524 F.Supp.3d 919
N.D. Cal.2021Background
- DOJ/EOIR issued a December 16, 2020 Final Rule titled "Appellate Procedure and Decisional Finality in Immigration Proceedings" that made broad changes to BIA and immigration-court procedures (effective Jan. 15, 2021).
- Plaintiffs are four nonprofit legal-service organizations that represent immigrants; they challenged the Rule under the APA and the Due Process Clause and sought a nationwide preliminary injunction.
- Key regulatory changes: compressed and simultaneous BIA briefing schedule and tighter extension limits; near-elimination of administrative closure; prohibition on sua sponte reopening except for minor errors; substantial limits on remands and scope of remand; BIA authority to affirm on any record basis and to take administrative notice of some facts; new EOIR Director review and referral procedures.
- Plaintiffs argued the 30-day comment period was inadequate (especially during COVID-19 and amid multiple overlapping immigration rulemakings), the agency acted arbitrarily and capriciously (failed to consider important reliance interests and alternatives, ignored its own Booz Allen consultant report), and the Attorney General’s delegation to the EOIR Director was procedurally defective.
- The court found it had jurisdiction because plaintiffs challenged a rule of general applicability collateral to individual removal orders, and granted a nationwide preliminary injunction, holding plaintiffs likely to prevail on several APA grounds (insufficient notice and arbitrary and capricious rulemaking).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under INA §1252 | Challenge is to a rule of general applicability collateral to removal; §1252 does not strip district court jurisdiction | §1252 bars district-court review of removal-related matters; plaintiffs must use petition for review | Court: plaintiffs’ claims are collateral to removal and jurisdiction lies in district court; INA does not bar APA suit |
| Adequacy of 30‑day comment period | 30 days was insufficient for a complex, multi-part rule—made worse by COVID-19 and staggered, overlapping immigration rulemakings; commenters were prejudiced | 1,284 comments received; 30 days is presumptively reasonable; no shown prejudice; executive orders not binding | Court: likely success on APA claim—30 days was inadequate given scope of Rule, pandemic effects, and staggered rulemaking |
| Arbitrary and capricious decisionmaking (briefing schedule; administrative closure; sua sponte reopening) | Agency failed to consider important aspects (reliance interests; pro se realities; mail-based BIA process; lack of implemented e-filing; Booz Allen report); changes will foreclose relief and harm litigants | Rule promotes consistency, finality, and efficiency; alternatives exist (continuances, motions to reopen); agency discretion supports changes | Court: likely success on APA claim—agency failed to meaningfully consider alternatives, reliance, and key evidence; specific changes (compressed briefing, near-elimination of administrative closure, ban on sua sponte reopening) were inadequately justified |
| Delegation of authority & Regulatory Flexibility Act (RFA) | AG delegated authority to EOIR Director after comment period closed; public could not comment on that delegation; RFA certification lacked factual basis and plaintiffs (small entities) are affected | Delegation via 28 U.S.C. §§509–510 was proper; delegation order exempt from notice-and-comment; RFA certification was reasonable | Court: raised serious questions—timing and notice of delegation problematic; RFA compliance questionable; plaintiffs showed serious questions on merits |
Key Cases Cited
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standard for preliminary injunction requires showing likelihood of success, irreparable harm, balance of equities, public interest)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary-and-capricious review; agency must consider important aspects of problem and explain its decision)
- Regents of the Univ. of Cal. v. Department of Homeland Security, 140 S. Ct. 1891 (2020) (agency changing course must consider reliance interests)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (Due Process Clause applies to all persons in U.S., including aliens)
- Dada v. Mukasey, 554 U.S. 1 (2008) (historical background on motions to reopen and sua sponte authority)
- East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020) (standards and context for nationwide relief in immigration cases)
- Romero v. Barr, 937 F.3d 282 (4th Cir. 2019) (administrative closure authorized by regulations; criticized AG’s contrary view)