EAST BAY SANCTUARY COVENANT; et No. 23-16032 al., D.C. No. 4:18-cv-06810-JST Plaintiffs-Appellees, Northern District of California, Oakland v. ORDER JOSEPH R. BIDEN, President of the United States; et al.,

Defendants-Appellants. Before: W. FLETCHER, PAEZ, and VANDYKE, Circuit Judges. Order by Judges W. FLETCHER and PAEZ; Dissent by Judge VANDYKE.

The parties in this appeal have filed a Joint Motion to Place Appeal in Abeyance (Dkt. No. 83) pending settlement negotiations in this case, and a related case, M.A. v. Mayorkas, No. 1:23-cv-1843 (D.D.C.). The motion is GRANTED as follows:

This appeal is placed in abeyance pending the parties’ settlement discussions. The parties shall file a joint status report 60 days after the entry of this order and every 60 days thereafter. If the parties settle this case or settlement discussions fail, the parties shall promptly notify the court. Submission of this case is vacated pending further court order. FILED FEB 21 2024 East Bay Sanctuary Covenant v. Biden, No. 23-16032 MOLLY C. DWYER, CLERK VANDYKE, Circuit Judge, dissenting: U.S. COURT OF APPEALS

The current administration promulgated the rule challenged in this case to help manage the “historic surge in migration” that followed the end of the Title 42 order and to relieve “significant strain on DHS’s operational capacity at the border.” See 88 Fed. Reg. 31314 (May 16, 2023) (codified at 8 C.F.R. §§ 208.33, 1208.33). After the plaintiffs brought this case to enjoin and vacate the rule, the federal government spent the better part of a year vigorously defending the rule’s critical necessity before the district court and in this court—all because, in the government’s words, “any interruption in the rule’s implementation will result in another surge in migration that will significantly disrupt and tax DHS operations.” Indeed, only a few months ago, the government insisted that “[i]f the Rule is unavailable, [it] expects ‘a surge … that could match—or even exceed—the levels seen in the days leading up to the end of’ the Title 42 order,” and that “the negative consequences of such an increase in migration—for the government, for migrants, and for the public—would be even greater than [before].” The executive even went so far as to urge that if our court were to rule against it in this appeal, we should nevertheless stay our decision pending the filing of a petition for relief from the Supreme Court to avoid the disastrous consequences of the rule not being in force even for a short period of time. And while the outcome of this case in the lower courts (including this one) was anything but certain given the mess we previously made of our precedent during our

1 court’s immigration wars with the prior presidential administration, the government has to know the Supreme Court would likely not only reach the correct result in this case, but in doing so rectify some of our court’s erroneous precedent. Any adverse decisions from the Northern District of California and the Ninth Circuit would be mere temporary speed bumps on the way to eventual, likely inevitable, vindication of the rule from the Supreme Court.

Taking the government at its word about the pressing need for this crucial rule to remain in effect and be enforced, our court granted a stay of the district court’s decision enjoining the government’s rule. We heard oral argument and are now poised to render our decision. Then suddenly, out of the blue, the parties come to us hand-in-hand, jointly asking us t