 U.S.C. § 1225(a)(3) ....................................................................................... passim
8 U.S.C. § 1225(b)(1)(A)(ii) ............................................................................ passim
8 U.S.C. § 1225(b)(2)(C) .........................................................................................34
8 U.S.C. § 1231(b)(3)(A) .................................................................................. 53, 56
8 U.S.C. § 1231(h) ...................................................................................................53
8 U.S.C. § 1252(a)(2) ...............................................................................................34
8 U.S.C. § 1252(a)(5) ........................................................................................ 34, 54
8 U.S.C. § 1252(b)(9)........................................................................................ 34, 54
8 U.S.C. § 1252(e) ...................................................................................................34
8 U.S.C. § 1252(f)(1) .................................................................................. 32, 33, 45
18 U.S.C. § 922(g) ...................................................................................................10
28 U.S.C. § 1350 ................................................................................................. 3, 46
Acts of Congress
Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Pub. L. No. 104–208, Div. C, 110 Stat. 3009–546 (1996) ............... 11, 12, 13
Refugee Act of 1980,

Pub. L. No. 96–212, 94 Stat. 102 (1980) ................................................ 12, 13
Federal Regulations
8 C.F.R. § 1.2 .................................................................................................... 21, 22
8 C.F.R. § 208.16(c)(2) ............................................................................................56
8 C.F.R. § 208.17(a).................................................................................................56
ix
Administrative Decisions
Matter of Collado-Munoz,
21 I. & N. Dec. 1061 (BIA 1998) ..................................................................24
Matter of M-D-C-V-,
28 I. & N. Dec. 18 (BIA 2020) ......................................................................20
Matter of Valenzuela-Felix,
26 I. & N. Dec. 53 (BIA 2012) ......................................................................19
Administrative Rules
Amendment of the Regulatory Definition of Arriving Alien,

63 Fed. Reg. 19382 (Apr. 20, 1998) ..............................................................22
Asylum Eligibility and Procedural Modifications,

84 Fed. Reg. 33829 (July 16, 2019) ..............................................................32
Inspection and Expedited Removal of Aliens,

62 Fed. Reg. 10312 (Mar. 6, 1997) ...............................................................22
Inspection and Expedited Removal of Aliens,

62 Fed. Reg. 444 (Jan. 3, 1997) .....................................................................21
Legislative Materials
H.R. Rep. No. 104-469 (1996) .......................................................................... 16, 23
Implementation of Title III of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996: Hearing Before the Subcommittee on
Immigration and Claims of the House of Representatives Judiciary
Committee, 105th Congress (1997) ...............................................................23
Other Authorities
U.S. Dep’t of State, U.S. Observations on UNHCR Advisory Opinion on

Extraterritorial Application of Non-Refoulement Obligations (Dec.
28, 2007) ........................................................................................................52
UNHCR Exec. Comm., Note on International Protection, U.N. Doc.

A/AC.96/951 (Sept. 13, 2001) .......................................................................50
x
INTRODUCTION
Congress has given the Department of Homeland Security (DHS) and U.S.
Customs and Border Protection (CBP) the “daunting task” to “control the movement
of people and goods across the border.” Hernandez v. Mesa, 140 S. Ct. 735, 746
(2020). One tool that CBP’s Office of Field Operations (OFO) relied on to accom-
plish that daunting task was “metering,” a process of regulating the pace at which
undocumented noncitizens crossed the border into the ports of entry to proactively
avoid overcrowding and operational emergencies.
As the Government explained in the Opening Brief, the district court was
wrong to declare metering unlawful. The district court’s decision and accompanying
relief erodes the Executive’s authority to manage border operations and seeks to in-
validate tools that the Executive has used to manage the flow of undocumented
noncitizens into the Nation’s ports of entry, by declaring an inflexible statutory ob-
ligation to inspect for admission any and all undocumented noncitizens who ap-
proach—but do not cross—the international border and may wish to seek asylum in
the United States. Plaintiffs’ arguments to the contrary ignore the Immigration and
Nationality Act’s (INA) plain language indicating that its asylum provisions apply
only to noncitizens within the territory of the United States, are premised on faulty
interpretation of the statutes’ language and verb tenses, disregard the backdrop of
longstanding precedent against which legislators drafted the relevant language, and
1
fail to acknowledge the reality that, under metering, CBP continued to discharge any
obligations to inspect and refer asylum-seekers. This Court should thus reverse the
district court’s grant of summary judgment for Plaintiffs and vacate the entry of de-
claratory and injunctive relief.
There is no basis, however, to overturn the remainder of the district court’s
decision or to affirm its declaratory judgment on any alternative grounds. Plaintiffs’
request for relief on their alternative theory that the metering guidance memoranda
were in excess of statutory authority or arbitrary and capricious is moot, as those
memoranda have been rescinded and there is no further relief that the Court can
grant. In any event, the metering guidance was reasonable and supported by well-
documented capacity constraints. The district court also correctly rejected Plaintiffs’
duplicative claim for nonstatutory review and their claim seeking to create an un-
precedented private right of action against the United States for purported violations
of a claimed customary international-law norm of non-refoulement. This Court
should affirm the grant of summary judgment for the Government on those claims.
STATEMENT OF THE ISSUES
The Government’s appeal presents two issues for review. See Opening Br. for
the Government (First Br.) 5–6.
Plaintiffs’ cross-appeal presents three additional questions:
2
1. Should this Court decline to reach the merits of Plaintiffs’ claim that
DHS and CBP acted arbitrarily and capriciously or in excess of their constitutional
or statutory authority when they issued metering guidance to facilitate orderly pro-
cessing and ensure safe and sanitary conditions in the ports of entry along the U.S.-
Mexico border and, later, to facilitate CBP’s prioritization of its resources, when
DHS and CBP do not owe statutory inspection and referral obligations to noncitizens
in Mexico, and where DHS and CBP have rescinded that metering guidance?
2. Did the district court correctly enter summary judgment for the Gov-
ernment on Plaintiffs’ claim for nonstatutory review of metering under the INA,
where that claim was entirely duplicative of Plaintiffs’ claims under the Administra-
tive Procedure Act (APA)?
3. Did the district court correctly enter summary judgment for the Gov-
ernment on Plaintiffs’ claim under the Alien Tort Statute (ATS), 28 U.S.C. § 1350,
seeking to enforce a purported customary international law norm of non-re-
foulement, when the norm asserted is not universally or specifically defined to pro-
hibit metering, and it would be an improper exercise of judicial authority to create a
private right of action against the United States for alleged non-refoulement viola-
tions?
3
SUMMARY OF THE ARGUMENT
This Court should reverse the district court’s grant of summary judgment to
Plaintiffs and remand with instructions to enter summary judgment for the Govern-
ment on all claims and vacate the injunctive and declaratory relief.
The district court erred in granting summary judgment to Plaintiffs on their
claim under the APA, at 5 U.S.C. § 706(1), that DHS and CBP “unlawfully with-
held” discharging their obligations under Sections 1158(a) and 1225 to noncitizens
outside the United States. By their plain language and context, 8 U.S.C.
§§ 1158(a)(1), 1225(a)(1), 1225(a)(3), and 1225(b)(1)(A)(ii) do not confer rights
upon or impose obligations toward noncitizens who are outside the United States—
they apply only once a noncitizen has crossed the border into the United States. This
understanding is not defeated, but is affirmatively supported, by the rule against sur-
plusage, the Dictionary Act’s default rules of statutory construction, the presumption
against extraterritoriality, the legislative history, and the legal background against
which Congress was legislating.
Even if the relevant statutes applied to noncitizens in Mexico, the district court
still erred in granting summary judgment to Plaintiffs on their Section 706(1) claim
because metering does not withhold agency action on a class-wide basis. Instead,
and at most, it results in a delay of inspection and processing. The district court did
not reach the question of whether any delay was unreasonable—in part because
4
Plaintiffs did not properly raise the issue—and this Court should not decide that
question.
The district court further erred by granting summary judgment for Plaintiffs
on their procedural due process claim because the Fifth Amendment and Sections
1158 and 1225 do not apply to foreign citizens on foreign soil. But even if they did,
Plaintiffs have not demonstrated why the statutory violation (erroneously) found by
the district court amounts to a deprivation of due process.
In addition to these errors on the merits, the district court abused its discretion
by entering overbroad injunctive relief. The class-wide injunction is also prohibited
by several provisions of 8 U.S.C. § 1252.
Nevertheless, the district court’s remaining holdings should not be disturbed.
Plaintiffs’ claim under the APA, at 5 U.S.C. § 706(2), is moot because the metering
policies at issue have since been rescinded, and the courts can grant no further relief
on this claim. Even if that claim were not moot, metering is within DHS and CBP’s
statutory authority, and the metering policies were reasonably based on demon-
strated capacity constraints. The Court should also affirm the grant of summary judg-
ment for the Government on Plaintiffs’ claim for nonstatutory review under the INA,
because it is entirely duplicative of Plaintiffs’ APA claims and thus subsumed under
the APA. Likewise, the Court should affirm the grant of summary judgment for the
5
Government on Plaintiffs’ international-law claim because any customary interna-
tional law norm of non-refoulement is not universally understood to apply extrater-
ritorially, and because it would be an improper judicial exercise of lawmaking power
to create a novel tort action against the United States for non-refoulement violations.
ARGUMENT
I. The District Court Erred in Holding That Metering “Unlawfully With-

held” Mandatory Agency Action.
A. Sections 1158 and 1225 Do Not Apply to Noncitizens Outside the

United States.
As the Government explained in its Opening Brief, the district court erred in
holding that Sections 1158 and 1225 confer rights upon, and impose obligations to-
ward, noncitizens outside the United States. See First Br. 27–39. Section 1158 per-
mits a noncitizen who “is physically present in the United States or who arrives in
the United States” to apply for asylum. 8 U.S.C. § 1158(a)(1). Section 1225 requires
immigration officers to inspect for admission any noncitizen who is “present in the
United States . . . or who arrives in the United States,” id. § 1225(a)(1), (a)(3), and
to refer a noncitizen who “is arriving in the United States” for credible-fear screening
if the noncitizen is inadmissible on certain grounds and indicates an intention to ap-
ply for asylum or a fear of persecution, id. § 1225(b)(1)(A)(ii). By their plain lan-
guage and context, these statutes do not apply to noncitizens who are near the terri-
torial borders but remain outside of the United States. See First Br. 28–30. Relevant
6
legislative history, the presumption against extraterritoriality, the Dictionary Act’s
default rules of statutory interpretation, and the rule against surplusage all support
the understanding that these provisions apply exclusively to noncitizens who have
already crossed the border into the United States. See First Br. 30–39. Consequently,
the district court erred in holding that metering “unlawfully withheld” those statutory
rights and obligations from class members.
Plaintiffs’ arguments that Sections 1158 and 1225 apply to noncitizens in
Mexico are flawed. See Appellees/Cross-Appellants’ Principal and Response Br.
(Second Br.) 18–29.
First, Plaintiffs say that the Government’s interpretation of the relevant pro-
visions “leans heavily on the preposition ‘in’ and a dictionary definition of ‘to ar-
rive.’” Second Br. 25. But it is entirely proper—indeed, necessary—to cite to statu-
tory text and look to dictionary definitions when interpreting an Act of Congress.
BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004); United States v. Jack-
son, 480 F.3d 1014, 1022 (9th Cir. 2007). Under the “preeminent canon of statutory
interpretation” that Congress “says in a statute what it means and means in a statute
what it says,” BedRoc, Ltd., 541 U.S. at 183, this case should begin and end with the
conclusion that Sections 1158(a)(1) and 1225(a)(1) apply to a noncitizen who is
“present in the United States” or who “arrives in the United States,” and that Section
1225(b)(1)(A)(ii) requires an immigration officer to refer a noncitizen for a credible-
7
fear interview only “[i]f” the noncitizen “is arriving in the United States,” among
other conditions. See First Br. 27–29.
Second, Plaintiffs say that, under rule against surplusage, the phrases “present
in the United States” and “arrives in the United States” in Sections 1158(a)(1) and
1225(a)(1) must mean different things, and that “arrives in” “necessarily refer[s] to
noncitizens not yet present in the United States.” Second Br. 18. This ignores more
than a century of precedent. The phrases “present in the United States” and “arrives
in the United States” do capture different concepts, but there is no support for the
proposition that “arrives in the United States” “necessarily” refers to noncitizens
outside of the United States. Second Br. 18. As explained, see First Br. 27–39, there
is another, better reading of the statutes, one that comports with the Supreme Court’s
and this Court’s precedents and the rule against surplusage, and that does not extend
U.S. immigration law into Mexico: The references to a noncitizen “who is physically
present in the United States,” 8 U.S.C. § 1158(a)(1), and “present in the United
States,” id. § 1225(a)(1), generally refer to a noncitizen who is in the United States.
See, e.g., Barrios v. Holder, 581 F.3d 849, 863 (9th Cir. 2009) (“physically present”
means “corporeally being in the place in question or under consideration” (some
punctuation omitted)). The phrases “arrives in the United States,” 8 U.S.C.
§§ 1158(a)(1), 1225(a)(1), and “arriving in the United States,” id.
§ 1225(b)(1)(A)(ii), are terms of art that refer to noncitizens who have just crossed
8
the border into (or landed in) the United States and are awaiting a determination of
their admissibility.
Congress’s decision to include both sets of phrases in these provisions reflects
its understanding of the longstanding distinction in constitutional and statutory im-
migration law between noncitizens who are already here, and those who have just
landed on our shores or crossed our borders and stand “on the threshold of initial
entry.” Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953);
Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Under this “entry fiction,” Xi v. INS,
298 F.3d 832, 837 (9th Cir. 2002), a noncitizen who may be “physically within our
boundaries[]” while awaiting a determination of his admissibility to the United
States “is to be regarded as if he had been stopped at the limit of our jurisdiction,
and kept there while his right to enter was under debate,” United States v. Ju Toy,
198 U.S. 253, 263 (1905); Clark v. Smith, 967 F.2d 1329, 1331 (9th Cir. 1992) (a
noncitizen’s “status remains that of an alien seeking admission into the United
States” “[u]ntil the Board [of Immigration Appeals] renders its final order”). Such
noncitizens are “within the United States but . . . as a result of their status[] are
deemed technically to be outside.” Xi, 298 F.3d at 837. They are physically “within
United States territory but not ‘within the United States’” under the INA. Sale v.
Haitian Centers Council, Inc., 509 U.S. 155, 175 (1993).
9
This Court’s cases recognize this point. In United States v. Lopez-Perara, 438
F.3d 932 (9th Cir. 2006)—one of Plaintiffs’ primary cases, see Second Br. 23—this
Court held that a noncitizen who had “driven into the San Ysidro Port of Entry” and
was being inspected for violations of U.S. criminal law was not “‘illegally or unlaw-
fully in the United States’” because he “had not yet entered the United States.”
Lopez-Perara, 438 F.3d at 932, 936 (quoting 18 U.S.C. § 922(g)) (emphasis this
Court’s). Likewise, in Barrera-Echavarria v. Rison, 44 F.3d 1441 (9th Cir. 1995),
this Court acknowledged that “excludable aliens are deemed under the entry doctrine
not to be present on United States territory,” despite their actual physical presence.
Id. at 1450. In United States v. Zavala-Mendez, 411 F.3d 1116 (9th Cir. 2005), this
Court restated its general rule that “someone who is in the border station itself, which
is always on American soil, is nevertheless not ‘found in’ the United States.” Id. at
1120. And in Torres v. Barr, 976 F.3d 918 (9th Cir. 2020), this Court explained that
Section 1225(a)(1) creates a “fictive legal status” for “some physically-but-not-law-
fully present noncitizens.” Id. at 928.
These cases amply demonstrate that, in the INA, phrases like “physically pre-
sent in,” 8 U.S.C. § 1158(a)(1), and “present in,” id. § 1225(a)(1), do not categori-
cally include noncitizens who have just crossed the border and stand “on the thresh-
old of initial entry,” Mezei, 345 U.S. at 212. For that reason, when the drafters of
10
Sections 1158(a)(1), 1225(a)(1), and 1225(b)(1)(A)(ii) wanted to ensure that noncit-
izens subject to removal after enactment of the Illegal Immigration Reform and Im-
migrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104–208, Div. C, 110
Stat. 3009–546 (1996), had a right to apply for asylum in the United States, they
could not rely exclusively on phrases like “present in” or “physically present in.”
Statements in immigration case law that noncitizens “[are] within United States ter-
ritory but not ‘within the United States’” by law, Sale, 509 U.S. at 175, precluded
such an approach. The drafters needed to include additional terminology to ensure
that the right to apply for asylum extended to noncitizens who, for example, have
just crossed the border and await a determination of their admissibility. That addi-
tional terminology is “arrives in” in Sections 1158(a)(1) and 1225(a)(1), and “arriv-
ing in” in Section 1225(b)(1)(A)(ii). Those phrases do not refer to noncitizens out-
side the United States.
Plaintiffs’ primary response to this extensive precedent is a single footnote
stating that “there is no need to resort to legal fiction here.” Second Br. 24 n.7. But
the entry fiction is a long-settled legal precedent that existed in one form or another
for almost a century before IIRIRA was enacted. The drafters of IIRIRA were well
aware of that doctrine, and Congress is presumed to have legislated with that
knowledge. See Hing Sum v. Holder, 602 F.3d 1092, 1100 (9th Cir. 2010) (explain-
ing how IIRIRA specifically addressed aspects of the entry doctrine); Lorillard v.
11
Pons, 434 U.S 575, 580 (1978). To avoid the consequence of interpreting “physically
present in,” 8 U.S.C. § 1158(a)(1), or “present in,” id. § 1225(a)(1), to exclude
noncitizens who have just crossed the border—for example, like the interpretation
in Lopez-Perara, where this Court said that a noncitizen who had “driven into the
San Ysidro Port of Entry” was not “illegally or unlawfully in the United States,” 438
F.3d at 932, 936 (quotation marks omitted) (emphasis this Court’s)—it was im-
portant for Congress to include “arrives in” and “arriving in” to ensure those noncit-
izens could apply for asylum immediately after crossing the border.
Third, relying on a prior decision of a motions panel of this Court, Plaintiffs
argue that “‘historical changes to the statutory language’” demonstrate that “arrives
in” in Section 1158(a)(1) includes noncitizens who have not yet crossed the border.
Second Br. 19 n.4 (quoting Al Otro Lado v. Wolf, 952 F.3d 999, 1012 (9th Cir.
2020)). But the motions panel’s conclusion on this issue is not binding on this panel,
and it should not be followed. See East Bay Sanctuary Covenant v. Biden, 993 F.3d
640, 661 (9th Cir. 2021). Section 1158(a) originally applied to “an alien physically
present in the United States or at a land border or port of entry.” Refugee Act of
1980, Pub. L. No. 96–212, § 201(b), 94 Stat. 102, 105 (1980) (emphasis added). In
1996, Congress amended Section 1158(a)(1) to apply to “[a]ny alien who is physi-
cally present in the United States or who arrives in the United States.” IIRIRA
§ 604(a) (emphasis added). This amendment did not work a significant change in
12
Section 1158(a), as both iterations of that statute “obviously contemplate” that asy-
lum proceedings “would be held in the country.” Sale, 509 U.S. at 173 & n.29. But
even assuming that this amendment did effect a significant change, it was to narrow
the focus of the statute onto U.S. territory. If being “at a land border,” Refugee Act
§ 201(b), plausibly refers to someone who is not yet across the border, as Plaintiffs
suggest, “arrives in the United States,” IIRIRA § 604(a), clearly refers to someone
who is in the United States. Thus, to the extent the amendment significantly changed
the scope of Section 1158(a) at all, the change demonstrates that Congress intended
Section 1158(a)(1) to apply to noncitizens who have already crossed the border.
Fourth, Plaintiffs incorrectly contend that they have defeated the presumption
against the extraterritorial application of Sections 1158 and 1225. Second Br. 25–
26. Sections 1158 and 1225 contain no “clear indication of an extraterritorial appli-
cation,” Morrison v. National Australia Bank Ltd., 561 U.S. 247, 255 (2010), be-
cause the plain language of those provisions refers to noncitizens in the United
States, and the rule against surplusage does not dictate that “arrives in” and “arriving
in” be interpreted as applying to noncitizens who have not crossed the border. See
First Br. 27–39; supra at 8–12. Accordingly, the presumption against extraterritori-
ality is not rebutted. WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129,
2136 (2018).
13
Plaintiffs also contend that the presumption is inapplicable because “this case
‘involves a permissible domestic application’ of” Sections 1225(a)(3) and
1225(b)(1)(A)(ii), because those statutes regulate immigration officers’ “conduct oc-
curring entirely within the United States.” Second Br. 27 (quoting WesternGeco
LLC, 138 S. Ct. at 2136) (emphasis Plaintiffs’). But that supports the Government’s
position, not Plaintiffs’. The focus of the statutory inquiry is to ascertain to whom
CBP officers owe duties to inspect and refer. CBP officers must inspect “applicants
for admission” and those who are “otherwise seeking admission,” 8 U.S.C.
§ 1225(a)(3), and must refer a noncitizen for a credible-fear interview “[i]f [the] of-
ficer determines” that the noncitizen is inadmissible on specific grounds and the
noncitizen indicates “an intention to apply for asylum . . . or a fear of persecution,”
id. § 1225(b)(1)(A)(ii). Interpreting Section 1225 to impose obligations on immigra-
tion officers toward noncitizens in another country would fall within the category of
the “relevant conduct occur[ing] in another country,” meaning that the case would
“involve[] an impermissible extraterritorial application regardless of any other con-
duct that occurred in U.S. territory.” WesternGeco LLC, 138 S. Ct. at 2137 (quota-
tion marks omitted).
Further, Sale’s analysis demonstrates that the INA does not contemplate ex-
traterritorial application of asylum processing. See First Br. 33. Nor was Sale’s anal-
ysis “dicta.” Second Br. 28 n.9. The Supreme Court’s analysis of the structure of the
14
INA, including Section 1158(a), and the vesting of immigration responsibilities in
an Executive official with exclusively domestic authority (like the CBP Commis-
sioner), were all necessary to its decision that the withholding-of-removal statute did
not apply to noncitizens on the high seas. See Sale, 509 U.S. at 173–74; Cetacean
Community v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (explaining that “[a] state-
ment is dictum when it is . . . unnecessary to the decision in the case” (alterations
and quotation marks omitted)). That holding should control here. And even if it were
dictum, it deserves substantial weight. United States v. Montero-Camargo, 208 F.3d
1122, 1132 n.17 (9th Cir. 2000). Plaintiffs’ reliance on United States v. Delgado-
Garcia, 374 F.3d 1337 (D.C. Cir. 2004) (at Second Br. 28) to distinguish Sale is
misplaced, because that case involved a statute prohibiting “encouraging or inducing
illegal immigration,” which is “very different” from the statutes at issue in Sale. Id.
at 1347–48.
Fifth, Plaintiffs contend that the simple present tense phrase “arrives in,”
8 U.S.C. §§ 1158(a)(1), 1225(a)(1), includes “noncitizens who have not yet crossed
the border,” Second Br. 19, because the Dictionary Act mandates that “words used
in the present tense include the future as well as the present,” 1 U.S.C. § 1. Relatedly,
they contend that the Government’s reading of Sections 1158(a)(1) and 1225(a)(1)
impermissibly changes “arrives in” into “arrived in.” Second Br. 25; see also id. at
25 n.8.
15
As explained, the Dictionary Act does not apply here. See First Br. 35–36.
That Act’s default rules are inapplicable when statutory language has a “specific and
unambiguous” definition, Guidiville Band of Pomo Indians v. NGV Gaming, Ltd.,
531 F.3d 767, 776 (9th Cir. 2008), and the phrases “arrives in” in Sections 1158(a)(1)
and 1225(a)(1), and “arriving in” in Section 1225(b)(1)(A)(ii), have a specific and
unambiguous definition that does not include noncitizens outside the United States,
see First Br. 27–30. The Dictionary Act’s default rules also do not apply in the way
Plaintiffs contend because “the context” of Sections 1158(a)(1) and 1225(a)(1) “in-
dicates otherwise.” 1 U.S.C. § 1; see Rowland v. California Men’s Colony, Unit II
Men’s Advisory Council, 506 U.S. 194, 199 (1993). The phrase “arrives in” was
added to Sections 1158(a)(1) and 1225 as part of a system for the expedited removal
of noncitizens “from the United States.” 8 U.S.C. § 1225(b)(1)(A)(ii) (emphasis
added). Logically, a noncitizen must be in the United States before he can be re-
moved from the United States. See also, e.g., H.R. Rep. No. 104-469, pt. 1, at 175–
76 (1996) (recognizing that an asylum claim should “be commenced as soon as pos-
sible after the alien’s arrival in the U.S.” (emphasis added)).
In any event, Plaintiffs’ application of the Dictionary Act is wrong. The rule
that “words used in the present tense include the future as well as the present,”
1 U.S.C. § 1, means that a statute containing present-tense language is prospective
in its application and does not “reach preenactment conduct,” Carr v. United States,
16
560 U.S. 438, 448 (2010). It does not mean that present-tense language presently
regulates conduct that may occur in the future, but has not yet occurred or may never
occur at all. That application of the Dictionary Act was specifically considered and
rejected in Guidiville Band of Pomo Indians. In that case, this Court held that a stat-
ute defining “Indian lands” as “lands the title to which is held by the United
States . . . or lands the title to which is held by an Indian tribe,” does not include
“both lands that are currently held in trust by the United States for an Indian tribe
and lands that might eventually be held in similar fashion.” 531 F.3d at 775 (empha-
ses this Court’s). Instead, this Court reasoned that the “use of the present tense in
defining ‘Indian lands’ unambiguously prescribes that title to the real estate must
already be held by the United States in trust for a tribe. Had Congress intended that
[the statute] also extend to lands that might later be held in trust, it would have been
the simplest of matters to word the statute differently.” Id. at 775 (emphasis this
Court’s).
So too here. The reference to a noncitizen “who arrives in the United States,”
8 U.S.C. §§ 1158(a)(1), 1225(a)(1), means a noncitizen who has already arrived in
the United States, see Guidiville Band of Pomo Indians, 531 F.3d at 775, on or after
the dates the statutes were enacted, see Carr, 560 U.S. at 448. Those provisions do
not presently apply to a noncitizen who may arrive in the United States in the future,
but who has not yet arrived or may never arrive at all.
17
Plaintiffs’ application of the Dictionary Act also selectively applies that Act
only to half of the relevant statutory language. When “Congress use[s] the same
tense in both elements” of a statute, courts “give both the same temporal reach, ab-
sent some reason to do otherwise.” United States v. Jackson, 480 F.3d 1014, 1020
(9th Cir. 2007). Thus, if the Dictionary Act gives “arrives in,” 8 U.S.C.
§§ 1158(a)(1), 1225(a)(1), a future tense, it must give “may apply for asylum,” id.,
a future tense, as well. In other words, someone who arrives in the United States
today may apply for asylum today, and someone who arrives in the United States
tomorrow may apply for asylum tomorrow. It cannot be that someone who arrives
in the United States tomorrow may apply for asylum today.
Sixth, Plaintiffs argue that even if noncitizens outside the United States are
not “applicants for admission” under Section 1225(a)(1), “they fit within the catch-
all category of noncitizens ‘otherwise seeking admission’” who must be inspected
under Section 1225(a)(3). Second Br. 19–20. But the statute provides no basis to
conclude that “otherwise seeking admission” refers to individuals outside the terri-
torial United States. To the contrary, the statutory context and the presumption
against extraterritoriality dictate that it does not, including because Section 1225
provides for the expedited removal of noncitizens “from the United States.” 8 U.S.C.
§ 1225(b)(1)(A)(ii) (emphasis added). And, as explained, the distinction between
18
noncitizens “who are applicants for admission” and those who are “otherwise seek-
ing admission,” id. § 1225(a)(3), is between those who clearly fall within the cate-
gories of “applicants for admission” in Section 1225(a)(1) and those who do not, or
for whom that determination cannot be made until later—for example, lawful per-
manent residents (LPRs). See First Br. 36.
Plaintiffs contend that the Government “fail[s] to explain how most LPRs are
both ‘otherwise seeking admission’ and ‘not . . . regarded as seeking an admission.’”
Second Br. 20. LPRs generally are not applicants for admission. They “shall not be
regarded as seeking an admission into the United States” unless an exception applies.
8 U.S.C. § 1101(a)(13)(C). But “whether a returning LPR meets one of the six ex-
ceptions in [Section 1101(a)(13)(C)] may not be self-evident” upon his arrival, “be-
cause the pertinent facts may not be practically ascertainable.” Vazquez Romero v.
Garland, 999 F.3d 656, 665 (9th Cir. 2021); Matter of Valenzuela-Felix, 26 I. & N.
Dec. 53, 57–58 (BIA 2012). By directing immigration officers to inspect “applicants
for admission” and those who are “otherwise seeking admission,” Section
1225(a)(3) provides a statutory basis for the inspection of “[a]ll aliens,” id., even if
it is unclear whether a noncitizen meets the technical definition of an “applicant for
admission” under Section 1225(a)(1). Section 1225(a)(3) does not extend CBP’s in-
spection obligations into Mexico. This is consistent with Section 1101(a)(13)(C),
see Vazquez Romero, 999 F.3d at 663–66 (affording Chevron deference to Matter of
19
Valenzuela Felix), and other provisions of Section 1225 providing for the expedited
removal of noncitizens “from the United States,” 8 U.S.C. § 1225(b)(1)(A)(ii) (em-
phasis added). Plaintiffs offer no authority to the contrary.
Seventh, Plaintiffs contend that the present-progressive “arriving in the United
States” in Section 1225(b)(1)(A)(ii) plausibly denotes a process of arrival that “log-
ically begins as one approaches the POE to cross the physical border into the pre-
inspection area.” Second Br. 20–21. Yet the plain language of Section
1225(b)(1)(A)(ii) only requires an immigration officer to refer a noncitizen in expe-
dited removal for a credible-fear interview “[i]f an immigration officer determines”
that the noncitizen is inadmissible based on fraud or insufficient entry documents
“and the [noncitizen] indicates either an intention to apply for asylum . . . or a fear
of persecution.” Id. (emphases added). A determination that a noncitizen is inadmis-
sible on those specific grounds can only be made upon inspection, and inspection
only occurs within the United States. This reading is supported by the cases the Gov-
ernment cited in its First Brief (at 30), all of which use the present progressive “ar-
riving” or “entering” to refer to noncitizens who have already crossed the border and
are awaiting a determination of admissibility. See Matter of M-D-C-V-, 28 I. & N.
Dec. 18, 23 (BIA 2020); Mezei, 345 U.S. at 213. Plaintiffs, in contrast, offer no cases
supporting their interpretation that “arriving” must refer to someone outside the
United States. They rely only on an inapt analogy to a “flight attendant” announcing
20
that a flight is arriving at its destination before it actually lands, Second Br. 21, which
does not rebut the courts’ and the Board of Immigration Appeals’ understanding that
an “arriving alien” is someone already in the United States in fact, but not in con-
templation of law.
Eighth, Plaintiffs assert that a regulation defining “arriving alien” as “an ap-
plicant for admission coming or attempting to come into the United States at a port-
of-entry,” 8 C.F.R. § 1.2, supports their position because the phrase “attempting to
come into the United States,” id., “clearly encompasses individuals who have not
yet crossed the border,” Second Br. 21–22. Not so. An “arriving alien” is “an appli-
cant for admission coming or attempting to come into the United States at a port-of-
entry.” 8 C.F.R. § 1.2 (emphasis added). “Arriving aliens” are a subset of “applicants
for admission,” who are defined by statute as noncitizens “present in the United
States who ha[ve] not been admitted or who arrive[] in the United States.” 8 U.S.C.
§ 1225(a)(1); see Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 444,
445 (Jan. 3, 1997) (“IIRIRA distinguishes between the broader term ‘applicants for
admission’ and a narrower group, ‘arriving aliens’”). Because all applicants for ad-
mission are necessarily within the territorial borders of the United States, and be-
cause the ongoing nature of arriving only begins after a noncitizen crosses the bor-
der, see supra at 20–21, the regulation defining “arriving alien” does not purport to,
and does not, include noncitizens outside the United States.
21
The regulatory history confirms that “coming or attempting to come into the
United States at a port-of-entry,” 8 C.F.R. § 1.2, does not refer to noncitizens in an-
other country. The Immigration and Naturalization Service (INS) initially defined
“arriving alien” in relevant part as “an alien who seeks admission to or transit
through the United States . . . at a port-of-entry.” Inspection and Expedited Removal
of Aliens, 62 Fed. Reg. 10312, 10330 (Mar. 6, 1997) (emphasis added). The INS
later amended the regulation to the current language defining an “arriving alien” as
“an applicant for admission coming or attempting to come into the United States at
a port-of-entry,” because the word “seeks” in the initial definition “suggest[ed] that
an alien must have a subjective intent to gain admission in order to be an arriving
alien.” Amendment of the Regulatory Definition of Arriving Alien, 63 Fed. Reg.
19382, 19383 (Apr. 20, 1998). That interpretation was “not consistent with the stat-
ute,” id., because IIRIRA’s definition of “applicant for admission” makes no men-
tion of subjective intent, see 8 U.S.C. § 1225(a)(1). Thus, the phrase “coming or at-
tempting to come into the United States at a port-of-entry,” 8 C.F.R. § 1.2, merely
clarifies that a noncitizen can be an “arriving alien” “regardless of whether he or she
subjectively desires admission.” 63 Fed. Reg. at 19383.
Ninth, Plaintiffs argue that the record of a 1997 House of Representatives sub-
committee hearing purportedly confirms “Congress’ intent in adopting the term ‘ar-
riving alien.’” Second Br. 22 (citing Implementation of [IIRIRA]: Hearing Before
22
the Subcommittee on Immigration and Claims of the House of Representatives Judi-
ciary Committee, 105th Congress 17–18 (1997) (hereinafter Implementation of
IIRIRA)). As an initial matter, this 1997 record post-dates the 1996 enactment of
IIRIRA. “Post-enactment legislative history (a contradiction in terms) is not a legit-
imate tool of statutory interpretation,” because “by definition,” it “could have had
no effect on the congressional vote.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242
(2011) (quotation marks omitted).
In any event, the House record supports the Government’s position, not Plain-
tiffs’. The Chairman noted that the term “arriving alien” denotes “a flexible concept
that would include all aliens who are in the process of physical entry past our bor-
ders,” and that it includes, for example, “an alien who has entered U.S. territory . . .
even if that alien has penetrated several hundred yards . . . into United States terri-
tory.” Implementation of IIRIRA 17–18 (emphases altered). These statements con-
firm that an “arriving alien” is a noncitizen who is making “physical entry” and is
already “past our borders” and in the United States. Id. Nothing about these state-
ments indicate that the process of arrival begins in Mexico.
Finally, Plaintiffs claim that House Report No. 104-469 (cited at First Br. 31
and herein) “has zero relevance to this case” because it purportedly “refers to a bill
that never became law.” Second Br. 22. That is inaccurate. House Report No. 104–
269 accompanied the Immigration in the National Interest Act of 1995, which was
23
later reintroduced as the Immigration Control and Financial Responsibility Act of
1996 (H.R. 2202), which was eventually passed as IIRIRA.1 It is appropriately con-
sidered when examining IIRIRA’s legislative history. See, e.g., Torres, 976 F.3d at
928 (citing H. Rept. No. 104–469); Matter of Collado-Munoz, 21 I. & N. Dec. 1061,
1065 n.6 (BIA 1998) (same). That legislative history supports what the plain lan-
guage already establishes: Sections 1158 and 1225 do not apply to noncitizens out-
side the United States.
B. Metering Does Not “Unlawfully Withhold” Any Mandatory

Agency Action on a Class-Wide Basis.
As the Government explained in its Opening Brief, even if Sections 1158 and
1225 were to apply to noncitizens in Mexico, the district court incorrectly concluded
that DHS and CBP “unlawfully withheld” their obligations on a class-wide basis.
5 U.S.C. § 706(1); see First Br. 39–45. The undisputed evidence shows that the
stated purpose of metering was not to prevent noncitizens from applying for asylum,
but to regulate the flow of noncitizens without sufficient entry documents into the
ports of entry, to facilitate orderly processing, maintain port security, maintain safe
and sanitary conditions, or to facilitate the prioritization of CBP’s resources. 2-ER-
516; 2-ER-518–20, 2-ER-526–31; see also 3-SER-670. The undisputed evidence
also shows that, while metering, CBP continued to inspect noncitizens for admission
1
See https://www.congress.gov/congressional-report/104th-congress/house-report/
469 (accessed Mar. 30, 2023).
24
at the southwest border ports of entry and refer them for credible-fear interviews at
increasing rates. See 2-ER-523. These facts demonstrate that even if the INA im-
poses an obligation on immigration officers to inspect and process noncitizens in
Mexico, CBP continued to discharge those obligations concurrently with the imple-
mentation of metering—meaning that, contrary to the district court’s holding, the
Government did not “unlawfully withhold” those obligations on a class-wide basis.
5 U.S.C. § 706(1).
Plaintiffs’ arguments to the contrary are incorrect. See Second Br. 28–34.
First, as explained, it is not true that every so-called “turnback” under metering “is
mandatory ‘agency action unlawfully withheld.’” Second Br. 30; see First Br. 42–
45; see also Second Br. 30 (acknowledging that “some asylum seekers were subse-
quently processed at POEs”).
Second, Plaintiffs argue that “[e]ven if turnbacks are delays, those delays are
unreasonable” under the factors set forth in Telecommunications Research and Ac-
tion Center v. FCC (TRAC), 750 F.2d 70 (D.C. Cir. 1984). This Court should not
consider this argument because it “w[as] not properly raised at the lower court level.”
Steam Press Holdings, Inc. v. Hawaii Teamsters, Allied Workers Union, Local 996,
302 F.3d 998, 1005 (9th Cir. 2002). Plaintiffs did not raise any unreasonable-delay
argument in their Motion for Summary Judgment, see FER-182–95, and Plaintiffs
did not oppose the Government’s Cross-Motion on the Section 706(1) claim (at
25
FER-117–18) on the alternative theory that any delays were unreasonable, see FER-
43–67. Instead, Plaintiffs raised an unreasonable-delay argument for the first time in
their Summary Judgment Reply, when the Government had no opportunity to re-
spond. See FER-20–25. This Court should decline to consider their argument on ap-
peal. See Steam Press Holdings, 302 F.3d at 1005. Further, the district court did not
analyze any unreasonable-delay claims, and “[i]t is the general rule . . . that a federal
appellate court does not consider an issue not passed upon below.” Singleton v.
Wulff, 428 U.S. 106, 120 (1976). Thus, although the Government maintains that the
factual record precludes any finding that metering led to unreasonable delays on a
class-wide basis, it would be improper for this Court to address this undeveloped
factual issue for the first time on appeal, particularly where the practices at issue are
now superseded.
II. The District Court Erred in Concluding That Metering Violates Proce-
dural Due Process.
The district court also erred in concluding that the Due Process Clause applies
to nonresident noncitizens in Mexico under Boumediene v. Bush, 553 U.S. 723
(2008), and that the Government deprived class members of procedural due process
rights by not inspecting and referring them for credible-fear interviews before they
crossed the U.S.-Mexico border. See First Br. 46–49.
26
Plaintiffs’ contentions in response are wrong. See Second Br. 34–35.
Boumediene’s functional-approach test is inapplicable to the Fifth Amendment be-
cause that case is about the Suspension Clause. See First Br. 47–48. Indeed, the Su-
preme Court in Department of Homeland Security v. Thuraissigiam, 140 S. Ct. 1959
(2020), impliedly rejected any reliance on Boumediene when analyzing Fifth
Amendment rights of nonresident noncitizens. See Thuraissigiam, 140 S. Ct. at
1981; see also Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir. 2009) (explaining that
the Supreme Court explicitly “disclaimed any intention to disturb existing law gov-
erning the extraterritorial reach of any constitutional provisions, other than the Sus-
pension Clause”). This Court’s decision in Ibrahim v. Department of Homeland Se-
curity, 669 F.3d 983 (9th Cir. 2012), which imported the functional approach into
the Fifth Amendment, is therefore “clearly irreconcilable” with Thuraissigiam, and
this Court “is not bound by the former and is free to reject it as effectively overruled.”
Langere v. Verizon Wireless Services, LLC, 983 F.3d 1115, 1121 (9th Cir. 2020)
(quotation marks omitted).
Nor did Boumediene or Rasul v. Bush, 542 U.S. 466 (2004), limit the holding
of Johnson v. Eisentrager, 339 U.S. 763 (1950), in this regard. See Second Br. 36
n.14. Those cases distinguished Eisentrager’s holding on the territorial application
of the Suspension Clause. See Rasul, 542 U.S. at 476; Boumediene, 553 U.S. at 732.
27
They say nothing about Eisentrager’s holding that the Fifth Amendment is unavail-
able to noncitizens outside the United States. See Thuraissigiam, 140 S. Ct. at 1989
(Breyer, J., concurring) (noting that the Suspension Clause and the Due Process
Clause are “distinct constitutional provision[s]”). That aspect of Eisentrager remains
good law following Rasul and Boumediene. See, e.g., Agency for International De-
velopment v. Alliance for Open Society International, Inc., 140 S. Ct. 2082, 2086
(2020) (citing Eisentrager (and other cases) for the proposition that “foreign citizens
outside U.S. territory do not possess rights under the U.S. Constitution”).
In any event, Plaintiffs cannot demonstrate that class members satisfy
Boumediene’s functional approach. See First Br. 48–50. Noncitizens who were sub-
ject to metering were standing in Mexico at the time they were allegedly deprived
of due process. They are thus unlike the habeas petitioners in Boumediene, who were
detained within territory over which the United States had “complete jurisdiction
and control” and “de facto sovereignty.” Boumediene, 553 U.S. at 755. They are also
unlike the noncitizen with “substantial voluntary connection[s]” to the United States
in Ibrahim, 669 F.3d at 996, because there is no class-wide evidence demonstrating
any such connections. On these facts, it would be “impracticable and anomalous,”
Boumediene, 553 U.S. at 770, to permit class members to invoke the Fifth Amend-
ment before they cross the border into the United States—especially when they
would not have any independent Fifth Amendment protections in connection with
28
their admission to the United States once they set foot in the country. See Thuraissi-
giam, 140 S. Ct. at 1981–82.
Finally, even if Sections 1158(a)(1) or 1225 applied to noncitizens in Mexico,
Plaintiffs do not explain how any violation of these provisions amounts to a consti-
tutional deprivation. See First Br. 49 (citing Snowden v. Hughes, 321 U.S. 1, 11
(1944)). This Court should reverse the district court on this claim.
III. The District Court Erred in Granting Burdensome Class-Wide Injunc-

tive and Declaratory Relief.
A. The District Court Abused its Discretion.
The district court abused its discretion in enjoining DHS and EOIR from ap-
plying the third-country transit rule to certain class members who would have en-
tered the United States before the transit rule’s effective date but for metering, and
by requiring DHS and EOIR to reopen and reconsider prior applications of the transit
rule in closed asylum cases. See First Br. 50–51.
First, the injunction of the transit rule lacks a sufficient nexus to the violation
found. See First Br. 50. Contrary to Plaintiffs’ argument, the APA only permits a
court to “compel agency action unlawfully withheld or unreasonably delayed.”
5 U.S.C. § 706(1). The rule expressed in Norton v. Southern Utah Wilderness Asso-
ciation, 542 U.S. 55, 64 (2004), that Section 706(1) “empowers a court only to com-
pel an agency to perform a ministerial or non-discretionary act, or to take action
29
upon a matter, without directing how it shall act” is not “dicta,” Second Br. 38, be-
cause it was “central to the analysis of [that] case,” Norton, 542 U.S. at 63. Although
the injunction “does not compel [the Government] to grant or deny asylum to any-
one,” Second Br. 38, it dictates how the Government must process class members’
asylum claims, including by requiring new and retrospective screening procedures
that are not required by the relevant statutory provisions. See 1-ER-182–217; 1-ER-
129–38; 1-ER-139–63; 1-ER-35–83. It thus exceeds the remedial authority afforded
to courts under the APA—which would at most permit the Court to compel the pro-
cedural inspection and referral duties the Court found were withheld.
Plaintiffs’ argument that the injunction is nonetheless permissible because
courts “can order relief necessary to remedy a constitutional violation,” Second Br.
37 (citation and quotation marks omitted), is misplaced, because there is no consti-
tutional violation here: The only basis for the district court’s procedural due process
ruling was a purported statutory violation, and the stated basis of the injunction is to
prevent “the Government from taking actions ‘not authorized by the [transit rule]
or . . . by any implementing regulation or statute.’” 1-ER-78 (quoting Preliminary
Injunction). It was not to remedy a constitutional violation. In any event, the remedy
that would put class members “‘in the position they would have occupied’ if the
legal violation had not occurred,” Second Br. 37 (quoting Winston Research Corp.
v. Minnesota Mining & Manufacturing Co., 350 F.2d 134, 142 (9th Cir. 1965)), is
30
the same as under the APA: to order the Government to provide class members with
what the statute requires—inspection and, if other predicates are met, referral for a
credible-fear interview. See 8 U.S.C. § 1225(a)(3), 1225(b)(1)(A)(ii). Neither Sec-
tion 1158(a)(1) nor Section 1225 requires the Government to follow rules and regu-
lations that would have applied to class members if they had crossed the border on
a different date, and class members do not have a right to any specific version of
“the asylum process” that excludes the transit rule. Second Br. 37–38. There is “no
vested right of entry which could be the subject of a prohibition against retroactive
operation of regulations affecting [a noncitizen’s] status.” United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950); see also, e.g., Henderson v.
United States, 568 U.S. 266, 271 (2013) (explaining that an adjudicator generally
“must apply the law in effect at the time it renders its decision”); Mezei, 345 U.S. at
213 (holding that an “entering alien . . . may be excluded if unqualified for admission
under existing immigration laws”—“whether he has been here once before or not”
(emphasis added)). NEDC v. Gordon, 849 F.2d 1241 (9th Cir. 1988), and Garcia v.
Lawn, 805 F.2d 1400 (9th Cir. 1986) (cited at Second Br. 37) are factually distinct
and not to the contrary, as they both involve final relief that was substantially similar
to the relief initially requested.
Second, the district court independently abused its discretion to the extent it
continued to ground the injunction in the theory that the transit rule does not apply
31
by its own terms to noncitizens who would have entered the United States before the
rule’s effective date had they not been subject to metering. See 1-ER-80, 1-ER-135–
36, 1-ER-211–12. Regardless of whether the district court’s statutory interpretation
is correct, the transit rule, while it was in effect, unambiguously applied to any
noncitizen “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 a third coun-
try and failing to seek protection there. Asylum Eligibility and Procedural Modifi-
cations, 84 Fed. Reg. 33829, 33843 (July 16, 2019). It thus clearly applied to noncit-
izens who entered after that date, even those who did so because of metering.
B. The INA Bars the Injunctive Relief Ordered.
The injunction also violates the prohibition at 8 U.S.C. § 1252(f)(1) on class-
wide orders that “enjoin or restrain the operation of” the relevant statutes, which
prohibition “is best understood to refer to the Government’s efforts to enforce or
implement them.” Garland v. Aleman Gonzalez, 142 S. Ct. 2057, 2064 (2022); First
Br. 52–57. The injunction here enjoins the Government’s efforts to implement cov-
ered statutes because it prohibits asylum officers and immigration judges from com-
plying with regulations that (while they were in effect) required the application of a
specific asylum-eligibility rule in removal proceedings under 8 U.S.C. § 1229a and
32
expedited removal under 8 U.S.C. § 1225, and requires asylum officers and immi-
gration judges to affirmatively reopen or reconsider past applications of the transit
rule in those proceedings. See First Br. 53–54.
Plaintiffs argue that the injunction does not violate Section 1252(f)(1) because
the transit rule “implements § 1158(b)(2)(C) (which is not a 1252(f) provision)” and
has only a “collateral” impact on the operation of Sections 1225 and 1229a under
Gonzalez v. ICE, 975 F.3d 788 (9th Cir. 2020), Gonzales v. DHS, 508 F.3d 1227
(9th Cir. 2007), and Catholic Social Services, Inc. v. INS, 232 F.3d 1139 (9th Cir.
2000). Second Br. 40. Plaintiffs contend that the Government’s argument would ex-
tend Section 1252(f)(1) to apply to “any action that could ultimately affect the out-
come of an expedited or full removal proceeding.” Second Br. 41; see also Amicus
Br. of ACLU & NWIRP (ACLU Br.) 4–14. But the primary inquiry is not which
statute supplies the authority for a given rule; it is whether an injunction imposes a
restraint or requirement on the implementation of a covered provision. Aleman Gon-
zalez, 142 S. Ct. at 2064–65. If an injunction imposes a direct restraint or require-
ment on the procedures that implement a covered provision, its impact cannot be
considered “collateral.” As explained, the transit rule established a substantive bar
on asylum eligibility and procedures for implementing that bar in expedited removal
under Section 1225 and removal proceedings under Section 1229a—both of which
are covered under Section 1252(f)(1). See First Br. 53–54. An injunction prohibiting
33
compliance with those aspects of the transit rule is an impermissible direct restraint
on “the Government’s efforts to enforce or implement” Sections 1225(b)(1)(B) and
1229a(c)(4)(A). Aleman Gonzalez, 142 S. Ct. at 2064; see id. (“[T]he operation of
the provisions [in Section 1252(f)(1)] is a reference not just to the statute itself but
to the way that it is being carried out.”); see also Biden v. Texas, 142 S. Ct. 2528,
2538 (2022) (holding that requiring DHS to comply with a rescinded policy memo-
randum implementing 8 U.S.C. § 1225(b)(2)(C) “violated” Section 1252(f)(1)).2
Finally, Plaintiffs offer no response to the Government’s point that the injunc-
tion violates 8 U.S.C. § 1252(a)(2), (a)(5), (b)(9), and (e), other than to suggest that
a “single string cite” is insufficient to support the Government’s position. Second
Br. 42 n.16. But those provisions are self-explanatory in their prohibition on collat-
eral attacks on closed removal proceedings. See First Br. 52. Together, they unam-
biguously stripped the district court here of any jurisdiction to require the Govern-
ment to take affirmative steps to reopen or reconsider past applications of the transit
2
It is imprecise to say that “[e]njoining an asylum rule . . . will always have collat-
eral effects on the removal process,” ACLU Br. at 21, because a substantive asylum
bar is distinct from the procedures for implementing that bar in expedited removal
and removal proceedings. For example, Section 1252(f)(1) potentially would not
prohibit an injunction on applying a transit bar to noncitizens who file an affirmative
asylum application outside of expedited removal or removal proceedings. Moreover,
Section 1252(f)(1) only applies to class-wide injunctions that restrain the application
of substantive asylum rules in removal proceedings. That is consistent with other
provisions of Section 1252 that channel challenges through the statutorily-prescribed
individual review process, see 8 U.S.C. § 1252(a)(5), (b)(9), or otherwise divest
courts of jurisdiction to consider them, see id. § 1252(a)(2), (e).
34
rule in expedited removal or removal proceedings. The INA thus bars the district
court’s class-wide injunction prohibiting compliance with the transit rule.
IV. This Court Should Not Reach Plaintiffs’ Section 706(2) Claim.
The district court did not separately address Plaintiffs’ Section 706(2) theories
of liability because the court had concluded that metering was categorically unlawful
under Section 706(1) and the Due Process Clause, 1-ER-117, and it granted overly
broad declaratory relief to Plaintiffs on this basis, 1-ER-4–5. Plaintiffs now argue
that “the district court erred by declining to find the turnback policy unlawful under
[the] APA” at 5 U.S.C. § 706(2), and they appear to ask this Court to grant them
summary judgment on that claim and remand to determine “whether additional rem-
edies—including injunctive relief—would be available.” Second Br. 42–43 & n.17;
see also id. at 43–50. But this claim is moot, cannot result in any “additional” rem-
edy, and lacks merit.
A. Plaintiffs’ Section 706(2) Claim is Moot.
As an initial matter, remand would be futile because Plaintiffs’ Section 706(2)
claim is moot. In November 2021, DHS and CBP rescinded and replaced CBP’s
metering guidance (and its justifications for issuing that guidance). See 2-ER-309–
318. The rescinded guidance documents were the only specific agency actions that
the APA empowered the district court to review. See Biden, 142 S. Ct. at 2545 (“To
the extent that the Court of Appeals understood itself to be reviewing an abstract
35
decision apart from specific agency action, as defined in the APA, that was error.”).
When those memoranda were rescinded, Plaintiffs’ challenge to that guidance (and
CBP’s implementation thereof) became moot. See Akiachak Native Community v.
Dep’t of Interior, 827 F.3d 100, 113 (D.C. Cir. 2016) (noting that it is “a perfectly
uncontroversial and well-settled principle of law” that “when an agency has re-
scinded and replaced a challenged regulation, litigation over the legality of the orig-
inal regulation becomes moot”). The district court correctly recognized this point
and declined to vacate the already-rescinded memoranda or consider them in fash-
ioning any relief. See 1-ER-27–28.
Relatedly, it would be futile to remand to the district court to consider the
availability of “injunctive relief.” Second Br. 43 n.17. Even assuming Plaintiffs were
to succeed on any of their now-moot Section 706(2) theories raised on appeal, see
Second Br. 43–50, vacatur is the most they could obtain. See Southeast Alaska Con-
servation Council v. U.S. Army Corps of Engineers, 486 F.3d 638, 654 (9th Cir.
2007) (“Under the APA, the normal remedy for an unlawful agency action is to ‘set
aside’ the action.” (quoting 5 U.S.C. § 706(2)), rev’d and remanded on other
grounds, Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S.
261 (2009). That is especially true because, as the district court correctly held, see
1-ER-26–27, 29–30, Section 1252(f)(1) prohibits a class-wide injunction against the
manner in which CBP implements Section 1225, including by metering—a holding
36
that Plaintiffs do not challenge on appeal. And even if the claims were not moot, this
Court should decline to consider an undeveloped factual issue that the district did
not rule on below. See Singleton, 428 U.S. at 120.
B. Metering is Within the Executive’s Authority, and the Metering

Memoranda Were Reasonable and Reasonably Explained.
In any event, Plaintiffs are incorrect that the metering policies exceed DHS or
CBP’s statutory authority and are arbitrary and capricious, as metering is a permis-
sible and reasonable exercise of executive authority. The Executive has constitu-
tional and statutory authority to regulate the manner and pace of pedestrian traffic
across the U.S.-Mexico border, particularly as to noncitizens who lack sufficient en-
try documents. See First Br. 43 (citing cases); Mezei, 345 U.S. at 215 (“Aliens seek-
ing entry from contiguous lands obviously can be turned back at the border without
more.” (internal citations omitted)); 6 U.S.C. §§ 111(b)(1), 202, 211(c), 211(g)(3).
Plaintiffs’ argument that metering is “not in accordance with law” or “in ex-
cess of statutory . . . authority” under Section 706(2) is wrong. Second Br. 44; see
also id. at 44–48. First, the Government’s position is not that general statutory man-
dates “negat[e]” specific statutory commands. See Second Br. 45–46. Metering is a
tool that CBP used to concurrently discharge its specific obligations under Section
1225 and its broader mandates to “[s]ecur[e] the borders” and “ports . . . of the
United States” and “ensur[e] the speedy, orderly, and efficient flow of lawful traffic
and commerce,” 6 U.S.C. § 202(2), (8); “deter and prevent terrorists and terrorist
37
weapons from entering the United States at such ports of entry,” id. § 211(g)(3)(A);
“prevent illicit drugs, agricultural pests, and contraband from entering the United
States,” id. § 211(g)(3)(C); and “facilitate and expedite the flow of legitimate trav-
elers and trade,” id. § 211(g)(3)(D). Assuming that CBP owes any obligations under
Section 1225 toward noncitizens in Mexico, metering does not “evade” those obli-
gations, Second Br. 46, because the undisputed evidence shows CBP continued to
inspect applicants for admission and refer noncitizens for credible-fear interviews
along the southwest border. See First Br. 39–45; supra at 24–26; 2-ER-523.
Second, Plaintiffs argue that the Executive lacks “inherent power to turn back
asylum seekers” because “agencies lack ‘inherent’ power outside of a statutory man-
date.” Second Br. 47 (quoting Gorbach v. Reno, 219 F.3d 1087, 1095 (9th Cir.
2000)). But CBP’s policy was not to “turn back asylum seekers.” Rather, the policy
was to manage the flow of noncitizens without sufficient entry documents by
“creat[ing] lines based on legitimate operational needs,” 2-ER-528, and “inform[ing]
the waiting travelers that processing at the port is currently at capacity and CBP is
permitting travelers to enter the port once there is sufficient space and resources to
process them,” 2-ER-516. Metering’s purpose was to “facilitate orderly processing
and maintain the security of the port and safe and sanitary conditions for the traveling
public,” 2-ER-516, and to facilitate prioritization of CBP’s resources in order of na-
38
tional security, counter-narcotics, economic security, and trade-and-travel facilita-
tion, 2-ER-527. Indeed, even amici recognize there are times “when a state is genu-
inely unable to accept and process all asylum-seekers at its border.” Amicus Br. of
Amnesty International 15 n.36. CBP does have authority to meter under its “inherent
executive power” “concerning the admissibility of aliens.” Knauff, 338 U.S. at 542.
CBP also has statutory authority to manage and operate Ports of Entry. 6 U.S.C.
§§ 202, 211(g)(3). As implemented, metering is a management tool that is justified
by CBP’s mandates to “deter and prevent terrorists and terrorist weapons from en-
tering the United States at such ports of entry,” “prevent illicit drugs . . . and contra-
band from entering the United States,” and “facilitate and expedite the flow of legit-
imate travelers and trade.” Id. § 211(g)(3)(A), (C), (D). CBP cannot ignore these
mandates either.
Third, Plaintiffs contend that “DHS’s ‘primary mission’ is to ‘ensure that
functions of the agencies and subdivisions within the Department that are not related
directly to securing the homeland,’ such as inspection and processing of asylum
seekers, ‘are not diminished or neglected except by a specific explicit Act of Con-
gress,’” and that “no such Act of Congress” applies here. Second Br. 46 (quoting
6 U.S.C. § 111(b)(1)(E) (emphasis Plaintiffs’)). But, assuming Plaintiffs’ interpreta-
tion of the statute is correct, the mandate to ensure that DHS’s non-national security
functions “are not diminished or neglected,” 6 U.S.C. § 111(b)(1)(E), is consistent
39
with CBP’s implementation of a (now-superseded) prioritization-based queue man-
agement policy. The policy allowed CBP to “focus on the detection and apprehen-
sion of narcotics and currency smugglers” and “protect the economic security of the
United States by enforcing trade laws and legitimate commerce,” 2-ER-528, thereby
facilitating DHS’s mandate to ensure that its functions were not diminished by al-
lowing CBP to direct resources toward the functions Congress specified, while con-
currently discharging its obligations under Section 1225.
Further, the metering policies were not “arbitrary and capricious and an abuse
of discretion under APA § 706(2).” Second Br. 48 (capitalization altered); see also
id. at 48–50. Arbitrary-and-capricious review is “narrow” and evaluates “only
whether the [decisionmaker] examined the relevant data and articulated a satisfac-
tory explanation for his decision, including a rational connection between the facts
found and the choice made.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2569
(2019) (quotation marks omitted). Courts must uphold agency action that is “reason-
able and reasonably explained.” Id. at 2571.
Plaintiffs base their arbitrary-and-capricious argument on the contention that
the “stated justification for [metering]—lack of capacity—is demonstrably false.”
Second Br. 48. They significantly mischaracterize the factual record in an attempt to
40
support this contention.3 First, they say that, if metering were “an attempt to deal
with increased migration,” it would have stopped in 2017 when migration levels
decreased. Second Br. 10. Yet the record shows that use of metering did decrease at
the end of 2016 and beginning of 2017, when the numbers of migrants decreased.
See, e.g., FER-239 (metering “ended in December of 2016” at the El Paso Port of
Entry and “began again in May of 2018”); FER-213 (Plaintiffs’ witness’s statement
that “by December 2016”, the Nogales Port of Entry had “processed the waiting
[noncitizens] in [Sonora, Mexico] and stopped metering”). Plaintiffs next say that
ports of entry “routinely had excess capacity to process arriving asylum seekers.”
Second Br. 11. But this overgeneralization means that metering proactively pre-
vented mass overcrowding, allowing CBP officers not to diminish other missions.
See, e.g., 2-ER-527 (showing increases in inbound drug seizures and outbound cur-
rency interdiction). Further, contrary to Plaintiffs’ contentions, see Second Br. 12,
DHS and CBP did increase detention capacity to address the 2016 migration surge
by opening two facilities in Texas in November and December 2016, which together
held almost 8,000 noncitizens while they were open, FER-143–47. And the fact that
the Secretary of Homeland Security’s office asked in June 2018 for “a rough mag-
nitude of CBP folks that will be needed to man the boundary line,” and a “rough
3
The Government generally disputes Plaintiffs’ Statement of the Case and refers the
Court to its own Statement. See First Br. 7–24.
41
estimate of the number of folks that would likely be turned away per day,” 2-SER-
426, is not proof of a desire “to artificially limit” asylum seekers, Second Br. 49.
Requesting information about the potential costs and impacts of implementing a pol-
icy is a regular aspect of the policymaking process.
At base, Plaintiffs’ arbitrary-and-capricious argument fails because CBP in
fact was facing capacity constraints each time it issued agency-wide metering guid-
ance. When the San Ysidro Port of Entry began metering in late May 2016, the Port
was overwhelmed by individuals seeking admission, even though the Port had al-
ready taken drastic contingency measures. See 2-ER-328–37; 2-ER-564; 3-ER-757;
3-ER-758; FER-216–17; FER-220. This prompted the Port Director to instruct his
deputies to “hold the line the best we can” to enable staff to “only focus on pro-
cessing case[s] at this time.” FER-223. In October 2016, “CBP’s total apprehensions
were 76 percent above the previous five-year average,” 3-ER-755, and CBP’s south-
west border regional offices were utilizing 140% of their detention capacity, 3-ER-
756. The subsequent instructions to ports of entry along the southwest border to me-
ter were animated by the same concerns as at San Ysidro. See, e.g., 2-ER-344–57;
3-ER-696 (“As other ports were overwhelmed with the volume of migrants, then we
adopted the same practice across the southwest border as needed.”); FER-228 (“I
just want our folks to have an additional tool to keep conditions safe and working at
our POEs.”). Likewise, in April and May 2018, the southwest border ports were
42
processing an increased number of inadmissible arriving noncitizens and had begun
to report “impacts to frontline functions,” 3-ER-674, and CBP was preparing for
another potential mass migration event, see 3-ER-696; 3-ER-653, -659, -665, -671;
2-ER-519–20. By November 2019, the number of inadmissible arriving noncitizens
referred by the southwest border Field Offices for credible-fear screening had dou-
bled again, from 38,399 in FY 2018 to 80,055 in FY 2019. 2-ER-523. CBP was
plainly facing capacity issues at each relevant time.
DHS and CBP thus “disclose[d] the basis of [their] action,” which means their
decisions must be upheld. Dep’t of Commerce, 139 S. Ct. at 2573 (quotation marks
omitted). Even if there were additional reasons for metering, “a court may not reject
an agency’s stated reasons for acting simply because the agency might also have had
other unstated reasons.” Id.4 Metering is constitutionally and statutory permissible,
and to the extent the Court decides to consider the merits of the now-rescinded me-
tering policies at issue, there is no undisputed material evidence showing that those
policies are arbitrary and capricious.
4
Relatedly, “a court may not set aside an agency’s policymaking decision solely
because it might have been influenced by political considerations or prompted by an
Administration’s priorities.” Dep’t of Commerce, 139 S. Ct. at 2573; see Biden, 142
S. Ct. at 2547 (holding that an “agency’s ex ante preference for terminating [a policy
program]—like any other feature of an administration’s policy agenda—should not
be held against the” policy).
43
V. The District Court Correctly Granted Summary Judgment for the Gov-
ernment on Plaintiffs’ Standalone INA Claim.
The district court correctly entered summary judgment for the Government on
Plaintiffs’ claim for nonstatutory review of “violation of the right to seek asylum
under the [INA],” because it is duplicative of their APA claims. 4-ER-910 (capital-
ization altered); see Second Br. 50–52. “[T]he APA is the general mechanism by
which to challenge final agency action.” Sierra Club v. Trump, 929 F.3d 670, 699
(9th Cir. 2019). “While a right to judicial review of agency action may be created by
a separate statutory or constitutional provision, once created it becomes subject to
the judicial review provisions of the APA unless specifically excluded.” Webster v.
Doe, 486 U.S. 592, 607 n.* (1988) (Scalia, J., dissenting); see Ninilchik Traditional
Council v. United States, 227 F.3d 1186, 1194 (9th Cir. 2000) (citing Justice Scalia’s
Webster dissent with approval). “[I]if review is not available under the APA it is not
available at all.” Webster, 486 U.S. at 607 n.* (Scalia, J., dissenting); Graham v.
FEMA, 149 F.3d 997, 1001 n.2 (9th Cir. 1998) (same), recognized as abrogated on
other grounds in Novak v. United States, 795 F.3d 1012, 1019 (9th Cir. 2015).
Here, Plaintiffs sued Government officials in their official capacities; they
challenged metering under the APA as an unlawful withholding of the Government’s
statutory obligations, as exceeding the Government’s authority, and as violating pro-
cedural due process; and they sought non-monetary relief. See 4-ER-912–19, 4-ER-
921–23. The APA provides a waiver of sovereign immunity for those claims in
44
5 U.S.C. § 702, and causes of action for those claims in 5 U.S.C. § 706. The district
court thus correctly concluded in its first motion-to-dismiss order that Plaintiffs lack
any cause of action to enforce the INA outside of the APA’s judicial review frame-
work, see FER-285–86, and it correctly entered summary judgment for the Govern-
ment “because plaintiffs could obtain review under the APA,” see 1-ER-96 (citing
Jafarzadeh v. Duke, 270 F. Supp. 3d 296, 311 (D.D.C. 2017)).
Plaintiffs do not challenge the district court’s reliance on Webster, Graham,
Ninilchik Traditional Council, or Jafarzadeh. Instead, they argue that the district
court misapplied E.V. v. Robinson, 906 F.3d 1082 (9th Cir. 2018), to hold that “the
APA waiver [of sovereign immunity at 5 U.S.C. § 702] applies to Plaintiffs’ claims
and consequently abrogates Plaintiffs’ ultra vires INA claim.” 1-ER-96; see Second
Br. 50–51. To be sure, it is unclear why the district court invoked Robinson, since
there is no dispute that the APA waived sovereign immunity for Plaintiffs’ APA
claims. See 1-ER-96. In any event, what matters is that Plaintiffs’ ultra vires claim
was entirely duplicative of Plaintiffs’ APA claims, and Plaintiffs do not otherwise
contend that the APA provided an inadequate cause of action.5 Thus, the district
5
Plaintiffs may argue that their ultra vires claim permits broader relief than what
they obtained on their APA claim, but that would be incorrect because Sec-
tion 1252(f)(1) applies “[r]egardless of the nature of the action or claim.” 8 U.S.C.
§ 1252(f)(1).
45
court was correct to enter summary judgment for the Government. See FER-285–
86; California v. Trump, 963 F.3d 926, 941 n.12 (9th Cir. 2020).
VI. The District Court Correctly Granted Summary Judgment for the Gov-
ernment on Plaintiffs’ International-Law Claim.
The court correctly declined to create a federal common law cause of action
for alleged violations of non-refoulement under the ATS, 28 U.S.C. § 1350. At a
minimum, the contours of the customary international-law norm that Plaintiffs assert
are not specific or universal. And it would be particularly improper to create a judi-
cial tort remedy against the United States that was not contemplated by Congress.
Finally, the undisputed facts fail to establish a non-refoulement violation.
The ATS confers jurisdiction on a federal district court over a civil action by
a noncitizen for “a tort only, committed in violation of the law of nations or a treaty
of the United States.” 28 U.S.C. § 1350. This language is “strictly jurisdictional” and
does not create a cause of action. Sosa v. Alvarez-Machain, 542 U.S. 692, 713–14,
724 (2004). The Supreme Court has set forth a two-step test for determining whether
to recognize a federal common law cause of action over which the ATS confers
jurisdiction beyond those three specific offenses against the law of nations recog-
nized at the time the ATS was enacted (“violation of safe conducts, infringements
of the rights of ambassadors, and piracy”). Id. The threshold question is “whether a
plaintiff can demonstrate that the alleged violation is ‘of a norm that is specific, uni-
versal, and obligatory.’” Jesner v. Arab Bank, 138 S. Ct. 1386, 1399 (2018) (quoting
46
Sosa, 542 U.S. at 732). Second, even “assuming that, under international law, there
is a specific norm that can be controlling, it must be determined further whether
allowing th[e] case to proceed under the ATS is a proper exercise of judicial discre-
tion.” Jesner, 138 S. Ct. at 1399 (citing Sosa, 542 U.S. at 732–33). Courts must
exercise “great caution in adapting the law of nations to private rights” and engage
in “vigilant doorkeeping,” because, among other reasons, the “decision to create a
private right of action is one better left to legislative judgment in the great majority
of cases,” and Congress has not mandated courts “to seek out and define new and
debatable violations of the law of nations.” Sosa, 542 U.S. at 727, 728, 729. Only in
“very limited circumstances” is creation of a cause of action warranted. Nestle
USA, Inc. v. Doe, 141 S. Ct 1931, 1935 (2021) (Thomas, J.).
Here, the district court determined that Plaintiffs’ ATS claim was not action-
able because they did not establish that metering violates a universal non-re-
foulement standard. 1-ER-124, 1-ER-126. Although the district court believed Plain-
tiffs had provided sources to establish the existence of a norm of non-refoulement,
the applicable question was “whether the duty of non-refoulement is universally un-
derstood to provide protection to those who present themselves at a country’s bor-
ders but are not within a country’s territorial jurisdiction.” 1-ER-122. The district
court concluded that “acceptance of [the] specific extraterritorial application of non-
47
refoulement [that Plaintiffs allege] is not universal.” 1-ER-124. It noted that author-
ities opining that “pushbacks are incompatible with the duty of non-refoulement”
premise that opinion on the principle that the non-refoulement obligation set forth in
Article 33 of the United Nations Convention Relating to the Status of Refugees (Ref-
ugee Convention) applies extraterritorially. 1-ER-123. But the district court held that
that underlying principle was not universally accepted. 1-ER-124. The court rea-
soned that several European Union member states and Australia have adopted
“pushback or ‘offshoring’ policies,” and there is “significant disagreement over the
scope and extent of the countries’ jurisdictions” and of their non-refoulement obli-
gations. Id. The district court also relied on controlling Supreme Court case law—
Sale—that analyzed the language of Article 33 and determined it did not create ob-
ligations as to individuals outside a nation’s territory. See 1-ER-125–26; Sale, 509
U.S. at 179–87.
Based on this evidence that the non-refoulement norm that Plaintiffs advance
was not universally accepted to apply extraterritorially, the district court correctly
declined to recognize a cause of action under the ATS for non-refoulement violations
based on metering. “[T]he requirement that a rule command the ‘general assent of
civilized nations’ to become binding upon them all is a stringent one.” Presbyterian
Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 254 (2d Cir. 2009) (quoting
Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980)). Here, there is no such
48
general assent, as any standard of non-refoulement is not universally defined to pro-
hibit the conduct Plaintiffs complain of here. See, e.g., Quintero Perez v. United
States, 8 F. 4th 1095, 1107 (9th Cir. 2021) (Friedland, J., concurring) (recognizing
that the ATS plaintiff must establish that the particular type of extrajudicial killing
at issue is a violation of a non-derogable norm). Put another way, non-refoulement
principles are not “defined with the specificity comparable” to the features of the
international-law norms recognized at the time Congress enacted the ATS, Sosa, 542
U.S. at 725, in part because it is at least debatable whether these non-refoulement
principles contemplate any obligation toward individuals outside a nation’s territory.
As “federal courts should not recognize private claims under federal common law
for violations of any international law norm with less definite content and acceptance
among civilized nation as than the historical paradigms familiar when § 1350 was
enacted,” Sosa, 542 U.S. at 731, the district court correctly declined to recognize the
cause of action Plaintiffs assert.
Plaintiffs and amici attempt to reframe the district court’s analysis, arguing
that the court held that a norm is no longer “obligatory” when some nations have
violated it. Second Br. 53; Amicus Br. of International Refugee Law Scholars (IRLS
Br.) 12–13. But the district court did not so hold. Instead, it determined based on
various nation-state practices that extraterritorial application of non-refoulement ob-
ligations has not risen to the status of a universal norm (or, alternatively, that the
49
obligation is not universally defined to address individuals who are not within a na-
tion’s territory). See 1-ER-124–125. In contrast to official torture (see, e.g., Second
Br. 54), the examples cited by the district court indicate that nation-states have
acknowledged, rather than disavowed, the cited “pushback” practices. See 1-ER-
124; Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 717 (9th Cir. 1992)
(“That states engage in official torture cannot be doubted, but all states believe it is
wrong, all that engage in torture deny it, and no state claims a sovereign right to
torture its own citizens.”).
Sale reinforces that extraterritorial application of non-refoulement obligations
is not a universal norm. Although Sale addressed the scope of Article 33 of the Ref-
ugee Convention, rather than customary international law, Sale is binding law that
remains indicative of the limits of any non-refoulement obligation. As the district
court noted, any arguments that a customary non-refoulement norm exists with re-
spect to asylum-seekers are primarily based on the language of, and nation-states’
accession to, Article 33 of the Refugee Convention. See 1-ER-123.6 Sale’s analysis
of the scope of Article 33 thus defines the United States’ position on the limits of the
6
Additional sources cited by Plaintiffs similarly rely on the text of Article 33 to
define non-refoulement obligations. See UNHCR Exec. Comm., Note on Interna-
tional Protection ¶ 16 & n.10, U.N. Doc. A/AC.96/951 (Sept. 13, 2001) (citing Ar-
ticle 33 as source of non-refoulement obligation). Amici similarly acknowledge that
the underlying treaty defines the scope of the nations’ obligations. IRLS Br. 6–8, 10.
50
principle of non-refoulement, as well as the understanding of other Convention par-
ties on this issue.
Although Sale’s ultimate holding addressed the interdiction of migrants on
the high seas, its analysis of Article 33’s non-refoulement obligation is not so nar-
row. The Supreme Court in Sale carefully analyzed the text and history of the Refu-
gee Convention and its implementing statute to determine that neither applied out-
side the territory of the United States—and this analysis was key to its ultimate hold-
ing. Sale, 509 U.S. at 177, 179, 187. “[B]oth the text and the negotiating history of
Article 33 affirmatively indicate that it was not intended to have extraterritorial ef-
fect.” Id. at 179. Instead, it was meant to apply solely to “refugees” who were “al-
ready admitted into a country” or “already within the territory but not yet resident
there.” Id. at 182.7 Sale thus defines the non-refoulement obligation as applying only
to those within a nation’s territory, and it does not distinguish between individuals
who are outside that territory on the high seas and those who are in a contiguous
territory. And, contrary to Plaintiffs’ assertion, see Second Br. 55–57, Sale affirma-
tively concluded that Article 33 was not universally understood to prohibit what
Plaintiffs term “rejection at the border” of individuals within a contiguous territory,
7
Thus, although the Court stated that the English translation of “return (‘refouler’)”
in Article 33 was akin to an “act of resistance or exclusion at the border,” it specified
that this applied only to those refugees who were “already within the territory but
not yet resident there.” Sale, 509 U.S. at 182 & n.40.
51
Sale, 509 U.S. at 185, 186 (citing history that several Convention parties agreed the
non-refoulement obligation would apply solely to refugees already present in the
Convention country, and that Article 33 did not impose obligations regarding, “mass
migrations across frontiers or [] attempted mass migrations”); see also U.S. Dep’t of
State, U.S. Observations on UNHCR Advisory Opinion on Extraterritorial Applica-
tion of Non-Refoulement Obligations (Dec. 28, 2007), at https://2001-2009.state.
gov/s/l/2007/112631.htm (cited at 1-ER-126). Nor has this Court limited Sale’s ap-
plication in this context. See Second Br. 55 (citing Blazevska v. Raytheon Aircraft
Co., 522 F.3d 948, 954 (9th Cir. 2008)). Accordingly, the district court correctly
relied on Sale to hold that non-refoulement is not universally understood to extend
obligations to migrants who are not within United States territory, and thus that it
may not recognize the cause of action for non-refoulement that Plaintiffs assert.
Even if there were a sufficiently specific, universal norm at issue, the Court
should nonetheless decline under Sosa’s second step to create a novel tort action
against the United States for non-refoulement violations. For several reasons, it
would be an extraordinary exercise of lawmaking power by the Judiciary that is no-
where suggested in the text or origins of the ATS to create such a private right of
action.8
8
The government does not concede that Plaintiffs’ claim is a proper domestic appli-
cation of the ATS. See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25
(2013).
52
First, the separation-of-powers concerns that “apply with particular force in
the context of the ATS,” Jesner, 138 S. Ct. at 1403, counsel strongly against recog-
nizing a new cause of action here. In 1968, the United States acceded to Article 33
of the Refugee Convention when it signed on to the United Nations Protocol Relat-
ing to the Status of Refugees (Refugee Protocol). INS v. Stevic, 467 U.S. 407, 416
(1984). That Protocol is non-self-executing, and noncitizens thus have no domesti-
cally enforceable rights thereunder. Khan v. Holder, 584 F.3d 773, 783 (9th Cir.
2009). Congress has enacted legislation in 8 U.S.C. § 1231 to conform its standard
for withholding of removal to Article 33’s non-refoulement obligation. See 8 U.S.C.
§ 1231(b)(3)(A) (prohibiting the government from “remov[ing] an alien to a country
if the Attorney General decides that the alien’s life or freedom would be threatened
in that country” on a protected ground); Stevic, 467 U.S. at 421 (The Refugee Act of
1980 amended the former withholding-of-removal statute to “basically conform[] it
to the language of Article 33.”). Yet Congress also provided in the same section that
“[n]othing in this section shall be construed to create any substantive or procedural
right or benefit that is legally enforceable by any party against the United States or
its agencies or officers or any other person.” 8 U.S.C. § 1231(h). And Congress has
also limited judicial review of claims arising out of the withholding statute, divesting
district courts of authority to hear such claims and channeling them instead into the
courts of appeals to be reviewed alongside a final order of removal. See 8 U.S.C.
53
§ 1252(a)(5), (b)(9). In light of these Congressional limits on enforceable rights un-
der Article 33 and available review, recognizing a federal common law claim for
alleged violation of a customary international law norm of non-refoulement would
be manifestly contrary to the Supreme Court’s instruction in Sosa to exercise “great
caution” in recognizing causes of action under the ATS. Sosa, 542 U.S. at 727–28.
Second, nothing in the ATS suggests that the judiciary may create a new cause
of action against the United States. The ATS itself does not waive the United States’
sovereign immunity. Tobar v. United States, 639 F.3d 1191, 1196 (9th Cir. 2011);
Quintero Perez, 8 F.4th at 1100–01; Goldstar (Panama) S.A. v. United States, 967
F.2d 965, 968 (4th Cir. 1992); Sanchez-Espinoza v. Reagan, 770 F.2d 202, 207 (D.C.
Cir. 1985). The district court held that the APA supplies the waiver of sovereign
immunity for Plaintiffs’ ATS claim, because they seek injunctive and declaratory
relief. See FER-269–71; 5 U.S.C. § 702; Navajo Nation v. Dep’t of the Interior, 876
F.3d 1144, 1172 (9th Cir. 2017). Yet there is no reason to believe that Congress,
when enacting either the ATS in 1789 or the APA’s waiver provision in 1976, con-
templated that it was waiving sovereign immunity for future torts against the United
States (or other nation-states) for violations of international law. This is especially
so because the ATS was intended to provide for personal liability and thus “to pro-
mote harmony in international relations by ensuring foreign plaintiffs a remedy for
international-law violations in circumstances where the absence of such a remedy
54
might provoke foreign nations to hold the United States accountable.” Jesner, 138 S.
Ct. at 1406 (emphasis added); Sosa, 542 U.S. at 724 (ATS was meant to provide
federal jurisdiction for offenses with a potential for “personal liability”).
Third, national security and foreign relations considerations similarly weigh
against creating a cause of action concerning cross-border activity. In Hernandez v.
Mesa, the Supreme Court held that courts may not fashion a Bivens cause of action
against U.S. officials based on claimed violations arising out of cross-border shoot-
ings, reasoning that “the conduct of agents positioned at the border has a clear and
strong connection to national security” and “regulating the conduct of agents at the
border unquestionably has national security implications.” Hernandez, 140 S. Ct. at
746, 747. “[T]he risk of undermining border security provides reason to hesitate be-
fore extending Bivens into this field.” Id. at 747. The Court further reasoned that the
claimed violations arose from cross-border shooting, which “is by definition an in-
ternational incident; it involves an event that occurs simultaneously in two countries
and affects both countries’ interests.” Id. at 744. The claims therefore “implicated”
foreign relations and provided “even greater reason for hesitation” before creating a
cause of action. Id. at 747. The same national-security and foreign-relations impli-
cations are present here. CBP’s function at ports of entry “to control the movement
of people and goods across the border” indisputably “implicates an element of na-
tional security,” id. at 746, and affects Mexico’s interests. Courts should thus decline
55
to fashion a private cause of action for the same reasons the Supreme Court declined
to fashion one in Hernandez.
For these additional reasons, the Court should affirm the district court’s deci-
sion not to imply a cause of action against the United States for non-refoulement.
But if the Court were to recognize a tort cause of action under the ATS for non-
refoulement violations, the undisputed facts establish that metering does not violate
that principle. First, even if this Court creates a non-refoulement cause of action
under the ATS, it should not extend further than the withholding statute. Second, the
non-refoulement obligation attaches under U.S. and international law when an indi-
vidual would be tortured, 8 C.F.R. §§ 208.16(c)(2), 208.17(a), or their life or free-
dom would be threatened on account of a protected ground, 8 U.S.C.
§ 1231(b)(3)(A); Refugee Convention, art. 1. Any generalized contention that Mex-
ican border towns are unsafe is facially insufficient to establish this nexus.9 Third,
the theory asserted by Plaintiffs below concerning “indirect” or “chain” refoulement
by Mexican officials is also not clearly part of the non-refoulement obligation ac-
ceded to by the United States. And such a theory is precluded under the act of state
doctrine, which “prevents federal courts from declar[ing] invalid . . . the official act
9
Further, evidence that some class members feared staying in Mexico would be in-
sufficient to justify relief to the entire certified class, as such relief would not be
“appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
56
of a foreign sovereign involving activities undertaken within its own territory,” be-
cause it would require this Court to sit in judgment of Mexico’s enforcement of its
own immigration laws within its own borders. Hourani v. Mirtchev, 796 F.3d 1, 11–
12 (D.C. Cir. 2015) (quotation marks omitted). Fourth, the undisputed facts demon-
strate that, under metering, CBP continued to inspect and process noncitizens and
refer them, as appropriate, for credible-fear interviews. See 2-ER-523. Metering did
not amount to, as Plaintiffs frame it, class-wide “rejection” at the border, Second Br.
57, but instead was at most a delay to enter the United States for inspection and
processing, see First Br. 39–40; supra at 24–26. Thus, even if the Court were to
recognize a tort for violation of non-refoulement obligations, Plaintiffs cannot suc-
ceed on this claim.
CONCLUSION
This Court should reverse the decision below and remand with directions to
enter summary judgment for the Government on all counts and to vacate the declar-
atory and injunctive relief.
//
57
DATED: March 30, 2023 Respectfully submitted,
BRIAN M. BOYNTON
Principal Deputy Assistant Attorney General
WILLIAM C. PEACHEY
Director
KATHERINE J. SHINNERS
Senior Litigation Counsel
/s/ Alexander J. Halaska

ALEXANDER J. HALASKA
U.S. Department of Justice
Civil Division
Office of Immigration Litigation -
District Court Section
P.O. Box 868, Ben Franklin Station
Washington, D.C. 20044
Tel: (202) 307-8704 | Fax: (202) 305-7000
Email: alexander.j.halaska@usdoj.gov
58
CERTIFICATE OF SERVICE
I certify that on March 30, 2023, I served a copy of this document on the Court
and all parties by filing it with the Clerk of the Court through the CM/ECF system,
which will provide electronic notice and a link to this document to all counsel of
record.

59
CERTIFICATE OF COMPLIANCE
I certify that this brief complies with Federal Rules of Appellate Procedure
32(a)(4) and 32(a)(5) because it is double-spaced, has margins of at least one inch
on all four sides, and uses proportionally spaced, 14-point Times New Roman font;
and that this brief complies with the type-volume limitation of Ninth Circuit Rule
28.1-1(b) and this Court’s Order of November 7, 2022 (Dkt. 1-3) because it contains
13,920 words, including headings and footnotes, as measured by the word pro-
cessing application used to prepare this brief.

60

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Case: 22-55988, 03/30/2023, ID: 12685985, DktEntry: 62, Page 1 of 71

Nos. 22-55988, 56036

UNITED STATES COURT OF APPEALS

AL OTRO LADO, INC., et al.,

REPLY AND RESPONSE BRIEF FOR THE GOVERNMENT

BRIAN M. BOYNTON ALEXANDER J. HALASKA

Counsel for the Government

TABLE OF AUTHORITIES ................................................................................... iii

STATEMENT OF THE ISSUES...............................................................................2

SUMMARY OF THE ARGUMENT ........................................................................4

I. The District Court Erred in Holding That Metering “Unlawfully

A. Sections 1158 and 1225 Do Not Apply to Noncitizens

B. Metering Does Not “Unlawfully Withhold” Any Mandatory

II. The District Court Erred in Concluding That Metering Violates

III. The District Court Erred in Granting Burdensome Class-Wide

A. The District Court Abused its Discretion. .............................................29

B. The INA Bars the Injunctive Relief Ordered. .......................................32

A. Plaintiffs’ Section 706(2) Claim is Moot. .............................................35

B. Metering is Within the Executive’s Authority, and the

CERTIFICATE OF SERVICE ................................................................................59

CERTIFICATE OF COMPLIANCE .......................................................................60

Agency for International Development v. Alliance for Open Society

Akiachak Native Community v. Dep’t of Interior,

Al Otro Lado v. Wolf,

BedRoc Ltd., LLC v. United States,

Blazevska v. Raytheon Aircraft Co.,

Bruesewitz v. Wyeth LLC,

Carr v. United States,

Catholic Social Services, Inc. v. INS,

Cetacean Community v. Bush,

Dep’t of Commerce v. New York,

Dep’t of Homeland Security v. Thuraissigiam,

East Bay Sanctuary Covenant v. Biden,

Garland v. Aleman Gonzalez,

Goldstar (Panama) S.A. v. United States,

Guidiville Band of Pomo Indians v. NGV Gaming, Ltd.,

Henderson v. United States,

Hing Sum v. Holder,

Ibrahim v. Dep’t of Homeland Security,

Jesner v. Arab Bank,

Langere v. Verizon Wireless Services, LLC,

Morrison v. National Australia Bank Ltd.,

Navajo Nation v. Dep’t of the Interior,

Nestle USA, Inc. v. Doe,

Ninilchik Traditional Council v. United States,

Norton v. Southern Utah Wilderness Association,

Presbyterian Church of Sudan v. Talisman Energy, Inc.,

Quintero Perez v. United States,

Rowland v. California Men’s Colony, Unit II Men’s Advisory Council,

Sale v. Haitian Centers Council, Inc.,

Shaughnessy v. United States ex rel. Mezei,

Siderman de Blake v. Republic of Argentina,

Sierra Club v. Trump,

Southeast Alaska Conservation Council v. U.S. Army Corps of Engineers,

Steam Press Holdings, Inc. v. Hawaii Teamsters, Allied Workers Union,

Telecommunications Research and Action Center v. FCC,

Tobar v. United States,

United States ex rel. Knauff v. Shaughnessy,