PANGEA LEGAL SERVICES, et al. v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.; IMMIGRATION EQUALITY, et al. v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al.
Case No. 20-cv-09253-JD; Case No. 20-cv-09258-JD
UNITED STATES DISTRICT COURT NORTHERN
January 8, 2021
ORDER RE PRELIMINARY INJUNCTION; Re: Dkt. No. 27; Re: Dkt. No. 13
In these two related actions, plaintiff immigration and asylum services organizations sue to block the implementation of a final rule that was issued last month by the Department of Homeland Security (DHS) and the Department of Justice (DOJ). The rule, titled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80274,
BACKGROUND
The United States asylum system has a long and complicated history, and an enormous body of statutory and case law. A few main components bear highlighting here by way of background. Section 208 of the Immigration and Nationality Act (INA),
On June 15, 2020, the DHS and the DOJ (through its Executive Office of Immigration Review (EOIR)) published a notice of proposed rulemaking for the Rule. See Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 36264-01 (June 15, 2020) (NPRM). The NPRM was 43 pages long in the Federal Register‘s format of three columns per page. The stated goals of the NPRM were to adopt “streamlined proceedings” for adjudicating applications for asylum, withholding of removal, and CAT protection, and “to specify what standard of review applies in such streamlined proceedings.” NPRM at 36264. To those ends, the NPRM proposed a broad revision of current asylum practices in favor of “expedited” proceedings, which would entail a massive reworking of DHS‘s and DOJ‘s existing asylum regulations. Despite the breadth and scope of this undertaking, the NPRM provided just 30 days for public comments. See id. (“comments on the notice of proposed rulemaking must be submitted on or before July 15, 2020“). The government did not say in the rulemaking process why such a truncated comment period was warranted, and counsel for the government at the injunction hearing could not provide one. Even so, over 87,000 comments were submitted, and they overwhelmingly opposed the proposed rule, often with detailed reasoning and analysis. See Rule at 80284. These included 311 comments from “non-government organizations, legal advocacy groups, non-profit organizations, religious organizations, unions, congressional committees, and groups of members of Congress.” Id.
The tidal wave of responses barely made an impact on the government. The final Rule published on December 11, 2020, was “substantially the same as the NPRM.” Rule at 80274, 80276. The Rule significantly expands the circumstances under which an alien may be barred from asylum because he or she spent significant time in a third country before arriving in the United States, and effectively establishes a presumption against asylum claims that are rooted in gender-based persecution, among other changes. Id. at 80281-82. It also broadens the definition of a “frivolous” application to include applications “foreclosed by applicable law,” as well as the circumstances under which an alien may be found to have “knowingly” filed a frivolous application, which then makes the
The Rule was signed by Attorney General William P. Barr and Chad R. Mizelle, the “Senior Official Performing the Duties of the General Counsel” for DHS. Id. at 80401. The Rule states that Chad F. Wolf, as the Acting Secretary of Homeland Security, “reviewed and approved” both the proposed rule and the final Rule, and “delegated” his signature authority to Mizelle. Id. at 80381, 80385. The Rule is scheduled to be implemented on January 11, 2020. Id. at 80274.
On December 21, 2020, ten days after the final Rule was published, plaintiffs sued to set it aside. Pangea Dkt. No. 1; Immigration Equality Dkt. No. 1. As alleged in the complaints, plaintiffs in the Pangea action are organizations that provide legal and other services to asylum seekers and immigrant communities. The Immigration Equality plaintiffs are organizations that provide services to lesbian, gay, bisexual, transgender, queer, and HIV-positive refugees. Both complaints allege that the Rule should be invalidated because Wolf was not a lawful Acting Secretary of Homeland Security with authority to sign off on the rulemaking, and that the Rule‘s many changes to the asylum system are arbitrary, capricious, unlawful, and procedurally improper under the Administrative Procedure Act (APA),
On December 22 and 23, 2020, both plaintiff groups filed applications for a temporary restraining order and preliminary injunction enjoining the Rule from going into effect on January 11, 2021. Pangea Dkt. No. 27; Immigration Equality Dkt. No. 13. In light of the circumstances, the Court ordered an accelerated briefing and hearing schedule, and the government opposed both motions on December 31, 2020. Pangea Dkt. Nos. 29, 48; Immigration Equality Dkt. Nos. 16, 20 37.2 Plaintiffs filed replies on January 5, 2021, Pangea Dkt. No. 64; Immigration Equality Dkt. No. 52, and oral argument on the applications was heard by videoconference on January 7, 2021, Pangea Dkt. No. 65; Immigration Equality Dkt. No. 54.
DISCUSSION
I. LEGAL STANDARDS
Plaintiffs’ applications seek a temporary restraining order and a preliminary injunction. Where, as here, notice has been given to the adverse party, the legal standard is the same for both types of relief. See Fang v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 16-cv-06071-JD, 2016 WL 9275454, at *1 (N.D. Cal. Nov. 10, 2016), aff‘d, 694 F. App‘x 561 (9th Cir. 2017) (citation omitted). Not only did the government receive notice, it filed two separate oppositions to the plaintiffs’ motions and it fully participated in oral argument at the motion hearing held on January 7, 2021. The Court consequently focuses on plaintiffs’ requests for a preliminary injunction. See Fed. R. Civ. P. 65(a)(1) (court may issue a preliminary injunction “on notice to the adverse party“).
II. INJUNCTION FACTORS ANALYSIS
A. Likelihood of Success on the Merits
The Pangea plaintiffs and the Immigration Equality plaintiffs lead with the argument that the Rule should be set aside because Wolf, who approved the Rule as Acting Secretary of Homeland Security, did not have valid authority to act in that capacity. Pangea Dkt. No. 27 at 5-6; Immigration Equality Dkt. No. 13-1 at 8-17. The question arises because Kirstjen Nielsen was the last Secretary of Homeland Security to have been nominated by the President and confirmed by the Senate, and she resigned effective April 10, 2019. See
Wolf has not spent his time idly at DHS. During his relatively brief tenure, he has attempted to suspend the Deferred Action for Childhood Arrivals (DACA) program, and impose administrative fees for immigration services and eliminate fee waivers,
This Court is now the fifth federal court to be asked to plow the same ground about Wolf‘s authority vel non to change the immigration regulations. If the government had proffered new facts or law with respect to that question, or a hitherto unconsidered argument, this might have been a worthwhile exercise. It did not. The government has recycled exactly the same legal and factual claims made in the prior cases, as if they had not been soundly rejected in well-reasoned opinions by several courts. The government initially appealed two of these decisions, both of which it later voluntarily dismissed, and appears to have only one appeal pending. In the main, the government contents itself simply with saying the prior courts were wrong, with scant explanation. See, e.g., Pangea Dkt. No. 48 at ECF p. 11 (“the various courts that have embraced this argument are mistaken“); Immigration Equality Dkt. No. 37 at 14 (same).
This is a troubling litigation strategy. In effect, the government keeps crashing the same car into a gate, hoping that someday it might break through. To be sure, one court decision alone does not necessarily close the door to any further cases or arguments along similar lines. Our common law system contemplates that more than one judicial examination of facts and issues is often merited. But our system has no room for relitigating the same facts and law in successive district court cases ad infinitum. That is what the government is doing here. The Court took pains at oral argument to discuss this with counsel for the government, and specifically asked how their arguments here are in any way different from the ones made and rejected in the preceding cases.4 Counsel responded mainly with a disparaging comment to the effect that the other district courts had shirked from working their way through the record. That is untrue. Each of the prior decisions conducted a painstaking analysis of the facts with respect to the Acting Secretary
position at DHS, with full attention to the unprecedented efforts to validate Wolf‘s claim to the job, irrespective of governing law and procedures.
A good argument might be made that, at this point in time, the government‘s arguments lack a good-faith basis in law or fact. But the Court need not reach that conclusion to reject those arguments yet again. The Court‘s independent review of the record indicates that Batalla Vidal, 2020 WL 6695076, which is the latest decision before this order, correctly identified and analyzed the salient points vitiating Wolf‘s claim of rulemaking authority, and the Court agrees with it in full.
The parties’ familiarity with the prior decisions and record here is assumed. In pertinent summary, the government relies on two statutes to demonstrate that Wolf had lawful authority as Acting Secretary: the Homeland Security Act (HSA),
What this means is that the chain of succession the government invokes -- from Nielsen to McAleenan to Wolf -- does not hold together. The plain language of the Nielsen Order did not designate the CBP Commissioner, McAleenan, as the next person to take on the duties of DHS Secretary. To the contrary, it left intact a previously established succession order that should have put Krebs in charge. But it was McAleenan, and not Krebs, who purported to act as DHS Acting Secretary, and then in that capacity issued his own order purporting to change the order of succession so that the role would next pass on to Wolf, as the Under Secretary for Strategy, Policy, and Plans. Because the passing of the torch from Nielsen to McAleenan was ineffective, the attempt by McAleenan to pass it in turn to Wolf had no legal effect whatsoever. The entire succession argument under the HSA consequently falls apart.
The government‘s “alternative” hypothesis under the FVRA is equally unviable. Repeating a back-up theory it tendered in the prior cases, the government says that the McAleenan situation can be ignored because FEMA administrator Peter Gaynor was properly in office as DHS Acting Secretary under the FVRA and EO13753. Gaynor was thereby authorized to change the order of succession in Wolf‘s favor, which he purported to do. This is said to have allowed Wolf to “cure” any dispute about his authority to promulgate the notice of rulemaking in June 2020 by retroactively ratifying it. See Pangea Dkt. No. 48 at ECF pp. 12-13; Immigration Equality Dkt. No. 37 at 22-23; Rule at 80381-82.
But counsel for the government abandoned this theory at the hearing. In response to a direct question by the Court, counsel stated that Gaynor “never” was the Acting Secretary of Homeland Security. Hr. Tr. at 16:13-24.5 The FVRA says
Consequently, plaintiffs have demonstrated a likelihood of success in establishing that the proposed rulemaking was done without authority of law.
The fact that Attorney General Barr also signed off on the rulemaking on behalf of the DOJ does not change this conclusion. The government does not seriously contend so, and the Rule itself states that “officials in both DHS and DOJ make determinations involving the same provisions of the INA, including those related to asylum,” and so coordinated rulemaking is necessary to “ensure consistent application of the immigration laws.” Rule at 80286 (noting that “the DHS and DOJ regulations are inextricably intertwined“). The DHS and DOJ regulations are substantively identical in key respects. See, e.g.,
Because plaintiffs have shown a likelihood that the DHS lacked authority through Wolf for the proposed rulemaking, the Court need not reach the other grounds plaintiffs propose for an injunction. The arguments on whether the specific proposed revisions to the asylum system are unlawful under the APA will be taken up at a further proceeding as discussed below.
B. Irreparable Harm
Plaintiffs have also demonstrated a likelihood of irreparable harm in the absence of injunctive relief. Organizations can establish irreparable injury by showing “ongoing harms to their organizational missions,” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013), including the organizational mission of “representing and seeking asylum seekers,” E. Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 854 (9th Cir. 2020) (”
Additionally, the Ninth Circuit has held that organizations can show irreparable injury by establishing that “they will suffer a significant change in their programs and a concomitant loss of funding absent a preliminary injunction.” E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1280 (9th Cir. 2020) (”E. Bay Sanctuary Covenant I“). Economic injuries are deemed irreparable in APA cases because plaintiffs are unable to recover money damages. Id.; E. Bay Sanctuary Covenant II, 964 F.3d at 854. Plaintiffs have made this showing by demonstrating, among other evidence, that their staff have had to devote significant extra work time to retraining and to explaining the Rule‘s changes to their clients. See, e.g., Immigration Equality Dkt. No. 13-20 ¶¶15-17. They also submitted evidence that their “revenue and funding stream” is linked to the number of asylum applications they file, and quite reasonably contend that portions of the Rule making it more difficult to obtain asylum are likely to diminish the number of filings. See, e.g., id. ¶¶ 25-26.
C. Balance of Hardships and the Public Interest
The balance of hardships and the public interest are considered together in this case. See E. Bay Sanctuary Covenant II, 964 F.3d at 854 (“When the government is a party, the third and fourth preliminary injunction factors merge.“) (citing Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014)). There is a strong public interest in ensuring that the laws duly enacted by elected representatives are not undermined by agency actions. See id. at 855 (citing Maryland v. King, 567 U.S. 1301, 1301 (2012)). There is also a strong public interest in ensuring compliance with the APA, promoting Congressional intent, and protecting asylum-seekers from wrongful removal or death. See E. Bay Sanctuary Covenant I, 950 F.3d at 1280-81. All these interests are implicated here. In addition, maintaining the status quo of the asylum regulations as they currently stand pending further proceedings on the merits will serve the important public interest of promoting “a stable immigration system.” Doe #1 v. Trump, 957 F.3d 1050, 1068 (9th Cir. 2020). Consequently, the balance of hardships and public interest inquiries for injunctive relief weigh in plaintiffs’ favor.
III. REMEDY
Plaintiffs ask that defendants be enjoined from enforcing the Rule on a national basis. Nationwide injunctions must be justified by a specific showing of
That presumption applies with full force here. Enjoining enforcement of the Rule in only part of the country or against only particular parties would result in a fragmented and disjointed patchwork of immigration policy. There is no good reason to conclude that the grounds for an injunction here are meaningfully limited by geography or other factors. A nationwide injunction is warranted.
CONCLUSION
A preliminary injunction is granted as follows.
(1) Defendants the United States Department of Homeland Security (DHS); Pete Gaynor, in his official capacity, if any, as Acting Secretary of DHS; Chad F. Wolf, in his official capacity, if any, as Acting Secretary of DHS; the United States Department of Justice (DOJ); William P. Barr, in his official capacity as United States Attorney General; Executive Office for Immigration Review (EOIR); James McHenry, in his official capacity as Director of the EOIR; U.S. Citizenship and Immigration Services (USCIS); Kenneth T. Cuccinelli in his official capacity as an Agent of DHS; United States Immigration and Customs Enforcement (ICE); Tony H. Pham, in his official capacity as Senior Official Performing the Duties of the Director of U.S. ICE; United States Customs and Border Protection (CBP); Mark. A. Morgan, in his official capacity as Senior Official Performing the Duties of the Commissioner of U.S. CBP; and defendants’ officers, agents, employees, attorneys, and any person acting in concert with them, or at their behest, and who has knowledge of this injunction, are preliminarily enjoined from implementing, enforcing, or applying the rule titled Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 80274 (Dec. 11, 2020), or any related policies or procedures, including the Policy Memorandum entitled, Guidance Regarding New Regulations Governing Procedures For Asylum and Withholding of Removal and Credible Fear Reviews, issued by the Department of Justice on December 11, 2020.
(2) This injunction will remain in place pending further order of the Court.
(3) Plaintiffs are excused from posting a bond under
As discussed at the hearing, the parties are directed to file a stipulation proposing a date for further argument on the merits. The parties will also promptly advise the Court of any policy change or other development that is likely to materially impact these proceedings.
IT IS SO ORDERED.
Dated: January 8, 2021
JAMES DONATO
United States District Judge