UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EAST BAY SANCTUARY No. 23-16032 COVENANT; CENTRAL AMERICAN RESOURCE CENTER; D.C. No. 4:18-cv- TAHIRIH JUSTICE CENTER; 06810-JST NATIONAL CENTER FOR LESBIAN RIGHTS; IMMIGRANT DEFENDERS LAW CENTER; ORDER AMERICAN GATEWAYS,

Plaintiffs-Appellees,

v. JOSEPH R. BIDEN, President of the United States; MERRICK B. GARLAND, Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; DAVID NEAL; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; ALEJANDRO N. MAYORKAS; U.S. DEPARTMENT OF HOMELAND SECURITY; UR M. JADDOU; UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES; TROY A. MILLER; UNITED STATES CUSTOMS AND BORDER 2 EAST BAY SANCTUARY COVENANT V. BIDEN

PROTECTION,

Defendants-Appellants.

Filed May 22, 2024

Before: William A. Fletcher, Richard A. Paez, and Lawrence VanDyke, Circuit Judges.

Order; Dissent by Judge VanDyke

SUMMARY *

Immigration/Intervention

In a case in which the government appeals the district court’s order vacating the government’s rule, Circumvention of Lawful Pathways (“the Rule”), the panel issued an order denying a motion to intervene filed by the States of Alabama, Kansas, Georgia, Louisiana, and West Virginia (“the States”). Noting that the appeal is currently in abeyance for settlement discussions, the majority explained that the States sought to intervene to participate in settlement negotiations and possibly to object to any proposed settlement and to request that the court stay its order. The panel observed that * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. EAST BAY SANCTUARY COVENANT V. BIDEN 3

it was unaware of any instance where a court permitted intervention at the appellate stage while the case was held in abeyance for settlement negotiations. Because no statute or rule governs intervention on appeal, the policies underlying Federal Rule of Civil Procedure 24 guided the majority’s analysis. To intervene as of right under Rule 24(a)(2), the States must show that: (1) their motion is timely; (2) they have a significantly protectable interest relating to the property or transaction which is the subject of the action; (3) the disposition of the action may as a practical matter impair or impede their ability to protect that interest; and (4) their interest is inadequately represented by the parties to the action. The majority concluded that the States had not shown that they have a “significant protectible interest” in either: 1) maintaining the Rule or in reducing immigration into the United States; or 2) minimizing their expenditures and preserving their population-based political representation. Because that failure alone was a sufficient ground to deny intervention as of right, the majority did not reach the remaining factors. For similar reasons, the majority declined to exercise its discretion to allow the States to intervene permissively, explaining that the nature and extent of the States’ interest in this appeal are far too attenuated to support intervention. Dissenting, Judge VanDyke would grant the States’ motion to intervene as of right. Judge VanDyke explained that this court has continually acknowledged that it should construe Rule 24(a)’s requirements of intervention as of right liberally and broadly in favor of proposed intervenors. Under this lenient standard, Judge VanDyke concluded that: (1) the States’ motion was timely because 4 EAST BAY SANCTUARY COVENANT V. BIDEN

they acted swiftly after the court granted the parties’ unexpected motion to stay; (2) the States’ interests would clearly be harmed by a settlement that negates the effect of the Rule