J.O.P. v. U.S. Department of Homeland Security, 409 F.Supp.3d 367

Background

Plaintiffs are four individuals who entered the U.S. as unaccompanied alien children (UACs), were so designated by CBP/ICE, but only filed asylum applications after turning 18 or being reunited with family because of USCIS’s long-standing practice of accepting prior UAC determinations.
The TVPRA grants special protections to UACs, gives USCIS initial jurisdiction over UAC asylum claims, and delegates authority to agencies to adopt procedures sensitive to children.
In 2013 USCIS issued the Kim Memo instructing asylum officers to accept CBP/ICE UAC determinations and not to redetermine UAC status at the asylum stage; USCIS reaffirmed that policy through 2019.
On May 31, 2019 (published June 14, effective June 30), USCIS issued a Redetermination Memo requiring asylum officers to independently determine whether an applicant met the UAC definition on the date of filing, potentially removing USCIS jurisdiction and reimposing the one-year filing bar for some applicants.
Plaintiffs sued under the Administrative Procedure Act and the Fifth Amendment and moved for a temporary restraining order (TRO) to enjoin application of the new memo; Defendants consented to limited relief for the named plaintiffs.
The Court granted the TRO, finding plaintiffs likely to succeed on APA claims (failure to engage in notice-and-comment and failure to consider reliance interests) and that plaintiffs would suffer irreparable harm; balance of equities and public interest favor maintaining the prior policy pending review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Redetermination Memo was a legislative rule requiring notice-and-comment	Memo effects substantive change in rights/obligations (jurisdiction, one-year bar) and thus is legislative	Memo is interpretive guidance on how to apply statutory UAC definition	Court: Likely legislative; USCIS failed to use notice-and-comment → APA violation likely
Whether the memo is arbitrary and capricious for failing to consider reliance interests	USCIS changed a long-standing policy without addressing serious reliance by applicants who delayed filing	USCIS justified change to align USCIS decisions with immigration judges	Court: Likely arbitrary and capricious because USCIS did not provide a reasoned explanation addressing reliance
Whether the memo exceeds statutory authority under TVPRA	Memo conflicts with TVPRA’s protections for UACs and implementing role of USCIS	TVPRA neither expressly permits nor forbids redeterminations; USCIS has discretion	Court: Plaintiffs’ statutory claim likely fails—the statute does not clearly prohibit rescission
Whether TRO factors (irreparable harm, equities, public interest) support relief	Plaintiffs would lose asylum eligibility or be forced into adversarial process; harms irreparable	Government asserts policy furthers consistency with Immigration Judges and benefits UACs	Court: Irreparable harm shown; balance of equities and public interest favor maintaining status quo

Key Cases Cited

Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standard for preliminary injunction/TRO requires likelihood of success and irreparable harm)
Nken v. Holder, 556 U.S. 418 (2009) (balance of equities/public interest merge when government is respondent)
Motor Vehicle Mfrs. Ass’n v. State Farm, 463 U.S. 29 (1983) (arbitrary and capricious standard; agency must consider important aspects of problem)
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (agency must provide reasoned explanation when changing policies, especially where reliance interests exist)
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (scope of judicial review under APA; review must be thorough)
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) (rules that affect individual rights/obligations are substantive)
Burlington Truck Lines v. United States, 371 U.S. 156 (1962) (requirement that agency explanations bear rational connection to choices)