CA9 Amends East Bay (Asylum IFR)

East Bay Sanctuary Covenant v. Garland

"ORDER 1. Appellants filed a petition for rehearing en banc on October 5, 2020 (19-16487, Dkt. Entry 117; 19-16773, Dkt. Entry 75). Judges W. Fletcher and Miller have voted to deny the petition for rehearing en banc, and Judge Clifton so recommends. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED. 2. The opinion filed on July 6, 2020, is amended as follows: On page 49, strike the entire second paragraph, starting with, “That decision does not bind this court when sitting as a merits panel.” Replace it with: The motions panel’s decision is not binding. As we recently explained in East Bay Sanctuary Covenant v. Biden (“East Bay III”), No. 18-17274, 2020 WL 8970552, at *8 (9th Cir. 2021) (amended opinion), “[i]n deciding whether the court should stay the grant or denial of a preliminary injunction pending appeal, the motions panel is predicting the likelihood of success of the appeal.” (Emphasis added). As in East Bay III, the motions panel considered whether to stay the injunction. We consider whether the district court abused its discretion in granting the preliminary injunction. These are different issues. Moreover, after the motions panel published its opinion, the district court took additional evidence and reinstated its previously entered injunction. Given the differing legal standards and the subsequent record development in this case, the motions panel’s order is not binding. See id. 3. An amended opinion is filed concurrently with this order. No further petitions for rehearing may be filed."