389 F. Supp. 3d 377
M.D.N.C.2019Background
- Plaintiffs challenged USCIS's August 9, 2018 Policy Memorandum (PM-602-1060.1) changing how "unlawful presence" accrues for F, J, and M nonimmigrants — backdating accrual to the date underlying status violations rather than the date an adjudicator finds an individual out of status.
- Plaintiffs include two individual F-1 visa holders (Ye and Li), several colleges/organizations, and the American Federation of Teachers (AFT); Ye and Li allege they are accruing unlawful presence and face three- or ten-year reentry bars if they depart the U.S.
- Plaintiffs asserted four claims under the Administrative Procedure Act (APA) and the Fifth Amendment; their preliminary-injunction motion focused on (1) failure to follow APA notice-and-comment rulemaking and (2) substantive conflict with the Immigration and Nationality Act (INA).
- Defendants moved to dismiss for lack of jurisdiction (standing and ripeness) and otherwise did not substantively contest the merits in briefing; the court held oral argument and considered declarations from Ye, Li, and AFT members.
- The district court found Ye, Li, and AFT (representationally) have standing; the dispute was ripe because the Policy Memorandum is final and imposes an immediate, concrete threat of harm.
- The court granted a nationwide preliminary injunction enjoining application of the May 10, 2018 and August 9, 2018 memoranda, denied dismissal, and deferred summary judgment pending an expedited administrative-record briefing schedule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing | Ye, Li, and AFT members face imminent accrual of unlawful presence and reentry bars; injury is concrete and traceable | No final agency determination so injury is speculative; plaintiffs should wait | Ye and Li have Article III standing; AFT has representational standing; defendants' standing challenge denied |
| Ripeness | Challenge is to a final, nationwide agency policy; legal issues fit for review and withholding review imposes hardship (risk of reentry bars) | Not ripe because no individualized adjudication; plaintiffs haven’t left U.S. so injury may never occur | Claims are ripe: the policy is final, presents purely legal questions, and imposes immediate burden; ripeness challenge denied |
| APA notice-and-comment | The memorandum is a substantive (legislative) rule: it changes how unlawful presence is calculated, is incorporated into the Adjudicator's Field Manual, and is binding; USCIS failed to publish required notice in Federal Register or properly respond to comments | Characterize memorandum as policy guidance or interpretive, not subject to notice-and-comment | Court likely to succeed on claim: memorandum is a legislative rule promulgated without required notice-and-comment and thus invalid procedurally |
| Conflict with INA | IIRIRA created a distinct concept of "unlawful presence"; USCIS's backdating merges it with "unlawful status," altering statutory scheme and expanding reentry bars | Agency interpretation within its authority to define and implement "unlawful presence" | Court likely to succeed on claim: memorandum likely conflicts with INA as Congress intended different meanings for the statutory terms |
Key Cases Cited
- MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) (plaintiff need not expose itself to enforcement before seeking pre-enforcement review)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing framework)
- Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) (standard for preliminary injunction requires likelihood of success and irreparable harm)
- Perez v. Mortgage Bankers Ass'n, 135 S. Ct. 1199 (2015) (distinguishing interpretive rules from legislative rules and agencies' obligations in rulemaking)
- Califano v. Yamasaki, 442 U.S. 682 (1979) (federal courts retain equitable power to issue injunctions unless Congress clearly commands otherwise)
- Children's Hosp. of the King's Daughters, Inc. v. Azar, 896 F.3d 615 (4th Cir. 2018) (notice-and-comment requirements under the APA and rule classification)
- National Mining Ass'n v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998) (vacatur of unlawful agency rules and appropriateness of nationwide relief)