288 F. Supp. 3d 1045
W.D. Wash.
2017
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Background

  • Plaintiffs (refugees, family members in the U.S., and two refugee-resettlement organizations) challenged portions of an Agency Memorandum implementing Executive Order 13,815 (EO-4) that: (1) indefinitely suspended "following-to-join" (FTJ) derivative refugee processing and admission, and (2) paused admission/processing for refugees from 11 countries on the Security Advisory Opinion (SAO) list for at least 90 days and diverted resources away from those cases.
  • Plaintiffs sought preliminary injunctions to enjoin those FTJ and SAO provisions; cases from two groups were consolidated in the Western District of Washington.
  • The agencies justified the measures as security reviews and alignment of FTJ vetting with principal-refugee procedures; defendants argued nonreviewability, lack of final agency action, and statutory authority to restrict admissions.
  • The court found plaintiffs had Article III and statutory standing (individuals and organizational diversion-of-resources standing; some plaintiffs had imminent FTJ approvals), and that the Agency Memo constituted final agency action.
  • On the merits the court held plaintiffs were likely to succeed on (a) the FTJ claim under 8 U.S.C. § 1157(c)(2)(A) (mandatory "shall" language) and (b) the SAO suspension as ultra vires under the INA; it also held the Agency Memo was a substantive rule requiring APA notice-and-comment (no foreign-affairs exception).
  • Balancing the equities (including IRAP's bona-fide-relationship framework), the court found irreparable harm from family separation and organizational injury and issued a nationwide preliminary injunction limited by IRAP: enjoining the FTJ suspension for all FTJ refugees and enjoining SAO suspensions only as to refugees with a bona fide relationship to a U.S. person or entity.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
1) FTJ suspension unlawful under INA FTJ statute (8 U.S.C. §1157(c)(2)(A)) uses mandatory "shall" and entitles spouses/children to same admission status as principal refugees; agencies cannot indefinitely suspend processing Agencies may suspend processing to conduct additional security screening; suspension is procedural and within DHS/State authority Court: FTJ indefinite suspension likely violates INA; FTJ processing may not be indefinitely halted—plaintiffs likely to succeed on APA §706(2)(C) claim
2) SAO 90-day suspension and resource diversion ultra vires under INA Agencies lack statutory authority to categorically suspend/rescind processing or graft extra requirements onto refugee definition and admissibility scheme Agencies cite 6 U.S.C. §202(4) and 8 U.S.C. §1157(c)(1) as plenary authority to restrict admissions for security/entry control Court: Agencies' broad suspension exceeds statutory authority under INA; plaintiffs likely to succeed; the SAO suspension invalid as applied to refugees with U.S. bona fide relationships
3) APA notice-and-comment requirement Agency Memo effects substantive change to regulatory scheme (8 C.F.R. pt.207; FTJ rules were adopted after notice-and-comment) and thus requires notice-and-comment Memo is procedural guidance or temporary security measure; APA exceptions (procedural, foreign affairs) apply Court: Memo is a substantive rule altering existing scheme; APA notice-and-comment required; foreign-affairs and other exceptions not shown
4) Justiciability (standing, nonreviewability, final agency action) Plaintiffs show injury (prolonged family separation; organizational diversion), traceable to the Memo, redressable; Memo is final agency action and not barred by consular nonreviewability or §701/§1252 jurisdictional bars Defendants claim lack of standing, consular nonreviewability, actions committed to agency discretion, or lack of final agency action Court: Plaintiffs have Article III and statutory standing; consular-nonreviewability inapplicable to policy; Memo is final; jurisdiction not barred by §701 or §1252 as applied here

Key Cases Cited

  • Trump v. Int'l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (Supreme Court's bona-fide-relationship guidance for refugees and stay analysis)
  • Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) (reviewable statutory challenges to refugee/immigration policy; consular nonreviewability not a bar)
  • Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (preliminary relief on Executive Order and scope of review of immigration policy)
  • Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (standard for preliminary injunctions)
  • Lopez v. Davis, 531 U.S. 230 (2001) (meaning of 'may' vs 'shall' in statutory interpretation)
  • Texas v. United States, 809 F.3d 134 (5th Cir. 2015) (limits on DHS authority under INA; review of executive immigration policies)
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