456 F.Supp.3d 16
D.D.C.2020Background
- Plaintiffs: five detained noncitizens and three organizations of immigration lawyers/advocates challenged EOIR and ICE policies implemented in response to COVID-19, seeking a nationwide temporary restraining order (TRO).
- Core complaints: continued in-person immigration hearings, restrictions on in-person attorney visits, limited/controlled phone/VTC access, and PPE/screening rules that Plaintiffs say impede access to counsel and increase COVID-19 risk.
- Agency responses: EOIR issued March guidance postponing many non-detained hearings, encouraged continuances and remote hearings (teleconference/VTC), and enabled limited electronic filings; ICE suspended social visitation, required PPE, expanded remote communications but imposed facility-specific limits (time, rooms, scheduling).
- Procedural posture: Emergency TRO filed March 30, 2020; hearing held; supplemental filings exchanged; Court issued memorandum opinion on April 28, 2020 denying the TRO.
- Case disposition: Court denied Plaintiffs’ TRO based on lack of likely success on merits (standing and INA jurisdictional barriers), lack of final agency action under the APA, agencies’ reasonable COVID-19 responses, and insufficient proof of imminent irreparable harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (imminent injury) | COVID-19 risk from in-person hearings and interference with access to counsel create imminent, concrete injuries | Agencies’ policies and granted continuances mean no imminent forced in-person hearings; limited evidence of actual interference | No standing for imminent injury: Individual Plaintiffs lack imminent scheduled in-person hearings and did not show forced appearances or concrete counsel-deprivation incidents |
| Associational standing (orgs) | Org members face infection risk and impaired client access, so orgs may sue on members’ behalf | Members lack evidence of actual denial of remote proceedings; disputes are case-specific | Organizational plaintiffs failed to identify a member with the requisite imminent injury; associational standing not established |
| INA jurisdiction-channeling (access-to-counsel/due process claims) | Jennings limits scope of §1252; Plaintiffs’ claims are urgent and shouldn’t be channeled to courts of appeals | INA §1252 consolidates review of claims arising from removal proceedings to petitions for review in courts of appeals | Claims arising from removal proceedings (access-to-counsel/due process) are barred in district court by §1252(b)(9); Plaintiffs must use petition-for-review process |
| APA reviewability and merits (final agency action; arbitrary & capricious) | EOIR/ICE policies have legal consequences (deny rights, endanger health) and are arbitrary in light of statutory counsel access obligations | Policies are non-final guidance and facility/case-specific; agencies reasonably tailored COVID responses and exercised discretion | EOIR/ICE guidance is not final agency action for APA purposes; agencies’ pandemic responses were not shown to be arbitrary and capricious |
| Irreparable harm; balance of equities; public interest | Plaintiffs face certain and imminent health harms and loss of counsel; public interest favors halting in-person hearings | Agencies are already taking case-by-case public-health measures; broad, nationwide injunction would interfere with agency pandemic responses | Plaintiffs failed to show imminent irreparable harm; equities/public interest do not favor the requested universal injunctive relief |
Key Cases Cited
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (preliminary injunction standard)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements)
- Bennett v. Spear, 520 U.S. 154 (final agency action test)
- Jennings v. Rodriguez, 138 S. Ct. 830 (scope of §1252 jurisdictional bar)
- J.E.F.M. v. Lynch, 837 F.3d 1026 (removal-proceeding claims channeled to courts of appeals)
- Motor Vehicles Mfrs. Ass'n v. State Farm, 463 U.S. 29 (arbitrary and capricious review)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (compelling discrete agency action)
- Helling v. McKinney, 509 U.S. 25 (risk of harm can be cognizable injury)