Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 1 of 41

Stephen Manning, OSB No. 013373

Bryan D. Beel, OSB No. 073408

smanning@ilgrp.com

BBeel@perkinscoie.com

Nadia Dahab, OSB No. 125630

Heidee Stoller, OSB No. 072835

nadia@innovationlawlab.org

HStoller@perkinscoie.com

Jordan Cunnings, OSB No. 182928

Nathan R. Morales, OSB No. 145763

jordan@innovationlawlab.org

NMorales@perkinscoie.com

Tess Hellgren, OSB No. 191622

PERKINS COIE LLP

tess@innovationlawlab.org

1120 N.W. Couch Street, 10th Floor

INNOVATION LAW LAB

Portland, OR 97209-4128

The Oregon Trail Bldg

Telephone: 503.727.2000

333 SW 5th Ave Ste 200

Portland OR 97204

Rebecca Cassler (admitted pro hac vice)

Telephone: 503.241.0035

Rebecca.Cassler@splcenter.org

Gracie Willis (admitted pro hac vice)

Melissa Crow (admitted pro hac vice)

Gracie.Willis@splcenter.org

Melissa.Crow@splcenter.org

SOUTHERN POVERTY LAW CENTER

SOUTHERN POVERTY LAW CENTER P.O. Box 1287

1101 17th Street, NW, Suite 705

Decatur, GA 30031-1287

Washington, DC 20036

Telephone: 404.521.6700

Telephone: 202.355.4471

Attorneys for Plaintiffs

Attorneys for Plaintiffs

Las Americas Immigrant Advocacy Center;

Asylum Seeker Advocacy Project; Catholic

Legal Immigration Network, Inc.;

Innovation Law Lab; Santa Fe Dreamers

Project; and Southern Poverty Law Center

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

LAS AMERICAS IMMIGRANT ADVOCACY CENTER; ASYLUM SEEKER ADVOCACY PROJECT; CATHOLIC LEGAL IMMIGRATION NETWORK, INC.; INNOVATION LAW LAB; SANTA FE DREAMERS PROJECT; AND SOUTHERN POVERTY LAW CENTER,
Plaintiffs,

Case No. 3:19-cv-02051-SB
EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER PURSUANT TO 28 U.S.C. § 1651(a) EXPEDITED HEARING REQUESTED

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 2 of 41
v. DONALD J. TRUMP, in his official capacity as President of the United States; WILLIAM BARR, in his official capacity as Attorney General of the United States; U.S. DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; AND JAMES MCHENRY, in his official capacity as EOIR Director of the United States,
Defendants.

EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 3 of 41

TABLE OF CONTENTS
Page
INTRODUCTION ......................................................................................................................... 1 MOTION........................................................................................................................................ 2 MEMORANDUM OF LAW ......................................................................................................... 4
I. Background ............................................................................................................ 4 A. Plaintiffs’ Underlying Civil Action ........................................................... 7 B. Public Response to the COVID-19 Pandemic ........................................... 8 C. Defendants’ Response to the COVID-19 Pandemic in the Immigration Court System....................................................................... 11 1. Removal of COVID-19 Information Posters ............................... 12 2. The McHenry Memo.................................................................... 13 3. Tweeting the Postponement of Non-Detained Hearings ............. 13 4. Sporadic & Inconsistent Standing Orders.................................... 15 5. Inadequate, Confusing & Chaotic Notice .................................... 16 6. Unrealistic File-by-Mail Mechanisms During Pandemic ............ 17 7. Unexplained Refusal to Adhere to Universally Accepted Public Health Guidance ............................................................... 19 D. Impact of Defendants’ Response on Plaintiffs......................................... 21 1. The Danger of Going to Immigration Court ................................ 21 2. The High-Risk Dangers & Obstacles Posed By Detention in the Pandemic ................................................................................ 24 3. Failure to Automatically Extend Deadlines Extends Dangers Beyond the Physical Courtrooms and Visitation Spaces .......................................................................................... 26
II. Argument ............................................................................................................. 27 A. The Emergency Order is Necessary or Appropriate to Aid this Court’s Jurisdiction.................................................................................. 28 B. The Emergency Order is Consistent with the Usages and Principles of Law ..................................................................................... 31 C. An Immediate and Temporary Emergency Order Will Provide Relief........................................................................................................ 31
III. REMEDY............................................................................................................. 32

i- TABLE OF CONTENTS

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TABLE OF CONTENTS (continued)

Page

A. Scope of Remedy ..................................................................................... 32 B. Duration of Remedy................................................................................. 33 CONCLUSION............................................................................................................................ 33

ii- TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Page

CASES
Al Otro Lado v. Wolf, -- F.3d --, 2020 WL 1059682 (9th Cir. Mar. 5, 2020) .............................................................31
Basank v. Decker, No. 20-CV-2518 (S.D.N.Y. Mar. 26, 2020) ............................................................................24
California v. M&P Invs., 46 F. App’x 876 (9th Cir. 2002) ..............................................................................................28
Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992 (9th Cir. 2010) .....................................................................................................3
Flores v. Barr, 407 F. Supp. 3d 909 (C.D. Cal. 2019) .....................................................................................30
FTC v. Ames. for Fin. Reform, 720 F. App’x 380 (9th Cir. 2017) ............................................................................................33
FTC v. Dean Foods Co., 384 U.S. 597 (1966).............................................................................................................4, 28
Hamilton v. Nakai, 453 F.2d 152 (9th Cir. 1979) ...................................................................................................28
Harris v. Nelson, 394 U.S. 286 (1969).................................................................................................................31
In re Baldwin-United Corp. (Single Premium Deferred Annuities Ins. Litig.), 770 F.2d 328 (2d Cir. 1985).....................................................................................................30
ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351 (5th Cir. 1978) .................................................................................................30
Klay v. United Healthgrp., Inc., 376 F.3d 1092 (11th Cir. 2004) ...............................................................................................30
Makekau v. State, 943 F.3d 1200 (9th Cir. 2019) .................................................................................................30

iii- TABLE OF AUTHORITIES

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TABLE OF AUTHORITIES (continued)

Page

Michael v. INS, 48 F.3d 657 (2d Cir. 1995).......................................................................................................28

Michaelson v. United States, 266 U.S. 42 (1924)...............................................................................................................3, 28

Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34 (1985)...................................................................................................................31

Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28 (2002)...................................................................................................................28

United States v. Catoggio, 698 F.3d 64 (2d Cir. 2012).......................................................................................................28

United States v. Morgan, 346 U.S. 502 (1954).................................................................................................................28

United States v. New York Tel. Co., 434 U.S. 159 (1977)...........................................................................................................30, 31

United States v. Shipp, 203 U.S. 563 (1906).............................................................................................................3, 29

United States v. Yielding, 657 F.3d 722 (8th Cir. 2011) ...............................................................................................3, 33

STATUTES

28 U.S.C. § 1651(a) ............................................................................................................... passim

Immigration and Nationality Act (INA) ..........................................................................................8

OTHER AUTHORITIES

City and County of San Francisco, Order of the Health Officer No. C19-07 (Mar. 16, 2020) ..................................................................................................................................10

Executive Order 20-12, Oregon Office of the Governor, (Mar. 23, 2020)......................................9

Fed. R. Civ. P. 65 .................................................................................................................3, 30, 33

iv- TABLE OF AUTHORITIES

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TABLE OF AUTHORITIES (continued)

Page

In re Court Operations in Response to COVID-19, Standing Order 2020-4 (D. Or. Mar. 13, 2020)............................................................................................................................8

In re District Clerk’s Office Operations in Response to COVID-19, Standing Order 2020-5 (D. Or. Mar. 17, 2020) ........................................................................................9

Policy Memorandum 20-10, “Immigration Court Practices During the Declared National Emergency Concerning the COVID-19 Outbreak,” (Mar. 18, 2020) ...................6, 13

Presidential Proclamation on Declaring a National Emergency During the Novel Coronavirus Disease (COVID-19), Outbreak (Mar. 13, 2020) .............................................3, 8

U.S. Const. Art. II ..........................................................................................................................29

v- TABLE OF AUTHORITIES

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INTRODUCTION Defendants’ actions, in the course of an unprecedented pandemic, have threatened the lives of Plaintiffs, the people they serve, and the communities in which they live and work. Notwithstanding the COVID-19 crisis that has unfolded in every U.S. state and 176 countries worldwide—a crisis proven to worsen exponentially day by day in congregate spaces like courthouses—Defendants continue to require attorneys, respondents, judges, and staff to appear in person at immigration courts; refuse to extend immigration court deadlines even though compliance is dangerous and often impossible; have failed to provide adequate notice of emergency court closures and procedures; and have ordered immigration judges to fast-track cases to completion—and, ultimately, to order deportation—in the absence of respondents and counsel. Defendants’ conduct has turned the immigration court system into a public health hazard, an effect going to the heart of the Court’s jurisdiction in this case and its ability to fashion effective relief on Plaintiffs’ claims. Plaintiffs are six nonprofit organizations who provide legal services to immigrants and practice in the immigration court system. Plaintiffs require immediate, essential, and temporary relief. Without such relief, the very health and lives of staff of the Plaintiff organizations, as well as every individual who has contact with any person involved in the immigration court system, is in great jeopardy. Plaintiffs seek an emergency order because the extraordinary nature of the crisis caused by the COVID-19 pandemic requires it. Defendants are using COVID-19 as a tool to further weaponize the immigration court system, without regard for the resulting public health implications. By refusing to adopt immigration court policies and procedures that are supported by science, protect the public health, and preserve the system’s potential for fundamental fairness, as is required under federal law, Defendants have forced Plaintiffs, including their staff, attorneys, and volunteers, into the

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impossible position of choosing between competently serving their clients and protecting the

public health and the lives of many, including themselves.

Plaintiffs seek a temporary injunction under the All Writs Act to require Defendants to

take reasonable steps to protect public health in the immigration courts, similar to steps taken by

other federal and state courts across the country. The relief that Plaintiffs seek by this motion is

necessary and appropriate to protect and preserve this Court’s exercise of jurisdiction over the

case before it.

MOTION

Pursuant to 28 U.S.C. § 1651(a), Plaintiffs respectfully move this Court for an emergency

order enjoining Defendants from compelling any respondent or respondent’s counsel to appear in

person for any reason at any U.S. immigration court, from requiring any hearing to go forward

without the consent of the respondent or their counsel and from invoking the in absentia

procedures to order a respondent removed if they fail to appear in any immigration court because

of their fear of contagion or because a public health order exists cautioning against congregation

or public movement. Plaintiffs further request that the Court order Defendants to toll all

immigration court deadlines, including the deadline for appeals to the BIA, and grant

continuances where requested by respondent or respondent’s counsel, without any negative

impact to a respondent’s asylum clock used to calculate eligibility for work authorization.

Plaintiffs request that this Court order Defendants to waive their original signature requirement

on filings and waive their hard-copy filing requirements where electronic filing is not

operational. Finally, Defendants should be enjoined from deeming abandoned any petition or

application for immigration relief or deeming any petition or application as untimely that was or

is not otherwise timely filed during the national emergency, and enjoined from holding any

attorney in contempt for failing to appear in person at a proceeding because of their fear of

contagion or because a public health order exists cautioning against congregation or public

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movement. Plaintiffs request that this order be in effect for the duration of the national emergency1 or until 28 days have elapsed, whichever occurs first.2 As explained below, Plaintiffs’ motion presents urgent cause for this Court to invoke its inherent power to take action “essential to the administration of justice,” Michaelson v. United States, 266 U.S. 42, 65–66 (1924), is “necessary or appropriate in aid of [the Court’s] jurisdictio[n],” and is “agreeable to the usages and principles of law,” 28 U.S.C. § 1651(a).3 This motion is supported by the attached Declarations of Linda Corchado, Nadia Dahab, Allegra Love, Michelle Mendez, Ariel Prado, Swapna Reddy, Laura G. Rivera, Kate Voigt, and Joshua M. Sharfstein.
On March 26, 2020, Plaintiffs notified Defendants of their intent to file this motion.4 On March 27, Plaintiffs conferred telephonically with Defendants about the subject and timing of

1

Proclamation on Declaring a National Emergency During the Novel Coronavirus Disease

(COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/

proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-

outbreak/. This Court may take judicial notice of information made publicly available on the

internet by the government. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th

Cir. 2010) (it is appropriate to take judicial notice of publicly-available information by

government entities where “neither party disputes the authenticity of the web sites or the

accuracy of the information displayed therein”).

2

As explained below, under Federal Rule of Civil Procedure 65, the Court may issue an

immediate order without notice or hearing so long as the order is set to expire after 14 days.

FRCP 65(b)(2). All Writs Act injunctions generally need not strictly comply with the

requirements of Rule 65, however. The circumstances here warrant an immediate order without

a hearing. United States v. Yielding, 657 F.3d 722, 727 (8th Cir. 2011) (“[I]njunctive relief under

the All Writs Act need not rigidly comply with Rule 65’s prescriptions so long as the injunction

is ‘specific and definite enough to apprise those within its scope of the conduct that is being

proscribed.’” (quoting In re Baldwin-United Corp. (Single Premium Deferred Annuities Ins.

Litig.), 770 F.2d 328, 338 (2d Cir. 1985))).

3

Defendants have filed a Motion to Dismiss challenging, among other things, this Court’s

jurisdiction over Plaintiffs’ claims. ECF 24. But “[u]ntil [the court’s] judgment declining

jurisdiction [is] announced, [the court has] authority, from the necessity of the case, to make

orders to preserve the existing conditions and the subject of the petition.” United States v. Shipp,

203 U.S. 563, 573 (1906).

4 As demonstrated herein, the pandemic’s impact on the communities in which the

immigration courts are located, the people it serves, and the people who operate it has been

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this emergency motion. Defendants requested two additional business days, until Wednesday,

April 1, 2020, to file a brief in opposition. In Plaintiffs’ view, the circumstances that Defendants

have created in the immigration court system demand immediate relief, given how rapidly

COVID-19 has, and will continue to, spread and the pace at which it has taken human lives.

Plaintiffs therefore request that the Court immediately schedule a telephonic hearing on this

motion.

MEMORANDUM OF LAW

This Court has the power to immediately and temporarily enjoin Defendants’ actions to

protect the public health and preserve its jurisdiction in this civil action. The All Writs Act, 28

U.S.C. § 1651(a), affords this Court the authority “to issue such temporary injunctions as may be

necessary to protect its own jurisdiction.” FTC v. Dean Foods Co., 384 U.S. 597, 604 (1966).

Absent immediate injunctive relief in this case, the immigration court system will, if it has not

already, become a public health hazard, putting at risk the lives of the very people for whom the

system exists and the staff of the organizational Plaintiffs. If that occurs, any relief this Court

might provide in Plaintiffs’ underlying civil action, which seeks to protect the full and fair

adjudication of cases in the immigration court system as a whole, would be subverted. An All

Writs Act injunction is therefore necessary to protect the ongoing exercise of this Court’s

jurisdiction in these proceedings. I. BACKGROUND

The impacts of the novel coronavirus, the cause of the Coronavirus Disease of 2019

(COVID-19), have been swift and unprecedented. In the United States, over 85,000 cases have

known to Defendants for weeks. Defendants have heard from their own immigration judges, the immigration court prosecutors, the immigration lawyer communities, the immigrant communities and plainly have seen the State and local orders forcing people to shelter in place multiple times in multiple ways. In a pandemic, where infections spread exponentially, every single day matters to protect the public health.

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been confirmed by laboratory tests,5 more than any other country in the world. Over 1,300 people have died in the United States alone. Experts estimate that, after the pandemic runs its course, between 160 and 214 million people in the United States may become infected.6 The virus could take the lives of somewhere between 200,000 and 2.2 million people—again, in the United States alone.7 There is no vaccine. Declaration of Joshua Sharfstein in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Sharfstein Decl.”) ¶ 6. There is no known cure. Sharfstein Decl. ¶ 6. Currently, the only way to control the spread of the virus is to use preventive strategies, including social distancing. Sharfstein Decl. ¶ 6. The President has declared a national emergency; forty-eight U.S. states have declared states of emergency; and more than a dozen states, and many more local jurisdictions, have issued “shelter-in-place” or “stay-at-home” orders requiring residents to stay in their homes. These measures all seek to “flatten the curve” by reducing the spread of the coronavirus and, ultimately, saving lives.8
Federal and state courts across the country have responded, taking all measures necessary to eliminate congregate spaces within and throughout their respective court systems in which transmissions can occur. In this District, for example, the Chief Judge immediately issued Standing Order 2020-4, “to protect public health, and reduce the size of public gatherings and

5

This figure likely underestimates the number of actual cases, given the lack of adequate

testing and the inability to account for most cases of people who are asymptomatic but still

infectious.

6

Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, N.Y. Times (Mar. 13,

2020), https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html.

7

Id. (estimating a death toll of up to 1.7 million); see also Neil M. Ferguson et al., Impact

of non-pharmaceutical interventions (NPIs) to reduce COVID-19 mortality and healthcare

demand, Imperial College of London (Mar. 16, 2020), available at

https://www.imperial.ac.uk/media/imperial-college/medicine/sph/ide/gida-fellowships/Imperial-

College-COVID19-NPI-modelling-16-03-2020.pdf (estimating a death toll of up to 2.2 million)

(attached to Declaration of Nadia Dahab in Support of Plaintiffs’ Motion for Temporary

Restraining Order (“Dahab Decl.”) ¶ 3, Ex. A).

8

Flattening the Curve, https://www.flattenthecurve.com/ (last visited Mar. 24, 2020).

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unnecessary travel,” continuing all civil and criminal jury selections and jury trials; continuing all grand jury proceedings; and continuing all in-court appearances scheduled before April 26, 2020, including all associated deadlines. Shortly thereafter, the Chief Judge issued Standing Order 2020-5, “aimed at maintaining public health,” which declared the District Clerk’s Office closed to the public in all locations. Federal judicial districts across the country, as well as the U.S. Supreme Court and several of the Circuit Courts of Appeal, have taken similar measures.9
In the immigration courts, however, the spread of disease continues unabated. Defendants have implemented policy guidance that encourages immigration judges to fast-track cases to completion and issue orders of deportation without any hearing at all.10 Deadlines for filings—many of which happen in person at courthouses, because the Executive Office for Immigration Review (EOIR) lacks an adequate electronic filing system—remain in place at all immigration courts where Plaintiffs appear and at other immigration court locations across the nation. Even where EOIR has encouraged filings by mail, it has subverted the public’s ability to make such filings by closing courthouses and changing filing guidance in an erratic, unpredictable, and inconsistent way. Changes in courthouse practices and policies have been announced unofficially and via Twitter,11 without notice to attorneys and the majority of pro se

9

The Brennan Center for Justice, a nonprofit public interest organization, is compiling the

formal policy responses of federal courts, immigration courts, and state courts to the COVID-19

public health crisis. See Brennan Center for Justice, Courts’ Responses to the Covid-19 Crisis,

https://www.brennancenter.org/our-work/research-reports/courts-responses-covid-19-crisis (last

updated Mar. 24, 2020).

10 See Policy Memorandum 20-10, “Immigration Court Practices During the Declared

National Emergency Concerning the COVID-19 Outbreak,” (Mar. 18, 2020), available at

https://www.justice.gov/eoir/file/1259226/download (attached as Exhibit B to Dahab Decl. ¶ 4).

11 See, e.g., DOJ EOIR (@DOJ_EOIR), Twitter (Mar. 24, 2020, 4:51 PM) (announcing a

new “rule” requiring all filings due during certain immigration court pandemic-related closures

must be filed by March 30, just six days after the message was posted; as explained in more

detail below, this Tweet followed an earlier, but later deleted, Tweet announcing that filings

would be “now due”); DOJ EOIR (@DOJ_EOIR), Twitter (Mar. 17, 2020, 8:52 PM)

(announcing that EOIR’s online and telephonic case information hotline should not be relied

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respondents whose deadlines may be imminent or whose hearings may have been postponed. Immigrant respondents must continue to appear at courthouses—putting the public health at risk—lest they be ordered deported or deemed ineligible for important humanitarian relief for failure to comply with court deadlines. No consideration is given to those who are in high-risk groups due to age or pre-existing medical conditions. As a result, Plaintiffs’ staff, attorneys, and volunteers are forced into the impossible position of choosing between protecting their health, the health of their families, and the health of the public, on one hand, and protecting their clients’ rights, on the other. Attorneys, advocates, immigration court prosecutors, and immigration judges themselves have called for Defendants to act, but Defendants have not meaningfully responded.12 In short, rather than move forward in an effective, considered manner, Defendants have turned the immigration court system into a public health hazard, and they refuse to take any meaningful steps to mitigate it.13
A. Plaintiffs’ Underlying Civil Action Plaintiffs filed the underlying civil action in December 2019, alleging that Defendants President Donald J. Trump, U.S. Attorney General William Barr, the U.S. Department of Justice, EOIR, and Director of EOIR James McHenry have taken unlawful actions with respect to the

upon during the pandemic); see also generally DOJ EOIR (@DOJ_EOIR), Twitter (announcing daily, sometimes hourly, updates on immigration court closures and known COVID-19 exposures inside immigration courts). 12 See Letter of Amiena Khan, Executive Vice President, National Ass’n of Immigration Judges to Andrew Cuomo, Gov. of NY & Letitia James, Attorney General of NY (Mar. 24. 2020), https://www.naij-usa.org/images/uploads/newsroom/2020.03.25.00.pdf (“NAIJ asks you to intervene to close the immigration courts in New York State.”) (attached as Exhibit C to Dahab Decl. ¶ 5); Statement of AILA, NAIJ, and ICE Professionals Union, As COVID-19 Rapidly Spreads, So Does Health Risk Created by Keeping the Nation’s Immigration Courts Open (Mar. 22, 2020), https://www.aila.org/advo-media/press-releases/2020/close-immigrationcourts. 13 The only serious action Defendants have taken to prevent the spread of COVID-19 in the immigration court system is to postpone in-person hearings for non-detained individuals. As explained below, that action simply does not suffice and only creates further chaos.

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immigration court system that denied Plaintiffs “a fair forum in which to vindicate their organizational missions.” Complaint ¶ 13. Specifically, Plaintiffs’ Complaint alleges, among other things, that Defendants have failed to Take Care that the laws relating to the immigration court system be faithfully executed, Complaint ¶¶ 193–200, and seeks to enjoin Defendants’ implementation of policies, including the IJ Enforcement Metrics Policy and the Family Unit Directive, that Plaintiffs allege subvert the case-by-case adjudication standards of the Immigration and Nationality Act (INA), Complaint ¶¶ 208–42 & p. 62. Plaintiffs seek declaratory and injunctive relief prohibiting Defendants from implementing certain policies and requiring Defendants to take specific corrective actions to ameliorate and mitigate the dysfunctionality of the immigration court system that has harmed Plaintiffs and the communities they serve. Complaint at p. 62. On March 20, 2020, Defendants filed a Motion to Dismiss Plaintiffs’ Complaint. ECF 24. Defendants’ Motion to Dismiss has not yet been heard by this Court.
B. Public Response to the COVID-19 Pandemic In recent weeks, extraordinary circumstances have developed as the COVID-19 pandemic has struck 176 countries worldwide and every U.S. state. The impacts of the pandemic are staggering. On March 13, President Trump declared a national emergency due to the outbreak in the United States.14 Also on March 13, the Chief Judge of this Court issued an order continuing all civil and criminal jury selections and jury trials; continuing all grand jury proceedings; and continuing all in-court appearances scheduled before April 26, 2020, including the deadlines associated with those appearances.15 On March 17, the Chief Judge issued a
14 See Presidential Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease of 2019 (COVID-19) Outbreak (Mar. 13, 2020), https://www.whitehouse.gov/presidential-actions/proclamation-declaring-nationalemergency-concerning-novel-coronavirus-disease-covid-19-outbreak/. 15 In re Court Operations in Response to COVID-19, Standing Order 2020-4 (D. Or. Mar. 13, 2020), https://www.ord.uscourts.gov/phocadownload/userupload/StandingOrders/Standing

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second order declaring the Clerk’s Office closed to the public in all locations.16 Federal judicial
districts across the country, as well as the U.S. Supreme Court and several of the Circuit Courts
of Appeal, have taken similar measures. The White House itself has warned all federal
government agencies to “immediately adjust operations and services to minimize face-to-face
interactions, especially at those offices or sites where people may be gathering in close proximity
or where highly vulnerable populations obtain services.”17 As of March 26, the United States
had reported more cases of COVID-19 than any other country in the world.18
The states have also responded. More than twenty U.S. states have issued statewide
“shelter-in-place” or “stay-at-home” orders requiring residents to stay at home. Here in Oregon,
for instance, Governor Kate Brown issued Executive Order 20-12, “Ordering Oregonians to Stay
at Home, Closing Specified Retail Businesses, Requiring Social Distancing Measures for Other
Public and Private Facilities, and Imposing Requirements for Outdoor Areas and Licensed
Childcare Facilities.”19 The Governor’s Executive Order requires Oregonians to stay home
whenever possible, requires social distancing of at least six feet between individuals, mandates
the closure of all nonessential businesses, and imposes statewide telework or work-from-home
protocols in all workplace environments. As of the time of this filing, twenty-two other states
%20Orders/Court%20Operations/20204%20In%20Re%20Court%20Operations%20In%20Resp onse%20to%20COVID-19.pdf 16 In re District Clerk’s Office Operations in Response to COVID-19, Standing Order 20205 (D. Or. Mar. 17, 2020), https://www.ord.uscourts.gov/phocadownload/userupload/ StandingOrders/Standing%20Orders/Court%20Operations/20205%20In%20Re%20District%20 Clerks%20Office%20Operations%20in%20Response%20to%20COVID-19.pdf 17 https://www.whitehouse.gov/wp-content/uploads/2020/03/M-20-16.pdf; see also https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirusguidance_8.5x11_315PM.pdf. 18 Coronavirus Live Updates: U.S. Leads the World in Known Cases, N.Y. Times (Mar. 26, 2020, 6:39 PM), https://www.nytimes.com/2020/03/26/world/coronavirus-news.html#link8bbde61 19 Office of the Governor, Executive Order No. 20-12 (Mar. 23, 2020), available at https://govsite-assets.s3.amazonaws.com/jkAULYKcSh6DoDF8wBM0_EO%2020-12.pdf.

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Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 17 of 41

have issued similar orders,20 as have several major U.S. cities, including Atlanta, Dallas, Kansas City, Philadelphia, San Francisco, and St. Louis.21 Thus, as of the time of this filing, over 217 million people, in 23 states, 84 counties, and 17 cities, and one U.S. territory are subject to “stayat-home” or “shelter-in-place” orders.22
And there is good reason for such a sweeping response. COVID-19, the disease caused by the novel zoonotic coronavirus SARS-CoV-2 (“coronavirus”), has no cure, and there is no vaccine to prevent it. Sharfstein Decl. ¶ 6. There is also no preexisting immunity to the virus in the world’s population. Sharfstein Decl. ¶ 6. Thus, at this time, the only way to control the spread of the virus is to use preventive strategies, including social distancing and mitigation through hygiene practices. Sharfstein Decl. ¶ 6.
Across the globe, COVID-19 has spread at a rapid pace through community transmission. It is thought to spread mainly from person to person, between those who are in close contact with one another (within about six feet) and through respiratory droplets produced when an infected person coughs or sneezes. Sharfstein Decl. ¶ 12. The droplets can land in the mouths or noses of people nearby or be inhaled into the lungs; they may also persist in the air for hours. Sharfstein Decl. ¶ 12. A person can contract COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or eyes. Sharfstein Decl. ¶ 12. New research also suggests that a significant proportion of transmission of COVID-19 is from people who are infected but pre-symptomatic, who could already be contagious. Sharfstein Decl. ¶ 13. Thus,

20 Sarah Mervosh, Denise Lu & Vanessa Swales, See Which States and Cities Have Told

Residents to Stay Home, N.Y. Times (last updated Mar. 26, 2020),

https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html.

21 See, e.g., City and County of San Francisco, Order of the Health Officer No. C19-07

(Mar. 16, 2020), https://www.sfdph.org/dph/alerts/files/HealthOrderC19-07-%

20Shelter-in-Place.pdf.

22

Id.

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Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 18 of 41

asymptomatic people may still spread the virus, without knowing they are doing so, by coming in close contact with other people. Sharfstein Decl. ¶ 13.
If congregate spaces—like the courts—remain open, it will be impossible to enforce aggressive social distancing practices in accordance with public health recommendations, transmission of the virus will continue, and the number of new cases will increase exponentially. Nationally, projections by the Centers for Disease Control and Prevention (CDC) indicate that, without effective public health interventions, over 200 million people in the United States could be infected with COVID-19 over the course of the pandemic, and as many as 2.2 million people may die.23 Aggressive social distancing consistent with public health recommendations is therefore essential to protect against the spread of disease and, ultimately, prevent a healthcare system collapse. If the healthcare system collapses, the rapid chain effects will be devastating and, in many scenarios, long-lasting. Sharfstein Decl. ¶¶ 24–27. People will die not only from COVID-19, but also potentially from lesser or more treatable illnesses because, without required medical intervention, those illnesses will have more serious impacts. Sharfstein Decl. ¶ 26.
C. Defendants’ Response to the COVID-19 Pandemic in the Immigration Court System
Defendants’ response to the COVID-19 pandemic in the immigration court system stands in stark contrast to the sweeping efforts by state governments and federal courts to protect against the spread of disease. Indeed, despite the exponential growth and staggering impacts of COVID-19, Defendants have failed entirely to take appropriate measures to ensure public health

23 See Ferguson, Impact of non-pharmaceutical interventions (NPIs) to reduce COVID-19 mortality and healthcare demand, Imperial College of London at 7 (“In total, in an unmitigated epidemic, we would predict approximately 550,000 deaths in [Great Britain] and 2.2 million in the US, not accounting for the potential negative effects of health systems being overwhelmed on mortality.”), https://www.imperial.ac.uk/media/imperial-college/medicine/sph/ide/gidafellowships/Imperial-College-COVID19-NPI-modelling-16-03-2020.pdf; Sheri Fink, White House Takes New Line After Dire Report on Death Toll, NY Times (Mar. 16, 2020), https://www.nytimes.com/2020/03/16/us/coronavirus-fatality-rate-white-house.html.

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Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 19 of 41

and safety in the immigration court system. Defendants’ Twitter stream of changing court rules and procedures, see, e.g., n.11, exemplifies their ad hoc approach to this public health crisis, and leaves both Plaintiffs and this Court at sea as to the operative immigration court system. Where Defendants have attempted to respond, they have done so either in secret—with little or no notice to attorneys or pro se respondents—or in ways that actually subvert the statutorily required full and fair adjudication of cases and requests for humanitarian relief. Specifically, Defendants continue to require attorneys, respondents, judges, and staff to appear in person at many immigration courts; refuse to extend immigration court deadlines even though compliance is dangerous and often impossible; have failed to provide adequate notice to anyone of emergency court closures and procedures; and have ordered immigration judges to fast-track cases to completion—and, ultimately, to order deportation—in the absence of respondents and counsel. These policies have turned the system itself into a public health hazard, forcing Plaintiffs’ staff, attorneys, and clients and other members of the communities they serve either to endanger the public health (and, in some cases, individual lives) or risk their ability to seek relief under the federal immigration laws.
1. Removal of COVID-19 Information Posters Defendants’ actions at the onset of the pandemic show their steadfast disregard for the lives and safety of the human beings who participate in immigration court proceedings. On March 10, just before the President declared a national emergency, EOIR ordered the removal of informational posters about how to prevent the spread of COVID-19, which had been posted in immigration courts nationwide. The posters, provided in both English and Spanish, had been created and disseminated by the CDC as a means to curb the impacts of the deadly virus.24

24 Defendants reversed their position only after press coverage critiqued the policy. See Monique O. Madan, “Trump administration orders immigration courts to remove coronavirus posters – then takes it back,” Miami Herald (Mar. 10, 2020), https://www.miamiherald.com/news/local/immigration/article241046076.html.

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Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 20 of 41

2. The McHenry Memo On March 18, after the President declared the national emergency, Defendant McHenry,
on behalf of Defendant EOIR, issued a policy memorandum entitled “Immigration Court Practices During the Declared National Emergency Concerning the COVID-19 Outbreak.”25
Rather than closing the immigration courts, the EOIR policy memorandum outlines procedures
for continuing to operate most of its courts amidst the COVID-19 pandemic. Although the
memorandum announced the postponement of non-detained hearings docketed between March
18 and April 10, it encouraged immigration judges to fast-track cases to completion without any
hearing at all and resolve others through telephonic or video teleconference (VTC) subject to Standing Orders at individual immigration courts.26 EOIR’s policy memorandum further
encouraged immigration judges to issue orders of removal, or orders deeming applications
waived or deeming individuals ineligible for relief, if deadlines imposed by the immigration judge are not met during the pandemic.27
3. Tweeting the Postponement of Non-Detained Hearings Since EOIR issued its policy memorandum, it has taken several other actions that have
exacerbated the existing public health crisis and put at risk not only the rights, but also the lives,
of every person within the immigration court system. On March 17, at 8:55 p.m.., EOIR
announced via Twitter that, effective the next day, all hearings for non-detained individuals would be postponed.28 Although an important initial step toward protecting the public health,
25 Dahab Decl. ¶ 4, Ex. B (Policy Memorandum 20-10, “Immigration Court Practices During the Declared National Emergency Concerning the COVID-19 Outbreak,” (Mar. 18, 2020). 26 For merits hearings before the El Paso detained court, Plaintiff Las Americas has been informed that there is no video option for remote appearances due to “security measures” from EOIR’s Office of Information Technology. Declaration of Linda Corchado in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Corchado Decl.”) ¶ 11. 27 Dahab Decl. ¶ 4, Ex. B at 4. 28 DOJ EOIR (@DOJ_EOIR), Twitter (Mar. 17, 2020, 8:55 PM).

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EOIR’s failure to extend deadlines associated with postponed hearings, combined with the lack of access to electronic filing systems at many immigration courts,29 renders EOIR’s action practically meaningless. Attorneys, volunteers, respondents in immigration proceedings, and court staff must still present in person at the immigration courts to make filings and meet important deadlines. And, although individuals on EOIR’s detained dockets may prefer to have their cases go forward (especially now, given the risk of a coronavirus outbreak in detention centers), EOIR has taken no action to mitigate the risks for those individuals or their counsel, including those who work for Plaintiff organizations. Thus, respondents in detained settings, and the attorneys and advocates who represent them, continue to be placed in vulnerable positions, in a setting in which the risks of a deadly coronavirus outbreak are much higher than the norm. Indeed, for many of the Plaintiff organizations that serve individuals in detention, their ability to represent their clients has been subverted entirely, with new EOIR and immigration court policies limiting their ability to make filings, develop the record, or confidentially advise their client about how best to proceed with their case. See generally Declaration of Linda Corchado in Support of Plaintiffs’ Motion for Temporary Restraining (“Corchado Decl.”); Declaration of Laura G. Rivera in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Rivera Decl.”); Declaration of Allegra Love in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Love Decl.”).

29 Unlike practically every other modern court in the country, Defendant EOIR’s immigration courts do not have an online electronic filing system that attorneys, representatives, or respondents in immigration courts may use to file forms, briefs, or other information or evidence relating to their immigration case. The electronic filing system that does exist, the EOIR Courts and Appeals System (ECAS), is available only at certain immigration courts and only to attorneys and registered users. See U.S. Department of Justice, EOIR Courts & Appeals System Information Page, https://www.justice.gov/eoir/ECAS (listing those courts) (last visited Mar. 26, 2020). At some of those courts, however, Plaintiffs have still been unable to make electronic filings because the e-filing system does not work. For instance, the ECAS system supposedly launched in El Paso on March 12, but has not worked at all for Plaintiff Las Americas. Corchado Decl. ¶ 12.

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Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 22 of 41

4. Sporadic & Inconsistent Standing Orders In addition to the EOIR policy memorandum, Defendants have taken several other
bewildering actions over the course of the pandemic. Between March 13 and the date of this
filing, Defendants have issued a series of “Standing Orders” governing the policies and
procedures at individual immigration courts during the course of the pandemic. The Standing
Orders purport to impose sporadic, inconsistent, and unlawful procedures relating to immigration
court proceedings, and many are shocking in scope.
For instance, the Immigration Courts in Atlanta, Georgia (undated, added Mar. 20, 2020);
Batavia, New York (Detained) (Mar. 24, 2020); Boston, Massachusetts (Mar. 23, 2020); Buffalo,
New York (Mar. 24, 2020); Conroe, Texas (Mar. 25, 2020); Dallas, Texas (Mar. 24, 2020);
Florence, Arizona (Mar. 23, 2020); Jena, Louisiana (Mar. 25, 2020); Las Vegas, Nevada (Mar.
18, 2020); Varick Street, New York (Mar. 21, 2020); and York, Pennsylvania (Mar. 17, 2020)
each published a “Standing Order” that permits “any individual who wishes to appear
telephonically” at a hearing scheduled during the national emergency to do so provided that the
individual forgoes submitting any additional documents during the hearing and waives any
objection to the admissibility of Government evidence filed during the hearing on the basis that they are unable to examine the document.30 In other words, the Standing Orders require
attorneys and both represented and pro se respondents to choose between their due process rights and the public health.31
30 These so-called “Standing Orders” are contained in Appendix R of the Immigration Court Practice Manual. Appendix R was added to the manual on March 16, 2020. The Immigration Court Practice Manual in effect on Mar. 26, 2020 is available at https://www.justice.gov/eoir/page/file/1258536/download. 31 See, e.g., Standing Order of Immigration Judge H. Kevin Mart Relating to Telephonic Appearances at Master Calendar Hearings (Mar. 21, 2020) (“Any individual who wishes to appear telephonically does so with the understanding that any paper filings to be considered by the Court must be in the official record of proceeding at the time the hearing is scheduled to be held. No additional filings will be accepted at the hearing if counsel does not appear in person, and the decision of the Court will be based on the documents in the record at the close of the

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Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 23 of 41

5. Inadequate, Confusing & Chaotic Notice
Throughout the COVID-19 pandemic, Defendants also consistently have failed to
provide adequate notice—to attorneys, respondents, or the public—of postponements, court
closures, public health risks, or filing deadlines. Between March 10 and the date of this filing,
Defendants have made such announcements via Twitter,32 often after ordinary business hours.
Many of EOIR’s “tweets” have announced immediate changes to filing deadlines.33 For
instance, on March 24, 2020, at around 7 p.m. Eastern Time, Defendants issued a tweet that
ordered “[e]ffective tomorrow, the following immigration courts reopen for the limited purpose
of accepting filings. All filings due during the closures and today are now due. Due dates for
future filings remain.” (Emphasis added.) The Immigration Courts in question, Atlanta
(Peachtree); Houston (Gessner); Los Angeles (Olive); Memphis; New York (Broadway); and
Sacramento, had been previously “closed” for filings because of the pandemic (closures that
were also announced over Twitter). When EOIR’s March 24 tweet was posted, both the
impossibility and the danger of compliance plainly existed: EOIR was forcing people to
congregate at the immigration courts despite public health orders in place in Atlanta, Los
Angeles, New York, and Sacramento.34 About an hour later, Defendants deleted that tweet and
hearing.”) (attached as Exhibit D to Dahab Decl. ¶ 6); Standing Order of the Atlanta Immigration Court – Ted Turner Drive Relating to Telephonic Appearances of Counsel and Permitted Attendees at Detained Master Calendar and Individual Hearings (undated, published Mar. 20, 2020) (“Any attorney appearing telephonically waives the right to object to admissibility of any document offered in Court on the sole basis that they are unable to examine the document.”) (attached as Exhibit E to Dahab Decl. ¶ 7). 32 See generally DOJ EOIR (@DOJ_EOIR), Twitter.com. 33 Notably, there are approximately 4,802,000 individuals currently in removal proceedings in U.S. immigration courts—more than half are unrepresented and many come from countries where English is not the first language, and thousands of whom are detained. DOJ EOIR has 8143 “followers” on Twitter. Although there is no way for Plaintiffs to know who among those impacted is following EOIR’s account, it almost certainly is not the majority of the individuals impacted by this bizarre and chaotic rulemaking through EOIR’s Twitter feed. 34 Compounding this danger, schools in many of these cities were closed, forcing representatives, including those who work for Plaintiffs, to determine whether they should bring

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Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 24 of 41

issued a different tweet, this time setting March 30—just six days later—as the deadline for all filings. On the evening of March 26, EOIR appears to have created an email listserv to “enhance communication with . . . stakeholders[.]”. Dahab Decl. ¶ 13. The email listserv is purportedly described as “nationwide” even though it is only directed to EOIR-registered practitioners, excluding unrepresented individuals, and appears to be only in English. Dahab Decl. ¶ 13. Even so, the inaugural email merely directs practitioners back to EOIR’s Twitter account and website for updates. Dahab Decl. ¶ 13.
6. Unrealistic File-by-Mail Mechanisms During Pandemic Defendant EOIR has also “encouraged” parties to make filings by mail, but has yet to provide any realistic mechanism for any attorney or representative—let alone a pro se respondent—to know of that guidance.35 To make matters worse, Defendants require many filings to include original signatures from respondents and counsel, making in-person contact during the process inevitable or otherwise dangerously lengthy and complicated.36 And, at some Immigration Courts at which filings by mail are required, those courts have refused to accept the filings at all, in direct contravention of their published guidance. For pro se respondents especially, many of whom lack the resources that Defendants’ file-by-mail requirements demand, these circumstances almost certainly will prejudice their individual immigration cases.

children on public transportation to congregate settings to file papers, or whether they would have to put their law licenses at risk by not meeting deadlines for their clients. 35 Even on EOIR’s website, it explains that “[c]ase status and hearing date information may not be updated for those cases postponed due to operational changes during the coronavirus pandemic. Following the issuance of a new hearing notice, such information will be updated. As always, court documents such as notices are your official source of information.” Of course, with 200 million Americans subject to shelter-in-place orders that may keep them from accessing their offices or mail, many have no way of knowing whether or until when their cases have been rescheduled. 36 U.S. Citizenship & Immigration Services, by contrast, has relaxed its original signature requirement during the COVID-19 pandemic. See https://www.uscis.gov/news/alerts/uscisannounces-flexibility-submitting-required-signatures-during-covid-19-national-emergency.

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For instance, on March 24, 2020, Plaintiff Law Lab attempted to deliver by mail a filing to the Atlanta Immigration Court in order to meet an asylum deadline. Declaration of Ariel Prado In Support of Plaintiffs’ Motion for Temporary Restraining Order (“Prado Decl.”) ¶¶ 16– 21. The immigration court did not accept delivery of the filing, so Law Lab was forced to appear in person at the courthouse to investigate; security then prevented Law Lab staff from entering the courthouse. Prado Decl. ¶¶ 16–21. Despite Defendant EOIR’s Twitter announcement encouraging filings by mail, attorneys and representatives have been forced either to appear in person at the immigration court, risking their health and their lives, or, if the court is closed, delay the filing and risk jeopardizing their clients’ case.37 Additionally, both Plaintiffs’ staff and pro se respondents face limited access to businesses that provide mailing services due to shelterin-place and business closure orders. See Declaration of Swapna Reddy in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Reddy Decl.”) ¶ 17.
Filing by mail with the immigration courts is also historically unreliable, creating legitimate concerns for Plaintiffs about potential prejudice to their clients. In the experience of Plaintiff Santa Fe Dreamers Project (SFDP), mail that has been confirmed delivered through Priority Mail tracking is often not processed once it reaches the immigration court. At hearings,

37 Prado Decl. ¶ 9 (Plaintiff’s staff include persons with preexisting health conditions and vulnerabilities and staff who live with frontline case workers, elderly parents, or immunocompromised family); Corchado Decl. ¶ 14 (describing attempted mail-in filing of a family’s asylum applications to the Federal Plaza and Varick Street immigration courts in order to meet their one-year filing deadline; USPS attempted delivery twice at the Varick court but was unable to complete delivery); Reddy Decl. ¶ 8 (“Defendant EOIR continues to require in-person immigration court hearings in many cases and the mailing of paper filings that potentially place ASAP staff, clients, and the pro se respondents we serve at risk.”); ¶ 9-10 (explaining that EOIR’s “inconsistent and haphazard” responses make it “difficult to know when and where filings must be submitted” and providing examples); ¶ 16 (original signature requirement “exacerbates the public health crisis” because “ASAP’s staff must use mail services to send filings to clients, increasing risk of exposure” and “clients must often sign documents and mail them back to ASAP staff.”).

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Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 26 of 41

immigration judges typically have exercised their discretion to accept as timely such filings with proof of mailing despite the lack of a record of receipt in the court’s own system. Love. Decl. ¶ 17. Without hearings at which at immigration judge may exercise such discretion, however, there will no longer be an opportunity to bring extra copies of filings to the court, and clients may be deprived of crucial evidence for their cases. Id. Indeed, the EOIR policy memorandum issued on March 18 reminds immigration judges that they may dismiss a case outright if a filing does not reach them on time.38 As a result, given the immigration courts’ track record of failing to accept and process mail, without relief from this Court Plaintiffs are likely to miss filing deadlines through no fault of their own. Love Decl. ¶ 17.
7. Unexplained Refusal to Adhere to Universally Accepted Public Health Guidance
Remarkably, Defendants’ refusal to meaningfully respond to the national emergency has occurred despite several calls for action, including from the immigration judges and court staff themselves. On March 12, after the World Health Organization declared COVID-19 a global pandemic and thirteen U.S. states declared states of emergency, the National Association of Immigration Judges (NAIJ, the immigration judges’ union), sent a letter to Defendant McHenry calling for the immediate suspension of all non-detained master calendar dockets “because they present a continuing and unacceptable risk in the current environment” that is “untenable and irresponsible in light of the current spread of COVID-19 infections across the country.”39 Defendants initially did not respond to the judges’ union. On March 15, after thirty-nine states had declared states of emergency, NAIJ submitted a Joint Statement with the Immigration &

38 See https://www.justice.gov/eoir/file/1259226/download. 39 Letter to EOIR Director James McHenry from NAIJ (Mar. 12, 2020), at 2, https://www.naijusa.org/images/uploads/newsroom/NAIJ_Letter_to_EOIR_Director_Re_Coronavirus.pdf (attached as Exhibit F to Dahab Decl. ¶ 8).

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Customs Enforcement (ICE) Professionals Union and the American Immigration Lawyers Association (AILA), to “call for the emergency closure of the nation’s Immigration Courts.”40 The Joint Statement explained that Defendants’ decision to close only the Seattle Immigration Court and limit the size of some master calendar dockets was “woefully insufficient,” citing epidemiological expert Dr. Ashish Jha, Professor of Global Health at the Harvard T.H. Chan School of Public Health, who “provided his unequivocal opinion that to continue to hold any hearings at any Immigration Court at this time presents a high public health risk.”41
As of the date of this filing, 62 of the 68 immigration courts remain open, including immigration courts located at the epicenter of the COVID-19 crisis in the United States. See DOJ EOIR (@DOJ_EOIR), Twitter (Mar. 24, 2020, 6:23 PM) (“The Newark and Seattle immigration courts reopen tomorrow. Filings due during the closure are due March 30, 2020.”). Others have closed “based upon individual incidents,” unexplained to the public and decided “from the very top of the administration” on a case-by-case basis.42 Most of those immigration courts are operating in direct violation of mitigation strategies recommended by the CDC.43 Many also remain open in states and local jurisdictions where shelter-in-place orders are in effect, despite warnings from officials about the dangers of ignoring the statewide mandates. In

40 See Declaration of Kate Voigt in Support of Plaintiffs’ Motion for Temporary Restraining

Order; NAIJ, ICE Union, and AILA, “Immigration Judges, Prosecutors and Attorneys Call for

the Nationwide Closure of All Immigration Courts: Position on Health and Safety of the

Immigration Courts During the COVID-19 Pandemic,” Joint Statement (Mar. 15, 2020),

https://www.naij-usa.org/images/uploads/newsroom/2020.03.15.00.pdf (attached as Exhibit G to

Dahab Decl. ¶ 9).

41

Id.

42 See Monique O. Madan, White House Itself Is Choosing Which Immigration Courts Get

to Close Amid COVID-19, Miami Herald (Mar. 19, 2020), https://www.miamiherald.com/

news/local/immigration/article241335126.html (attached as Exhibit to Dahab Decl. ¶ 10).

43 Centers for Disease Control and Prevention, Schools, Workplaces & Community

Locations, https://www.cdc.gov/coronavirus/2019-ncov/community/index.html (describing

recommended community mitigation plans).

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San Francisco, for instance, the San Francisco Immigration Court has remained open, placing attorneys, respondents, and staff at risk, notwithstanding requests from local leaders to impose measures that mitigate the spread.44
Defendants have also failed to promptly close the courts even when COVID-19 exposure within the courthouse space already has occurred. In Denver, the Immigration Court remained open for two full days after a judge, who had presided over hearings while symptomatic the previous week, tested positive for the disease.45 Likewise, EOIR failed to take action at the New York Immigration Court after legal aid groups informed Defendants that three attorneys, all of whom had appeared in court the previous week, were symptomatic or recently exposed.46
D. Impact of Defendants’ Response on Plaintiffs Defendants’ failure to take meaningful action to protect the immigration court system in the face of the COVID-19 pandemic has placed Plaintiffs in an untenable position. Plaintiffs must make the impossible choice between carrying out their missions and competently advocating for their clients or protecting the health of their staff, their clients, their families, and the public.
1. The Danger of Going to Immigration Court Defendants’ response to the pandemic has placed enormous strain on Plaintiffs’ ability to fulfill their missions and competently represent their clients. Consistent with federal CDC

44 See Letter from Arwen Swink, S.F. Immigration Court Local Representative, to

Defendant James McHenry, Director of EOIR (Mar. 19, 2020), available at https://www.naij-

usa.org/images/uploads/newsroom/2020.03.19.00.pdf (warning that EOIR’s “ill-conceived

decision encourages parties to flout the Shelter in Place Order; Respondents reasonably fear

negative consequences—including removal—for late filings and are more likely to come to court

with documents in person.”).

45 Dara Lind, Immigration Courts Are Telling Employees to Come to Work-Ignoring Health

Risks and Local Shelter-in-Place Orders, ProPublica (Mar. 20, 2020),

https://www.propublica.org/article/immigration-courts-are-telling-employees-to-come-to-work-

ignoring-health-risks-and-local-shelter-in-place-orders.

46

Id.

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Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 29 of 41

guidance and individual state shelter-in-place orders, Plaintiffs are largely working remotely except in emergency circumstances or where required by EOIR’s continued operations. Corchado Decl. ¶ 5; Love Decl. ¶ 7; Prado Decl. ¶ 7. Many Plaintiffs have staff members who are at high risk, or whose family members are at high risk of becoming severely ill through exposure to COVID-19 due to age or existing health conditions. Prado Decl. ¶ 9; Corchado Decl. ¶ 6; Love Decl. ¶ 8; Declaration of Michelle Mendez in Support of Plaintiffs’ Motion for Temporary Restraining Order (“Mendez Decl.”) ¶ 9. Multiple Plaintiffs have staff members who are immunocompromised or who live with close family members who are particularly susceptible to the virus due to age or pre-existing health conditions. Corchado Decl. ¶ 6; Mendez Decl. ¶ 9; Love Decl. ¶ 8. At SFDP, a staff member’s spouse is battling cancer and is severely immunocompromised because she recently completed chemotherapy. Love Decl. ¶ 8. Plaintiffs also have staff members who are pregnant or who have newborns at home. Love Decl. ¶ 8; Prado Decl. ¶ 9.
Because of Defendant EOIR’s policies, multiple Plaintiffs have felt compelled to attend court hearings in-person in order to competently advocate for their clients despite the escalating health risks of COVID-19. Plaintiff Las Americas was informed by the El Paso detained court that attorneys were still required to attend court for merits hearings, regardless of the local shelter-in-place order. Corchado Decl. ¶ 11. An attorney at Plaintiff Las Americas was also advised by a detained court administrator that an immigration judge said “there is no reason for [the attorney of record] to appear in court” at a client’s master calendar hearing, effectively encouraging the attorney to leave their client to appear alone. Id. For Plaintiff Southern Poverty Law Center, an attorney in their Southeast Immigrant Freedom Initiative (SIFI) program was forced to appear in person at the Atlanta Immigration Court—risking her own health and the health of those around her—because, according to that immigration court’s local Standing Order, see supra, a telephonic appearance would automatically waive her client’s right to examine

22- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 30 of 41

evidence. See supra, Section I(C)(4); Rivera Decl. ¶ 23. Those who have been forced to attend court in person since the onset of the pandemic
have also reported an alarming lack of safety precautions. A co-counsel attorney of Plaintiff CLINIC who made an in-person filing at the Baltimore Immigration Court on March 16, 2020, noted no health or safety precautions being taken in the building. Mendez Decl. ¶ 19. On March 25, 2020, EOIR posted a Tweet announcing that the Baltimore court, along with two other courts, would close as a “precautionary measure”; although EOIR did not explain the closures, the other two courts named in the Tweet have reportedly been recently exposed to COVID-19. Id. In the Boston Immigration Court, where CLINIC has a pending pro bono case, there have been no reported COVID-19 cases, but an immigration judge apparently closed a courtroom because she believed the courtroom had been exposed. Mendez Decl. ¶¶ 20. At the Stewart Immigration Court in Lumpkin, GA—where Plaintiff SPLC’s SIFI attorneys have been compelled to make approximately twenty visits since COVID-19 was declared a pandemic— security guards only began taking individuals’ temperatures before they entered the courthouse space on March 24. Rivera Decl. ¶ 13. At the Folkston ICE Processing Center, part of the Atlanta Immigration Court, an SPLC SIFI attorney reported that she and her client were placed in a small courtroom, where they had to sit within six feet of each other despite federal public health guidelines. Rivera Decl. ¶ 24. The security guards at the Folkston Immigration Court had confiscated this attorney’s hand sanitizer upon entry to the building, claiming that it was considered “contraband.” Id.
On at least one occasion, EOIR has also failed entirely to accommodate a Plaintiff’s reasonable requests for remote appearance. On March 17, Plaintiff SFDP submitted a motion for telephonic appearance to the Atlanta Immigration Court for a client’s bond hearing. Love Decl. ¶ 11. In the motion, SFDP cited concerns about the COVID-19 pandemic and her exposure if she were compelled to travel 1500 miles for her client’s hearing. Id. On March 23, the

23- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 31 of 41

immigration judge denied her motion “for lack of good cause,” without further explanation. Love Decl. ¶¶ 12–13.
2. The High-Risk Dangers & Obstacles Posed By Detention in the Pandemic
Plaintiffs providing legal services to detained clients are facing the unique challenge of advocating for clients trapped in a particularly high-risk situation. Because the conditions in detention centers are particularly conducive to the rapid spread of COVID-19, Plaintiffs are concerned that their detained clients could be exposed to outbreaks within the detention centers, with devastating impacts.47 Plaintiffs’ concern is especially acute for clients who are already medically fragile, such as those who are HIV positive. Due to the high risks of a COVID-19 outbreak in detention, some Plaintiffs have suspended altogether their detained visitation programs due to fear of inadvertently introducing the coronavirus through their entry to the detention center. Love Decl. ¶ 6; Corchado Decl. ¶¶ 5–6. At some detention centers, even if Plaintiffs attempted to visit a client in person, they would be effectively blocked from visitation clients because they cannot meet ICE’s new requirement that they provide their own personal protective equipment—despite the fact that such equipment is already scarce and desperately needed by frontline healthcare workers.48 See Corchado Decl. ¶ 7.
Plaintiffs’ lack of access to detention centers during the COVID-19 pandemic has significantly harmed their ability to provide meaningful legal services to detained individuals.

47 See, e.g., Memorandum and Order on Amended Petition for Habeas Corpus, Basank v. Decker, No. 20-CV-2518 (S.D.N.Y. Mar. 26, 2020) (attached as Exhibit I to Dahab Decl. ¶ 12). 48 See ICE Guidance on COVID-19, Visitation at Detention Facilities, Will Individuals in ICE Custody be able to meet with their legal representatives? (providing response: “ICE will require all legal visitors to provide and wear PPE (e.g., gloves, N-95 masks, and eye protection) while visiting with any client at any facility.”) (updated Mar. 26, 2020), https://www.ice.gov/covid19; See also, AILA Practice Alert: Personal Protective Equipment (PPE) Requirements for Attorneys in Detained Courts (Mar. 25, 2020) (“AILA’s ICE Liaison Committee has received reports that many jurisdictions are not allowing attorneys to represent clients in-person at detained courts unless attorneys provide and wear their own Personal Protective Equipment (PPE) (e.g., gloves, N-95 masks, and eye protection.”).

24- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 32 of 41

Plaintiffs SFDP, Law Lab, and Las Americas face challenges to their programming in the El Paso Immigration Collaborative (“EPIC”), which operates based on initial in-person visits with newly detained individuals. Love Decl. ¶ 10; Prado Decl. ¶ 26; Corchado Decl. ¶ 10. The EPIC program relies on these intakes to screen cases and offer legal services to unrepresented individuals. Love Decl. ¶ 10; Prado Decl. ¶ 26; Corchado Decl. ¶ 10. Without such intakes, Plaintiffs are unable to connect with potential clients, undermining EPIC’s model and forcing detained individuals to move forward with their cases pro se despite Plaintiffs’ available legal services. Love Decl. ¶ 10; Prado Decl. ¶ 26–27. Plaintiff CLINIC has also faced challenges providing legal services to detained individuals because its partners are either limiting or ceasing visits to the detention centers—that is, they cannot meet with clients, pick up documents, or obtain signatures in a timely manner. Mendez Decl. ¶ 16.
Plaintiffs have also had great difficulty accessing detained clients with whom they have preexisting legal relationships; as EOIR continues to move forward as normal, Plaintiffs are unable to adequately represent their clients. Plaintiff SPLC’s SIFI project has found that VTC and phone systems are overburdened in detention centers where they work, making it functionally impossible to contact clients for timely legal consultations. Rivera Decl. ¶¶ 8–9, 11–12. Plaintiff SFDP has repeatedly sought to schedule legal calls with detained clients in El Paso, but its requests have been wholly ignored. Love Decl. ¶ 15. When Plaintiff Las Americas has received telephonic consultations with detained clients, ICE has failed to provide access to confidential phone lines, and guards have at times cut attorney conversations short. Corchado Decl. ¶¶ 9–10. One Las Americas client had his phone consultation with his attorney cut short on the day before his merits hearing; the client was forced to use the last of his commissary funds to call his attorney back. Corchado Decl. ¶ 9. Legal calls have also been scheduled on nonsecure lines, depriving Plaintiffs and their clients of confidentiality. Corchado Decl. ¶¶ 9–10. Some Las Americas clients are unwilling to proceed with a call because of the lack of

25- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 33 of 41

confidentiality; others have proceeded to discuss sensitive details of their cases despite the presence of ICE, out of their necessity to speak with attorneys. Corchado Decl. ¶ 10.
3. Failure to Automatically Extend Deadlines Extends Dangers Beyond the Physical Courtrooms and Visitation Spaces
Not only do the Defendants’ responses to COVID-19 create dangerous congregate spaces at the physical courthouses and detained courts, their inadequate responses have widened the circle of danger by forcing Plaintiffs and the people they serve to engage in risky public health activities or face potential harm to their cases. Plaintiffs have faced serious barriers to meeting with clients, adequately preparing their cases, and obtaining signatures and evidence. Plaintiffs cannot meet with clients in person due to the risk of COVID-19 transmission. One of CLINIC’s clients, for example, has been unable to meet with counsel due to the risk of exposing an elderly person with whom he lives. Mendez Decl. ¶ 17. CLINIC staff are also forced to continue checking the mail in their physical office in order to meet important deadlines set by the Board of Immigration Appeals (BIA). Id. ¶ 15. Law Lab has struggled to continue providing pro se legal services, as the pandemic has forced its staff to either redesign or cancel asylum workshops. Prado Decl. ¶¶ 10, 22, 24. Law Lab’s workshops are designed to help pro se respondents with upcoming hearings or deadlines in immigration court; in the absence of such workshops, Law Lab will be unable to provide legal support in time to help some individuals before their upcoming filing deadlines. Prado Decl. ¶ 22. Pro se respondents receiving legal services from Plaintiff Asylum Seeker Advocacy Project (“ASAP”) are concerned that they will have to violate government shelter-in-place orders to mail important immigration court filings. Reddy Decl. ¶ 17.
The COVID-19 pandemic has also impacted some Plaintiffs’ ability to produce expert witnesses during their clients’ hearings. Plaintiff CLINIC, for instance, had been relying on inperson expert testimony as crucial support for their client’s claims in an upcoming April merits hearing; the expert is now concerned about appearing in person due to the pandemic. Mendez

26- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 34 of 41

Decl. ¶ 17. Plaintiff Las Americas has already had a proposed witness cancel her remote appearance in a merits hearing because of limited access to phone and internet service, again due to complications from the COVID-19 pandemic. Corchado Decl. ¶ 9.
The public health crisis has also impeded attorneys’ ability to promptly access client records in immigration court. Plaintiff CLINIC has had their motion to reopen work particularly impaired by the confluence of COVID-19 and EOIR’s inflexible response. Mendez Decl. ¶¶ 11– 14. CLINIC is now unable to access their clients’ case record that is only immediately available in person, in immigration court. Mendez Decl. ¶¶ 11–12. Without this information, CLINIC’s ability to file a complete and accurate motion is severely undermined; yet if they seek this information through FOIA requests, the processing time could prejudice their clients’ cases and leave them vulnerable to deportation. Mendez Decl. ¶¶ 13–14.
Although Defendants currently have suspended non-detained hearings for a limited period of time, they have continued to operate most immigration courts across the country, including by imposing deadlines, requiring in-person appearances by Plaintiffs and their clients in courts both inside and outside of detention centers, and forcing many individuals, including pro se respondents, to appear in person to make filings and meet deadlines. Plaintiffs’ staff, attorneys, volunteers, and clients must take public transportation or hire a private driver, in some cases travel across entire cities and states, and present in person at the immigration court buildings, some of which already have experienced known COVID-19 exposures. In short, Defendants have turned the immigration court system into a public health hazard and have taken no meaningful steps to mitigate it. II. ARGUMENT
The Court, using the equitable authority of the All Writs Act, should issue an immediate, temporary, emergency order enjoining the Defendants from turning the immigration courts into a public health hazard because it is “essential to the administration of justice” to prevent them

27- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 35 of 41

from doing so. Michaelson, 266 U.S. at 65-66. Such an order is “necessary or appropriate” in
the aid of the Court’s jurisdiction and as outlined in particular below, the Court can fashion such an order to be “agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).49
The All Writs Act provides this Court with the ability to construct a remedy to right a
“wrong [which] may [otherwise] stand uncorrected.” United States v. Morgan, 346 U.S. 502,
512 (1954). Should the Defendants be allowed to turn the immigration courts into a public
health hazard, the Plaintiffs underlying claims seeking a full and fair immigration court
adjudication system would be subverted. Dean Foods Co., 384 U.S. at 608 (a court has “express
authority under the All Writs Act to issue such temporary injunctions as may be necessary to
protect its own jurisdiction”); Michael v. INS, 48 F.3d 657, 659 (2d Cir. 1995) (All Writs Act
injunction of a prisoner’s deportation proper to preserve the court’s jurisdiction over the pending
appeal). The Ninth Circuit has held that the All Writs Act “should be broadly construed,”
Hamilton v. Nakai, 453 F.2d 152, 157 (9th Cir. 1979), to “achieve all rational ends of law,”
California v. M&P Invs., 46 F. App’x 876, 878 (9th Cir. 2002) (quoting Adams v. United States,
317 U.S. 269, 273 (1942)). Courts have “broad power” and “significant flexibility in exercising
[their] authority under the Act,” United States v. Catoggio, 698 F.3d 64, 67 (2d Cir. 2012). A. The Emergency Order is Necessary or Appropriate to Aid this Court’s Jurisdiction. Plaintiffs’ requested relief is necessary and appropriate to aid in the exercise of this
Court’s jurisdiction.50 In this civil action, Plaintiffs have invoked the jurisdiction of this Court to
49 The All Writs Act provides in full that “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 50 To be sure, the court must already have an independent basis for exercising its jurisdiction in order to issue relief under the All Writs Act. See Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33 (2002) (“Because the All Writs Act does not confer jurisdiction on the federal courts, . . . it cannot confer the original jurisdiction required to support removal under § 1441.”). In this case, Defendants challenged the Court’s jurisdiction in their Motion to

28- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 36 of 41

protect against Defendants’ failure to Take Care, see U.S. Const. Art. II, § 3, that the laws relating to the immigration court system be faithfully executed, and to enjoin Defendants’ implementation of policies that subvert the ability of the immigration courts to fully and fairly adjudicate cases and, as a result, deprive Plaintiffs a fair forum in which to fulfill their organizational missions. In their Complaint, Plaintiffs seek injunctive relief prohibiting Defendants from implementing certain policies that undermine fundamental fairness and requiring Defendants to take specific corrective actions to ameliorate and mitigate the dysfunctionality of the immigration court system that has resulted in a failure of the system to provide impartial adjudication. Complaint at p. 62. If the Court grants such relief, Plaintiffs will be able to fulfill their organizational missions to represent individuals in a fair and impartial system of justice, as federal law requires.
If Defendants are permitted to allow COVID-19 to spread within and throughout the immigration court system and ICE detention facilities, and then outward into the cities, states, and nation at large, Plaintiffs’ lawsuit could become functionally irrelevant. An immigration court system that is a viral vector of a disease for which there is no immunity or vaccine, and which can cause long-lasting illness and death, cannot meaningfully become a fair adjudication system. Under the Defendants current modus operandi, deadlines for immigration filings remain in place (filings that, again, often must happen in person, at courthouses), so people will continue to congregate in cramped courthouse spaces, increasing exponentially the transmission of the disease. Pro se respondents will continue to appear in person because they have no notice of the status of their case, placing the system further at risk of the growing COVID-19-related system collapse. Court hearings continue to happen, under penalty of deportation, against the wishes of

Dismiss, filed on March 20, 2020. See ECF 24. As noted above, however, see supra n.3, “[u]ntil [the court’s] judgment declining jurisdiction should be announced, [the court has] authority, from the necessity of the case, to make orders to preserve the existing conditions and the subject of the petition.” Shipp, 203 U.S. at 573. The Court therefore has jurisdiction to consider this motion and issue the requested relief, unless and until it orders otherwise.

29- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 37 of 41

counsel and respondents whose lives are endangered. So long as the courts continue to adjudicate cases and decline to extend important deadlines, everyone in the system is put at risk. Plaintiffs’ staff, attorneys, and volunteers, as well as respondents in immigration court proceedings, will be faced with life-threatening illnesses and possibly death. Those fortunate enough to avoid contracting and spreading COVID-19—because they chose not to expose themselves in the immigration courts—will almost certainly be ordered deported.
Importantly, the “jurisdiction” to be aided under the Act is flexibly understood—thus, courts may enjoin acts that have the “practical effect” of frustrating or threatening a court’s power to achieve the ends of justice. Klay v. United Healthgrp., Inc., 376 F.3d 1092, 1102 (11th Cir. 2004) (internal quotation marks omitted); ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351, 1359 (5th Cir. 1978) (injunction aids the court’s jurisdiction if it operates to “curb conduct which threatened improperly to impede or defeat” the power of the court).
Moreover, an issuing court need not consider the merits of an underlying action when issuing an All Writs Act injunction, Makekau v. State, 943 F.3d 1200, 1204 (9th Cir. 2019), and the traditional test for issuing an injunction does not apply, Klay, 376 F.3d at 1100 (so holding); In re Baldwin-United Corp., 770 F.2d at 338 (holding that “injunctions issued under the authority of the All-Writs Act stem from very different concerns than those motivating preliminary injunctions governed by Fed. R. Civ. P. 65” and therefore such an injunction need “not comply with the [Rule’s] requirements”); see also Flores v. Barr, 407 F. Supp. 3d 909, 929 n.16 (C.D. Cal. 2019) (“The Ninth Circuit does not appear to require courts to examine the traditional requirements for obtaining injunctive relief in order to issue such relief under the All Writs Act.” (citing M&P Invs., 46 F. App’x at 878)). “Courts normally exercise their jurisdiction . . . in order to protect the legal rights of the parties.” United States v. New York Tel. Co., 434 U.S. 159, 1725 n.23 (1977).

30- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 38 of 41

B. The Emergency Order is Consistent with the Usages and Principles of Law. Plaintiffs’ requested relief is equitable in nature and fashioned around common court practices and sound principles of law. The All Writs Act permits the issuance of relief that is “agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). The Supreme Court has explained that courts should “fashion appropriate modes of procedure, by analogy to existing rules or otherwise in conformity with judicial usage.” Harris v. Nelson, 394 U.S. 286, 299 (1969). Like the Federal and State Courts which have extended deadlines, broadly continued hearings, and, for those who so desire, provided meaningful and realistic alternatives to in-person appearances, filings, and preparation consistent with due process because of the COVID-19 pandemic, the emergency order here would implement similar temporary practices. C. An Immediate and Temporary Emergency Order Will Provide Relief. The pandemic that plagues the United States, and that the Defendants have further allowed to spread within the immigration courts, will cause harm and death right now unless an immediate order is issued, yet the nature of a pandemic also means the order can be temporary because the danger abates over time. The All Writs Act leaves to the sound discretion of the court the scope of the relief and instructs the court to “avail itself of [the Act] when the use of such historic aids is calculated in its sound judgment to achieve the ends of justice entrusted to it.” New York Tel. Co., 434 U.S. at 172–73 (internal quotation marks omitted). Under the All Writs Act, the Court is “empower[ed] to fashion extraordinary remedies when the need arises.” Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985).51 Here, an extraordinary event is taking place—one without contemporary precedent—and the Defendants have

51 The conduct enjoined need not arise out of the allegedly unlawful conduct forming the basis of the claims in the underlying complaint. As discussed in more detail below, the Ninth Circuit recently has explained that an All Writs Act injunction is appropriate where there is simply a “relationship between the injury claimed in the motion for injunctive relief and the conduct asserted in the underlying complaint.” Al Otro Lado v. Wolf, -- F.3d --, 2020 WL 1059682, at *4 n.6 (9th Cir. Mar. 5, 2020) (injunction of third-country transit ban necessary to preserve the district court’s jurisdiction over the plaintiffs’ underlying metering claims).

31- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 39 of 41

squandered precious time aggravating the situation. In a pandemic, time is the one thing that cannot be squandered. Accordingly, the order here should be immediate and temporary. III. REMEDY
Immediate and irreparable threats to the ongoing exercise of this Court’s jurisdiction resulting from Defendants’ failure to protect the immigration court system from the COVID-19 pandemic requires immediate, temporary relief from this Court.
A. Scope of Remedy Plaintiffs therefore respectfully request that the Court order Defendants as follows: (1) Defendants should be enjoined from compelling any respondent or respondent’s
counsel to appear in person for any reason at any U.S. immigration court, and from requiring any hearing to go forward without the consent of the respondent or their counsel; (2) Defendants should be enjoined from invoking the in absentia procedures to order a respondent removed if they fail to appear in any immigration court because of their fear of contagion or because a public health order exists cautioning against congregation or public movement; (3) Defendants should be required to toll all immigration court deadlines, including the deadline for appeals to the BIA, and grant continuances where requested by respondent or respondent’s counsel, without any negative impact to a respondent’s asylum clock used to calculate eligibility for work authorization; (4) Defendants should be required to waive their original signature requirement on filings, and waive their hard-copy filing requirements where electronic filing is not operational; (5) Defendants should be enjoined from deeming abandoned any petition or application for immigration relief or deeming any petition or application as

32- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 40 of 41

untimely that was or is not otherwise timely filed during the national emergency; and (6) Defendants should be enjoined from holding any attorney in contempt for failing to appear in person at a proceeding because of their fear of contagion or because a public health order exists cautioning against congregation or public movement.

B. Duration of Remedy The circumstances here warrant immediate issuance of a temporary restraining order for a

period of 28 days, or until the National Emergency is rescinded, whichever happens first. See

Fed. R. Civ. P. 65(b)(1). But see FTC v. Ames. for Fin. Reform, 720 F. App’x 380, 383 (9th Cir.

2017) (authority afforded under the All Writs Act is broader than that afforded under Rule 65);

Yielding, 657 F.3d at 727 (“[I]njunctive relief under the All Writs Act need not rigidly comply

with Rule 65’s prescriptions so long as the injunction is ‘specific and definite enough to apprise

those within its scope of the conduct that is being proscribed.’” (quoting In re Baldwin-United

Corp., 770 F.2d at 338)).

CONCLUSION

Plaintiffs have demonstrated that an immediate and temporary order from this Court is

necessary and appropriate to protect or preserve the ongoing exercise of this Court’s jurisdiction

in these proceedings. 28 U.S.C. § 1651(a). Accordingly, they respectfully request that the Court

grant this emergency motion and issue an emergency order and provide any other relief that the

Court deems just and proper.

33- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

Case 3:19-cv-02051-SB Document 28 Filed 03/27/20 Page 41 of 41

DATED: March 27, 2020

PERKINS COIE LLP

Stephen Manning, OSB No. 013373 smanning@ilgrp.com Nadia Dahab, OSB No. 125630 nadia@innovationlawlab.org Jordan Cunnings, OSB No. 182928 jordan@innovationlawlab.org Tess Hellgren, OSB No. 191622 tess@innovationlawlab.org INNOVATION LAW LAB The Oregon Trail Bldg 333 SW 5th Ave Ste 200 Portland OR 97204 Telephone: 503.241.0035
Melissa Crow (admitted pro hac vice) Melissa.Crow@splcenter.org SOUTHERN POVERTY LAW CENTER 1101 17th Street, NW, Suite 705 Washington, DC 20036 Telephone: 202.355.4471
Rebecca Cassler (admitted pro hac vice) Rebecca.Cassler@splcenter.org Gracie Willis (admitted pro hac vice) Gracie.Willis@splcenter.org SOUTHERN POVERTY LAW CENTER P.O. Box 1287 Decatur, GA 30031-1287 Telephone: 404.521.6700

By /s/ Heidee Stoller Bryan D. Beel, OSB No. 073408 BBeel@perkinscoie.com Heidee Stoller, OSB No. 072835 HStoller@perkinscoie.com Nathan R. Morales, OSB No. 145763 NMorales@perkinscoie.com 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Telephone: 503.727.2000
Attorneys for Plaintiffs Las Americas Immigrant Advocacy Center; Asylum Seeker Advocacy Project; Catholic Legal Immigration Network, Inc.; Innovation Law Lab; Santa Fe Dreamers Project; and Southern Poverty Law Center,

34- EMERGENCY MOTION FOR TEMPORARY RESTRAINING ORDER

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000 Fax: 503.727.2222

 
 1/16/2021

Query Reports

CM/ECF - USDC Oregon
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U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:19-cv-02051-IM

Las Americas Immigrant Advocacy Center et al v. Trump et al Assigned to: Judge Karin J. Immergut Cause: 28:2201 Declaratory Judgment

Date Filed: 12/18/2019 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff
Las Americas Immigrant Advocacy Center

represented by Gracie H. Willis Southern Poverty Law Center PO Box 1287 Decatur, GA 30031-1287 404-224-4050 Fax: 404-221-5857 Email: Gracie.Willis@splcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heidee Stoller Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209-4128 503-727-2000 Fax: 503-727-2222 Email: HStoller@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Cunnings Innovation Law Lab PO Box 40103 Portland, OR 97204 971-801-6051 x 1030 Fax: 503-241-7733 Email: jordan@innovationlawlab.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?123156007966082-L_1_0-1

Nadia H. Dahab Sugerman Law Ofﬁce 707 SW Washington Street Ste. 600 97205 Portland, OR 97205 503-228-6474
1/19

1/16/2021

CM/ECF - USDC Oregon
Email: nadia@sugermanlawofﬁce.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan R. Morales Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209-4128 503-727-2000 Email: nmorales@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen W. Manning Innovation Law Lab Immigrant Law Group PC PO Box 40103 Portland, OR 97240 503-241-0035 Fax: 503-241-7733 Email: smanning@ilgrp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tess Hellgren Innovation Law Lab PO Box 8382 Portland, OR 97207 352-559-0897 Email: tess@innovationlawlab.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R. Johnson Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209-4128 503-727-2176 Fax: 503-727-2222 Email: TRJohnson@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alletta S. Brenner Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209-4128 503-727-2000 Email: abrenner@perkinscoie.com ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?123156007966082-L_1_0-1

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Plaintiff Catholic Legal Immigration Network, Inc.
https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?123156007966082-L_1_0-1

CM/ECF - USDC Oregon
Christopher G. Parker Perkins Coie 505 Howard Street Suite 1000 San Francisco, CA 94105 415-344-7020 Email: CParker@perkinscoie.com TERMINATED: 03/24/2020 PRO HAC VICE
Melissa Crow Southern Poverty Law Center 1101 17th Street, NW Suite 705 Washington, DC 20036 202-355-4471 Email: Melissa.Crow@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca M. Cassler Southern Poverty Law Center PO Box 1287 Decatur, GA 30031 404-521-6700 Fax: 404-221-5857 Email: Rebecca.Cassler@splcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Bryan D. Beel Perkins Coie, LLP 1120 NW Couch Street 10th Floor Portland, OR 97209-4128 503-727- 2000 Fax: 503-727-2222 Email: bbeel@perkinscoie.com ATTORNEY TO BE NOTICED
represented by Gracie H. Willis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Heidee Stoller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Cunnings (See above for address)
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CM/ECF - USDC Oregon
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan R. Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen W. Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tess Hellgren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas R. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alletta S. Brenner (See above for address) ATTORNEY TO BE NOTICED

Christopher G. Parker (See above for address) TERMINATED: 03/24/2020 PRO HAC VICE

Melissa Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca M. Cassler (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Bryan D. Beel (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Innovation Law Lab

represented by Gracie H. Willis (See above for address)

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CM/ECF - USDC Oregon
LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heidee Stoller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Cunnings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan R. Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen W. Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tess Hellgren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Thomas R. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alletta S. Brenner (See above for address) ATTORNEY TO BE NOTICED

Christopher G. Parker (See above for address) TERMINATED: 03/24/2020 PRO HAC VICE

Melissa Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca M. Cassler

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?123156007966082-L_1_0-1

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Plaintiff Santa Fe Dreamers Project

CM/ECF - USDC Oregon
(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Bryan D. Beel (See above for address) ATTORNEY TO BE NOTICED
represented by Gracie H. Willis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Heidee Stoller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jordan Cunnings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nathan R. Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen W. Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tess Hellgren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alletta S. Brenner (See above for address) ATTORNEY TO BE NOTICED

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CM/ECF - USDC Oregon
Christopher G. Parker (See above for address) TERMINATED: 03/24/2020 PRO HAC VICE

Melissa Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca M. Cassler (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Southern Poverty Law Center

Bryan D. Beel (See above for address) ATTORNEY TO BE NOTICED
represented by Gracie H. Willis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heidee Stoller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Cunnings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan R. Morales (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen W. Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?123156007966082-L_1_0-1

Tess Hellgren (See above for address) LEAD ATTORNEY
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CM/ECF - USDC Oregon
ATTORNEY TO BE NOTICED

Thomas R. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alletta S. Brenner (See above for address) ATTORNEY TO BE NOTICED

Christopher G. Parker (See above for address) TERMINATED: 03/24/2020 PRO HAC VICE

Melissa Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Rebecca M. Cassler (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Asylum Seeker Advocacy Project

Bryan D. Beel (See above for address) ATTORNEY TO BE NOTICED
represented by Gracie H. Willis (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Heidee Stoller (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jordan Cunnings (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nadia H. Dahab (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?123156007966082-L_1_0-1

Nathan R. Morales (See above for address)
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CM/ECF - USDC Oregon
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen W. Manning (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tess Hellgren (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas R. Johnson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alletta S. Brenner (See above for address) ATTORNEY TO BE NOTICED
Christopher G. Parker (See above for address) TERMINATED: 03/24/2020 PRO HAC VICE
Melissa Crow (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Rebecca M. Cassler (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Bryan D. Beel (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Donald J. Trump in his ofﬁcial capacity as President of the United States

represented by Brian C. Ward U.S. Department of Justice Civil Division P.O. Box 868 Ben Franklin Station Washington, DC 20044 202-616-9121 Fax: 202-305-7000 Email: brian.c.ward@usdoj.gov LEAD ATTORNEY

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Defendant William Barr in his ofﬁcial capacity as Attorney General of the United States
Defendant U.S. Department of Justice
Defendant Executive Ofﬁce for Immigration Review
Defendant James McHenry in his ofﬁcial capacity as EOIR Director of the United States
Amicus

CM/ECF - USDC Oregon
ATTORNEY TO BE NOTICED
Erez Reuveni United States Dept. of Justice Civil Division 450 5th St NW Washington, DC 20530 202-307-4293 Fax: 202-305-7000 Email: erez.r.reuveni@usdoj.gov ATTORNEY TO BE NOTICED
represented by Brian C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
represented by Brian C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
represented by Brian C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED
represented by Brian C. Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erez Reuveni (See above for address) ATTORNEY TO BE NOTICED

https://ecf.ord.uscourts.gov/cgi-bin/DktRpt.pl?123156007966082-L_1_0-1

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Former Immigration Judges
Amicus Professors of Immigration Law, Civil Procedure and Administrative Law Larkins Vacura Kayser 121 SW Morrison St., Suite 700 PORTLAND, OR 97212 United Sta 503-222-4424

CM/ECF - USDC Oregon
represented by Gary M. Berne Stoll Stoll Berne Lokting & Shlachter, PC 209 S.W. Oak Street Fifth Floor Portland, OR 97204 503-227-1600 Fax: 503-227-6840 Email: gberne@stollberne.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Keil M. Mueller Stoll Stoll Berne Lokting & Shlachter P.C. 209 SW Oak Street Suite 500 Portland, OR 97204 503-227-1600 Fax: 503-227-6840 Email: kmueller@stollberne.com ATTORNEY TO BE NOTICED
Keith S. Dubanevich Stoll Stoll Berne Lokting & Shlachter P.C. 209 SW Oak Street Suite 500 Portland, OR 97204 503-227-1600 Fax: 503-227-6840 Email: kdubanevich@stollberne.com ATTORNEY TO BE NOTICED
represented by Cody B. Hoesly Larkins Vacura, LLP 121 SW Morrison St. Suite 700 Portland, OR 97204 503-222-4424 Fax: 503-827-7600 Email: choesly@lvklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

12/18/2019

1 Complaint. Filing fee in the amount of $400 collected. Agency Tracking ID: 09796125948 Jury Trial Requested: No. Filed by Asylum Seeker Advocacy Project, Innovation Law Lab, Catholic Legal Immigration Network, Inc., Las Americas Immigrant Advocacy Center, Santa Fe Dreamers Project, Southern Poverty Law Center against All Defendants (Attachments: # 1 Proposed Summons, # 2 Proposed Summons, # 3 Proposed Summons, # 4 Proposed Summons, # 5 Proposed Summons, # 6 Civil Cover Sheet). (Beel, Bryan) (Entered: 12/18/2019)

12/18/2019

2 Motion for Leave to Appear Pro Hac Vice for Attorney Rebecca M. Cassler . Filing fee

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CM/ECF - USDC Oregon
in the amount of $300 collected; Agency Tracking ID: 0979-6125984. Filed by All Plaintiffs. (Beel, Bryan) (Entered: 12/18/2019)
3 Motion for Leave to Appear Pro Hac Vice for Attorney Melissa Crow . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979-6125997. Filed by All Plaintiffs. (Beel, Bryan) (Entered: 12/18/2019)
4 Motion for Leave to Appear Pro Hac Vice for Attorney Christopher G. Parker . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979-6126000. Filed by All Plaintiffs. (Beel, Bryan) (Entered: 12/18/2019)
5 Motion for Leave to Appear Pro Hac Vice for Attorney Gracie H. Willis . Filing fee in the amount of $300 collected; Agency Tracking ID: 0979-6126004. Filed by All Plaintiffs. (Beel, Bryan) (Entered: 12/18/2019)
6 Notice of Case Assignment to Magistrate Judge Stacie F. Beckerman and Discovery and Pretrial Scheduling Order. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of ﬁling upon all named parties in accordance with Local Rule 3-5. Discovery is to be completed by 4/16/2020. Joint Alternate Dispute Resolution Report is due by 5/18/2020. Pretrial Order is due by 5/18/2020. Ordered by Magistrate Judge Stacie F. Beckerman. (ecp) (Entered: 12/18/2019)
7 Summons Issued Electronically as to All Defendants. NOTICE: Counsel shall print and serve the summonses and all documents issued by the Clerk at the time of ﬁling upon all named parties in accordance with Local Rule 3-5. (Attachments: # 1 issued summons Barr, # 2 issued summons McHenry, # 3 issued summons US Dept of Justice, # 4 issued summons EOIR) (ecp) (Entered: 12/18/2019)
8 ORDER: Granting Application for Special Admission Pro Hac Vice of Rebecca M. Cassler for Asylum Seeker Advocacy Project, Catholic Legal Immigration Network, Inc., Innovation Law Lab, Las Americas Immigrant Advocacy Center, Santa Fe Dreamers Project, Southern Poverty Law Center. Signed on 12/18/2019 by Magistrate Judge Stacie F. Beckerman. (jn) (Entered: 12/18/2019)
9 Notiﬁcation of CM/ECF Account for Rebecca M. Cassler (Pro Hac Vice admission). Your login is: rmcassler. Go to the CM/ECF login page to set your password. (jn) (Entered: 12/18/2019)
10 ORDER: Granting Application for Special Admission Pro Hac Vice of Melissa Crow for Asylum Seeker Advocacy Project, Catholic Legal Immigration Network, Inc., Innovation Law Lab, Las Americas Immigrant Advocacy Center, Santa Fe Dreamers Project, Southern Poverty Law Center. Signed on 12/18/2019 by Magistrate Judge Stacie F. Beckerman. (jn) (Entered: 12/18/2019)
11 Notiﬁcation of CM/ECF Account for Melissa Crow (Pro Hac Vice admission). Your login is: mcrow. Go to the CM/ECF login page to set your password. (jn) (Entered: 12/18/2019)
12 ORDER: Granting Application for Special Admission Pro Hac Vice of Christopher G. Parker for Asylum Seeker Advocacy Project, Catholic Legal Immigration Network, Inc., Innovation Law Lab, Las Americas Immigrant Advocacy Center, Santa Fe Dreamers Project, Southern Poverty Law Center. Signed on 12/18/2019 by Magistrate Judge Stacie F. Beckerman. (jn) (Entered: 12/18/2019)
13 Notiﬁcation of CM/ECF Account for Christopher G. Parker (Pro Hac Vice admission). Your login is: cgparker. Go to the CM/ECF login page to set your password. (jn) (Entered: 12/18/2019)

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CM/ECF - USDC Oregon
14 ORDER: Granting Application for Special Admission Pro Hac Vice of Gracie H. Willis for Asylum Seeker Advocacy Project, Catholic Legal Immigration Network, Inc., Innovation Law Lab, Las Americas Immigrant Advocacy Center, Santa Fe Dreamers Project, Southern Poverty Law Center. Signed on 12/18/2019 by Magistrate Judge Stacie F. Beckerman. (jn) (Entered: 12/18/2019)

12/18/2019

15 Notiﬁcation of CM/ECF Account for Gracie H. Willis (Pro Hac Vice admission). Your login is: ghwillis. Go to the CM/ECF login page to set your password. (jn) (Entered: 12/18/2019)

01/21/2020

16 Return of Service Executed as to U.S. Department of Justice served on 1/13/2020, answer due on 3/13/2020. Service speciﬁcally made upon Local U.S. Attorney. (Stoller, Heidee) (Entered: 01/21/2020)

01/21/2020

17 Return of Service Executed as to William Barr served on 1/13/2020, answer due on 3/13/2020. Service speciﬁcally made upon Local U.S. Attorney. (Stoller, Heidee) (Entered: 01/21/2020)

01/21/2020

18 Return of Service Executed as to Executive Ofﬁce for Immigration Review served on 1/13/2020, answer due on 3/13/2020. Service speciﬁcally made upon Local U.S. Attorney. (Stoller, Heidee) (Entered: 01/21/2020)

01/21/2020

19 Return of Service Executed as to James McHenry served on 1/13/2020, answer due on 3/13/2020. Service speciﬁcally made upon Local U.S. Attorney. (Stoller, Heidee) (Entered: 01/21/2020)

01/21/2020

20 Return of Service Executed as to Donald J. Trump served on 1/13/2020, answer due on 3/13/2020. Service speciﬁcally made upon Local U.S. Attorney. (Stoller, Heidee) (Entered: 01/21/2020)

02/21/2020

21 Notice of Appearance of Brian C. Ward appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Ward, Brian) (Entered: 02/21/2020)

03/06/2020

22 Unopposed Motion for Extension of Time to Answer Complaint,, 1 . Filed by All Defendants. (Ward, Brian) (Entered: 03/06/2020)

03/06/2020

23 ORDER: Granting Defendants' Unopposed Motion for Extension of Time (ECF No. 22 ). Answer or other responsive pleading is due by 3/20/2020. Ordered on 3/6/2020 by Magistrate Judge Stacie F. Beckerman. (gw) (Entered: 03/06/2020)

03/20/2020 24 Motion to Dismiss . Oral Argument requested. Filed by All Defendants. (Ward, Brian) (Entered: 03/20/2020)

03/24/2020

25 Notice of Attorney Withdrawal: Christopher Parker for Plaintiffs Filed by All Plaintiffs. (Stoller, Heidee) (Entered: 03/24/2020)

03/24/2020

26 Stipulated Motion for Extension of Time for Court to Issue a Scheduling Order and Set a Brieﬁng Schedule for Defendants' Motion to Dismiss. Filed by All Plaintiffs. (Stoller, Heidee) (Entered: 03/24/2020)

03/24/2020

27 ORDER: Motion for Extension of Time 26 is GRANTED. Response is due by 4/24/2020. Reply is due by 5/22/2020. The Court will issue a scheduling order following a Rule 16 conference. Ordered by Magistrate Judge Stacie F. Beckerman. (dsg) Modiﬁed on 3/24/2020 to correct docket text (dsg). (Entered: 03/24/2020)

03/27/2020

28 Emergency Motion for Temporary Restraining Order Pursuant to 28 U.S.C. § 1651(a). Oral Argument requested.Expedited Hearing requested. Filed by All Plaintiffs. (Stoller, Heidee) (Entered: 03/27/2020)

03/27/2020

29 Declaration of Linda Corchado in Support of Emergency Motion for Temporary

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CM/ECF - USDC Oregon
Restraining Order Pursuant to 28 U.S.C. § 1651(a). Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 28 .) (Stoller, Heidee) (Entered: 03/27/2020)

03/27/2020

30 Declaration of Nadia Dahab in Support of Emergency Motion for Temporary Restraining Order Pursuant to 28 U.S.C. § 1651(a). Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 28 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K) (Stoller, Heidee) (Entered: 03/27/2020)

03/27/2020

31 Declaration of Allegra Love in Support of Emergency Motion for Temporary Restraining Order Pursuant to 28 U.S.C. § 1651(a). Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 28 .) (Attachments: # 1 Exhibit A) (Stoller, Heidee) (Entered: 03/27/2020)

03/27/2020

32 Declaration of Michelle Mendez in Support of Emergency Motion for Temporary Restraining Order Pursuant to 28 U.S.C. § 1651(a). Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 28 .) (Stoller, Heidee) (Entered: 03/27/2020)

03/27/2020

33 Declaration of Ariel Prado in Support of Emergency Motion for Temporary Restraining Order Pursuant to 28 U.S.C. § 1651(a). Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 28 .) (Stoller, Heidee) (Entered: 03/27/2020)

03/27/2020

34 Declaration of Swapna Reddy in Support of Emergency Motion for Temporary Restraining Order Pursuant to 28 U.S.C. § 1651(a). Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 28 .) (Stoller, Heidee) (Entered: 03/27/2020)

03/27/2020

35 Declaration of Laura G. Rivera in Support of Emergency Motion for Temporary Restraining Order Pursuant to 28 U.S.C. § 1651(a). Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 28 .) (Stoller, Heidee) (Entered: 03/27/2020)

03/27/2020

36 Declaration of Joshua M. Sharfstein in Support of Emergency Motion for Temporary Restraining Order Pursuant to 28 U.S.C. § 1651(a). Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 28 .) (Stoller, Heidee) (Entered: 03/27/2020)

03/27/2020

37 Declaration of Kate Voigt in Support of Emergency Motion for Temporary Restraining Order Pursuant to 28 U.S.C. § 1651(a). Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 28 .) (Stoller, Heidee) (Entered: 03/27/2020)

03/27/2020

38 Notice of Case Reassignment: This case has been reassigned from Magistrate Judge Stacie F. Beckerman to Judge Karin J. Immergut. (eo) (Entered: 03/27/2020)

03/27/2020

39 Scheduling Order by Judge Karin J. Immergut regarding Emergency Motion for Temporary Restraining Order 28 . This Court has received Plaintiffs' Motion for Temporary Restraining Order 28 ﬁled today at 3:13PM. Defendants have requested until March 31, 2020 to respond. This Court GRANTS Defendants' request and orders Defendants to ﬁle a Response to Plaintiffs' TRO by 3:00PM (Paciﬁc) on March 31, 2020. A telephonic hearing will be held to consider Plaintiffs' Motion on April 1, 2020 at 12 noon (Paciﬁc). Ordered by Judge Karin J. Immergut. (jy) (Entered: 03/27/2020)

03/30/2020

40 Motion to Appear as Amicus Curiae . Oral Argument requested. Filed by Former Immigration Judges. (Dubanevich, Keith) (Entered: 03/30/2020)

03/30/2020

41 Brief of Amici Curiae. Filed by Former Immigration Judges. (Related document(s):

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CM/ECF - USDC Oregon
Motion to appear as amicus curiae 40 .) (Dubanevich, Keith) (Entered: 03/30/2020)

03/31/2020

42 Notice of Appearance of Erez Reuveni appearing on behalf of All Defendants Filed by on behalf of All Defendants. (Reuveni, Erez) (Entered: 03/31/2020)

03/31/2020

43 Supplement to Local Rule 7-1 Certiﬁcation. Filed by Former Immigration Judges. (Related document(s): Motion to appear as amicus curiae 40 .) (Dubanevich, Keith) (Entered: 03/31/2020)

03/31/2020

44 ORDER Granting Motion to Appear as Amicus Curiae 40 . Ordered by Judge Karin J. Immergut. (jy) (Entered: 03/31/2020)

03/31/2020

45 Response in Opposition to Emergency Motion for Temporary Restraining Order Pursuant to 28 U.S.C. § 1651(a) 28 . Filed by All Defendants. (Attachments: # 1 Exhibit 1) (Ward, Brian) (Entered: 03/31/2020)

03/31/2020 46 Amended Declaration of Kate Voigt in Support of Emergency Motion for Temporary Restraining Order Pursuant to 28 U.S.C. § 1651(a). Filed by All Plaintiffs. (Related document(s): Declaration 37 , Motion for Temporary Restraining Order 28 .) (Stoller, Heidee) (Entered: 03/31/2020)

04/01/2020

47 Supplemental Brief in Support of Emergency Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Motion for Temporary Restraining Order 28 .) (Stoller, Heidee) (Entered: 04/01/2020)

04/01/2020

48 Supplemental Declaration of Nadia Dahab in Support of Supplemental Brief in Support of Emergency Motion for Temporary Restraining Order. Filed by All Plaintiffs. (Related document(s): Brief 47 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Stoller, Heidee) (Entered: 04/01/2020)

04/01/2020

49 Supplement Titled as "Corrections to Brief of Amici Former Federal Immigration Judges and Members of Board of Immigration Appeals in Support of Plaintiffs Motion for an Emergency Order". Filed by Former Immigration Judges. (Related document(s): Brief 41 .) (Berne, Gary) (Entered: 04/01/2020)

04/01/2020

50 MINUTES of Proceedings: Telephonic Motion Hearing Held regarding Plaintiffs' Motion for Temporary Restraining Order 28 . The Court DENIES the Motion for Temporary Restraining Order. Written order to follow. Gracie H. Willis, Heidee Stoller, Jordan Cunnings, Nadia H. Dahab, Nathan R. Morales, Stephen W. Manning, Tess Hellgren, Melissa Crow, Rebecca M. Cassler, and Bryan D. Beel present as counsel for plaintiff(s). Brian C. Ward and Erez Reuveni present as counsel for defendant(s). Gary M. Berne - Amicus.(Court Reporter Jill Jessup.)Judge Karin J. Immergut presiding. (jy) (Entered: 04/01/2020)

04/02/2020

51 Transcript Designation and Order Form for the hearing held on 4/1/2020 before Judge Immergut. Court Reporter: Jill Jessup. . Filed by All Defendants. (Ward, Brian) (Entered: 04/02/2020)

04/02/2020 52 ORDER: Plaintiffs' Emergency Motion for Temporary Restraining Order 28 is DENIED. See attached order for details. Signed on 4/2/20 by Judge Karin J. Immergut. (jy) (Entered: 04/02/2020)

04/14/2020

53 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephonic Motion Hearing held on April 1, 2020, before Judge Karin J. Immergut, Court Reporter Jill L. Jessup, telephone number (503)326-8191 or email at jill_jessup@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter at (503)326-8191 or email at jill_jessup@ord.uscourts.gov or PACER. See Policy at ord.uscourts.gov. Notice of

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CM/ECF - USDC Oregon
Intent to Redact Transcript is due by 4/21/2020. Redaction Request due 5/5/2020. Redacted Transcript Deadline set for 5/15/2020. Release of Transcript Restriction set for 7/13/2020. (jjcr) (Entered: 04/14/2020)
54 Notice of Appearance of Thomas R. Johnson appearing on behalf of All Plaintiffs Filed by on behalf of All Plaintiffs. (Johnson, Thomas) (Entered: 04/21/2020)
55 Unopposed Motion to File Excess Pages Plaintiff's Unopposed Motion for Leave to File Brief in Excess of Page Limit re Motion to Dismiss 24 . Filed by All Plaintiffs. (Stoller, Heidee) (Entered: 04/21/2020)
56 ORDER: Granting Motion to File Excess Pages 55 . Ordered by Judge Karin J. Immergut. (jy) (Entered: 04/22/2020)
57 Response in Opposition to Defendants' Motion to Dismiss to Motion to Dismiss 24 Oral Argument requested. Filed by All Plaintiffs. (Johnson, Thomas) (Entered: 04/24/2020)
58 Stipulated Motion for Extension of Time to File a Response/Reply to Motion to Dismiss 24 . Filed by All Defendants. (Ward, Brian) (Entered: 05/07/2020)
59 ORDER: Defendants' Stipulated Motion for Extension of Time to File a Reply to Motion to Dismiss 28 is GRANTED. The deadline for Defendants to ﬁle reply brieﬁng is extended from May 22, 2020 until May 29, 2020. Ordered by Judge Karin J. Immergut. (jy) (Entered: 05/08/2020)
60 Notice of Appearance of Keil M. Mueller appearing on behalf of Former Immigration Judges Filed by on behalf of Former Immigration Judges. (Mueller, Keil) (Entered: 05/08/2020)
61 Unopposed Motion to Appear as Amicus Curiae . Oral Argument requested. Filed by Former Immigration Judges. (Mueller, Keil) (Entered: 05/08/2020)
62 Brief of Amici Curiae. Filed by Former Immigration Judges. (Related document(s): Motion to appear as amicus curiae 61 .) (Mueller, Keil) (Entered: 05/08/2020)
63 ORDER: Granting Motion to Appear as Amicus Curiae 61 . Ordered by Judge Karin J. Immergut. (jy) (Entered: 05/14/2020)
64 Joint Motion for Extension of Discovery & PTO Deadlines . Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 05/18/2020)
65 ORDER: This Court Grants the Joint Motion 64 to Stay the Remaining Deadlines in the Discovery and Pretrial Scheduling Order Pursuant to Fed.R.Civ.P. 16(b)(4) and LR 16-3(a). This Court hereby stays the remaining deadlines in the Discovery and Pretrial Scheduling Order (ECF 6 ), and requires the parties to confer on a revised proposed schedule for the remaining deadlines after this Court issues its decision on Defendants' Motion to Dismiss (ECF 24 ) and submit within 45 days of that decision a proposed pretrial schedule. Ordered by Judge Karin J. Immergut. (jy) (Entered: 05/19/2020)
66 Unopposed Motion to Appear as Amicus Curiae. Filed by Professors of Immigration Law, Civil Procedure and Administrative Law. (Hoesly, Cody) (Entered: 05/22/2020)
67 Brief of Amicus Curiae. Filed by Professors of Immigration Law, Civil Procedure and Administrative Law. (Related document(s): Motion - Miscellaneous 66 .) (Hoesly, Cody) (Entered: 05/22/2020)
68 Reply to Motion to Dismiss 24 Oral Argument requested. Filed by All Defendants. (Ward, Brian) (Entered: 05/29/2020)

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69 ORDER: Granting Motion to Appear as Amicus Curiae 66 . Ordered by Judge Karin J. Immergut. (jy) (Entered: 06/04/2020)

06/18/2020

70 Scheduling Order by Judge Karin J. Immergut. The court ORDERS Plaintiffs to ﬁle a supplemental sur-reply, due 6/25/20. The brief must be no more than 7 pages, and it must address only Defendants' argument relating to 8 U.S.C. 1252(f)(1) and Padilla v. ICE, located at p. 22 of Defendants' Reply Brief 68 . Ordered by Judge Karin J. Immergut. (jy) (Entered: 06/18/2020)

06/25/2020

71 Scheduling Order by Judge Karin J. Immergut regarding Motion to Dismiss 24 . Oral Argument is set for 7/14/2020 at 10:00AM in Portland by telephone before Judge Karin J. Immergut. Ordered by Judge Karin J. Immergut. (jy) (Entered: 06/25/2020)

06/25/2020 06/25/2020 07/09/2020 07/09/2020

72 Supplemental Sur-Reply in Opposition to Motion to Dismiss 24 . Filed by Asylum Seeker Advocacy Project, Catholic Legal Immigration Network, Inc., Innovation Law Lab, Las Americas Immigrant Advocacy Center, Santa Fe Dreamers Project, Southern Poverty Law Center. (Johnson, Thomas) (Entered: 06/25/2020)
73 Notice of Additional Authority Filed by Asylum Seeker Advocacy Project, Catholic Legal Immigration Network, Inc., Innovation Law Lab, Las Americas Immigrant Advocacy Center, Santa Fe Dreamers Project, Southern Poverty Law Center. (Johnson, Thomas) (Entered: 06/25/2020)
74 Notice of Additional Authority Filed by All Defendants. (Ward, Brian) (Entered: 07/09/2020)
75 Notice re Notice, 73 , Defendants' Response Filed by All Defendants. (Related document(s): Notice, 73 .) (Ward, Brian) (Entered: 07/09/2020)

07/11/2020

76 Notice of Additional Authorities Filed by All Plaintiffs. (Dahab, Nadia) (Entered: 07/11/2020)

07/13/2020

77 Response to Notice of Additional Authorities. Filed by All Defendants. (Related document(s): Notice 76 .) (Ward, Brian) (Entered: 07/13/2020)

07/14/2020
07/31/2020
08/10/2020 08/14/2020 08/18/2020

78 MINUTES of Proceedings: Motion Hearing Held regarding Motion to Dismiss 24 . The Court takes the motion under advisement. Melissa Crow, Tess Hellgren, Gracie H. Willis, Joran Cunnings, Nadia H. Dahab, Stephen W. Manning, and Bryan D. Beel present as counsel for plaintiff(s). Brian C. Ward and Erez Reuveni present as counsel for defendant(s). Court Reporter: Jill Jessup. Judge Karin J. Immergut presiding. (Related document(s): Motion to Dismiss 24 .) (jy) (Entered: 07/15/2020)
79 Opinion and Order. Defendants' Motion to Dismiss 24 is GRANTED in part andDENIED in part. Plaintiffs' claims that seek enjoinder of "asylum-free zones"i.e. immigration courts with unusually high rates of denials for asylum applicationsare DISMISSED on the grounds that this Court does not have jurisdiction to hear them, and Defendants' motion is GRANTED with respect to those claims. Defendants' motion is DENIED with respect to all of Plaintiffs' remaining claims. IT IS SO ORDERED. See attached order for further details. Signed on 7/31/20 by Judge Karin J. Immergut. (jy) (Entered: 07/31/2020)
80 Notice of Appearance of Alletta S. Brenner appearing on behalf of All Plaintiffs Filed by on behalf of All Plaintiffs. (Brenner, Alletta) (Entered: 08/10/2020)
81 Unopposed Motion for Extension of Time to Answer Complaint,, 1 . Filed by All Defendants. (Ward, Brian) (Entered: 08/14/2020)
82 ORDER - Defendants' Unopposed Motion for Extension of Time to Answer Complaint 81 is GRANTED. The deadline for Defendants to Answer Complaint is Extended until

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CM/ECF - USDC Oregon
9/14/2020. Ordered by Judge Karin J. Immergut (mja) (Entered: 08/18/2020)
83 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Video Conference Oral Argument held on July 14, 2020, before Judge Karin J. Immergut, Court Reporter Jill L. Jessup, telephone number (503)326-8191 or email at jill_jessup@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter at (503)326-8191 or email at jill_jessup@ord.uscourts.gov or PACER. See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 9/8/2020. Redaction Request due 9/21/2020. Redacted Transcript Deadline set for 10/1/2020. Release of Transcript Restriction set for 11/30/2020. (jjcr) (Entered: 08/31/2020)
84 Motion for Reconsideration of Opinion and Order,, 79 . Oral Argument requested. Filed by All Defendants. (Ward, Brian) (Entered: 09/04/2020)
85 Unopposed Motion for Extension of Time to Answer . Filed by All Defendants. (Ward, Brian) (Entered: 09/14/2020)
86 Unopposed Motion for Extension of Time to File Joint Report. Filed by All Plaintiffs. (Stoller, Heidee) (Entered: 09/14/2020)
87 ORDER: The Unopposed Motion for Extension of Time to Answer 85 is GRANTED. The deadline for Defendants to Answer Complaint is Extended until 30 days after this Court rules on the Motion for Reconsideration of Opinion and Order 84 . (jy) (Entered: 09/15/2020)
88 ORDER: The Unopposed Motion for Extension of Time to File Joint Report 86 is GRANTED. The Joint Pretrial Report is now due on September 16, 2020. (jy) (Entered: 09/15/2020)
89 ORDER: Defendants' Motion for Reconsideration of Opinion and Order 84 simply repeats and expounds upon arguments previously made to this Court but does not demonstrate a new basis for the Court to reconsider its decision. As noted in its Opinion and Order 79 , whether this Court agrees with it or not, this Court is bound by 9th Circuit precedent recognizing organizational standing for immigration services organizations where they can establish their own injury. See East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1265 (9th Cir. 2020). Because Plaintiffs' asserted injuries do not appear to arise from any removal proceeding and are not cognizable under the petition-for-review process, 8 U.S.C. § 1252 does not deprive this Court of jurisdiction. Therefore, the Motion for Reconsideration of Opinion and Order is DENIED. Ordered by Judge Karin J. Immergut. (jy) (Entered: 09/15/2020)
90 Joint Rule 26(f) Report and Discovery Plan and Proposed Schedule for Remaining Deadlines. Filed by All Plaintiffs. (Stoller, Heidee) (Entered: 09/16/2020)
91 Declaration of Nadia H. Dahab in Support of Plaintiffs' Position in the Joint Report. Filed by All Plaintiffs. (Related document(s): Rule 26(f) Report and Discovery Plan 90 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5) (Stoller, Heidee) (Entered: 09/16/2020)
92 Answer to 1 Complaint,, . Filed by Donald J. Trump, William Barr, Executive Ofﬁce for Immigration Review, U.S. Department of Justice, James McHenry. (Ward, Brian) (Entered: 10/15/2020)
93 Scheduling Order by Judge Karin J. Immergut. Telephonic Rule 16 Conference is set for 12/8/2020 at 2:00PM in Portland by telephone before Judge Karin J. Immergut. Before the Conference, at a minimum counsel must conduct real-time conferral by telephone to

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CM/ECF - USDC Oregon
prepare a proposed case-management schedule to be submitted to the Court prior to the Rule 16 Conference. The parties shall submit a written joint status report (to include proposed case management schedule) no later than 12/3/2020 that include deadlines to complete discovery, to ﬁle dispositive motions, and for trial. Parties shall also determine whether they agree to forgo the disclosures required under Fed. R. Civ. P. 26(a)(1), and ﬁle separately with the Clerk of Court the form required by LR 26-2 no later than 12/3/2020. Ordered by Judge Karin J. Immergut. (jy) (Entered: 10/28/2020)
94 Fed. R. Civ. P. 26(a)(1) Agreement . Filed by William Barr, Executive Ofﬁce for Immigration Review, James McHenry, Donald J. Trump, U.S. Department of Justice. (Ward, Brian) (Entered: 12/03/2020)
95 Fed. R. Civ. P. 26(a)(1) Agreement . Filed by Asylum Seeker Advocacy Project, Catholic Legal Immigration Network, Inc., Innovation Law Lab, Las Americas Immigrant Advocacy Center, Santa Fe Dreamers Project, Southern Poverty Law Center. (Beel, Bryan) (Entered: 12/03/2020)
96 Joint Rule 26(f) Report and Discovery Plan . Filed by All Plaintiffs. (Stoller, Heidee) (Entered: 12/03/2020)
97 MINUTES of Proceedings: Telephonic Rule 16 Conference. Initial 26(a)(1) Disclosures waived. Production of Administrative Record due December 18, 2020. Plaintiffs' Objections to Administrative Record due January 18, 2021. Parties Meet and Confer by February 1, 2021. Joint Status Report due by February 12, 2021. Amendment to Pleadings/Joining of Parties due September 6, 2021. The last date to ﬁle any fact discovery motion is due September 10, 2021, and responses to such motions are due no later than seven (7) calendar days after the initiating motion is ﬁled; no replies are permitted for discovery motions. Fact discovery is to be completed by October 1, 2021. Joint statement of agreed and disputed facts due October 22, 2021. Initial Expert Disclosures due December 1, 2021; Rebuttal Expert Disclosures due January 15,2022. Expert discovery is to be completed by February 15, 2022. Joint ADR report is due no later than March 15, 2022. Dispositive motions due no later than March 15, 2022. Jointly proposed Pretrial Order and Verdict form due July 13, 2022. Trial documents shall be ﬁled no later than Noon on July 27, 2022. Pretrial Conference is set for August 18, 2022, at 10:00 a.m. in Courtroom 13A. Jury trial (5 days) is set to commence October 4, 2022, at 9:00 a.m. in Courtroom 13A before Judge Karin J. Immergut. See attached order for further details. Heidee Stoller, Tess Hellgren, Gracie H. Willis, and Stephen W. Manning present as counsel for plaintiff(s). Brian Ward present as counsel for defendant(s). Court Reporter: Jill Jessup. Judge Karin J. Immergut presiding. (jy) (Entered: 12/09/2020)

PACER Service Center

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 Case 3:19-cv-02051-SB Document 1 Filed 12/18/19 Page 1 of 64

Stephen Manning, OSB No. 013373

Bryan D. Beel, OSB No. 073408

smanning@ilgrp.com

BBeel@perkinscoie.com

Nadia Dahab, OSB No. 125630

Heidee Stoller, OSB No. 072835

nadia@innovationlawlab.org

HStoller@perkinscoie.com

Jordan Cunnings, OSB No. 182928

Nathan R. Morales, OSB No. 145763

jordan@innovationlawlab.org

NMorales@perkinscoie.com

Tess Hellgren, OSB No. 191622

PERKINS COIE LLP

tess@innovationlawlab.org

1120 N.W. Couch Street, 10th Floor

INNOVATION LAW LAB

Portland, OR 97209-4128

The Oregon Trail Bldg

Telephone: 503.727.2000

333 SW 5th Ave Ste 200

Portland OR 97204

Christopher Parker (pro hac vice pending)

Telephone: 503.241.0035

CParker@perkinscoie.com

PERKINS COIE LLP

Melissa Crow (pro hac vice pending)

505 Howard St Ste 1000

Melissa.Crow@splcenter.org

San Francisco, CA 94105

SOUTHERN POVERTY LAW CENTER Telephone: 415.344.7000

1101 17th Street, NW, Suite 705

Washington, DC 20036

Rebecca Cassler (pro hac vice pending)

Telephone: 202.355.4471

Rebecca.Cassler@splcenter.org

Gracie Willis (pro hac vice pending)

Gracie.Willis@splcenter.org

Attorneys for Plaintiffs

SOUTHERN POVERTY LAW CENTER

Las Americas Immigrant Advocacy Center; P.O. Box 1287

Asylum Seeker Advocacy Project; Catholic Decatur, GA 30031-1287

Legal Immigration Network, Inc.;

Telephone: 404.221.6700

Innovation Law Lab; Santa Fe Dreamers

Project; and Southern Poverty Law Center Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

LAS AMERICAS IMMIGRANT ADVOCACY CENTER; ASYLUM SEEKER ADVOCACY PROJECT; CATHOLIC LEGAL IMMIGRATION NETWORK, INC.; INNOVATION LAW LAB; SANTA FE DREAMERS PROJECT; AND SOUTHERN POVERTY LAW CENTER,
Plaintiffs,

COMPLAINT

No. 3:19-cv-2051

COMPLAINT
129956-0002/LEGAL146614346.6

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

Case 3:19-cv-02051-SB Document 1 Filed 12/18/19 Page 2 of 64

v.
DONALD J. TRUMP, in his official capacity as President of the United States; WILLIAM BARR, in his official capacity as Attorney General of the United States; U.S. DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; AND JAMES MCHENRY, in his official capacity as EOIR Director of the United States,
Defendants.
INTRODUCTION 1. In the American tradition of justice, judges are supposed to be impartial. Under
principles dating back to the founding of the nation, judges are insulated from political power and play a role distinct from that of prosecutors.1 As a result, lawyers across the country practice
law in courts where transparency, impartiality, and predictability serve the interests of justice.
2. Not so in the immigration courts of the United States, where judges answer to the
nation’s chief prosecutor, the Attorney General.
3. The immigration courts make life-and-death decisions every day: vulnerable
people seeking asylum in the United States depend on a functioning court system to protect them
from persecution, torture, and death. Yet, in the immigration courts, the tradition of judicial
independence has been turned upside down. Systemic dysfunction and anti-immigrant animus
create a Kafkaesque reality where prosecution merges with judging and the ultimate goal is
deportation rather than fair adjudication.

1 See, e.g., The Federalist No. 78, at 392 (I. Shapiro ed. 2009) (A. Hamilton); The Declaration of Independence (U.S. 1776) (among litany of reasons for seeking independence, the King “has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries”).

1 - COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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4. Defendants have manipulated the immigration court system to serve an antiimmigrant agenda. Categorizing people fleeing persecution as “invaders,” Defendants are using the immigration courts as a weapon against the asylum system and vulnerable migrants—to beat them back to places of danger—instead of lawfully adjudicating their claims based on their merits.2
5. Specifically, Defendants have created an adjudication system where applicants for asylum are supposed to lose. Defendants rush some asylum claims to adjudication prematurely in order to achieve rapid removals. Defendants simultaneously delay other claims long past the time when they were ripe for adjudication, undermining fundamental fairness and the rule of law. Everywhere in this dysfunctional adjudication spectrum, the standards set forth in the Immigration and Nationality Act (INA), intended to ensure case-by-case decision-making, are subverted by Defendants’ design.
6. First, Defendants have abused their authority to perpetuate vast asylum-free zones. In many immigration court jurisdictions, covering large swaths of the country, asylum is effectively impossible to win—a de facto nullification of a duly-enacted statutory scheme.
7. Second, Defendants have abused their authority by burdening the immigration courts with a backlog that structurally undermines fairness. Throughout the immigration court system, Defendants’ policies and practices have created an impenetrable backlog of more than a million immigration cases that impairs the INA’s case-by-case decision-making process.
8. Third, using thinly veiled pretexts, Defendants have implemented enforcementoriented performance metrics for immigration judges (the Enforcement Metrics Policy) and a rapid-removal family docketing directive (the FAMU Directive) to weaponize the immigration courts.

2 June 24, 2018; Twitter; https://perma.cc/35AQ-NSDH. (Last accessed Dec. 12, 2019).

2 - COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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9. Defendants’ Enforcement Metrics Policy requires immigration judges to comply with certain performance benchmarks, including case completion quotas that require them to decide approximately three cases per day, to receive a satisfactory performance rating. Through the Enforcement Metrics Policy, Defendants have given immigration judges a direct pecuniary interest in the outcome of each case they adjudicate, thus categorically denying asylum seekers and their legal representatives an impartial forum every time they walk into court.
10. Defendants’ FAMU Directive creates a specialized nationwide docket that stigmatizes cases of recently-arrived families, undermining the fairness of their proceedings and frustrating the efforts of their legal representatives to provide meaningful representation.
11. These policies represent a deliberate effort by Defendants to systematize the denial of asylum claims by nullifying asylum law, speeding up immigration court proceedings for certain asylum seekers, and unreasonably delaying them for others.
12. Under the Take Care Clause of the U.S. Constitution, the President and his delegates, including the Attorney General, must “take Care that the Laws,” including the INA, “be faithfully executed.” But the Attorney General and the other Defendants have not done so. Instead of ensuring that each case is individually adjudicated based on its merits, they have created a deportation machine in violation of the INA’s case-by-case adjudication standards.
13. Plaintiffs are immigration legal service providers that depend on a legitimate immigration court system to provide meaningful legal assistance to desperate individuals fleeing persecution. In this case, they challenge the Defendants’ efforts to deny them a fair forum in which to vindicate their organizational missions. Plaintiffs seek to bring integrity to the immigration court system, defend the dignity of the important work they perform in the nation’s immigration courts, and preserve their ability to pursue their missions.
14. Plaintiffs seek a declaration that the Attorney General has failed to take care that the laws relating to the immigration court system be faithfully executed; a declaration that the

3 - COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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Enforcement Metrics Policy and the FAMU Directive violate the INA, the Administrative Procedure Act (APA), and the Take Care Clause of the U.S. Constitution; an order enjoining their continued implementation; and an order requiring Defendants to take specific steps to ensure nationwide implementation of the case-by-case adjudication standards in the INA.
JURISDICTION AND VENUE 15. This action arises under the U.S. Constitution and the laws of the United States, including the INA, 8 U.S.C. § 1101 et seq., and the APA, 5 U.S.C. § 701 et seq. Therefore, this Court has subject matter jurisdiction under 28 U.S.C. § 1331. The federal government has waived its sovereign immunity pursuant to 5 U.S.C. § 702. This Court has additional remedial authority under 28 U.S.C. §§ 2201-02. 16. Venue is proper in this District under 28 U.S.C. § 1391(e)(1) because Defendants are agencies of the United States and officers of the United States acting in their official capacities and one of the Plaintiffs has its principal residence in this District.
PARTIES A. Plaintiffs
17. Plaintiff Las Americas Immigrant Advocacy Center (Las Americas) is a nonprofit organization incorporated in Texas and based in El Paso, Texas, that serves immigrants and refugees in Ciudad Juarez, Mexico, West Texas, and New Mexico. The mission of Las Americas is to provide free and low-cost legal services to low-income immigrants, including refugees and asylum seekers, families seeking reunification, and victims of crime. To achieve its mission, Las Americas manages several programs including a Detained Deportation Defense Program that serves detained migrants in the El Paso Processing Center, Otero Service Center, and West Texas Detention Center; a Non-Detained Deportation Defense Program that represents clients and provides pro se assistance in immigration court proceedings, including clients who are awaiting their immigration court proceedings in Mexico pursuant to the Migrant Protection

4 - COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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Protocols; and a Crime Victims Program that assists survivors of crime by aiding them through legal intake, consultations, and the petitioning process to obtain deferred action and lawful status, work permits, and/or lawful permanent residency. Las Americas employs attorneys, accredited representatives, coordinators, and paralegals, among others, to implement its programs and achieve its mission.
18. Plaintiff Asylum Seeker Advocacy Project (ASAP) is a nonprofit organization incorporated in New York. ASAP’s mission is to provide support and legal assistance to individuals who have arrived at the Mexico-U.S. border to seek asylum, regardless of where they are currently located. To achieve its mission, ASAP’s model uses three components: online community support, emergency legal aid, and nationwide systemic reform. ASAP provides guidance about how to navigate the immigration court system and answers legal questions online for asylum seekers, including parents who were separated from their children and adults subject to the Migrant Protection Protocols. Through its legal emergency room, ASAP provides shortterm legal assistance at a distance to asylum seekers, preparing emergency motions and other legal filings. ASAP also pushes for change through systemic reform, which includes complex immigration representation at the immigration courts, Board of Immigration Appeals, and federal courts of appeals. In each area of its work, ASAP creates templates, resources, and training materials to support pro bono attorneys, private attorneys, and other organizations representing asylum seekers before the immigration courts.
19. Plaintiff Catholic Legal Immigration Network, Inc. (CLINIC) is a nonprofit organization incorporated in Washington, D.C., and based in Silver Spring, Maryland, with affiliates working in immigration courts across the country. CLINIC’s mission is to promote the dignity and protect the rights of immigrants in partnership with a dedicated network of Catholic and community legal immigration programs. To achieve its mission, CLINIC operates a number of programs, including its Defending Vulnerable Populations Program, which works to increase

5 - COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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the number of fully accredited representatives and attorneys who are qualified to represent immigrants in immigration court proceedings. The Defending Vulnerable Populations Program conducts court skills training for nonprofit agency staff (accredited representatives and attorneys) and pro bono attorneys; develops practice materials to assist legal representatives; advocates against retrogressive policy changes; and works to expand public awareness on issues faced by vulnerable immigrants. CLINIC leads national efforts matching formerly separated families with legal counsel, mentoring and training legal counsel on these cases, providing direct representation on motions to reopen, and guiding the families through an online community. CLINIC’s remote bond project mentors pro bono counsel who represent detained noncitizens. The remote bond project pro bono attorneys appear before the Batavia, Otero, Bloomington, and LaSalle immigration courts. CLINIC provides free representation in removal proceedings, including appeals, throughout the country. CLINIC provides limited legal assistance, orientation and pro bono placement in Ciudad Juárez to those subject to the Migrant Protections Protocols with immigration court hearings in El Paso. CLINIC provides direct legal support and advice to immigrants through its Montgomery County Project. CLINIC employs attorneys and assistants, among others, to implement its programs and achieve its mission.
20. Plaintiff Innovation Law Lab (Law Lab) is a nonprofit organization incorporated in Oregon and based in Portland, Oregon. Law Lab’s mission is to combine technology, law, and activism to advance immigrant justice and ensure that every meritorious immigration case wins in immigration court. To achieve its mission, Law Lab operates programs in the state of Oregon as well as in Atlanta, Georgia; San Diego, California; Kansas City, Missouri; Charlotte, North Carolina; and San Antonio and El Paso, Texas. In Oregon, Law Lab provides direct representation to noncitizens in immigration court; manages Equity Corps of Oregon, the nation’s first statewide publicly-funded universal representation program for non-detained noncitizens facing removal proceedings; and the Centers of Excellence, a program that places

6 - COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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unrepresented noncitizens seeking asylum in removal proceedings with pro bono attorneys in Georgia, Kansas, Missouri, North Carolina, and Oregon. Law Lab manages a Deportation Defense Legal Network in Kansas City. Law Lab’s BorderX project uses technology and collaboration tools to provide support to legal service providers at immigrant detention centers throughout the United States and at several sites on both sides of the U.S.-Mexico border. Law Lab employs attorneys, accredited representatives, coordinators, and software engineers, among others, to implement its programs and achieve its mission.
21. Plaintiff Santa Fe Dreamers Project (SFDP) is a nonprofit organization incorporated in New Mexico and based in Santa Fe. SFDP’s mission is to provide free legal services to immigrants to promote economic empowerment, community development, family unity, and liberation from detention. To achieve its mission, SFDP operates several programs in New Mexico and Texas. In New Mexico, SFDP provides free direct representation in immigration court to children through its Special Immigrant Juvenile program, to transgender individuals held in detention in New Mexico who are seeking asylum or related relief, and to separated and recently reunified families. In Texas, SFDP provides technical support to volunteer pro bono attorneys and law students in addition to direct representation in immigration court of individuals detained within the El Paso region’s five immigrant detention centers. SFDP employs attorneys and coordinators, among others, to implement its programs and achieve its mission.
22. Plaintiff Southern Poverty Law Center (SPLC) is a nonprofit organization incorporated in Alabama and based in Montgomery, with offices in Florida, Georgia, Louisiana, Mississippi, and Washington, D.C. SPLC’s mission is to engage in litigation and advocacy to make equal justice and equal opportunity a reality for all. To achieve its mission, SPLC operates a number of programs, including the Southeast Immigrant Freedom Initiative (SIFI). SIFI provides pro bono direct representation exclusively to immigrants facing removal proceedings while confined in detention centers in Georgia and Louisiana. To implement the SIFI program

7 - COMPLAINT

Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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and achieve its mission, SPLC employs attorneys, administrators, coordinators, and assistants, among others. To improve clients’ access to their legal teams, SIFI program staff work from offices near detention centers in Folkston, Lumpkin, and Ocilla, Georgia, and in Alexandria, Louisiana. SIFI also relies on a network of in-person and remote legal volunteers—attorneys, law students, and lay advocates—to provide legal representation to detained immigrants. B. Defendants
23. Defendant Donald J. Trump is the President of the United States. In this capacity, he is required to “take Care” that the laws of the United States, including those relating to immigration, “be faithfully executed.” U.S. Const. Art. II, § 3. He is sued in his official capacity.
24. Defendant William Barr is the Attorney General of the United States. In this capacity, Mr. Barr is responsible for the Department of Justice and its component agencies, including the Executive Office for Immigration Review, and serves as the chief law enforcement officer of the federal government. The Attorney General is the President’s agent, and he must ensure the faithful execution of the laws. The Attorney General is sued in his official capacity.
25. Defendant U.S. Department of Justice (DOJ) is a cabinet-level Department of the U.S. government that is responsible for enforcing the laws of the United States.
26. Defendant the Executive Office for Immigration Review (EOIR) is a component agency of DOJ. EOIR encompasses more than fifty immigration courts across the country as well as an administrative appellate body, the Board of Immigration Appeals (BIA). Under delegated authority from the Attorney General, EOIR administers the U.S. immigration court system.
27. Defendant James McHenry is the Director of EOIR. He oversees immigration court proceedings, appellate reviews, and administrative hearings and supervises immigration judges and members of the BIA. He is sued in his official capacity.

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LEGAL BACKGROUND A. The Immigration Court System
28. The immigration court system is the essential forum for the resolution of removal proceedings. Immigration courts are intended to make decisions on an individualized, case-bycase basis. When they adjudicate claims for asylum, the immigration courts are meant to fulfill our nation’s commitment to humanitarian protection of persons fleeing persecution.
29. Where the federal government seeks to remove a noncitizen from the United States—sometimes years after arrival—Congress provided that the Department of Homeland Security (DHS) initiate removal proceedings in immigration court.3 See generally 8 U.S.C. § 1229a (governing removal proceedings); 8 C.F.R. §§ 1003.12-1003.47 (governing immigration court procedure). Individual immigration judges (IJs) adjudicate removal proceedings in the first instance. 8 U.S.C. § 1229a(a)(1); 8 C.F.R. § 1003.10.
30. IJ decisions may be appealed to the BIA, 8 C.F.R. §§ 1003.2(b)(c), 1003.10(c), and certain BIA decisions are judicially reviewable through a petition for review filed in a circuit court of appeals, 8 U.S.C. § 1252(d). Proceedings at the BIA are governed by 8 C.F.R. § 1003.1, which requires that BIA members “exercise their independent judgment and discretion in considering and determining the cases.” 8 C.F.R. § 1003.1(d)(1)(ii) (emphasis added). The Supreme Court has interpreted the applicable regulations as requiring that the BIA “in arriving at its decision exercise its own independent discretion, after a fair hearing.” Accardi v. Shaughnessy, 347 U.S. 260, 265, 268 (1954).
31. The government has statutory authority to detain certain noncitizens during, and in some cases after the conclusion of, removal proceedings. See, e.g., 8 U.S.C.

3 Congress also provided for removal without a full hearing, referred to as “expedited removal,” for certain individuals who have applied for admission without required documentation, 8 U.S.C. § 1182(a)(6)(C), or who have sought admission through a misrepresentation, 8 U.S.C. § 1182(a)(7). See generally 8 U.S.C. § 1225(b). A person subject to expedited removal must still have access to process, including the possibility of a full hearing before an immigration judge, if she expresses a fear of return to her country of origin. 8 U.S.C. § 1225(b)(1)(B)(ii); 8 U.S.C. § 1158.

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§§ 1225(b)(1)(B)(ii)(IV), 1226(a), (c), 1231(a). Certain noncitizens may seek review by an immigration judge of a custody determination made by DHS by filing a bond motion with the court. 8 C.F.R § 1003.19(a); cf. 8 C.F.R § 1003.19(h)(2) (listing noncitizens who are ineligible for bond). This review, based on an analysis of an individual’s danger to the community and risk of flight, Matter of Patel, 15 I. & N. Dec. 666 (BIA 1979), is separate and distinct from the merits phase of the case. 8 C.F.R. § 1003.19(d).
32. A noncitizen may appeal the judge’s decision on bond to the BIA. 8 C.F.R. § 1236.1(d)(1), (3). An immigration judge may reconsider a bond determination only on the basis of changed circumstances. 8 C.F.R. § 1003.19(e).
33. The stakes in removal proceedings are extremely high. Immigration judges exercise delegated authority to grant asylum to persons fleeing persecution; grant permanent residence to asylees, refugees, and close family members of U.S. citizens; cancel removal of noncitizens where hardship to a close U.S. citizen or lawful permanent resident family member would result; cancel removal of long-time permanent residents who have criminal convictions; and grant bond to detained noncitizens, among other relief. B. The INA’s Case-by-Case Adjudication Standards
34. Noncitizens in immigration proceedings, who are termed “respondents” in immigration court, are entitled to “a full and fair hearing” that accords with Constitutional due process. To this end, Congress established a cohesive statutory scheme codifying a number of case-by-case adjudicatory standards that must be followed in immigration court.
35. First, respondents have the right to be represented by counsel at no cost to the government. U.S. Const. Amend. V; 8 U.S.C. § 1229a(b)(4)(A); 8 U.S.C. § 1362; 8 C.F.R. § 1003.16(b); 8 C.F.R. § 1292.1; 8 C.F.R. § 1001.1(f). The Attorney General must maintain and furnish respondents with a list of local pro bono legal service providers and advise them that they may be represented by counsel. INA §§ 239(a)(1), (b)(2), 208(d)(4)(A)-(B); 8 C.F.R. § 1003.61.

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As the Office of the Director of EOIR has explained, the provision of such a list is intended to “[i]mprove the efficiency and fairness of immigration proceedings by facilitating access to legal representation.”4 Preliminary hearings, or “Master Calendar Hearings,” may take place with the respondent’s attorney of choice appearing by telephonic conference. INA § 240(b)(2); see also 8 C.F.R. § 1003.25(c).
36. Second, respondents have the right to a reasonable opportunity to submit evidence, including through telephonic hearings where appropriate, see INA § 240(b)(2); 8 C.F.R. § 1003.25(c); cross-examine witnesses; and examine evidence submitted by the government. 8 U.S.C. § 1229a(b)(4)(B); see also 8 C.F.R. § 1240.1(c) (requiring that an immigration judge “shall receive and consider material and relevant evidence”). To ensure these rights, respondents are entitled to accurate interpretation. 8 C.F.R. § 1240.5.
37. Third, respondents have the right to a full record of the proceedings, including a verbatim transcript, testimony, exhibits, applications, proffers, requests, the immigration judge’s decision, all written orders, all motions, all appeals, and all briefs and other papers. 8 U.S.C. § 1229a(b)(4)(C); 8 C.F.R. § 1240.9.
38. Fourth, and critically, respondents have the right to have a decision based solely on the record created in the proceedings. 8 U.S.C. § 1229a(c)(1)(A). This right necessarily implies that such a decision must be made by an impartial adjudicator. See, e.g., Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1950), overruled on other grounds, Marcello v. Bonds, 349 U.S. 302 (1955) (“When the Constitution requires a hearing, it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality.”).
39. The INA’s case-by-case adjudication standards are binding on all immigration courts. To the extent that immigration judges adopt local operating procedures, they must

4 See List of Pro Bono Legal Service Providers, Office of the Director of EOIR (Oct. 8, 2015), https://www.justice.gov/sites/default/files/pages/attachments/2015/11/30/list_of_pro_bono_legal _service_providers_overview_20151008.pdf. (Last accessed Dec. 12, 2019).

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preserve these rights and comply with other applicable regulations. See 8 C.F.R. § 1003.40 (providing that local operating procedures “shall not be inconsistent” with other regulations and can be adopted only if a majority of judges in the local court concur in writing and the Chief Immigration Judge gives written approval). C. Plaintiffs’ Roles in the Immigration Court System
40. Plaintiffs are nonprofit legal services organizations that play critical roles in the immigration court system by facilitating the meaningful participation of asylum-seeking respondents in their removal proceedings. Plaintiffs represent and advise detained individuals in custody proceedings; accompany, represent, and advise detained and non-detained respondents seeking asylum; explain the legal process to asylum seekers; conduct factual investigations; research and articulate potential forms of relief; prepare clients and witnesses to testify; and fill out English-language court forms for non-English speaking clients in a clear and legible manner.
41. Because immigration law is complex and the stakes involve life or death, Plaintiffs play a particularly important role in assisting persons fleeing persecution who are seeking asylum. The burden of proof on the respondent is high in asylum proceedings, where the central focus is whether the applicant has demonstrated that she fits the definition of a “refugee”—an individual who has a well-founded fear of persecution in her home country based on race, religion, nationality, membership in a particular social group, or political opinion—and is otherwise eligible for asylum.
42. Asylum applications require detailed, fact-specific submissions containing evidence related to a noncitizen’s fear of persecution as well as evidence showing the noncitizen’s fear is objectively reasonable. Plaintiffs must allow time for relationship-building so that their clients trust their representatives enough to share sensitive past experiences. For clients suffering the effects of severe trauma, Plaintiffs may need to provide extra time and resources to build these relationships. To obtain necessary evidence, Plaintiffs must often engage experts

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from the United States or other countries to review the facts of a respondent’s case and provide expert testimony regarding country conditions. Plaintiffs may also need to seek testimony from expert medical or mental health professionals to corroborate the injuries of a client who has survived past persecution. In each case, Plaintiffs must coordinate all of these pieces while also ensuring that they are zealously representing their clients by developing rigorous legal arguments, submitting legal briefs, and complying with a myriad of court procedures.
43. In many courts, much of this work must be done to prepare for a custody hearing, where immigration judges weigh heavily whether a noncitizen is likely to succeed on her application for relief before the court. Plaintiffs in these courts must thus prepare a bond case almost as if it were a case on the merits in removal proceedings.
44. Recognizing Plaintiffs’ crucial roles in the immigration court system, the Office of the Chief Immigration Judge has explained that “[p]ro bono representation benefits both the respondent and the court” and “promotes the effective and efficient administration of justice.”5 EOIR has further acknowledged the importance of pro bono representation through the Office of Legal Access Programs (OLAP), which is meant to expand the availability and improve the quality of legal representation in the immigration courts.6 In addition to facilitating pro bono representation through maintenance of the List of Pro Bono Legal Service Providers, OLAP runs the Model Hearing Program, which aims to offer “hands-on training in immigration court with the goal of increasing the number of pro bono representatives available for individuals in immigration removal proceedings.”7

5 David L. Neal, Chief Immigration Judge, Operating Policies and Procedures Memorandum 08-01: Guidelines for Facilitating Pro Bono Legal Services at 1 (Mar. 10, 2008), https://www.justice.gov/sites/default/files/eoir/legacy/2008/04/24/08-01.pdf. (Last accessed Dec. 12, 2019).
6 EOIR, Office of Legal Access Programs, https://www.justice.gov/eoir/office-of-legalaccess-programs (Last accessed Dec. 12, 2019) (explaining access to counsel and pro bono projects operated and maintained by EOIR); see also Hon. Robert A. Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, 21 Geo. J. Legal Ethics 3 (2008).
7 EOIR, Office of Legal Access Programs, https://www.justice.gov/eoir/office-of-legalaccess-programs. (Last accessed Dec. 12, 2019).

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45. EOIR has recognized Plaintiffs Las Americas, SFDP, and Law Lab as organizations “eligible . . . to provide representation through accredited representatives who appear on behalf of clients before the Immigration Courts, the Board, and DHS, or DHS alone.” 8 C.F.R. § 1292.11(a). The accredited representative program was created to “address[] the critical and ongoing shortage of qualified legal representation for underserved populations in immigration cases before the Federal administrative agencies.” Dep’t of Justice, Executive Office for Immigration Review, Recognition of Organizations and Accreditation of NonAttorney Representatives, proposed rule, 80 Fed. Reg. 59514, 59514 (Oct. 1, 2015). Only “nonprofit religious, charitable, social service, or similar organization[s] that provide[] immigration legal services primarily to low-income and indigent clients within the United States” may be so accredited. 8 C.F.R. § 1292.11(a)(1).
46. Plaintiffs Las Americas and SPLC are qualified organizations that are registered with EOIR as pro bono legal service providers and appear on the statutorily-mandated Pro Bono Legal Service Providers List. See 8 U.S.C. § 1158(d)(4)(B) (relating to asylum proceedings); 8 U.S.C. § 1229(a)(1)(e) (relating to all removal proceedings); 79 Fed. Reg. 55662, 55662 (Sept. 17, 2014) (explaining that the list “is central to EOIR’s efforts to improve the amount and quality of representation before its adjudicators, and it is an essential tool to inform aliens in proceedings before EOIR of available pro bono legal services”). Plaintiff Law Lab’s Equity Corps of Oregon directly supports all official pro bono legal service providers in Oregon, and provides legal support to numerous other official pro bono legal service providers through its BorderX and Centers of Excellence programs. Since 2001, Plaintiff CLINIC’s BIA Pro Bono Project has worked with EOIR to identify detained respondents with meritorious appeals and match these detained respondents with pro bono counsel.8

8 EOIR, BIA Pro Bono Project, https://www.justice.gov/eoir/bia-pro-bono-project. (Last accessed Dec. 17, 2019).

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D. The Attorney General’s Responsibilities Within the Immigration Court System 47. The Attorney General, who oversees the immigration court system, bears ultimate
responsibility for ensuring that the INA’s standards for individual hearings—which require caseby-case adjudication—apply in immigration court proceedings.
48. The Attorney General is empowered to “establish such regulations, prescribe such forms of bond, reports, entries, and other such papers, issue such instructions, review such administrative determinations in immigration proceedings, delegate such authority, and perform such other acts,” 8 U.S.C. § 1103(g)(2), as he deems necessary to carry out his obligation to lawfully administer the INA. See 8 U.S.C. § 1103(g)(1).
49. The Director of EOIR, who oversees the agency’s day-to-day operations, reports directly to the Attorney General. 8 C.F.R. § 1003.0(a), (b)(1). The Director of EOIR supervises all other agency personnel in accordance with 8 C.F.R. Part 3. Subject to the authority and guidance of the Attorney General, the Chief Immigration Judge leads the Office of the Chief Immigration Judge, which establishes operating policies for the immigration courts and oversees their implementation.
50. Immigration judges are “administrative judges” whom the Department of Justice has characterized as “non-supervisory career attorneys employed by” the Attorney General. See Final Brief of Appellees (EOIR), ECF No. 156759 at 15, Am. Immigration Lawyers Ass’n v. Exec. Office for Immigration Review, 830 F.3d 667 (D.C. Cir. 2016) (No. 15-5201); 8 U.S.C. § 1101(b)(4); 8 C.F.R. § 1003.10. Appointed by the Attorney General, immigration judges “shall be subject to such supervision and shall perform such duties as the Attorney General shall prescribe” and “act as the Attorney General’s delegates in the cases that come before them.” 8 U.S.C. § 1101(b)(4); 8 C.F.R. § 1003.10(a). “In conducting [removal] hearings . . . and such other proceedings the Attorney General may assign to them, immigration judges shall exercise the powers and duties delegated to them by the Act and by the Attorney General through regulation.” 8 C.F.R. § 1003.10(b).

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51. The members of the BIA are also “attorneys appointed by the Attorney General to act as the Attorney General’s delegates.” 8 C.F.R. § 1003.1(a)(1), (d)(1). BIA members, like immigration judges, are governed not only by law and regulations, but also by “decisions of the Attorney General.” 8 U.S.C. § 1103(a); 8 C.F.R. § 1003.1(d)(1)(i), (g). All decisions of the BIA are subject to review by the Attorney General. 8 C.F.R. § 1003.1(h).
52. The Attorney General has broad authority to review and unilaterally reverse BIA decisions on his own initiative or at the request of the BIA or DHS. 8 U.S.C. § 1103(g); 8 C.F.R. § 1103.1(h). Determinations and rulings by the Attorney General on questions of law bind both immigration judges and the BIA. 8 U.S.C. § 1103(a)(1), 8 C.F.R. § 1003.1(g)(2).
53. In addition to overseeing the immigration court system, the Attorney General, as the head of the Department of Justice, also serves as the nation’s lead prosecutor. 28 U.S.C. §§ 503, 509, 547.
54. Under the Take Care Clause of the U.S. Constitution, the President and his delegated executive officials, including the Attorney General, must “take Care that the Laws are faithfully executed.” U.S. Const. Art. II, § 3. The Attorney General’s faithful execution of the laws includes ensuring the immigration courts function in accordance with INA’s case-by-case adjudication standards.
DEFENDANTS’ HOSTILITY TOWARD ASYLUM SEEKERS, THEIR LEGAL REPRESENTATIVES, AND THE IMMIGRATION COURT SYSTEM
55. Federal law clearly recognizes the right to seek asylum, regardless of an individual’s manner of entry into the United States. 8 U.S.C. § 1158(a)(1). Plaintiffs’ zealous representation of their clients is consistent with this statutory scheme.
56. Nevertheless, the President, his Attorneys General, and numerous other cabinet officials and agency personnel have publicly and repeatedly vilified people fleeing to the United States because of persecution in their home countries. Defendants have also made baseless

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attacks against both the attorneys and organizations who represent asylum seekers, and the integrity of the immigration court system itself.
57. Defendants’ message—repeated in multiple ways, in different forums, and routinely over time—is the same: individuals seeking asylum are frauds, the attorneys and organizations representing them are cheats, and people from “shithole”9 countries must be stopped at the border. Defendants have operationalized this message through a set of policies and practices that fundamentally undermine the INA’s case-by-case adjudication standards. These policies and practices seek to convert the immigration courts into a tool to achieve deportations and recast immigration judges as enforcement agents of the Attorney General.
58. President Trump has made it a priority of his administration to curb the so-called “abuse” of the asylum process.10 In reality, however, these claims of abuse are a pretext for Defendants’ efforts to nullify duly enacted statutory law.
59. On January 25, 2017, four days after being sworn in to “preserve, protect and defend the Constitution of the United States,” U.S. Const. Art. II, § 1, cl.8, and to faithfully execute the laws of the United States, U.S. Const. Art. II, § 3, the President issued an Executive Order that states that “[i]t is the policy of the executive branch to end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.”11
60. In line with this directive, President Trump has repeatedly broadcast Defendants’ position that people who seek asylum are frauds who deserve no judicial process. On June 24, 2018, a week after describing asylum seekers as “pour[ing] into and infest[ing] our Country,”12

9 See Eli Watkins & Abby Phillip, Trump Decries Immigrants from ‘Shithole Countries’ Coming to US, CNN (Jan. 12, 2018), https://www.cnn.com/2018/01/11/politics/immigrantsshithole-countries-trump/index.html. (Last accessed Dec. 12, 2019).
10 See Exec. Order No. 13767, Border Security and Immigration Enforcement Improvements (Jan. 25, 2017).
11 Id. 12 Donald J. Trump (@realDonaldTrump), Twitter (June 19, 2018, 6:52 AM), https://twitter.com/realDonaldTrump/status/1009071403918864385. (Last accessed Dec. 12, 2019).

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President Trump tweeted that “We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order.” 13
61. The President’s anti-immigrant animus is widely shared throughout his administration, including by successive Attorneys General and other appointees at the Department of Justice.
62. In an August 2017 press release, the DOJ boasted of an overall increase in removal orders—not merely case completions—accomplished since President Trump took office, framing the rise in the mere number of deportations, without regard to the merits of the cases or the process afforded, as a marker of a “return to the rule of law.”14
63. In an October 2017 speech to EOIR, former Attorney General Jefferson B. Sessions stated that the immigration “system is currently subject to rampant abuse and fraud” and is “overloaded with fake claims.”15 The former Attorney General described the asylum system as “being gamed” and “abused to the detriment of the rule of law, sound public policy, public safety, and of just claims.” He accused asylum seekers and their lawyers of filing “meritless,” “baseless,” and “fraudulent” claims. Lamenting the “surge in trials, hearings, appeals, [and] bond proceedings,” he undermined the work of attorneys by calling them “dirty immigration lawyers” who “make false claims of asylum.” He denounced the requirement of “a court hearing on every asylum application” and accused immigration attorneys of having

13 Donald J. Trump (@realDonaldTrump), Twitter (June 24, 2018, 8:02 AM), https://perma.cc/35AQ-NSDH. (Last accessed Dec. 12, 2019).
14 DOJ, Office of Public Affairs, “Return to Rule of Law in Trump Administration Marked by Increase in Key Immigration Statistics” (Aug. 8, 2017), https://www.justice.gov/opa/pr/return-rule-law-trump-administration-marked-increase-keyimmigration-statistics. (Last accessed Dec. 12, 2019).
15 U.S. Att’y Gen., Remarks to the Executive Office for Immigration Review (Oct. 12, 2017) https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarksexecutive-office-immigration-review. (Last accessed Dec. 12, 2019).

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“exploited loopholes in the law, court rulings, and lack of resources to substantially undermine” the immigration laws.16
64. In April 2018, approximately a month after vacating a precedential BIA decision requiring an evidentiary hearing for respondents who had filed applications for asylum,17 the former Attorney General characterized asylum seekers as “criminals” and explained that “[w]ith President Trump, we have a new era of support for law enforcement like we haven’t seen in a long time” and that one “might even say we have a new sheriff in town[.]”18
65. The former Attorney General publicly stated his plan to use DOJ’s law enforcement powers against asylum-seekers, whom he characterized as “break[ing] into this country” and “exploit[ing]” the asylum process.19 He denigrated organizations such as Plaintiffs as “open border radicals” and people who express fear of return to countries where they face persecution and seek asylum as “illegal aliens.”20
66. In May 2018, ten days before issuing a decision ending the longstanding availability of the docket management tool known as administrative closure,21 the former Attorney General continued his condemnation of attorneys affiliated with organizations such as Plaintiffs, stating that “[r]epresentatives of illegal aliens have purposely used tactics designed to delay the adjudication of their clients’ cases.” Referring to the rising number of people seeking

16 Id. 17 Matter of E-F-H-L-, 27 I. & N. Dec. 226 (A.G. 2018). 18 Jeff Sessions, U.S. Att’y Gen., Remarks on Immigration Enforcement, Las Cruces, NM (Apr. 11, 2018), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarksimmigration-enforcement (Last accessed Dec. 12, 2019), https://perma.cc/DT3U-X4UG. (Last accessed Dec. 12, 2019). 19 Id. 20 Id. 21 See Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). The Fourth Circuit recently held that DHS regulations confer on immigration judges the authority to administratively close cases, and that the regulatory interpretation announced in Matter of Castro-Tum is not entitled to deference. Romero v. Barr, 937 F.3d 282 (4th Cir. 2019).

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asylum at the U.S.-Mexico border and insinuating, inaccurately, that such requests are illegal, he stated that “this must end.”22
67. In June 2018, in the midst of his policy to prosecute and incarcerate all individuals who cross the border without inspection, and in support of his newly-published case severely curtailing asylum eligibility for those fleeing from Central America,23 the former Attorney General ordered immigration judges at a training session to “end the lawlessness that now exists in our immigration system.”24 He referred to the asylum process as “one of our major difficulties today” and instructed that when people assert their fear of returning to their home countries as a basis for protection under the INA, they are “abus[ing]” that system. He decried the statutory right to apply for asylum on the basis that it “transform[s] a straightforward arrest for illegal entry and immediate return into a prolonged legal process.” Accordingly, he announced a number of EOIR reforms directed at “reducing illegal immigration” by addressing “baseless [asylum] claims.”25
68. In the same month, the President tweeted that “Hiring manythousands [sic] of judges, and going through a long and complicated legal process, is not the way to go – will always be disfunctional [sic]. People must simply be stopped at the Border and told they cannot come into the U.S. illegally.”26

22 Jeff Sessions, U.S. Att’y Gen., Remarks Discussing the Immigration Enforcement Actions of the Trump Administration, San Diego, CA (May 7, 2018), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-discussingimmigration-enforcement-actions. (Last accessed Dec. 12, 2019).
23 See Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018). 24 Jeff Sessions, U.S. Att’y Gen., Remarks to the Executive Office for Immigration Review Legal Training Program, Wash. D.C. (June 11, 2018), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-executive-officeimmigration-review-legal. (Last accessed Dec. 17, 2019). 25 Id. 26 Donald J. Trump (@realDonaldTrump), Twitter (June 25, 2018, 5:43 AM), https://twitter.com/realDonaldTrump/status/1011228265003077632. (Last accessed Dec. 12, 2019).

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69. In September 2018, the former Attorney General again declared to an incoming class of immigration judges that attorneys who represent and assist asylum seekers “work every day—like water seeping through an earthen dam—to get around the plain words of the INA to advance their clients’ interests.” Further denigrating organizations like Plaintiffs, the former Attorney General advised the immigration judges that for immigration lawyers, “[t]heirs is not the duty to uphold the integrity of the [A]ct.” He said that lawyers, like those who work for Plaintiffs, file “unjustified and sometimes blatantly false claims” and engage in “deceit.”27
70. In November 2018, in a public address, President Trump referred to asylum as a “loophole”; to asylum claims as broadly “fraudulent or meritless”; and to asylum seekers’ lawyers as providing “well-coached language” in order to get “fees or whatever they can get.”28 He accused immigration lawyers of providing a “little legal statement to read” that somehow “qualif[ied]” migrants for asylum.29
71. In spring 2019, Defendant Barr became Attorney General Barr. In his previous role as Attorney General under George H. W. Bush, Defendant Barr took positions demonstrating hostility toward immigrants, including advocating for fewer procedural protections in asylum cases under the guise of weeding out supposed “phony claims for asylum.”30 The Attorney General’s actions during his current appointment embody a similar

27 Jeff Sessions, U.S. Att’y Gen., Remarks to the Largest Class of Immigration Judges in History for the Executive Office for Immigration Review (EOIR), Falls Church, VA (Sept. 10, 2018), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-largestclass-immigration-judges-history. (Last accessed Dec. 12, 2019).
28 Nov. 1, 2018 – Remark by President Trump on the Illegal Immigration Crisis and Border Security; https://www.whitehouse.gov/briefings-statements/remarks-president-trumpillegal-immigration-crisis-border-security/. (Last accessed Dec. 12, 2019).
29 Id. 30 Dara Lind, William Barr Hearing: Attorney General Nominee’s Immigration Record Aligns with Trump’s, Vox (Jan. 16, 2019), https://www.vox.com/2018/12/7/18128926/barrconfirmation-senate-immigration-trump (Last accessed Dec. 12, 2019) (quoting Barr’s 1992 statement to a journalist in which he advocated “summary deportation proceedings to weed out patently phony claims for asylum”). Barr’s prior record confirms his anti-immigrant views. For example, Attorney General Barr oversaw the creation of a prison camp for HIV-positive Haitian asylum seekers in Guantánamo Bay—where, in Barr’s view, U.S. official action would not be constrained by basic

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hostility toward immigrants at the expense of the rule of law. For example, in April 2019, he issued a precedential EOIR decision that, had it not been preliminarily enjoined on constitutional grounds, would have led to the mandatory, prolonged detention of tens of thousands of asylum seekers—including those who pose no flight risk or danger to the community—while their cases are pending.31
72. Meanwhile, President Trump has continued to condemn the asylum process. On April 2, 2019, in an Oval Office meeting, after praising Mexico for “apprehend[ing] a lot of people at their southern border coming in from Honduras and Guatemala and El Salvador,” he urged that “we have to do something about asylum.”32 The President asserted that “the asylum procedures are ridiculous.”33 Consistent with that view, the President signaled his intent to limit access to fair hearings by stating that “to be honest with you, you have to get rid of judges.”34 Lamenting that when an individual seeks asylum “you have to bring them through a court system,” President Trump mocked the process for seeking asylum, stating “[w]elcome to being Perry Mason. You now have a big trial.”35

constitutional protections. The asylum seekers lived in deplorable conditions in the camp, where “latrines were brimming over” and there was little potable water. John Washington, William Barr May Be Worse on Immigration Than Jeff Sessions, The Intercept (Jan. 15, 2019), https://theintercept.com/2019/01/15/william-barr-confirmation-hearings-immigration/ (Last accessed Dec. 12, 2019); Chantal Da Silva, Trump’s Attorney General Pick Saw Thousands of Refugees Fleeing Violence Locked Up in Guantanamo Bay, Newsweek (Dec. 11, 2018), https://www.newsweek.com/trumps-attorney-general-pick-saw-thousands-refugees-fleeingviolence-locked-1253102 (Last accessed Dec. 12, 2019); see also Kate Smith, ‘A Stain on U.S. History’: Trump’s Attorney General Pick Used Guantanamo Bay to Hold Thousands of Haitian Refugees, CBS News (Dec. 10, 2018), https://www.cbsnews.com/news/william-barr-attorneygeneral-nominee-asylum-seekers-haiti-hiv-positive-patients-guantamano-bay-2018-12-10/ (Last accessed Dec. 12, 2019) (noting that Defendant Barr defended the prolonged and abusive imprisonment of 12,000 Haitian asylum seekers as recently as 2001, and that the camp operated for about 18 months until a judge ordered its end).
31 See Matter of M-S-, 27 I. & N. Dec. 509 (A.G. 2019), enjoined by Padilla v. U.S. Immigration & Customs Enforcement, 387 F. Supp. 3d 1219 (W.D. Wash. 2019).
32 Remarks by President Trump and NATO Secretary General Jens Stoltenberg Before Bilateral Meeting, The White House (Apr. 2, 2019) https://perma.cc/5ZKY-P53D. (Last accessed Dec. 12, 2019).
33 Id. 34 Id. 35 Id.

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73. At an April 5, 2019, border security roundtable, President Trump stated, “[asylum]’s a scam. Okay? It’s a scam. It’s a hoax . . . So, our system is full. We’re not taking them anymore.”36
74. On May 16, 2019, President Trump referred to the laws providing refuge to those who have been persecuted as “the horrible asylum laws that are so unfair.”37
75. On July 1, 2019, President Trump characterized asylum claims as “frivolous” and “bogus” while advocating for mass deportations of asylum seekers.38 He stated that large-scale deportations of people seeking protection, including children, are “what we do.”39
76. Later in July 2019, President Trump called the legal requirement of access to a hearing before deportation “stupidity.”40 When asked about families seeking asylum, he responded “You know what? They came in illegally. They have to go out.”41
77. In order to get “them” “out,” Defendants have compromised the legitimacy of the immigration court system by recasting immigration judges as enforcers of the executive branch’s anti-immigrant agenda. The President conveyed his goal of eradicating case-by-case adjudication in the immigration courts in a June 20, 2018 Tweet, stating, “When people come into our

36 Trump on Asylum Seekers: ‘It’s a Scam, It’s a Hoax’, Daily Beast (Apr. 5, 2019), https://www.thedailybeast.com/trump-on-asylum-seekers-its-a-scam-its-a-hoax (Last accessed Dec. 12, 2019).
37 March 15, 2019, “Remarks by President Trump on the National Security and Humanitarian Crisis on our Southern Border,” https://www.whitehouse.gov/briefingsstatements/remarks-president-trump-national-security-humanitarian-crisis-southern-border-2/ (Last accessed Dec. 12, 2019).
38 https://factba.se/transcript/donald-trump-remarks-bill-signing-taxpayer-act-july-12019. (Last accessed Dec. 12, 2019).
39 Id. 40 Donald Trump Press Conference at the G20 Summit in Osaka (June 29, 2019) https://factba.se/transcript/donald-trump-press-conference-g20-osaka-june-29-2019 (Last accessed Dec. 12, 2019) (“And the reason that Mexico is so good – because they do have very, very tough immigration. They don’t have the kind of things and the kind of stupidity that we have. I mean, where somebody touches one foot on our sand and now we have to bring them into a court.”) 41 https://factba.se/transcript/donald-trump-press-gaggle-marine-one-departure-july-122019. (Last accessed Dec. 12, 2019).

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Country illegally, we must IMMEDIATELY escort them back out without going through years of legal maneuvering. Our laws are the dumbest anywhere in the world.”42
78. In September 2019, President Trump claimed that he had “solved” asylum through policies that prevent asylum seekers from accessing U.S. immigration courts.43 The next day, he equated support for asylum with support for “crime,” “drugs,” and “human trafficking.”44
79. Defendants’ statements expose their desire to administer an adjudicatory system that is not governed by law. Defendants seek an immigration court system that functions as a deportation machine driven by a desire to issue removal orders against as many “undesirable” individuals as possible, regardless of the merits of their cases.
THE FAILURE OF THE IMMIGRATION COURT SYSTEM 80. The standards laid out in the INA require the Attorney General to administer a case-by-case adjudication system in which noncitizens have a full and fair opportunity to present their claims for relief before an impartial adjudicator. See supra ¶¶ 35-40. The abusive practices of the current and former Attorneys General have fundamentally compromised these standards and have resulted in an “irredeemably dysfunctional” system that is “on the brink of collapse[.]”45 81. The current and former Attorneys General have been well aware of the persistently substandard functioning of the immigration court system. Federal courts have repeatedly found that “the adjudication of [immigration] cases at the administrative level has

42 Donald J. Trump (@realDonaldTrump), Twitter (June 30, 2018, 3:44 PM), https://twitter.com/realDonaldTrump/status/1013146187510243328?s=20. (Last accessed Dec. 12, 2019).
43 https://factba.se/transcript/donald-trump-remarks-bilat-nayib-bukele-el-salvadorseptember-25-2019. (Last accessed Dec. 12, 2019).
44 https://factba.se/transcript/donald-trump-remarks-law-enforcement-september-262019. (Last accessed Dec. 12, 2019).
45 See ABA Commission on Immigration, 2019 Update Report: Reforming the Immigration System, Am. Bar Ass’n (Mar. 2019) at 2-3–2-4, https://perma.cc/94TF-FXGV. (Last accessed Dec. 12, 2019).

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fallen below the minimum standards of legal justice.” See, e.g., Benslimane v. Gonzales, 430 F.3d 828, 830 (7th Cir. 2005) (citing “staggering” reversal rates and “severe” critique of immigration court decisions in at least 12 recent decisions across 4 circuits).46
82. The Attorney General has taken no meaningful action to correct course to ensure that the immigration court system routinely adheres to the INA’s requirement of case-by-case adjudication, thereby abdicating his duty to faithfully execute the INA. To the contrary, the Attorney General has taken affirmative actions to weaponize the immigration courts, further evidence of his abuse of his statutorily delegated authority.
83. Instead of administering a case-by-case adjudicatory system, the Attorney General perpetuates a court system that is like “adjudicating death penalty cases . . . in settings that most closely resemble traffic courts.”47
A. The Attorney General Has Abused His Authority by Perpetuating Vast AsylumFree Zones 84. The INA’s case-by-case adjudication standards require that applications for
asylum be adjudicated based on their merits in an impartial forum. Supra ¶¶ 35-40. 85. Congress has entrusted the Attorney General to ensure that the immigration courts
fairly apply the law to the facts of each case. Under Congress’s statutory design, immigration courts cannot categorically deny asylum claims.

46 See also Colmenar v. I.N.S., 210 F.3d 967, 973 (9th Cir. 2000) (“We do not enjoy second-guessing the way Immigration Judges run their courtrooms. But when a petitioner has so clearly been denied a full and fair hearing, we have no choice. Judges do little to impress the world that this country is the last best hope for freedom by displaying the hard hand and closed mind of the forces asylum seekers are fleeing.”); Wang v. Att’y Gen., 423 F.3d 260, 268 (3d Cir. 2005) (observing that although “we have repeatedly sought to remind IJs of their duty to remain neutral and impartial when they conduct immigration hearings,” a “disturbing pattern of IJ misconduct has emerged”); Zuh v. Mukasey, 547 F.3d 504, 513–14 (4th Cir. 2008) (adding to the “rising tide of criticism” of immigration courts while noting that “academic literature and court decisions have grown increasingly strident in their criticism of the immigration review process” and “courts have grown increasingly skeptical of the high error rate within the immigration system”).
47 Dana Leigh Marks, Now is the Time to Reform the Immigration Courts, Int’l Affairs Forum at 47 (Winter 2016), https://perma.cc/8WB7-H8D7. (Last accessed Dec. 12, 2019).

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86. However, the Attorney General has abused his control of EOIR by allowing an expanding number of immigration courts to categorically deny asylum claims regardless of their merits. These immigration courts are known as “asylum-free zones.”48

48 See, e.g., Jeanne Atkinson, Michelle Mendez, David Baluarte, Atenas Burrola, Lindsay Harris, Sarah Owings, Stephen Manning, & Blaine Bookey, Petitioners’ Brief, Inter-American Commission on Human Rights: Special Interest Hearing on the Human Rights of Asylum Seekers in the United States (Dec. 2, 2016), https://cliniclegal.org/sites/default/files/resources/defending-vulnerable-popluations/HumanRigts-of-Asylum-Seekers-in-US-%5BPetitioners%5D.pdf. (Last accessed Dec. 12, 2019). The chart below is based on EOIR data for immigration courts deciding at least 50 asylum cases in a given year. See TRAC Immigration, Asylum Decisions (data through Sept. 2019), https://trac.syr.edu/phptools/immigration/asylum/ (Last accessed Dec. 12, 2019). Years refer to the federal government’s fiscal years (October 1 – September 30). Asylum-free zones are defined as courts denying at least 85% of asylum cases in a given year.

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87. In Atlanta, where Plaintiffs Law Lab, SPLC, and ASAP provide legal services, the immigration courts denied 95.7% of asylum claims adjudicated between 2014 and 2019.49
88. As Judge Jordan of the Eleventh Circuit aptly noted, “[i]f [Atlanta’s] statistics pertained to a federal district court, the Administrative Office would begin an investigation in a heartbeat.” Diaz-Rivas v. Att’y Gen., 769 F. App'x 748, 768 (11th Cir. 2019) (Jordan, J., dissenting). Atlanta’s denial rates are “deeply troubling, as it would appear that the immigration judges in Atlanta are inherently biased (the government’s phrasing) against asylum applicants in the same way.” Id. at 767-68.
89. In the El Paso region, where Plaintiffs Las Americas, CLINIC, Law Lab, Santa Fe Dreamers Project, and ASAP provide legal services, asylum denial rates have also been persistently high. From 2014 to September 2019, the El Paso Immigration Court denied 92.7% of asylum claims, and the El Paso Service Processing Center Immigration Court, which adjudicates detained cases, denied 89.0%. The Otero Immigration Court, located just outside El Paso in Chaparral, New Mexico, denied 84.8%.
90. During this same period, the Houston Immigration Court, where Plaintiff ASAP has provided legal services, denied 91.8% of asylum claims; and the Charlotte Immigration Court, where Plaintiffs Law Lab and CLINIC provide legal services, denied 89.5% of asylum claims.

49 Unless otherwise noted, all statistics cited in ¶¶ 88–96 are based on Plaintiffs’ analysis of EOIR data obtained by TRAC Immigration for immigration courts that decided at least fifty asylum claims in a given year. See TRAC Immigration, Asylum Decisions (data through Sept. 2019), https://trac.syr.edu/phptools/immigration/asylum/ (Last accessed Dec. 12, 2019). Years refer to the federal government’s fiscal years (October 1 – September 30). During the period reported here, the Atlanta Immigration Court was a single court operating out of two locations: Ted Turner Drive and W. Peachtree Street (known as the “Atlanta Annex”). As of Oct. 15, 2019, EOIR has established the W. Peachtree Street location as a separate, second Atlanta court. See EOIR, Executive Office for Immigration Review to Open Atlanta – W. Peachtree Street, Notice (Oct. 1, 2019), https://www.aila.org/infonet/eoir-to-open-new-immigration-court-in-atlanta (Last accessed Dec. 12, 2019); EOIR, EOIR Immigration Court Listing (updated Nov. 6, 2019), https://www.justice.gov/eoir/eoir-immigration-court-listing. (Last accessed Dec. 12, 2019).

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91. Plaintiff SPLC has also faced persistently high denial rates in the courts with detained-only dockets where its SIFI project appears. From 2014 to 2019, the LaSalle Immigration Court denied 94.0% of asylum claims; the Stewart Immigration Court, where Plaintiff Law Lab has also provided legal services, denied 91.4% of asylum claims; and the Oakdale Immigration Court denied 87.7% of asylum claims.
92. Defendants’ recent actions have entrenched and expanded asylum-free zones across the country.
93. In 2017, Defendants’ weaponization of the immigration courts began, and asylum denial rates rose significantly.
94. From December 2016 to September 2019, the nationwide rate of asylum denials by immigration courts rose from 55.1% to 71.1%. Before the beginning of the Trump Administration, the nationwide monthly denial rate had been below 60% since September 2005. Monthly denial rates surpassed 60% in March 2017 and reached record-high levels by June 2018.50

50 Based on record of EOIR data since October 2000 for all immigration courts. See TRAC Immigration, Asylum Decisions.

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95. In 2019, twenty-three immigration courts—nearly 40% of the total number—were asylum-free zones denying at least 85% of asylum claims.51 The median denial rate for asylumfree zones in 2019 was 88.9%. In contrast, the median denial rate for all other immigration courts was 70.0%.52

96. On information and belief, no legitimate variable affecting case outcomes explains the existence and entrenchment of asylum-free zones. On information and belief, the

51 Two additional courts, Fishkill and Ulster, each denied 100% of asylum cases but decided fewer than fifty cases this year.
52 The chart below is based on EOIR data for immigration courts deciding at least 50 asylum cases in a given year. See TRAC Immigration, Asylum Decisions. Years refer to the federal government’s fiscal years (October 1 – September 30). Asylum-free zones are defined as courts denying at least 85% of asylum cases in a given year.

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high number of asylum denials in these courts is due to the fact that these cases were docketed in jurisdictions where case-by-case adjudication is not the norm.
97. Additionally, since 2017, Defendants have entrenched the suspension of asylum law in these immigration courts because of a discriminatory animus against asylum seekers.
98. The asylum-free zones include many courts that hear detained cases. Detention itself imposes significant barriers to proving an asylum claim. Evidence collection, witness preparation, and providing advice and counsel, among other activities, are substantially impaired when a respondent is detained. In detained courts in asylum-free zones where Plaintiffs SPLC, Law Lab, CLINIC, and Las Americas provide legal services or pro bono support, some immigration judges indicate a predisposition to deny bond to asylum seekers, consistent with their overall predisposition to deny asylum. They do so by, for example, stating that they do not give bond to “recent arrivals,” which is a coded reference to asylum seekers, given that the overwhelming majority of bond-eligible recent arrivals are asylum seekers.
99. The twenty-three immigration courts listed above have effectively nullified asylum law. In these asylum-free zones, the rule of law has ceased, and asylum law is functionally suspended. This suspension of the rule of law has created a country where two different versions of the INA apply: one that includes asylum and one that does not.
100. Nevertheless, the suspension of asylum law in these immigration courts has not been subject to corrective administrative guidance or action.
101. The Attorneys General have been well aware of the extraordinary rates of denials in these immigration courts, which have persisted for years. See, e.g., U.S. Gov’t Accountability Off., GAO-08-940, U.S. Asylum System: Significant Variation Existed in Asylum Outcomes across Immigration Courts and Judges at 7 (2008), https://www.gao.gov/assets/290/281794.pdf (Last accessed Dec. 12, 2019) (identifying significant disparities in asylum outcomes across courts and analyzing the factors leading to the disparity); U.S. Gov’t Accountability Off., GAO-

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17-72, Asylum: Variation Exists in Outcomes of Applications Across Immigration Courts and Judges (2016), https://www.gao.gov/assets/690/680976.pdf (Last accessed Dec. 12, 2019) (observing continued disparities in the 2007–2014 period, despite having made concrete recommendations to EOIR in 2008).
102. The Attorney General has further abused his supervisory authority by failing to create a fair and functioning administrative appellate system. The Attorney General has failed to ensure that the Board of Immigration Appeals provides the “clear and uniform guidance,” 8 C.F.R. § 1003.1(d)(1), that is required by law. The widespread arbitrariness of both procedural and substantive decision-making among immigration courts is thus left systemically uncorrected.
103. Indeed, Defendants’ recent actions demonstrate their intent to turn the entire country into an asylum-free zone. Defendants, for example, recently “reorganized” the BIA in ways that remove the independence of its members. See EOIR, Organization of the Executive Office of Immigration Review, 84 Fed. Reg. 44,537 (Aug. 26, 2019). That so-called reorganization subjects BIA members to strict deadlines for deciding every case, no matter how complex, and gives the Director of EOIR, who is an administrator rather than a judge, the authority to decide individual appeals if BIA members do not adhere to those deadlines. See id. at 44,539-40. The failure to meet the deadlines can result in adverse employment action. Defendants also recently appointed to the BIA six immigration judges with some of the highest asylum denial rates in the country—and waived the longstanding probationary period for new BIA members in order to make those new appointees almost impossible to remove.53

53 See, e.g., Tal Kopan, AG William Barr promotes immigration judges with high asylum denial rates, S.F. Chronicle (Aug. 23, 2019), at https://www.sfchronicle.com/politics/article/AGWilliam-Barr-promotes-immigration-judges-with-14373344.php) (Last accessed Dec. 12, 2019); Tanvi Misra, DOJ changed hiring to promote restrictive immigration judges, Roll Call (Oct. 29, 2019), at https://www.rollcall.com/news/congress/doj-changed-hiring-promote-restrictiveimmigration-judges/.” (Last accessed Dec. 12, 2019).

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B. The Attorney General Has Abused His Authority by Burdening the Immigration Courts with a Backlog That Structurally Undermines Fairness 104. At the end of 2010, the backlog of cases pending before the immigration courts
was approximately 265,000 cases. Today, there is a backlog of more than 1,000,000 cases.54 In fewer than nine years, the backlog has grown by nearly 300%. As a result of the backlog, nondetained immigration court cases regularly remain unresolved for years.
105. These backlog-related delays are not due to case-specific factors; instead, they are a direct result of the Attorney General’s mismanagement of the immigration court docket. Even when new filings have decreased, the Attorney General’s mismanagement of the immigration courts has resulted in an increasing backlog.55 Since 2017, the immigration court backlog has skyrocketed: between January 2017 and September 2019, the backlog nearly doubled from 542,411 cases to the current 1,023,767.56

54 TRAC Immigration, Backlog of Pending Cases in Immigration Courts as of September 2019, https://trac.syr.edu/phptools/immigration/court_backlog/apprep_backlog.php (accessed Dec. 14, 2019). Years refer to the federal government’s fiscal years (October 1 – September 30).
55 See chart based on EOIR data from TRAC Immigration, Immigration Court Backlog Tool, https://trac.syr.edu/phptools/immigration/court_backlog/ (Last accessed Dec. 12, 2019)., and Details on Deportation Proceedings in Immigration Court: Initial Filing, https://trac.syr.edu/phptools/immigration/nta/ (both accessed Dec. 6, 2019). Years refer to the federal government’s fiscal years (October 1 – September 30).
56 See TRAC Immigration, Immigration Court Backlog Tool; TRAC Immigration, Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times (Oct. 25, 2019), https://trac.syr.edu/immigration/reports/579/ (Last accessed Dec. 12, 2019). (reporting backlog as of September 30, 2019); EOIR, Adjudication Statistics: Pending Cases (Oct. 7, 2019), available at https://www.justice.gov/eoir/page/file/1060836/download (Last accessed Dec. 12, 2019) (reporting 987,274 pending “removal, deportation, exclusion, asylum-only, and withholding only” cases at end of FY2019).

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106. In courts where Plaintiffs provide legal services, the cases of thousands of people who have applied for asylum are marooned in the backlog, with asylum seekers being forced to wait years just for their next court hearing. In over half of backlogged cases, the “next” court hearing will not even result in a decision on the merits of the case. Instead, it is a master calendar hearing that will result in another hearing being scheduled—meaning that those asylum applicants may wait years longer for evidentiary hearings on their claims.57
107. As of the end of September 2019, the average projected wait time for a respondent’s next immigration court hearing was more than two and a half years in El Paso,

57 See https://trac.syr.edu/immigration/reports/579/#f5 (Last accessed Dec. 12, 2019) (“These statistics are merely projected figures for the average wait time based on the court's hearing schedule as of the end of September. Over half of these cases are waiting for their master calendar hearing - somewhat like an arraignment were this a criminal court. Thus, these projected wait times do not include further delays required to schedule any individual merit hearings after these initial master calendar hearings are held.”).

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where Plaintiffs Las Americas, SFDP, ASAP, and Law Lab provide legal services; and in Portland, where Plaintiff Law Lab appears.58
108. As of the end of September 2019, the average projected wait time for a respondent’s next immigration court hearing was over three years in Atlanta, where Plaintiffs SPLC, ASAP, and Law Lab provide legal services; and in San Francisco, where Plaintiffs ASAP and Law Lab provide legal services.59
109. As of the end of September 2019, the average projected wait time for a respondent’s next immigration court hearing was over three and a half years in Houston and in San Antonio, where Plaintiff ASAP has provided legal services.60
110. As of the end of September 2019, the average projected wait time for a respondent’s next immigration court hearing was approaching four and a half years in Denver, where Plaintiffs SFDP, CLINIC, and ASAP provide legal services; and in Arlington, where Plaintiff ASAP has provided legal services.61
111. These unreasonably long delays undermine the INA’s case-by-case adjudication standards. The delays compromise the right to a reasonable opportunity to present witnesses and other evidence in support of an asylum claim because with the passage of time, witnesses

58 According to TRAC Immigration, the average projected total wait time for cases in the El Paso Immigration Court was 2.56 years (934 days). The average projected total wait time for cases in the Portland Immigration Court was 2.78 years (1015 days). See https://trac.syr.edu/immigration/reports/579/#f5. (Last accessed Dec. 12, 2019).
59 The average projected total wait time for cases in the Atlanta Immigration Court was 3.06 years (1117 days). The average projected total wait time for cases in the San Francisco Immigration Court was 3.13 years (1142 days). See https://trac.syr.edu/immigration/reports/579/#f5. (Last accessed Dec. 12, 2019).
60 The average projected total wait time for cases in the Houston Immigration Court was 3.57 years (1303 days). See https://trac.syr.edu/immigration/reports/579/#f5. (Last accessed Dec. 12, 2019).
61 The average projected total wait time for cases in the Denver Immigration Court was 4.29 years (1566 days). The average projected total wait time for cases in the Arlington Immigration Court was 4.40 years (1607 days). See https://trac.syr.edu/immigration/reports/579/#f5. (Last accessed Dec. 12, 2019).

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become unavailable and evidence becomes lost or stale. In addition, the delays make legal representation more challenging to obtain and sustain.
112. Defendants have used the case backlog to justify many draconian executive actions, including the weaponization policies described below. Yet in reality, many of Defendants’ policies—such as those implemented through certified decisions or internal policy guidance—have exacerbated the backlog instead of reducing it. In addition to the over one million active cases already in the backlog, Defendants’ recent policy changes have encouraged another 322,535 previously closed cases to be added back to the docket.62
113. Defendants frequently use manipulative docketing practices that exacerbate the backlog, resulting in longer case delays that further undermine the INA’s case-by-case adjudication standards. Defendants regularly mismanage immigration court dockets by adopting “politically motivated changing court priorities[,]” which disregard the individualized facts of each case, instead engaging in “incessant docket shuffling in furtherance of various law enforcement ‘priorities.’”63 For example, DHS estimates that 100 to 150 immigration judges from across the country have been, or will be, reassigned to perform video proceedings in the tent courts hearing cases under the so-called Migrant Protection Protocols.64

62 See TRAC Immigration, Crushing Immigration Judge Caseloads and Lengthening Hearing Wait Times (Oct. 25, 2019); https://www.justice.gov/eoir/page/file/1061521/download. (Last accessed Dec. 12, 2019).
63 Statement of Judge A. Ashley Tabaddor, President National Association of Immigration Judges, Before the Senate Judiciary Committee, Border Security and Immigration Subcommittee Hearing on “Strengthening and Reforming America’s Immigration Court System” 3 (Apr. 18, 2018) https://www.judiciary.senate.gov/imo/media/doc/04-1818%20Tabaddor%20Testimony.pdf. (Last accessed Dec. 12, 2019).
64 See, e.g., Adolfo Flores, The Trump Administration Opened Secretive Tent Courts at the Border. The Public Is Not Allowed Inside., Buzzfeed News (Sept. 11, 2019), https://www.buzzfeednews.com/article/adolfoflores/tent-court-hearings-asylum-seekers-publicdenied-access (Last accessed Dec. 12, 2019); Mica Rosenberg et al., Hasty rollout of Trump immigration policy has ‘broken’ border courts, Reuters (Sept. 10, 2019), https://www.reuters.com/article/us-usa-immigration-courts-insight/hasty-rollout-of-trumpimmigration-policy-has-broken-border-courts-idUSKCN1VV115. (Last accessed Dec. 12, 2019).

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114. Defendants thus often and increasingly direct immigration judges to postpone long-scheduled hearings in their own courtrooms to respond to ideologically motivated assignments to other courts. These postponements return respondents to the backlog, often adding more multi-year delays to cases that have long been ripe for adjudication.
115. For example, in just three months in 2017, when the Attorney General “surged” immigration judges to the border, he caused nearly 23,000 scheduled hearings to be “adjourned” (postponed), compounding the backlog.65
116. Between March and June 2017, judge reassignments caused nearly 3,500 adjournments in the Los Angeles Immigration Court, 200 in San Antonio, 129 in Baltimore, nearly 400 in Chicago, 1,822 in San Francisco, 242 in Kansas City, some 2,600 in New York City, nearly 2,000 in Arlington, and almost 900 in Atlanta.66 C. To Advance their Anti-Immigrant Agenda, Defendants Have Weaponized the
Immigration Courts 117. Capitalizing on the breadth of the AG’s authority over EOIR, Defendants have repeatedly sought to further their anti-immigrant agenda under the guise of fixing a broken system and promoting efficiency. Both the Enforcement Metrics Policy, introduced in October 2018, and the family-unit rapid removal track, or FAMU Directive, introduced in November 2018, have accelerated the weaponization of the immigration courts against persons fleeing persecution and eviscerated Plaintiffs’ ability to carry out their missions. 118. The Enforcement Metrics Policy gives immigration judges a financial interest in cases before them by setting mandatory timelines and remand limits that impact judges’ performance evaluations. This vested interest entrenches systemic bias into the immigration courts and undermines Plaintiffs’ efforts to provide meaningful legal services to respondents.

65 https://immigrantjustice.org/immigration-surge-courts (Last accessed Dec. 12, 2019); https://www.humanrightsfirst.org/sites/default/files/hrf-tilted-justice-final%5B1%5D.pdf (Last accessed Dec. 12, 2019) at 15.
66 Id.

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119. The FAMU directive is intended primarily for Central American families who apply for asylum. On this specialized accelerated docket, the families have fewer procedural rights and their cases are stigmatized from the beginning.
120. Defendants’ policies are intended to deport asylum seekers “back from where they came” “so fast, your head will spin” “with no Judges or Court Cases[.]”67 These policies represent a deliberate effort by Defendants. Through these policies, Defendants have solidified the immigration courts as a system that is categorically biased and unfair, relegated immigration judges to the role of enforcement officers, and frustrated Plaintiffs’ missions and programs.
1. Immigration Judge Enforcement Metrics Policy 121. Pursuant to a policy issued in October 2018, Defendants imposed a new Enforcement Metrics Policy on immigration judges. 122. The Enforcement Metrics Policy has three components: a Case Completion Quota, a Remand Rate, and Speed-Related Adjudication Benchmarks. 123. The Case Completion Quota requires immigration judges to complete 700 cases each year, equivalent to about three case completions every business day. 124. The Remand Rate requires immigration judges to have fewer than fifteen percent of their decisions reversed on appeal. 125. The Speed-Related Adjudication Benchmarks are itemized into six different categories. Benchmarks 1, 2, and 3 govern the speed of adjudication after the evidentiary portion of a case is completed or a motion is filed. These Benchmarks constrain the amount of time an immigration judge may spend on a matter.

67 Donald J. Trump (@realDonaldTrump), Twitter (June 24, 2018, 8:02 AM), https://twitter.com/realDonaldTrump/status/1010900865602019329 (Last accessed Dec. 12, 2019), https://perma.cc/35AQ-NSDH (Last accessed Dec. 12, 2019); Marina Fang, Donald Trump Still Supports Mass Deportation for Undocumented Immigrants, HuffPost (Aug. 23, 2016) https://www.huffpost.com/entry/donald-trump-immigration-flipflop_n_57bb9743e4b03d51368a7e24. (Last accessed Dec. 12, 2019).

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126. Benchmarks 4, 5, and 6 govern the scheduling of bond cases, individual merits hearings, and credible and reasonable fear reviews, imposing categorical timeframes without regard to whether a particular case is ready for adjudication.
127. To achieve compliance with these so-called “performance metrics,” the Attorney General reminds an immigration judge each time he or she takes the bench that the judge’s financial interest is tied to the prompt completion of the pending case through a “dashboard” on the immigration judge’s computer.68 The dashboard measures, in nearly real time, the judge’s progress in achieving the Attorney General’s performance metrics, with meters showing red, yellow or green to indicate whether the judge is on track to meet the benchmarks.69 Examples of the dashboards70 visible to immigration judges include:

68 Press Release, American Immigration Lawyers Association, The Need for an Independent Immigration Court Grows More Urgent as DOJ Imposes Quotas on Immigration Judges (Oct. 1, 2018), AILA Doc. No. 18100103; see also Email from James McHenry, EOIR Director, to All EOIR Judges, on Immigration Judge Performance Metrics (Mar. 30, 2018), AILA Doc. No. 18040301.
69 Mary Harris, This Immigration Judge Has a Fix for Immigration Courts, Slate, https://slate.com/news-and-politics/2019/04/immigration-courts-doj-independenceseparation.html (Last accessed Dec. 12, 2019); see also Liz Robbins, In Immigration Court, It is Judges v. Justice Department, N.Y. Times (Sept. 7, 2018), https://www.nytimes.com/2018/09/07/nyregion/nyc-immigration-judges-courts.html (Last accessed Dec. 12, 2019) (describing DOJ’s monitoring of immigration judges with a “performance dashboard . . . which indicates if they are keeping up their pace”).
70 Beth Fertig, Presiding Under Pressure, WNYC (May 21, 2019), https://www.wnyc.org/story/presiding-under-pressure/. (Last accessed Dec. 12, 2019). “Nonstatus” refers to cases that are not on an immigration judge’s status docket. An immigration judge may use the status docket for cases in which final adjudication may be delayed—for example, where the respondent is awaiting adjudication of an application or petition by U.S. Citizenship and Immigration Services.

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128. On information and belief, the dashboard and the Enforcement Metrics Policy influence the adjudication of a case.
129. The dashboard and the performance of an individual immigration judge related to the Enforcement Metrics are not included in the record of proceedings.
130. Defendants can take adverse action against immigration judges who fail to comply with the Case Completion Quota, the Remand Rate, and at least half of the SpeedRelated Adjudication Benchmarks, or who receive an “Unsatisfactory” performance rating on any of the remaining benchmarks. These adverse actions include discipline, reassignment, and termination.
131. By imposing the Enforcement Metrics Policy, Defendants have given immigration judges a personal pecuniary interest in the outcome of the cases they adjudicate, compromising their impartiality in each and every case.

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132. The Enforcement Metrics Policy also conflicts with current EOIR policy preventing immigration judges from having a financial interest in their adjudications. See Ethics and Professionalism Guide for Immigration Judges (Jan. 2011) at Chap. XVI (“An Immigration Judge is prohibited from participating in any matter in which he or she has a financial interest.”).
133. An immigration judge who grants a continuance for additional testimony, postpones a hearing because a witness was unavailable, takes a matter under advisement to consider the evidence, or takes any other action that falls short of case completion could lose her job.
134. The Enforcement Metrics Policy requires immigration judges to prioritize speed in a manner that is disconnected from the specific facts and circumstances of each case.
135. For example, Benchmark 5 requires immigration judges to complete individual merits hearings on the initial scheduled hearing date in 95% of their cases. This metric will regularly undermine an asylum applicant’s statutory right to “have a reasonable opportunity to examine the evidence against [her], to present evidence on [her] own behalf, and to crossexamine the witnesses presented by the Government.” 8 U.S.C. § 1229a(b)(4). Thus, notwithstanding the circumstances of a particular case, an immigration judge striving to meet her benchmarks would never be able to continue a hearing or extend a hearing to allow for the completion of testimony, to collect or analyze additional evidence, or to facilitate attorney-client consultation.
136. Additionally, Benchmark 6 requires an IJ to complete 100% of reasonable fear reviews on the initial hearing date.71 The only exception is where DHS fails to produce the

71 IJ Performance Measures, 2018 Executive Office for Immigration Review Legal Training Program, AILA Doc. No. 18073084 (July 30, 2018). A noncitizen is subject to a reasonable fear interview if she claims a fear of return to her country of origin after either the government has reinstated a prior order of removal or she has been ordered removed in expedited proceedings after having been convicted of an aggravated felony. See 8 C.F.R. § 208.31. If an asylum officer finds that the noncitizen does not meet the standard for demonstrating a “reasonable fear” of persecution or torture, the noncitizen may seek review by an immigration judge. 8 C.F.R. § 1208.31(g).

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respondent on the date of the hearing. Thus, an immigration judge striving to meet her benchmarks would never be able to continue a reasonable fear review, even if exceptional circumstances warranted a continuance to allow the respondent to collect additional evidence or to facilitate attorney-client consultation.
137. The Attorney General has effectively directed that an immigration judge should consider the Enforcement Metrics Policy when deciding whether to grant a continuance. See Matter of L-A-B-R,- 27 I. & N. Dec. 405, 415 (A.G. 2018) (expressly holding that judges should consider “concerns of administrative efficiency” when evaluating motions to continue).
138. In conjunction with the Administration’s public condemnation of the asylum system, asylum seekers, and their legal representatives, the Enforcement Metrics Policy pressures immigration judges to order removal instead of granting asylum or other relief.
139. The Enforcement Metrics Policy has created a constitutionally intolerable risk of actual bias in the immigration courts.
140. The Enforcement Metrics Policy imposes an increased probability of bias for newly-hired judges, who are subject to a two-year probationary period. Probationary immigration judges have an additional pecuniary interest in complying with the Enforcement Metrics Policy in order to ensure that their tenure extends beyond probation.
141. Additionally, although the stated purpose of the Enforcement Metrics Policy is to minimize the immigration court backlog, the Policy is not rationally related to the goal of backlog reduction.
142. On April 6, 2017, EOIR completed a year-long study (the “EOIR Legal Case Study”) of the immigration courts that identified how the case backlog was created and made recommendations to solve it.

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143. The study found that “inefficient practices and case processing due to understaffing, issues relating to workforce culture and careers, deficient or ineffective processes, and external dependencies” were the cause of the backlog.
144. The EOIR Legal Case Study recommended that EOIR should not engage in political hiring; rather EOIR should “[b]roaden hiring pools and outreach programs to increase diversity of experience among Immigration Judges.”
145. The EOIR Legal Case Study recommended, among other things, that EOIR “[i]mplement performance reviews in line with a judicial performance review model that emphasizes process over outcomes and [places] high priority on judicial integrity and independence.” The study recommended that EOIR “[i]nstitute mandatory continuous training on temperament, asylum adjudication, and updates to immigration law for all IJs.”72
146. Without any reasoned explanation, the Attorney General rejected the EOIR Legal Case Study’s recommendations and instead adopted the Enforcement Metrics Policy, which is the functional opposite of the EOIR Legal Case Study recommendations.
2. FAMU Directive 147. On November 16, 2018, Defendant McHenry issued a directive that created a prioritized docket for “family unit” (“FAMU”) cases in ten cities nationwide. As of October 2019, over 95,000 cases are on the FAMU docket.73 148. On information and belief, Defendants intend to expand the FAMU Directive to apply across all immigration courts; indeed, several of its terms already apply beyond the ten cities where the full directive is currently being piloted.

72 DOJ Executive Office for Immigration Review, Legal Case Study Summary Report (Apr. 6, 2017) at 21, https://www.americanimmigrationcouncil.org/sites/default/files/foia_documents/immigration_ju dge_performance_metrics_foia_request_booz_allen_hamilton_case_study.pdf. (Last accessed Dec. 17, 2019).
73 “Family Unit” Data for Selected Courts, Executive Office for Immigration Review (last updated Oct. 28, 2019), https://www.justice.gov/eoir/page/file/1187416/download (Last accessed Dec. 12, 2019).

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149. “Family Unit” is a term created by the Department of Homeland Security and adopted by EOIR as an “apprehension classification” used when an adult noncitizen parent or legal guardian accompanied by his or her own minor child seeks asylum at the U.S. southern border.
150. Notices to Appear, the initiating charging documents in removal proceedings, are marked with “FAMU,” “FA,” or a similar designation to indicate that respondents were classified as a Family Unit when apprehended at the U.S. southern border.
151. In cases subject to the FAMU Directive, immigration judges are hamstrung by mandatory timelines. On information and belief, immigration courts in the ten pilot cities must schedule an initial hearing within 30 days of the filing of the Notice to Appear, schedule an evidentiary (or “merits”) hearing within six months of the filing of the Notice to Appear, and complete the case with a written or oral decision within 365 days of the filing of the Notice to Appear. On information and belief, immigration judges in the ten pilot cities must set merits hearings in FAMU-designated cases for the next available open live or video teleconference hearing slot, even if it means scheduling the hearing before a different judge or a different court altogether.
152. On information and belief, in the ten pilot cities, an immigration judge may authorize only a single continuance of no more than 45 days in a FAMU-designated case, regardless of the facts or circumstances of the individual case. In no other type of case is such a limitation imposed on immigration judges’ ability to exercise discretion by granting a continuance.
153. All immigration courts, including those outside the ten pilot cities, must complete FAMU-designated cases within 365 days of the filing of the Notice to Appear, regardless of the individual facts of the case.

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154. In conjunction with the Administration’s public condemnation of Central American families at the border—such as its refrain that “an overwhelming majority of cases don't qualify for relief”74—and repeated instructions to immigration judges that they are law enforcement officers, the “FAMU” or similar designation indicates to the immigration judge that the case must be hastened through the system with little regard for individualized facts or circumstances.
DEFENDANTS’ POLICIES AND PRACTICES HARM PLAINTIFFS 155. Plaintiffs are nonprofit organizations that were established to provide or facilitate the provision of legal and other services to noncitizens fleeing persecution. Defendants’ failure to faithfully execute the asylum statute and the INA’s case-by-case adjudication standards have impaired Plaintiffs’ ability to provide these services in a meaningful way and thereby frustrated their missions. 156. Plaintiffs provide legal services by representing, advising, accompanying, and otherwise supporting persons fleeing persecution on applications for asylum, in-court presentation of their claims, requests for release from detention, and other immigration relief available under law. 157. Plaintiffs employ lawyers, accredited representatives, paralegals, coordinators, software engineers, and others in order to fulfill their missions. 158. Plaintiffs accomplish their missions through at least four types of programming: providing direct representation through staff attorneys or accredited representatives; supporting unrepresented asylum applicants by providing limited legal services; screening, placing and supporting cases through vetted pro bono attorneys; and supporting organizations representing asylum-seekers with technical and case support.

74 “The goal is to ‘disincentivize families — where an overwhelming majority of cases don’t qualify for relief, but instead end with removal orders — from making the treacherous journey to the United States,’ Immigration and Customs Enforcement said in a statement.” https://www.apnews.com/1e3d49caa25940a88de13306af0ead78 (Last accessed Dec. 12, 2019).

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159. As described below, Defendants’ practices and policies have directly frustrated Plaintiffs’ missions by substantially or totally nullifying the impact of their programming and causing their resources and efforts to be squandered.
160. Defendants’ practices and policies have also forced Plaintiffs to divert resources from their programming to re-design programs and systems, re-train staff and volunteers, rewrite written guides and materials, contact clients to explain new policies and practices, and engage in increasing community education, monitoring, and advocacy work necessary to pursue their missions in the face of Defendants’ illegal practices and policies. A. The Reality of Trying to Practice Law in Immigration Courts
161. All Plaintiffs provide or facilitate representation in asylum-free zones. Plaintiff SFDP, for example, spent months preparing an asylum case for the El Paso immigration court. Before the merits hearing, the immigration judge told SFDP’s attorney that he had not read the briefing and was going to deny the case, because he did not grant “that type of case.” SFDP has also invested extensive programmatic resources into producing training materials to support pro bono attorneys in the El Paso immigration court, only to find their recruitment efforts futile as attorneys are unwilling to volunteer to practice in such a hostile court environment.
162. The long delays caused by the impenetrable immigration court backlog significantly impair certain Plaintiffs’ abilities to provide and facilitate meaningful representation to individuals seeking asylum. Plaintiff Law Lab has found recruitment of long-term pro bono legal representation in Atlanta nearly impossible given the years-long wait time for hearings. Law Lab staff engages in targeted training of pro bono attorneys, only to have to repeat that training when cases are unexpectedly rescheduled and those attorneys must withdraw before attending a single hearing. Law Lab therefore must maintain a rotating bench of pro bono attorneys who require training and support, but who will never provide substantive volunteer service due to unreasonable delays and unpredictable hearing schedules.

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163. Defendants’ Enforcement Metrics Policy results in additional squandering of Plaintiffs’ resources and similarly impedes their representation efforts. For example, in El Paso, where Plaintiffs Las Americas and SFDP operate, judges double-book merits hearings in each four-hour time slot, leaving Plaintiffs with only two hours to present complex asylum claims, including live testimony, almost always through an interpreter. Plaintiff Law Lab wastes resources preparing for hearings in Portland that are similarly cut off after a set amount of time regardless of whether an attorney has fully presented a client’s asylum case. Plaintiffs have also suffered harm from judges’ unwillingness to grant continuances, regardless of the circumstances in an individual case. An attorney at Plaintiff SFDP recently appeared at a merits hearing on behalf of a colleague in the Otero Immigration Court, who had entered her appearance on the case only the day before. The judge denied the attorney’s continuance request, resulting in the attorney representing a client she had just met. The judge was abusive, mocking, and aggressive throughout the hearing and ultimately denied the case. Plaintiff Las Americas staff has been put under severe strain by judges’ inflexible timelines; in one instance, an attorney was given only six days to prepare a new client’s entire asylum case. B. Defendants Have Impaired Plaintiffs’ Direct Representation Programs
164. All Plaintiffs achieve their missions, in part, by providing direct representation to noncitizens seeking asylum in immigration court proceedings.
165. In the course of direct representation, Plaintiffs conduct in-depth interviews with clients, provide advice on available relief, undertake extensive factual investigation and legal research, compile evidence, prepare clients and witnesses to testify, develop arguments, and conduct hearings, among other things.
166. Given the near-total denial of asylum cases in asylum-free zones, including El Paso, Atlanta, Charlotte, and Houston, Plaintiffs can reasonably expect immigration judges to deny asylum in every case, regardless of its merit and despite Plaintiffs’ zealous advocacy. This

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reality forces Plaintiffs to divert additional resources in nearly every case to support the inevitable appeal of the immigration judge’s decision and, where possible, to file additional applications for relief other than asylum.
167. In some asylum-free zones, immigration judges directly impede Plaintiffs’ direct representation efforts by imposing unlawful local operating procedures that, among other things, restrict their access to case files, prevent them from facilitating expert testimony by categorically denying motions for telephonic appearances, and deny them adequate time to gather requisite evidence.
168. Defendants’ maintenance and expansion of asylum-free zones unravels Plaintiffs’ direct representation efforts. Because judges in these immigration courts do not abide by the asylum statute or the INA’s case-by-case adjudication standards, Plaintiffs’ time-consuming efforts to provide zealous representation—including consulting with clients, developing robust individualized records, and formulating legal arguments—are nullified, and the resources Plaintiffs devote to these endeavors are wasted.
169. Data supports Plaintiffs’ experiences. In 2019, respondents in immigration court were 21.4% less likely to have their asylum cases denied if they had legal representation. In asylum-free zones, however, respondents with legal representation were only 3.7% less likely to have their asylum cases denied.75 This data reflects what Plaintiffs already know: that asylumfree zones significantly impair attorneys’ ability to provide effective legal services.
170. Defendants’ push toward prejudgment of cases and biased decision-making additionally harms Plaintiff SPLC’s work in bond proceedings. Because of immigration judges’ bias against asylum seekers in these jurisdictions, SPLC attorneys spend inordinate amounts of time and resources to create unusually extensive bond applications. This frustrates SPLC’s

75 Based on Plaintiffs’ analysis of EOIR data obtained by TRAC Immigration for fiscal year 2019. See TRAC Immigration, Asylum Decisions. Asylum-free zones refer to immigration courts that denied at least 85% of asylum claims and decided at least fifty asylum claims during this period.

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mission because bond applications in these locations are so resource-intensive as to prevent mass bond representation in the locations where SPLC’s SIFI project operates.
171. Defendants’ expansion of the immigration courts’ case backlog also undermines Plaintiffs Las Americas, SFDP, ASAP, and Law Lab’s direct representation efforts. By arbitrarily extending case timelines, Defendants make it vastly more challenging to provide and sustain timely legal assistance to clients.
172. Through the Enforcement Metrics Policy, which implicates immigration judges’ personal financial interests, Defendants further impair all Plaintiffs’ abilities to provide direct representation and advice. Where immigration judges are pressured to decide cases based on Case Quotas, Benchmarks, and Remand Rates, Plaintiffs’ missions are frustrated because they are powerless to address or influence these extra-record factors. C. Defendants Have Impaired Plaintiffs’ Limited Legal Service Programs
173. Plaintiffs Las Americas, Law Lab, CLINIC, and ASAP’s missions include programs to provide limited legal services to pro se respondents in asylum proceedings.
174. These Plaintiffs’ pro se programming includes holding workshops for trial preparation, review of pro se submissions, and providing tailored materials to orient asylum seekers regarding immigration court proceedings and bolster their ability to represent themselves in court.
175. Defendants’ maintenance and expansion of asylum-free zones impairs these Plaintiffs’ limited legal service programs. Because judges in these immigration courts do not abide by the asylum statute or the INA’s case-by-case adjudication standards, these Plaintiffs’ time-consuming efforts to provide meaningful pro se support—including developing legally robust resources, hosting case preparation workshops, and helping clients prepare their individual case materials—are nullified, and the resources these Plaintiffs devote to these endeavors are wasted.

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176. Defendants’ maintenance and expansion of the asylum case backlog causes long delays that impair Plaintiffs Law Lab and ASAP’s ability to provide pro se support services. Due to backlog-related delays, respondents must wait for months, or even years, for their initial hearings where they receive their first orientation to the court process. Respondents’ resulting case complications demand increased attention and resources by these Plaintiffs, who provide pro se support services.
177. Through the Enforcement Metrics Policy, which implicate immigration judges’ personal financial interests, Defendants further nullify the impact of these Plaintiffs’ pro se support. Because immigration judges are pressured to decide cases based on extra-record considerations, the limited legal services these Plaintiffs provide have no bearing on the ultimate outcome of a case.
178. Additionally, by directing judges to hear cases on an expedited timeline regardless of case-by-case adjudication requirements, Defendants’ FAMU docket impairs Plaintiff Law Lab’s ability to provide limited legal services by minimizing their window to offer workshops and support to pro se respondents. D. Defendants Have Impaired Plaintiffs’ Pro Bono Programs
179. Plaintiffs Law Lab, CLINIC, SFDP, and SPLC operate or support large pro bono direct representation projects in the immigration courts. These pro bono projects provide critical deportation defense services that are central to these Plaintiffs’ individual missions.
180. Defendants’ maintenance and expansion of asylum-free zones impairs Plaintiffs Law Lab, CLINIC, and SFDP’s pro bono representation efforts. Because judges in these immigration courts do not abide by the asylum statute or the INA’s case-by-case adjudication standards, these Plaintiffs’ time-consuming efforts to facilitate meaningful pro bono representation—including recruiting pro bono attorneys, offering training and tactical assistance,

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developing legal templates and resources, and reviewing legal arguments and asylum briefs—are impaired, and the resources these Plaintiffs devote to these endeavors are wasted.
181. Plaintiffs Law Lab, CLINIC, and SFDP are also unable to recruit and retain a sufficient number of volunteer attorneys to support their pro bono representation programs because attorneys are hesitant to submit to the hostility and futility that characterizes asylum-free zones.
182. Defendants’ push toward prejudgment of cases and biased decision-making additionally harms Plaintiff CLINIC’s work mentoring pro bono attorneys in bond proceedings. CLINIC has spent an inordinate amount of time and resources navigating exceptional delays on bond hearing scheduling and categorical denials of counsel’s motions to appear at bond hearings telephonically.
183. Defendants’ maintenance and expansion of the immigration court backlog also poses a major threat to the viability of Plaintiffs CLINIC, Law Lab, and SFDP’s pro bono programs. Since at least 2017, the immigration court backlog—and the consequent unpredictability of hearing schedules—has impaired these Plaintiffs’ abilities to accept and place cases for pro bono representation through their programs.
184. In some cases, years-long delays have caused Plaintiffs Law Lab and SFDP’s representation programs to lose pro bono attorneys who move to new firms or leave the field. Consequently, these Plaintiffs’ resources are diverted to reassignment of pending cases and training of new pro bono attorneys rather than expanding their dockets to serve additional asylum seekers.
185. Plaintiffs Law Lab and SFDP are unable to recruit a sufficient number of volunteer attorneys to sustain their pro bono representation programs because prospective pro bono attorneys are deterred by the years-long scheduling delays caused by the backlog.

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186. In a purported effort to manage the immigration courts’ backlogged dockets, Defendants have repeatedly and unilaterally canceled hearings in cases managed through Plaintiffs CLINIC, Law Lab, SFDP, and SPLC’s pro bono programs. These cases return to the backlog, resulting in additional delays.
187. When Defendants cancel hearings that are ready to move forward, Plaintiffs CLINIC, Law Lab, SFDP, and SPLC’s pro bono program resources used to prepare testimony, evidence, witnesses, and briefing are squandered.
188. Through the Enforcement Metrics Policy, which implicates immigration judges’ personal financial interests, Defendants further nullify the impact of Plaintiffs CLINIC, Law Lab, SFDP, and SPLC’s pro bono representation programs. Because immigration judges are pressured to decide cases based on extra-record considerations, these Plaintiffs’ missions are frustrated, as their resources, training, and tactical support to pro bono attorneys have minimal impact on case outcomes.
189. For Plaintiff Law Lab, the strict nature of the FAMU Directive’s case processing timelines also substantially impairs its pro bono program. Given the limited availability of continuances for attorney preparation, the Directive functionally requires a pro bono placement before the first hearing in order to adequately screen an individual for relief and prepare for filing deadlines. However, a respondent often does not learn about her rights in proceedings or how to find counsel until her first court appearance. Nonetheless, under the strict terms of the Directive, applications for relief need to be filed at the next appearance or be deemed abandoned. E. Defendants Have Impaired Plaintiffs’ Technical Assistance and Support Programs
190. To further their missions, Plaintiffs Law Lab, ASAP, and CLINIC’s programming includes technical assistance to other removal defense attorneys, including the creation and dissemination of practice advisories, process-related guidance, and legal templates. These

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Portland, OR 97209-4128 Phone: 503.727.2000

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Plaintiffs have also created guides, videos, and other resources to help explain asylum law and immigration court proceedings to unrepresented respondents in removal proceedings.
191. By enabling the maintenance and expansion of asylum-free zones, Defendants have impaired these Plaintiffs’ abilities to provide useful legal resources.
192. Similarly, Defendants’ Enforcement Metrics Policy and FAMU Directive, both of which enable judges to decide cases based on extra-legal factors, impair Plaintiffs’ abilities to provide useful technical assistance and mentorship to other removal defense attorneys.
CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF DECLARATORY AND INJUNCTIVE RELIEF AGAINST THE ATTORNEY GENERAL The Attorney General’s Perpetuation of Asylum-Free Zones and the Immigration Court Backlog Violate the Take Care Clause of the U.S. Constitution and the Immigration and Nationality Act’s Case-by-Case Adjudication Standards
On behalf of all Plaintiffs 193. Plaintiffs reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 194. Through the INA, Congress has delegated power to the Attorney General to oversee the Executive Office for Immigration Review. This delegated power includes the duty to take necessary actions to carry out EOIR’s statutory role, 8 U.S.C. § 1103(g), and the duty to supervise immigration judges, 8 U.S.C. § 1101(b)(4). 195. The Attorney General’s duty to oversee EOIR includes uniform execution of the INA’s entire statutory scheme governing case-by-case adjudication of removal proceedings. This statutory scheme requires that immigration court proceedings occur before an impartial adjudicator and establishes the right to a decision based only on the evidence presented by the parties on the record, the right to present and examine evidence and cross-examine government

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Portland, OR 97209-4128 Phone: 503.727.2000

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witnesses, and the right to representation at no cost to the government. 8 U.S.C. §§ 1229a(b)(4)(A)-(B), (c)(1)(A), (c)(4)(B).
196. Under the Take Care Clause, U.S. Const. Art. II, § 3, the President must “take Care that the laws are faithfully executed.” This duty extends to the Attorney General, who receives his delegated executive power from the President.
197. The Attorney General has violated the Take Care Clause because he has suspended the INA’s case-by-case adjudication standards through the abuse of authority and mismanagement of the immigration courts. The failure to faithfully execute this statutory scheme has resulted in the persistence and proliferation of asylum-free zones and the immigration court backlog.
198. The Attorney General’s violations of the INA and the Take Care Clause have deprived Plaintiffs of a lawful adjudicatory forum in which to provide legal representation, frustrated their core missions, impaired their efforts, and forced them to divert substantial resources away from their existing programs.
199. An actual controversy has arisen and now exists between Plaintiffs and Defendants. Plaintiffs contend that the Attorney General’s failure to establish and oversee an immigration court system that meets the INA’s case-by-case adjudication standards violates the Take Care Clause. Plaintiffs seek a judicial determination as to the rights and obligations of the parties with respect to this controversy.
200. Plaintiffs do not have an adequate remedy at law to redress the violations alleged herein, and therefore seek injunctive relief requiring the Attorney General to comply with his duties as prescribed by Congress through the INA by taking specific corrective actions to ameliorate and mitigate the dysfunction of the immigration court system.

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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SECOND CLAIM FOR RELIEF DECLARATORY AND INJUNCTIVE RELIEF AGAINST ALL DEFENDANTS Defendants’ Weaponization of the Immigration Court System Violates the Immigration
and Nationality Act’s Impartial Adjudicator Requirement
On behalf of all Plaintiffs 201. Plaintiffs reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 202. The INA requires that an impartial adjudicator preside over removal hearings and decide cases based on case-specific evidence. See, e.g., 8 U.S.C. § 1229a; Wong Yang Sung, 339 U.S. at 50. The INA necessarily incorporates the impartial adjudicator guarantee embodied in the Due Process Clause of the Fifth Amendment; therefore, the INA’s impartial adjudicator requirement is not met when there is a constitutionally intolerable probability of actual bias in immigration court adjudication. See Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 882–84 (2009); Withrow v. Larkin, 421 U.S. 35, 46–47 (1975). 203. Applicable regulations state that “[i]n all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the [INA] and regulations.” See 8 C.F.R. § 1003.10(b). Immigration judges are further directed to “exercise their independent judgment and discretion” in deciding individual cases, “subject to the applicable governing standards,” and to engage in “the expeditious, fair, and proper resolution of matters.” See 8 C.F.R. §§ 1003.10(b), 1003.12. 204. In direct contravention of the INA, Defendants have impeded judges from serving as impartial adjudicators. Instead, Defendants have pushed them to prejudge cases by imposing the Enforcement Metrics Policy; by implementing the FAMU Directive; and by fostering an adjudicatory system that is permeated by bias against immigrants, including by perpetuating asylum-free zones. The Enforcement Metrics Policy and the FAMU Directive require judges to consider factors unrelated to the facts and merits of cases they decide. The Enforcement Metrics

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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Policy also gives judges a personal pecuniary interest in the prompt adjudication of the claims before them. Defendants’ pervasive hostility toward asylum seekers drives immigration judges to negatively prejudge asylum claims and bond motions. These actions by the Defendants, either individually or collectively, create a constitutionally and statutorily intolerable probability of actual bias in immigration court adjudication.
205. Defendants’ violations of the INA have frustrated Plaintiffs’ core missions, impaired their efforts, and forced them to divert substantial resources away from their existing programs to counteract EOIR’s obstruction of impartial adjudication.
206. An actual controversy has arisen and now exists between Plaintiffs and Defendants. Plaintiffs contend that Defendants have violated the INA by implementing the Enforcement Metrics Policy and the FAMU Directive, by perpetuating asylum-free zones, and by otherwise driving judges to prejudge asylum claims. Plaintiffs seek a judicial determination as to the rights and obligations of the parties with respect to this controversy.
207. Plaintiffs do not have an adequate remedy at law to redress the violations alleged herein, and therefore seek injunctive relief restraining Defendants from continuing to thwart the impartial adjudication of asylum claims.
THIRD CLAIM FOR RELIEF DECLARATORY AND INJUNCTIVE RELIEF AGAINST ALL DEFENDANTS Immigration Judge Enforcement Metrics Policy Violates the Administrative Procedure Act
Because It Is Not in Accordance with Law and in Excess of Statutory Authority
On behalf of all Plaintiffs 208. Plaintiffs reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 209. Under the APA, “the reviewing court shall … hold unlawful and set aside agency action, findings, and conclusions found to be . . . not in accordance with law: . . . [or] in excess of

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Portland, OR 97209-4128 Phone: 503.727.2000

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statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. §§ 706(2)(A), (C).
210. The INA requires that an impartial adjudicator preside over removal hearings and decide cases based on case-specific evidence. See, e.g., 8 U.S.C. § 1229a; Wong Yang Sung, 339 U.S. at 50. The INA necessarily incorporates the impartial adjudicator guarantee embodied in the Due Process Clause of the Fifth Amendment; therefore, the INA’s impartial adjudicator requirement is not met when there is a constitutionally intolerable probability of actual bias in immigration court adjudication. See Caperton, 556 U.S. at 882–84; Withrow, 421 U.S. at 46–47.
211. Applicable regulations state that “[i]n all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the [INA] and regulations.” See 8 C.F.R. § 1003.10(b). Immigration judges are further directed to “exercise their independent judgment and discretion” in deciding individual cases, “subject to the applicable governing standards,” and to engage in “the expeditious, fair and proper resolution of matters.” See 8 C.F.R. §§ 1003.10(b), 1003.12.
212. By imposing the Enforcement Metrics Policy, Defendants have acted in a manner that is not in accordance with law and in excess of their statutorily prescribed authority in violation of section 706(2) of the APA. See 5 U.S.C. §§ 706(2)(A), (C).
213. Because the INA and its implementing regulations require that immigration judges act as impartial adjudicators and refrain from prejudging cases and claims, the Enforcement Metrics Policy is “not in accordance with law” because it requires immigration judges to consider factors unrelated to the facts and merits of cases they decide and gives judges a pecuniary interest in the adjudication of the claims before them. The Enforcement Metrics Policy thus creates a constitutionally and statutorily intolerable probability of actual bias in immigration court adjudication. The Policy thereby prevents Plaintiffs from providing meaningful legal assistance.

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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214. None of the applicable statutory or regulatory provisions authorizes Defendants to impose performance metrics that require immigration judges to consider factors unrelated to the facts and merits of cases they decide and give them a pecuniary interest in the timing of the completion of each case.
215. Defendants’ Enforcement Metrics Policy constitutes a final agency action under 5 U.S.C. § 704 that is reviewable under 5 U.S.C. §§ 702 and 706.
216. By implementing the Enforcement Metrics Policy, Defendants have frustrated Plaintiffs’ core missions, impaired their efforts, and forced them to divert substantial resources away from their existing programs.
217. An actual controversy has arisen and now exists between Plaintiffs and Defendants. Plaintiffs contend that Defendants’ Enforcement Metrics Policy, as well as the conduct and practices carried out in reliance on the Policy, violate the INA and the APA. Plaintiffs seek a judicial determination as to the rights and obligations of the parties with respect to this controversy.
218. Plaintiffs do not have an adequate remedy at law to redress the violations alleged herein, and therefore seek injunctive relief restraining Defendants from continuing to implement their unlawful Enforcement Metrics Policy.
FOURTH CLAIM FOR RELIEF DECLARATORY AND INJUNCTIVE RELIEF AGAINST ALL DEFENDANTS Immigration Judge Enforcement Metrics Policy Violates the Administrative Procedure Act
Because It Is Arbitrary and Capricious
On behalf of all Plaintiffs 219. Plaintiffs reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 220. The APA provides that courts “shall … hold unlawful and set aside agency action” that is “arbitrary, capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A).

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Portland, OR 97209-4128 Phone: 503.727.2000

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221. The Enforcement Metrics Policy is arbitrary and capricious because, in adopting it, Defendants failed to articulate a reasoned explanation for their decision, which represents a change in the agency’s longstanding policy; required immigration judges to consider factors in adjudicating removal cases that Congress did not intend for them to consider; entirely failed to consider important aspects of the problem of immigration court backlogs; and provided an explanation so implausible that it could not be ascribed to agency expertise.
222. The Enforcement Metrics Policy is arbitrary and capricious for the additional reason that it is intended to drive judges toward prejudgment of immigration court cases and to systematize the denial of asylum claims regardless of their merits.
223. By implementing the Enforcement Metrics Policy, Defendants have frustrated Plaintiffs’ core missions, impaired their efforts, and forced them to divert substantial resources away from their existing programs.
224. An actual controversy has arisen and now exists between Plaintiffs and Defendants. Plaintiffs contend that Defendants’ Enforcement Metrics Policy, as well as the conduct and practices carried out in reliance on the Policy, violate the APA. Plaintiffs seek a judicial determination as to the rights and obligations of the parties with respect to this controversy.
225. Plaintiffs do not have an adequate remedy at law to redress the violations alleged herein, and therefore seek injunctive relief restraining Defendants from continuing to implement their unlawful Enforcement Metrics Policy.

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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FIFTH CLAIM FOR RELIEF DECLARATORY AND INJUNCTIVE RELIEF AGAINST ALL DEFENDANTS The FAMU Directive Violates the Administrative Procedure Act Because It Is Not in
Accordance with Law and in Excess of Statutory Authority On behalf of Plaintiffs CLINIC and Law Lab
226. Plaintiffs reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein.
227. Under the APA, “the reviewing court shall … hold unlawful and set aside agency action, finding, and conclusions found to be . . . not in accordance with law [or] in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. §§ 706(2)(A), (C).
228. The INA requires that an impartial adjudicator preside over removal hearings and decide cases based on case-specific evidence. See, e.g., 8 U.S.C. § 1229a; Wong Yang Sung, 339 U.S. at 50. The INA necessarily incorporates the impartial adjudicator guarantee embodied in the Due Process Clause of the Fifth Amendment; therefore, the INA’s impartial adjudicator requirement is not met when there is a constitutionally intolerable probability of actual bias in immigration court adjudication. See Caperton, 556 U.S. at 882–84; Withrow, 421 U.S. at 46–47.
229. Applicable regulations state that “[i]n all cases, immigration judges shall seek to resolve the questions before them in a timely and impartial manner consistent with the [INA] and regulations.” See 8 C.F.R. § 1003.10(b). Immigration judges are further directed to “exercise their independent judgment and discretion” in deciding individual cases, “subject to the applicable governing standards,” and to engage in “the expeditious, fair and proper resolution of matters.” See 8 C.F.R. §§ 1003.10(b), 1003.12.
230. Defendants, by implementing the FAMU Directive, have acted in a manner not in accordance with law and in excess of their statutorily prescribed authority in violation of section 706(2) of the APA. See 5 U.S.C. §§ 706(2)(A), (C).

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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231. Through the FAMU Directive, Defendants stigmatize cases of recently-arrived families and impose rigid timelines that curtail important procedural protections. None of the applicable statutory or regulatory provisions authorizes Defendants to permit prejudgment of cases involving family units applying for asylum or other relief.
232. By imposing a directive that contravenes the INA case-by-case adjudication standards, Defendants have acted and continue to act not in accordance with law.
233. The FAMU Directive was authorized by Defendants and constitutes a final agency action under 5 U.S.C. § 704 that is reviewable under 5 U.S.C. §§ 702 and 706.
234. By implementing the FAMU Directive, Defendants have frustrated the core mission of Plaintiffs CLINIC and Law Lab, impaired their efforts, and forced them to divert substantial resources away from their existing programs.
235. An actual controversy has arisen and now exists between Plaintiffs CLINIC and Law Lab and Defendants. Plaintiffs CLINIC and Law Lab contend that Defendants’ FAMU Directive, as well as the conduct and practices carried out in reliance on it, violate the INA and the APA. Plaintiffs CLINIC and Law Lab seek a judicial determination as to the rights and obligations of the parties with respect to this controversy.
236. Plaintiffs CLINIC and Law Lab do not have an adequate remedy at law to redress the violations alleged herein, and therefore seek injunctive relief restraining Defendants from continuing to implement the FAMU Directive.

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

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SIXTH CLAIM FOR RELIEF DECLARATORY AND INJUNCTIVE RELIEF AGAINST ALL DEFENDANTS The FAMU Directive Violates the Administrative Procedure Act Because It Is Arbitrary
and Capricious On behalf of Plaintiffs CLINIC and Law Lab 237. Plaintiffs reallege and incorporate by reference each and every allegation contained in the preceding paragraphs as if set forth fully herein. 238. The APA provides that courts “shall … hold unlawful and set aside agency action” that is “arbitrary, capricious, [or] an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 239. The FAMU Directive is arbitrary and capricious because it requires immigration judges to consider factors in adjudicating removal cases that Congress did not intend for them to consider and drives judges toward prejudgment of family unit cases in violation of the INA’s case-by-case adjudication standards. 240. By implementing the FAMU Directive, Defendants have frustrated the core missions of Plaintiffs CLINIC and Law Lab, impaired their efforts, and forced them to divert substantial resources away from their existing programs. 241. An actual controversy has arisen and now exists between Plaintiffs CLINIC and Law Lab and Defendants. Plaintiffs CLINIC and Law Lab contend that Defendants’ FAMU Directive, as well as the conduct and practices carried out in reliance on it, violate the INA and the APA. Plaintiffs CLINIC and Law Lab seek a judicial determination as to the rights and obligations of the parties with respect to this controversy. 242. Plaintiffs CLINIC and Law Lab do not have an adequate remedy at law to redress the violations alleged herein, and therefore seek injunctive relief restraining Defendants from continuing to implement the FAMU Directive.

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Portland, OR 97209-4128 Phone: 503.727.2000

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PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court: a. Issue a judgment under 28 U.S.C. §§ 2201–02 and Fed. R. Civ. P. 57 declaring that:
1. The Attorney General’s perpetuation of asylum-free zones and the immigration court backlog suspends the INA’s case-by-case adjudication standards, and thereby violates the Take Care Clause, U.S. Const. Art. II, § 3;
2. Defendants’ Enforcement Metrics Policy violates the Immigration and Nationality Act and the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A), (C);
3. Defendants’ FAMU Directive violates the Immigration and Nationality Act and the Administrative Procedure Act, 5 U.S.C. §§ 706(2)(A), (C);
b. Issue injunctive relief prohibiting Defendants from continuing to implement the Enforcement Metrics Policy insofar as it requires immigration judges to consider factors unrelated to the facts and merits of cases they decide, gives them a pecuniary interest in the adjudication of claims before them, and drives them to prejudge cases;
c. Issue injunctive relief prohibiting Defendants from continuing to implement the FAMU Directive insofar as it stigmatizes cases of recently-arrived families, imposes rigid timelines that curtail important procedural protections, and drives prejudgment of family unit cases;
d. Issue injunctive relief requiring Defendants to take specific corrective actions to ameliorate and mitigate the dysfunctionality of the immigration court system that has resulted in the asylum-free zones, immigration court backlogs, and lack of impartial adjudication;
e. Award Plaintiffs reasonable attorney’s fees, costs and other expenses pursuant to 28 U.S.C. § 2412, and other applicable law; and

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Portland, OR 97209-4128 Phone: 503.727.2000

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f. Grant any and all such other relief as the Court deems just and equitable.

DATED: December 18, 2019

PERKINS COIE LLP

Stephen Manning, OSB No. 013373 smanning@ilgrp.com Nadia Dahab, OSB No. 125630 nadia@innovationlawlab.org Jordan Cunnings, OSB No. 182928 jordan@innovationlawlab.org Tess Hellgren, OSB No. 191622 tess@innovationlawlab.org INNOVATION LAW LAB The Oregon Trail Bldg 333 SW 5th Ave Ste 200 Portland OR 97204 Telephone: 503.241.0035
Melissa Crow (pro hac vice pending) Melissa.Crow@splcenter.org SOUTHERN POVERTY LAW CENTER 1101 17th Street, NW, Suite 705 Washington, DC 20036 Telephone: 202.355.4471
Rebecca Cassler (pro hac vice pending) Rebecca.Cassler@splcenter.org Gracie Willis (pro hac vice pending) Gracie.Willis@splcenter.org SOUTHERN POVERTY LAW CENTER P.O. Box 1287 Decatur, GA 30031-1287 Telephone: 404.221.6700

By: s/ Bryan D. Beel Bryan D. Beel, OSB No. 073408 BBeel@perkinscoie.com Heidee Stoller, OSB No. 072835 HStoller@perkinscoie.com Nathan R. Morales, OSB No. 145763 NMorales@perkinscoie.com 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Telephone: 503.727.2000
Christopher Parker (pro hac vice pending) CParker@perkinscoie.com 505 Howard St Ste 1000 San Francisco, CA 94105 Telephone: 415.344.7000
Attorneys for Plaintiffs Las Americas Immigrant Advocacy Center; Asylum Seeker Advocacy Project; Catholic Legal Immigration Network, Inc.; Innovation Law Lab; Santa Fe Dreamers Project; and Southern Poverty Law Center,

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
Portland, OR 97209-4128 Phone: 503.727.2000

 
 Case 3:19-cv-02051-IM Document 52 Filed 04/02/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

LAS AMERICAS IMMIGRANT ADVOCACY CENTER; ASYLUM SEEKER ADVOCACY PROJECT; CATHOLIC LEGAL IMMIGRATION NETWORK, INC.; INNOVATION LAW LAB; SANTA FE DREAMERS PROJECT; and SOUTHERN POVERTY LAW CENTER,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; WILLIAM BARR, in his official capacity as Attorney General of the United States; U.S. DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRAION REVIEW; and JAMES MCHENRY, in his official capacity as EOIR Director of the United States,
Defendants.

Case No. 3:19-cv-02051-IM ORDER

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Case 3:19-cv-02051-IM Document 52 Filed 04/02/20 Page 2 of 5
IMMERGUT, District Judge. Before this Court is Plaintiffs’ Emergency Motion for a Temporary Restraining Order
pursuant to 28 U.S.C. § 1651(a), the All Writs Act. ECF 28. Plaintiffs are six organizations that provide legal services to immigrant clients. Plaintiffs seek an emergency order with respect to immigration courts nationwide for the duration of the national COVID-19 emergency or the next 28 days, whichever is shorter. ECF 28 at 39–40. The requested order would: (1) enjoin Defendants from compelling any respondent or counsel to appear in an immigration court, and from requiring any hearing to go forward without the respondent’s or counsel’s consent; (2) enjoin Defendants from invoking in absentia removal procedures; (3) require Defendants to toll all court deadlines, including for appeals, and to grant continuances when requested; (4) require Defendants to waive original signature and hard-copy document filing requirements; (5) enjoin Defendants from deeming abandoned or untimely any petition or application for relief; and (6) enjoin Defendants from holding any attorney in contempt for failing to appear because of concerns or regulations related to the COVID-19 crisis.1 Id. This Court held a hearing on Plaintiffs’ emergency motion on April 1, 2020.
Under the All Writs Act, federal courts “may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). The Supreme Court has described the All Writs Act as providing a federal court with “express authority . . . to issue such temporary injunctions as may be necessary to protect its own jurisdiction.” F.T.C. v. Dean Foods Co., 384 U.S. 597, 608 (1966). Accordingly, the All Writs Act requires that there be some nexus between the relief sought in a temporary restraining order
1 During the hearing, Plaintiffs’ attorney alternatively requested a narrower remedy with items (1) and (5) of this list. PAGE 2 – ORDER

Case 3:19-cv-02051-IM Document 52 Filed 04/02/20 Page 3 of 5
and the relief sought in the Complaint. See, e.g., Al Otro Lado et al. v. Wolf et al., No. 19-56417, slip op. at 9 n.6 (9th Cir. Mar. 5, 2020) (holding that district court properly issued order pursuant to All Writs Act when failure to do so would “extinguish” plaintiffs’ underlying claims).
In their briefing on the motion, and during the hearing, Plaintiffs argued that Defendants’ continued operation of certain functions of the immigration court system during the ongoing COVID-19 pandemic will allow the virus “to spread within and throughout the immigration court system and ICE detention facilities, and then outward into the cities, states, and nation at large,” thereby rendering the underlying Complaint “functionally irrelevant.” ECF 28 at 36. In declarations submitted with the motion, attorneys and other individuals who work on behalf of respondents in immigration court proceedings describe how they, their clients, and their work have been placed at risk by particular immigration courts in various parts of the nation, outside of the District of Oregon, over the past several weeks. See ECF 29; ECF 30; ECF 31; ECF 32; ECF 33; ECF 34; ECF 35; ECF 36; ECF 37; ECF 46; ECF 48.
Plaintiffs’ Complaint in this matter challenges Defendants’ operation of the immigration court system as violating the Take Care Clause of the U.S. Constitution, the case-by-case adjudication standards of the Immigration and Nationality Act, and the Administrative Procedure Act. See ECF 1. Part of their Complaint challenges two policies that Defendants have implemented: the “Enforcement Metrics Policy” and the family-unit rapid removal track, or “FAMU Directive.” See id. at ¶¶ 117–20. This Court recognizes that the ongoing pandemic is an extraordinary event that requires government officials to adapt to public health concerns unlike any in recent memory. However, the relief sought in Plaintiffs’ motion is too attenuated from the claims alleged in the Complaint to sustain Plaintiffs’ burden under the All Writs Act. Despite the
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gravity of the ongoing pandemic, the relief that Plaintiffs request in their motion is not necessary to preserve this Court’s jurisdiction over the Complaint.2
This Court must also consider equitable concerns in determining whether to grant the broad-sweeping relief Plaintiffs seek. See 28 U.S.C. § 1651(a) (requiring that an order under the All Writs Act be “agreeable to the usages and principles of law”). Defendants have presented evidence, both in their briefing and at the hearing, demonstrating that they have taken significant steps to reduce in-person contacts and appropriately modify immigration court functions in the wake of the COVID-19 outbreak. See McHenry Decl., ECF 45-1. For example, Defendant EOIR has postponed all removal hearings of non-detained individuals, allowed filing of documents by email, and permitted use of electronic signatures. Id. at ¶¶ 49, 68, 81, 89, 91. Moreover, although hearings remain scheduled for detained individuals, who may favor earlier hearings due to their custody status, Defendants presented evidence that attorneys or other representatives of respondents have the option of appearing by video or telephonically or, alternatively, may request a continuance due to the pandemic. See id. at ¶¶ 82–87. This Court observes that denials of continuances are subject to appellate review. See id. at ¶¶ 86–87. Plaintiffs dispute that such modified practices are occurring in every immigration court, see, e.g., Corchado Decl., ECF 29 at ¶ 12, but they have not demonstrated why seeking review of individual court practices does not suffice to address practices in those particular courts.
The outbreak of COVID-19 and its evolution on a daily basis pose challenges to all courts as they continue in the administration of justice. Based on the record before this Court, at
2 Defendants have raised genuine issues concerning this Court’s jurisdiction over the underlying action. See ECF 24. The All Writs Act does not expand federal court jurisdiction. See Clinton v. Goldsmith, 526 U.S. 529, 534–35 (1999). However, this Court declines to decide this issue at present.
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this time, Plaintiffs have failed to show that the facts warrant the sweeping relief that they seek. Therefore, Plaintiffs’ motion for a temporary restraining order, ECF 28, is DENIED.

IT IS SO ORDERED. DATED this 2nd day of April, 2020.

/s/ Karin J. Immergut Karin J. Immergut United States District Judge

PAGE 5 – ORDER

 
 Case 3:19-cv-02051-IM Document 57 Filed 04/24/20 Page 1 of 58

Stephen Manning, OSB No. 013373

Thomas R. Johnson, OSB No. 010645

smanning@ilgrp.com

TRJohnson@perkinscoie.com

Nadia Dahab, OSB No. 125630

Bryan D. Beel, OSB No. 073408

nadia@innovationlawlab.org

BBeel@perkinscoie.com

Jordan Cunnings, OSB No. 182928

Heidee Stoller, OSB No. 072835

jordan@innovationlawlab.org

HStoller@perkinscoie.com

Tess Hellgren, OSB No. 191622

Nathan R. Morales, OSB No. 145763

tess@innovationlawlab.org

NMorales@perkinscoie.com

INNOVATION LAW LAB

PERKINS COIE LLP

The Oregon Trail Bldg

1120 N.W. Couch Street, 10th Floor

333 SW 5th Ave Ste 200

Portland, OR 97209-4128

Portland OR 97204

Telephone: 503.727.2000

Telephone: 503.241.0035

Rebecca Cassler (admitted pro hac vice)

Melissa Crow (admitted pro hac vice)

Rebecca.Cassler@splcenter.org

Melissa.Crow@splcenter.org

Gracie Willis (admitted pro hac vice)

SOUTHERN POVERTY LAW CENTER

Gracie.Willis@splcenter.org

1101 17th Street, NW, Suite 705

SOUTHERN POVERTY LAW CENTER

Washington, DC 20036

150 E. Ponce de Leon Avenue, Suite 150

Telephone: 202.355.4471

Decatur, GA 30030

Telephone: 404.221.6700

Attorneys for Plaintiffs

Las Americas Immigrant Advocacy Center;

Asylum Seeker Advocacy Project; Catholic Legal

Immigration Network, Inc.; Innovation Law Lab;

Santa Fe Dreamers Project; and Southern Poverty

Law Center

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

LAS AMERICAS IMMIGRANT ADVOCACY CENTER; ASYLUM SEEKER ADVOCACY PROJECT; CATHOLIC LEGAL IMMIGRATION NETWORK, INC.; INNOVATION LAW LAB; SANTA FE DREAMERS PROJECT; AND SOUTHERN POVERTY LAW CENTER,
Plaintiffs,

Case No. 3:19-cv-02051-IM
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS Oral Argument Requested

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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Case 3:19-cv-02051-IM Document 57 Filed 04/24/20 Page 2 of 58
v. DONALD J. TRUMP, in his official capacity as President of the United States; WILLIAM BARR, in his official capacity as Attorney General of the United States; U.S. DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; AND JAMES MCHENRY, in his official capacity as EOIR Director of the United States,
Defendants.

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS
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I. INTRODUCTION ................................................................................................. 1 II. FACTUAL BACKGROUND ................................................................................ 1
A. The INA requires that certain case-by-case adjudication standards apply in all U.S. immigration courts.......................................................... 2
B. Defendants have weaponized the immigration court system against asylum seekers in violation of the INA’s case-by-case adjudication standards .................................................................................................... 3
C. Defendants have implemented policies that create an intolerable risk of bias in immigration proceedings and violate the INA .................... 4
D. Defendants’ conduct violates the U.S. Constitution, the INA, and the APA...................................................................................................... 5
III. LEGAL STANDARD............................................................................................ 6 IV. ARGUMENT ......................................................................................................... 6
A. Plaintiffs have Article III standing............................................................. 6 1. Plaintiffs have suffered a cognizable injury to a legally protected interest ............................................................................ 7 a. Plaintiffs have a legally protected interest in fulfilling their organizational missions and protecting their resources ................................................... 7 b. Plaintiffs have alleged concrete, particular, and actual harms to their organizations .................................... 8 2. Plaintiffs’ injuries are “fairly traceable” to Defendants’ unlawful actions and redressable by this Court ........................... 10
B. Plaintiffs are within the zone of interests of the INA .............................. 11 C. This Court has jurisdiction over Plaintiffs’ claims .................................. 14
1. Section 1252(a)(5) does not preclude jurisdiction ....................... 14 2. Section 1252(b)(9) does not preclude jurisdiction....................... 15 3. Section 1252(g) does not preclude jurisdiction ........................... 21 4. Section 1329 does not preclude jurisdiction ................................ 23 D. This Court should deny Defendants’ Rule 12(b)(6) motions .................. 25 1. Plaintiffs state a claim under the APA ......................................... 26

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TABLE OF CONTENTS (continued)

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a. Plaintiffs have alleged two final agency actions.............. 26
b. Section 1252(b)(9) is not an “other adequate remedy in court.” ............................................................. 28
2. Plaintiffs state a claim under the INA.......................................... 29
a. Plaintiffs allege that Defendants have created a constitutionally intolerable probability of bias in immigration courts ........................................................... 29
b. Plaintiffs state a plausible claim that Defendants violated the INA’s impartial adjudicator requirement ...................................................................... 31
3. Plaintiffs state a claim under the Take Care Clause .................... 36
a. Plaintiffs’ Take Care Clause claim is justiciable ............. 38
b. Plaintiffs do not challenge an exercise of Executive discretion.......................................................................... 40
c. Plaintiffs plead a plausible claim for relief ...................... 41
E. Venue is proper in the District of Oregon................................................ 43
V. CONCLUSION.................................................................................................... 45

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TABLE OF AUTHORITIES

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CASES
Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007) ........................................................................................................20
Al Otro Lado, Inc. v. Nielsen, 327 F. Supp. 3d 1284 (S.D. Cal. 2018)....................................................................................12
Alvarez v. Sessions, 338 F. Supp. 3d 1042 (N.D. Cal. 2018) ...................................................................................20
Aracely, R. v. Nielsen, 319 F. Supp. 3d 110 (D.D.C. 2018) .........................................................................................27
Arce v. United States, 899 F.3d 796 (9th Cir. 2018) ...................................................................................................22
Armstrong v. Exceptional Child Ctr., 575 U.S. 320 (2015).................................................................................................................39
Ashcroft v. Iqbal, 556 U.S. 662 (2009)...................................................................................................................6
Ass’n of Pub. Agency Customers v. Bonneville Power Admin., 733 F.3d 939 (9th Cir. 2013) .....................................................................................................8
Asylum Seeker Advocacy Project (ASAP) v. Barr 409 F. Supp. 3d 221 (S.D.N.Y. 2019)......................................................................................20
Baez-Sanchez v. Barr, 947 F.3d 1033 (7th Cir. 2020) .................................................................................................34
Bains v. Schiltgen, 1998 WL 204977 (N.D. Cal. Apr. 21, 1998) ...........................................................................24
Barahona-Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001) ...........................................................................................22, 23
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)...................................................................................................................6

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TABLE OF AUTHORITIES (continued)

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Califano v. Sanders, 430 U.S. 99 (1977)...................................................................................................................25

Cancino-Castellar v. Nielsen, 338 F. Supp. 3d 1107 (S.D. Cal. 2018)..............................................................................16, 20

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).....................................................................................................30, 35, 36

Catholic Soc. Servs., Inc. v. Reno, 232 F.3d 1139 (9th Cir. 2000) (en banc) .................................................................................23

Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir. 1983) .................................................................................................45

Citizens for Responsibility & Ethics in Wash. v. Trump (CREW), 302 F. Supp. 3d 127 (D.D.C. 2018) ...................................................................................38, 39

Citizens to Preserve Overton Parkin, Inc. v. Volpe, 401 U.S. 402 (1971).................................................................................................................31

Council, Inc. v. Tennessee Valley Authority, 459 F.2d 255 (1972).................................................................................................................44

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal. 139 S. Ct. 2779 (2019) .............................................................................................................23

Diaz-Covarrubias v. Mukasey, 551 F.3d 1114 (9th Cir. 2009) .................................................................................................23

Diaz-Rivas v. Attorney General 769 F. App’x 748, 758 (11th Cir. 2019) ............................................................................18, 35

E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742 (9th Cir. 2018) ........................................................................................... passim

E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242 (9th Cir. 2020) ......................................................................................... passim

E.O.H.C. v. Dep’t of Homeland Sec., 950 F.3d 177 (3d Cir. 2020)...............................................................................................17, 21

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TABLE OF AUTHORITIES (continued)

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Echavarria v. Filson, 896 F.3d 1118 (9th Cir. 2018) .................................................................................................30

Ekimian v. INS, 303 F.3d 1153 (9th Cir. 2002) .................................................................................................23

El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 F.2d 742 (9th Cir. 1991) .................................................................................................7, 9

Exxon v. Fed. Trade Comm’n, 588 F.2d 895 (3d Cir. 1978).....................................................................................................44

Fed. Election Comm’n v. Akins, 524 U.S. 11 (1998)...................................................................................................................10

Federation for American Immigration Reform, Inc. (FAIR) v. Reno, 93 F.3d 897 (D.C. Cir. 1996) .............................................................................................12, 22

Franklin v. Massachusetts, 505 U.S. 788 (1992) (Scalia, J., concurring in part and concurring in the judgment) .................................................................................................................................39

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010)...........................................................................................................37, 39

Gibson v. Berryhill, 411 U.S. 564 (1973).................................................................................................................32

Gittere v. Echavarria 2019 WL 2166437 (May 20, 2019) .........................................................................................30

Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91 (1979).....................................................................................................................8

Guzman Orellana v. Att’y Gen., 2020 WL 1898251 (3d Cir. Apr. 17, 2020) .............................................................................34

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982)...................................................................................................................7

Heckler v. Chaney, 470 U.S. 821 (1985).....................................................................................................23, 40, 41

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TABLE OF AUTHORITIES (continued)

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Hertz Corp. v. Friend, 559 U.S. 77 (2010).............................................................................................................43, 44

Inland Empire–Immigration Youth Collective v. Nielsen, 2018 WL 4998230 (C.D. Cal. Apr. 19, 2018) ...................................................................16, 23

INS v. Legalization Assistance Project of L.A. County, 510 U.S. 1301 (1993) (O’Connor, J., in chambers) .................................................................12

INS v. St. Cyr, 533 U.S. 289 (2001)...........................................................................................................17, 25

J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) ...............................................................................15, 16, 19, 20

Kendall v. United States 37 U.S. (12 Pet.) 524, 612–13 (1838) ..........................................................................40, 42, 43

Kouropova v. Gonzales, 200 F. App’x 692 (9th Cir. 2006) ............................................................................................18

Kucana v. Holder, 558 U.S. 233 (2010).................................................................................................................14

Kungys v. United States, 485 U.S. 759 (1988).................................................................................................................25

League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914 (9th Cir. 1977) ...................................................................................................45

Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014).....................................................................................................11, 12, 14

Lueck v. Sundstrand Corp., 236 F.3d 1137 (9th Cir. 2001) .................................................................................................45

Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)...................................................................................................6, 7, 10, 39

M.S. v. Brown, 902 F.3d 1076 (9th Cir. 2018) .................................................................................................11

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TABLE OF AUTHORITIES (continued)

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Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)...................................................................................................40

Martinez v. Napolitano, 704 F.3d 620 (9th Cir. 2012) ...................................................................................................15

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012).................................................................................................................14

Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018) .............................................................................................43

Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), vacated on other grounds, 27 I. & N. Dec. 226 (A.G. 2018) ..............................................................................................................................33

Milliken v. Bradley, 418 U.S. 717 (1974).................................................................................................................11

Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866) .............................................................................................38, 39

N. Cty. Cmty. All., Inc. v. Salazar, 573 F.3d 738 (9th Cir. 2009) .....................................................................................................6

Nat’l Treasury Emps. Union 492 F.2d at 604 ..................................................................................................................41, 43

National Distillers & Chemical Corp.v. Department of Energy 487 F. Supp. 34, 36–37 (1980), .............................................................................................44

Nielsen v. Preap, 139 S. Ct. 954 (2019) ...............................................................................................................16

Nixon v. Fitzgerald, 457 U.S. 731 (1982)...........................................................................................................26, 40

O.A. v. Trump, 404 F. Supp. 3d 109 (D.D.C. 2019) .........................................................................................29

Ortiz v. Meissner, 179 F.3d 718 (9th Cir. 1999) ...................................................................................................25

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TABLE OF AUTHORITIES (continued)

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P.L. v. Immigration & Customs Enforcement 2019 WL 2568648 (S.D.N.Y. June 21, 2019) .........................................................................21

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).................................................................................................................45

Presbyterian Church v. United States, 870 F.2d 518 (9th Cir. 1989) ...................................................................................................29

R.I.L.-R v. Johnson 80 F. Supp. 3d 164, 174 (D.D.C. 2015) .......................................................................28, 38, 39

Raffin v. Gonzales, 143 F. App’x 26 (9th Cir. 2005) ..............................................................................................19

RAJMP, Inc. v. United States, 2019 WL 2613304 (D. Colo. May 9, 2019).............................................................................43

Regents of the Univ. of Cal. v. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018) ...................................................................................................23

Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999).................................................................................................................22

Reyes-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003) .................................................................................................19

Saavedra Bruno v. Albright 197 F.3d 1153, 1160 (D.C. Cir. 1999) .....................................................................................24

Salazar-Paucar v. INS, 281 F.3d 1069 (9th Cir. 2002) .................................................................................................18

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974).................................................................................................................10

Selgeka v. Carroll, 184 F.3d 337 (4th Cir. 1999) ...................................................................................................22

Sierra Club v. Trump, 929 F.3d 670 (9th Cir. 2019) ...................................................................................................12

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TABLE OF AUTHORITIES (continued)

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Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) .............................................................................................14, 15

Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097 (9th Cir. 2004) ...................................................................................................7

State v. Immigration & Customs Enf’t, 2019 WL 6906274 (S.D.N.Y. Dec. 19, 2019) .........................................................................28

Sulit v. Schiltgen, 213 F.3d 449 (9th Cir. 2000) ...................................................................................................24

Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1 (1971).....................................................................................................................11

United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).................................................................................................................41

United States v. Midwest Oil Co., 236 U.S. 459 (1915).................................................................................................................40

United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005) (en banc) .....................................................................36, 40, 41

Util. Air Reg. Grp. v. EPA, 573 U.S. 302 (2014).....................................................................................................37, 41, 42

Wang v. Att’y Gen., 423 F.3d 260 (3d Cir. 2005).....................................................................................................19

Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) .......................................................................................................31, 32

Withrow v. Larkin, 421 U.S. 35 (1975)...................................................................................................................32

Wong Yang Sung v. McGrath, 339 U.S. 33 (1950)...................................................................................................................30

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)...........................................................................................................37, 42

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TABLE OF AUTHORITIES (continued)

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Zwickler v. Koota, 389 U.S. 241 (1967).................................................................................................................11

STATUTES

5 U.S.C. § 702................................................................................................................................29

5 U.S.C. § 704..........................................................................................................................26, 37

8 U.S.C. § 1101........................................................................................................................34, 42

8 U.S.C. § 1158..............................................................................................................................33

8 U.S.C. § 1229...................................................................................................................... passim

8 U.S.C. § 1252........................................................................................................................14, 25

8 U.S.C. § 1329............................................................................................................14, 23, 24, 25

8 U.S.C. § 1362................................................................................................................................3

28 U.S.C. § 476..............................................................................................................................34

28 U.S.C. § 1331......................................................................................................................24, 25

28 U.S.C. § 1391......................................................................................................................43, 44

28 U.S.C. § 1391(e)(1).............................................................................................................43, 44

Administrative Procedure Act................................................................................................ passim

Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ......................................22

Immigration and Nationality Act (INA) ................................................................................ passim

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I. INTRODUCTION This lawsuit seeks to protect the full and fair administration of justice in our Nation’s
immigration courts. Immigration judges make decisions every day in which the stakes are extraordinarily high. Individuals seeking protection from persecution under United States asylum laws depend on a functioning immigration court system that is transparent, predictable, and impartial in adjudicating their claims for relief. To that end, Congress has established clear statutory standards that reflect these fundamental values of our legal system and ensure case-bycase decision-making by immigration judges.
Plaintiffs are legal advocacy organizations that aim to fulfill their missions to provide meaningful legal assistance to individuals in removal proceedings. Plaintiffs allege that Defendants have impaired their work by manipulating the immigration courts in violation of statutory and constitutional commands, implementing policies that have pushed immigration judges to prejudge cases, and fostering an adjudicatory system that is permeated with bias against immigrants. Plaintiffs have standing to assert their claims for relief, and this Court has jurisdiction to remedy them. Plaintiffs have also stated claims for relief under the Administrative Procedure Act (APA), the Immigration and Nationality Act (INA), and the Take Care Clause of the United States Constitution. The Court should deny Defendants’ motion to dismiss. II. FACTUAL BACKGROUND
Plaintiffs are six legal advocacy organizations whose missions focus on providing meaningful legal assistance to individuals in the immigration court system. ECF 1 (“Compl.”) ¶¶ 17–22. Plaintiffs accomplish their missions through several types of programming, including offering direct representation; supporting unrepresented individuals through limited legal services; screening, placing, and supporting cases with vetted pro bono attorneys; and providing technical and case support to attorneys and volunteers who assist asylum seekers. See, e.g., id.

1 - PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

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¶¶ 17–22, 158. Plaintiffs employ attorneys, accredited representatives, paralegals, coordinators, and other staff, and in some cases rely on a network of volunteers. See id. ¶¶ 17–22, 157.
Defendants are President Donald J. Trump, U.S. Attorney General William Barr, the U.S. Department of Justice, the Executive Office for Immigration Review (EOIR), and Director of EOIR James McHenry. Compl. ¶¶ 23–27. Defendants have consistently and publicly vilified individuals seeking asylum, attacked the attorneys and organizations who represent them, and undermined the integrity of the immigration court system. Id. ¶ 56. President Trump, for instance, repeatedly has characterized people seeking asylum as frauds whose “bogus” claims deserve no judicial process. See, e.g., id. ¶¶ 60, 70, 75. The successive Attorneys General under the President have shared his anti-immigrant animus. Id. ¶¶ 61, 63.
To further their anti-immigrant agenda, Defendants have implemented policies and practices that undermine the legitimacy of the immigration court system and effectively suspend the asylum laws in immigration courts nationwide. Compl. ¶ 117. In doing so, Defendants have forced Plaintiffs to redesign programs and systems, retrain staff and volunteers, rewrite guides and materials, and engage in increasing education, monitoring, and advocacy work to address underlying systemic problems with the immigration courts. Id. ¶ 160. Defendants’ policies have frustrated Plaintiffs’ missions by nullifying the impact of their programming and causing their resources and efforts to be wasted. Id. ¶ 159; see also id. ¶¶ 155–92.
A. The INA requires that certain case-by-case adjudication standards apply in all U.S. immigration courts.
Under the INA, noncitizens seeking humanitarian protection, either upon arriving in the United States or after their entry, are entitled to apply for asylum or withholding of removal. Noncitizens placed in removal proceedings (known as “respondents” in immigration court) are entitled to a full and fair opportunity to present their asylum claims before an impartial adjudicator. Compl. ¶¶ 34, 80. To that end, Congress, through the INA, has established a clear

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and cohesive statutory scheme codifying case-by-case adjudicatory standards that must be upheld in all U.S. immigration courts. Id. ¶¶ 34–39.
First, respondents have the right to legal representation at no cost to the government. U.S. Const. Amend. V; 8 U.S.C. §§ 1229a(b)(4)(A) & 1362; Compl. ¶ 35. Second, respondents have the right to a reasonable opportunity to submit evidence—including through telephonic hearings where appropriate—to cross-examine witnesses, and to examine evidence. 8 U.S.C. § 1229a(b)(2), (b)(4)(B); Compl. ¶ 36. Third, respondents have the right to a full record of the proceedings, including transcripts, exhibits, the judge’s decision, written orders, motions, briefs, and other papers. 8 U.S.C. § 1229a(b)(4)(C); 8 C.F.R. §1240.9; Compl. ¶ 37. Fourth, and critically, respondents have the right to a decision based solely on the record created in the proceedings. 8 U.S.C. § 1229a(c)(1)(A); Compl. ¶ 38. That right necessarily requires that the decision must be made by an impartial adjudicator. Compl. ¶ 38.
B. Defendants have weaponized the immigration court system against asylum seekers in violation of the INA’s case-by-case adjudication standards.
Defendants have taken actions that undermine or eliminate the INA’s case-by-case adjudication standards. These actions further Defendants’ anti-immigrant agenda and improperly convert the immigration court system into a tool to achieve Defendants’ enforcement priorities. For example, in some immigration courts where Plaintiffs work, Defendants have allowed judges to categorically deny asylum claims regardless of their merits. Compl. ¶ 86. In 2019, 23 immigration courts—nearly 40 percent of the immigration court system—denied more than 85 percent of the asylum claims that came before them. Id. ¶ 95 (identifying “asylum-free zones”). These extraordinarily high denial rates cannot be explained by any legitimate caserelated variable; the only explanation for the rates is that those courts failed to comply with the INA’s standards for case-by-case adjudication. Id. ¶ 96.
Defendants have taken no meaningful action to correct skyrocketing asylum denial rates and preserve the operation of federal law. Compl. ¶¶ 82, 84–101. Instead, they have perpetuated

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the environment that allows asylum-free zones to exist. Defendants have reorganized the Board of Immigration Appeals (BIA) to reduce its independence, encouraged Defendant McHenry himself to decide individual appeals, and rewarded judges in asylum-free zones with appointments to the appellate bench. Id. ¶ 103. Defendants effectively nullify asylum law in asylum-free zones, creating courts in which the rule of law simply does not apply. Id. ¶ 99.
Defendants have further advanced their anti-immigrant agenda by mismanaging the immigration court system in a manner that has nearly doubled the backlog of cases. Compl. ¶¶ 104–05. They direct immigration judges to postpone long-scheduled hearings to respond to politically motivated priorities at border facilities. Id. ¶¶ 113–16. They have eliminated docket management practices that aim to manage caseloads and preserve already limited court resources. Id. ¶ 112. Those actions have increased the backlog, causing cases to remain unresolved for years. Id. ¶¶ 104–110. As a result, in courts where Plaintiffs work, respondents are forced to wait years for hearings. Id. ¶¶ 106–10. Such unreasonably long delays undermine the INA’s case-by-case adjudication standards by compromising the right to access counsel and to a reasonable opportunity to present witnesses and evidence. Id. ¶ 111.
C. Defendants have implemented policies that create an intolerable risk of bias in immigration proceedings and violate the INA.
Defendants have also implemented policies that violate the INA, create a constitutionally intolerable risk of bias in immigration proceedings, and undermine Plaintiffs’ ability to carry out their organizational missions. Compl. ¶¶ 8-11, 117.
The Enforcement Metrics Policy requires immigration judges to comply with certain performance benchmarks to receive a satisfactory performance rating. Id. ¶¶ 9, 130. Under the policy, immigration judges must complete 700 cases a year, or about three cases per day, and must have less than 15 percent of their decisions reversed on appeal. Id. ¶¶ 123–24. The policy limits the time an immigration judge may spend on any given case, imposing categorical timeframes without regard to whether a case is ready for adjudication. Id. ¶¶ 125–26. If a judge

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fails to comply with the policy, Defendants may subject the judge to discipline, reassignment, or termination. Id. ¶ 130. Thus, an immigration judge could lose her job if she grants a continuance for additional testimony, postpones a hearing because a witness is unavailable, takes a matter under advisement to consider evidence, or takes other action falling short of case completion. Id. ¶ 133. The policy also requires judges to prioritize speed in a manner wholly disconnected from the facts and circumstances of each case. Id. ¶ 134–36.
Under the FAMU Directive, Defendant EOIR created a prioritized docket in ten pilot courts. Compl. ¶ 147. FAMU cases, which generally involve Central American families seeking asylum, are heard not only in those ten courts but also on a case-by-case basis in immigration courts across the country. Id. ¶¶ 119, 148, 153. In FAMU cases, immigration judges must schedule an initial hearing within 30 days, schedule an evidentiary (or “merits”) hearing within six months, and complete the case within 365 days of the filing of the notice to appear. Id. ¶¶ 151, 53. Like the Enforcement Metrics Policy, the time limits apply without regard to the facts or circumstances of an individual case. Id. ¶ 152. As of October 2019, over 95,000 cases were on the FAMU docket. Id. ¶ 147.
D. Defendants’ conduct violates the U.S. Constitution, the INA, and the APA. In their Complaint, Plaintiffs allege three types of claims. First, Plaintiffs allege that Defendants have engaged in widespread, persistent, and egregious mismanagement of the immigration court system in violation of the Take Care Clause of the U.S. Constitution. Compl. ¶¶ 193–200. Second, Plaintiffs allege that by fostering an asylum system that is biased against immigrants, including by implementing the Enforcement Metrics Policy and the FAMU Directive, Defendants have acted in violation of the INA. Id. ¶¶ 201–07. Third, Plaintiffs allege that the Enforcement Metrics Policy and the FAMU Directive violate the APA because they are arbitrary and capricious, not in accordance with the law, and implemented in excess of Defendants’ statutory authority. Id. ¶¶ 208–42.

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III. LEGAL STANDARD To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
complaint must contain sufficient factual matter only to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial “plausibility” if its factual allegations allow the court to reasonably infer the defendant’s liability for the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In deciding a motion to dismiss, a court must accept factual allegations as true and construe those facts in the light most favorable to the non-moving party. N. Cty. Cmty. All., Inc. v. Salazar, 573 F.3d 738, 741–42 (9th Cir. 2009). In the face of a challenge to Article III standing, the plaintiff bears the burden to establish standing “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Where, as here, such a challenge occurs at the motion to dismiss stage, courts look to the factual allegations contained in the complaint to determine whether that burden is met. See id. IV. ARGUMENT
Plaintiffs have standing to bring their claims, and Plaintiffs fall within the zone of interests of the INA. See infra Sections IV(A)–(B). This Court also has jurisdiction to hear their claims. See infra Section IV(C). Plaintiffs have stated a claim under the APA, the INA, and the Take Care Clause, see infra Section IV(D), and Oregon is the proper venue in which to adjudicate those claims, see infra Section IV(E).
A. Plaintiffs have Article III standing. To establish standing, a “plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and citations omitted). An organization establishes an injury in fact where it demonstrates “frustration of its organizational mission” and “diversion of its resources to combat the particular [conduct] in

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question.” Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th Cir. 2004). In this case, Plaintiffs have Article III standing because (1) they have suffered an injury in fact and (2) their injury is “fairly traceable” to Defendants’ alleged misconduct and is “likely to be redressed by the requested relief.” Lujan, 504 U.S. at 590.
1. Plaintiffs have suffered a cognizable injury to a legally protected interest. a. Plaintiffs have a legally protected interest in fulfilling their organizational missions and protecting their resources.
Plaintiffs have a legally protected interest in using their organizational resources to achieve their missions. “[A]n interest can support standing . . . so long as it is the sort of interest that courts think to be of sufficient moment to justify judicial intervention.” Courts have repeatedly recognized that organizations’ interests in their own missions and resources are judicially cognizable. See E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1265 (9th Cir. 2020) (“EBSC II”) (“[A]n organization has direct standing to sue where it establishes that the defendant’s behavior has frustrated its mission and caused it to divert resources in response to that frustration of purpose.”); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 n.20 (1982) (injury related to “organization’s noneconomic interest in encouraging open housing” suffices under Article III).
Organizational plaintiffs have standing where they allege that defendants impaired their missions to serve asylum-seeking clients and caused organizational resources to be diverted. See, e.g., El Rescate Legal Servs., Inc. v. Exec. Office of Immigration Review, 959 F.2d 742, 748 (9th Cir. 1991) (organizations’ interest in their mission of “assist[ing] Central American refugee clients . . . in their efforts to obtain asylum and withholding of deportation in immigration court proceedings” sufficient to support standing); E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 766 (9th Cir. 2018) (“EBSC I”) (organizations’ “mission of providing legal aid” to asylum seekers sufficient to support standing).

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Plaintiffs are legal advocacy organizations that seek to provide meaningful legal assistance to noncitizens fleeing persecution. Compl. ¶¶ 13, 17–22. Plaintiffs have a legally protected interest in protecting their organizational missions and resources. Defendants have implemented policies and practices that undermine the INA’s adjudication standards, perpetuate asylum-free zones and an impenetrable backlog, and impose enforcement-oriented metrics and discriminatory docketing initiatives. Id. ¶¶ 13, 155–92. Those practices have frustrated Plaintiffs’ missions and diverted their resources to non-case-related efforts. Id.
Defendants incorrectly assert that Plaintiffs cannot establish standing unless Plaintiffs’ legally protected interest is the same as the rights they seek to uphold under the INA. See Motion at 10-11. That position “misunderstands the injury-in-fact inquiry and conflates organizational standing with third-party standing,” which Plaintiffs do not assert in this case. EBSC II, 950 F.3d at 1267; see also Ass’n of Pub. Agency Customers v. Bonneville Power Admin., 733 F.3d 939, 950 (9th Cir. 2013) (legally protected interest “need not be a statutorily created interest”). Indeed, the U.S. Supreme Court has found that plaintiffs have Article III standing where their legally protected interests are different from the rights they seek to vindicate through their claims on the merits. See Gladstone Realtors v. Vill. of Bellwood, 441 U.S. 91, 103 n.9 (1979) (for standing purposes the question is “not who possesses the legal rights protected by [the statute], but whether respondents were genuinely injured by conduct that violates someone’s [statutory] rights, and thus are entitled to seek redress of that harm under [the statute]”).
b. Plaintiffs have alleged concrete, particular, and actual harms to their organizations.
Defendants mischaracterize Plaintiffs’ injuries as speculative harms to unidentified, nonparty asylum seekers. See Motion at 7, 9. In doing so, Defendants ignore Plaintiffs’ allegations of specific injuries separate from any potential injuries to respondents in immigration court.
Plaintiffs allege concrete, particular, and actual harms to their organizations. For instance, they allege that they are unable to fulfill their missions of providing meaningful legal

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assistance to asylum seekers because Defendants have denied them a fair court system in which to practice. Compl. ¶¶ 13, 155–92. Without a fair court system, Plaintiffs have been forced to divert organizational resources to redesign programs and systems; retrain staff and volunteers; rewrite guides and materials; and engage in increasing education, monitoring, and advocacy work to address underlying systemic problems with the immigration courts. See, e.g., id. ¶¶ 160; 166, 170, 181–85. Plaintiffs’ resources are also wasted when immigration courts that fail to comply with the INA’s case-by-case adjudication standards undermine Plaintiffs’ direct representation, pro se support, pro bono volunteer coordination, and technical assistance programs. Id. ¶¶ 161, 168, 175, 177, 188, 191–92.1
Defendants further mischaracterize Plaintiffs’ injuries as mere “incidental effects” of Defendants’ actions. See Motion at 9, 13. In fact, Defendants have caused Plaintiffs clear organizational harms that establish an Article III “injury in fact.” See, e.g., El Rescate Legal Servs., 959 F.2d at 748 (“The allegation that the EOIR’s policy frustrates [organizational plaintiffs’] goals and requires the organizations to expend resources in representing clients they otherwise would spend in other ways is enough to establish standing.”); EBSC II, 950 F.3d at 1265-66 (same). Defendants also argue that Plaintiffs’ harms are “part of their existing missions,” Motion at 12–13, but that critique either misses the point entirely or wrongly suggests that it is incumbent on Plaintiffs to ensure that Defendants provide them with a lawful forum in which to advocate for their clients. Plaintiffs were established to provide meaningful legal assistance to asylum-seeking individuals in an immigration court system that complies with federal law. Plaintiffs’ missions are undermined by Defendants’ creation of a court system that fails to ensure that each case is individually adjudicated on its merits. Compl. ¶¶12–13.

1

To the extent that Defendants suggest that Plaintiffs’ loss of resources is not sufficiently

“significant” to support standing, see Motion at 12, they are mistaken. “The comparative

magnitude of the harms alleged by the parties . . . is not relevant for standing purposes; a loss of

even a small amount of money is ordinarily an ‘injury.’” EBSC II, 950 F.3d at 1267 n.5 (internal

quotation marks omitted).

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Defendants go on to launch a misplaced critique of Plaintiffs’ lack of allegations relating to particular asylum decisions, suggesting that Plaintiffs’ claims are unripe because they challenge “hypothetical” future decisions in individual cases. Motion at 8. That mischaracterization of Plaintiffs’ claims apparently supports Defendants’ argument that Plaintiffs assert generalized grievances.2 Motion at 8, 13–14. As explained above, Plaintiffs do not challenge specific outcomes—past or future—of any individual asylum case.3 Instead, Plaintiffs allege that Defendants’ unlawful actions have caused harm to their organizations by undermining the fairness of immigration proceedings and thereby frustrating Plaintiffs’ ability to provide meaningful legal assistance. As a result, Plaintiffs must divert valuable resources from supporting individual cases on their merits to fighting Defendants’ unlawful immigration court practices. Plaintiffs’ allegations describe concrete and specific injury to Plaintiffs themselves.
2. Plaintiffs’ injuries are “fairly traceable” to Defendants’ unlawful actions and redressable by this Court.
Defendants do not dispute that Plaintiffs meet the causation and redressability prongs of the standing analysis. See Lujan, 504 U.S. at 560–61. But because Article III standing is jurisdictional, Plaintiffs briefly address both prongs.
Plaintiffs’ injuries are “fairly traceable” to Defendants’ unlawful actions. See id. at 590. As Plaintiffs allege, those actions “have directly frustrated Plaintiffs’ missions by substantially or

2

A case may be dismissed as a generalized grievance where a plaintiff’s alleged interest is

so abstract that it “deprives the case of the concrete specificity” necessary to characterize a

judicial controversy, see Fed. Election Comm’n v. Akins, 524 U.S. 11, 24 (1998), or “is held in

common by all members of the public, because of the necessarily abstract nature of the injury all

citizens share,” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 220 (1974).

Here, Plaintiffs allege concrete and specific harms to their organizational missions and resources

that are neither abstract nor shared by the public at large. Nor does the scope of Plaintiffs’

allegations make their interest a generalized grievance; harms that are widespread may be

justiciable so long as the plaintiff’s interest is “sufficiently concrete and specific.” See Akins,

524 U.S. at 24–25.

3

To be sure, Defendants’ actions have serious impacts on the individuals whom Plaintiffs

serve and on countless other respondents in the immigration court system. Those injuries are

not, however, the basis of Plaintiffs’ Complaint.

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totally nullifying the impact of their programming and causing their resources to be squandered” and diverted to other types of work. Compl. ¶¶ 159–60. Plaintiffs further allege that their injuries result from Defendants’ failure to ensure that the immigration courts function impartially and in accordance with the INA and from Defendants’ implementation of the Enforcement Metrics Policy and the FAMU Directive. See Compl. ¶¶ 161–63, 166–68, 170–72, 175–78, 180– 89, 191–92. Plaintiffs have therefore met the causation requirement for Article III standing.
This Court can redress Plaintiffs’ injuries. To establish redressability, Plaintiffs must seek remedies that are (1) “substantially likely to redress” their injuries and (2) within the district court’s power to award. See M.S. v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018). Plaintiffs’ requests for injunctive and declaratory relief meet this standard. See Compl. at 62–63.
This Court has broad equitable powers to afford remedies in the form of injunctive relief, such as the relief requested by Plaintiffs. See Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 15, 31 (1971) (“Once a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.”). Plaintiffs’ requested relief is also tailored and proportionate to the alleged violations of law. See Milliken v. Bradley, 418 U.S. 717, 744 (1974) (“the scope of [an equitable] remedy is determined by the nature and extent of the constitutional violation”). The Court also has an obligation to rule on requests for declaratory relief regardless of whether it finds injunctive relief appropriate, further supporting redressability here. See Zwickler v. Koota, 389 U.S. 241, 254 (1967) (so holding).

B. Plaintiffs are within the zone of interests of the INA. Plaintiffs fall squarely within the zone of interests of the INA.4 “[A] statutory cause of action extends only to plaintiffs whose interests fall within the zone of interests protected by the

4

Defendants do not argue that Plaintiffs fail a zone-of-interests test for their constitutional

claim. In Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014),

the Supreme Court explained that the zone-of-interest test “applies to all statutorily created

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law invoked.” Lexmark Int’l, 572 U.S. at 129 (internal quotations omitted). The zone-ofinterests test “is a ‘prudential’ inquiry that asks ‘whether the statute grants the plaintiff the cause of action that he asserts.’” See EBSC I, 932 F.3d at 767–69 (quoting Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296, 1302 (2017)).
Defendants argue, incorrectly, that “[c]ourts have . . . held that immigrant advocacy organizations are outside the immigration statutes’ zone of interests.” Motion at 15. For support, they cite INS v. Legalization Assistance Project of L.A. County, 510 U.S. 1301, 1305 (1993) (O’Connor, J., in chambers). But, as the Ninth Circuit stated in EBSC I, “[n]ot only is Justice O’Connor’s opinion [in Legalization Assistance Project] non-binding and concededly ‘speculative,’ . . . but the interest asserted by the organization in that case—conserving organizational resources to better serve nonimmigrants—is markedly different from the interest in aiding immigrants” alleged here. EBSC I, 932 F.3d at 769 n.10. Thus, Legalization Assistance Project cannot and does not apply. Legalization Assistance Project also addresses the zone of interests of an entirely different statute. See Al Otro Lado, Inc. v. Nielsen, 327 F. Supp. 3d 1284, 1300 (S.D. Cal. 2018).5

causes of action” and that “Congress is presumed to legislate against the background of” this

limitation. Id. at 129 (emphasis added; internal quotations and alterations omitted). Following

Lexmark, the Ninth Circuit has expressed doubt that the test applies to equitable causes of action

under the Constitution. See Sierra Club v. Trump, 929 F.3d 670, 702 (9th Cir. 2019) (“Because

the Constitution was not created by any act of Congress, it is hard to see how the zone of

interests test would even apply.”).

5

Defendants’ citation to Federation for American Immigration Reform, Inc. (FAIR) v.

Reno, 93 F.3d 897, 900–01 (D.C. Cir. 1996) is unhelpful. See Motion at 15. There, the D.C.

Circuit rejected arguments made by FAIR—an anti-immigrant advocacy group—that their

members’ interests in reducing immigration fell within the INA’s zone of interests. Defendants’

characterization of FAIR as an “immigrant advocacy organization” is disingenuous. Motion at

15. FAIR’s interests, which lie in “redu[cing] overall immigration" to the United States,” are

markedly different from those of Plaintiffs, which are pro bono legal service providers seeking to

uphold fair immigration adjudication in accordance with the INA’s requirements. See

https://www.fairus.org/about-fair (accessed Apr. 22, 2020); FAIR 93 F.3d at 899–901.

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The Ninth Circuit has repeatedly held that the interests of nonprofit legal organizations fall squarely within the INA’s zone of interests. In EBSC I, the Ninth Circuit held that nonprofit organizations representing asylum applicants and potential applicants fell within the INA’s zone of interests, particularly in light of the organizations’ “interest in aiding immigrants seeking asylum,” their provision of “pro bono legal services” as envisioned by the INA, and their statutorily recognized “role in helping immigrants navigate the immigration process.” See 932 F.3d at 768–69. Just this year, the Ninth Circuit again held that four organizational plaintiffs, including Plaintiff Innovation Law Lab (“Law Lab”), fell within the INA’s zone of interests where their “purpose is to help individuals apply for and obtain asylum.” EBSC II, 950 F.3d at 1270.
Plaintiffs fall within the INA’s zone of interests. They are nonprofit legal advocacy organizations that work to provide meaningful legal assistance to noncitizens fleeing persecution. See Compl. ¶¶ 13, 17–22, 40. Plaintiffs’ claims seek to preserve their organizational missions and resources by ensuring the fair and impartial adjudication of immigration proceedings consistent with the INA. Compl. ¶¶ 12–14. The Ninth Circuit has explained that, “[w]ithin the asylum statute, Congress took steps to ensure that pro bono legal services . . . are available to asylum seekers” and that other provisions of the INA also give organizations like Plaintiffs “a role in helping immigrants navigate the immigration process.” EBSC I, 932 F.3d at 768–69. That the INA’s statutory provisions “directly rely on institutions like [Plaintiffs] to aid immigrants” is sufficient to support “an inference that Congress would have intended eligibility to bring suit.” Id. at 769 (internal quotations omitted).
By meeting the zone-of-interests test for the INA, Plaintiffs also meet the test for their APA claims.6 Under the APA’s “generous review provisions,” the zone-of-interests test “‘is not

6

The INA is the relevant statute for all of Plaintiffs’ claims, including their claims brought

under the APA. When the APA is the basis of a cause of action, the relevant zone of interests is

“the zone of interests to be protected or regulated by the statute that [the plaintiff] says was

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meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.’” EBSC I, 932 F.3d at 768 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399–400 & n.16 (1987)); see also Lexmark, 572 U.S. at 130. Thus, when applying the zone-of-interests test, “the benefit of any doubt goes to the plaintiff.” MatchE-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012). Indeed, the test “forcloses suit only when a plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress authorized that plaintiff to sue.” Lexmark, 572 U.S. at 130 (internal quotations omitted). Plaintiffs’ interests easily meet the APA’s “lenient” zone-of-interests test because they are, at the very least, “‘marginally related to’ and ‘arguably within’ the scope of the” INA. See EBSC II, 950 F.3d at 1270 (quoting Patchak, 567 U.S. at 224, 225).
C. This Court has jurisdiction over Plaintiffs’ claims. Defendants claim that various provisions of 8 U.S.C. § 1252 foreclose this Court’s jurisdiction because, in Defendants’ view, this lawsuit seeks to challenge removal orders in individual cases. Defendants further contend that 8 U.S.C. § 1329 precludes jurisdiction over any claim related to the INA unless the claim is brought by Defendants themselves. Neither argument is correct. Indeed, “[t]he presumption favoring interpretations of statutes to allow judicial review of administrative action is well-settled[.]” Kucana v. Holder, 558 U.S. 233, 251– 52 (2010) (internal quotation marks omitted). This presumption can be overcome only if Defendants offer “clear and convincing evidence” to the contrary. Id. at 252 (internal quotation marks omitted).
1. Section 1252(a)(5) does not preclude jurisdiction. Section 1252(a)(5), which bars “judicial review of an order of removal” except through a petition for review, applies only to individuals in removal proceedings. Singh v. Gonzales, 499

violated.” Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012) (internal quotations omitted).

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F.3d 969, 978 (9th Cir. 2007) (“By [its] explicit language, § 1252(a)(5) [applies] only to those claims seeking judicial review of orders of removal.”). Plaintiffs are not subject to the removal process and do not seek review of any removal orders. Nor do their claims constitute an indirect challenge to or raise issues that are “inextricably linked” to a removal order. Cf. Martinez v. Napolitano, 704 F.3d 620, 622–23 (9th Cir. 2012). Section 1252(a)(5) does not apply to this case.
2. Section 1252(b)(9) does not preclude jurisdiction. Section 1252(b)(9), which bars district court review of “questions of law and fact . . . arising from any action taken or proceedings brought to remove an alien from the United States,” also does not apply to this case. The Ninth Circuit has construed § 1252(b)(9) to encompass only the review of final removal orders and those issues that “are bound up in and an inextricable part of” the removal process. J.E.F.M. v. Lynch, 837 F.3d 1026, 1032–33 (9th Cir. 2016).7 “[C]laims that are independent of or collateral to the removal process” fall outside the scope of § 1252(b)(9). Id. at 1032; see also Martinez, 704 F.3d at 622 (“distinction between an independent claim and indirect challenge [to a removal order] ‘will turn on the substance of the relief that a plaintiff is seeking’” (quoting Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011))); Singh, 499 F.3d at 979 (district court had jurisdiction over ineffective assistance of counsel claim where asylum seeker otherwise would have had no legal avenue to obtain judicial review). In Jennings v. Rodriguez, a plurality of the Supreme Court warned of the “staggering results” of broadly interpreting § 1252(b)(9). 138 S. Ct. 830, 840 (2018). Although it did not offer a “comprehensive interpretation” of the provision, the Jennings plurality explained that § 1252(b)(9) precludes district court review of challenges by individual respondents to removal

7

The plain wording of § 1252(b) provides that the section applies “[w]ith respect to review

of an order of removal under subsection (a)(1),” which refers to judicial review of a “final order

of removal.”

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orders, decisions to detain or seek removal, or “any part of the process by which their removability will be determined.” Id.; see also Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (same). The Jennings plurality held that § 1252(b)(9) did not preclude review of the petitioners’ challenge to prolonged detention because their challenge fell outside of those categories. 138 S. Ct. at 840. Indeed, the plurality observed that, if § 1252(b)(9) had foreclosed jurisdiction, the petitioners’ claims would be “effectively unreviewable.” Id.
As in Jennings, the claims in this case fall outside the scope of § 1252(b)(9). Plaintiffs are not individual respondents subject to detention, removal, or the removal process. Plaintiffs do not challenge removal orders in any individual case or challenge any part of the process through which any individual’s removability is determined. Rather, Plaintiffs challenge the unlawful manner in which Defendants administer the removal process across the immigration court system—i.e., through policies and practices that perpetuate vast asylum-free zones, preclude impartial adjudication, and effectively suspend the INA’s case-by-case adjudication requirements. Plaintiffs’ claims “arise from” those policies and practices, not from any proceeding associated with any individual’s case.
Defendants suggest that challenges to EOIR policies or practices must always be channeled through the petition-for-review process. Yet, as Defendants concede, the Ninth Circuit has held that this is true only when the challenges in question “arise from removal proceedings” involving an individual respondent. See J.E.F.M., 837 F.3d at 1032. Moreover, courts in the Ninth Circuit have repeatedly affirmed that § 1252(b)(9) does not preclude jurisdiction “where a claim could not have been litigated in removal proceedings and the noncitizen would otherwise ‘have had no legal avenue to obtain judicial review of [the] claim.’” Inland Empire–Immigration Youth Collective v. Nielsen, 2018 WL 4998230, at *14 (C.D. Cal. Apr. 19, 2018) (quoting J.E.F.M., 837 F.3d at 1032); see also Cancino-Castellar v. Nielsen, 338 F. Supp. 3d 1107, 1114 (S.D. Cal. 2018) (in assessing jurisdiction, “a court must ask whether the

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claims otherwise challenge issues that are cognizable in the [petition-for-review] process”). Here, Plaintiffs’ challenges to Defendants’ unlawful policies and practices cannot be raised through the petition-for-review process because Plaintiffs are organizations, not individual respondents, and their removability is not at issue.8
Drawing on the principles raised by the Supreme Court in Jennings, the Third Circuit recently proposed the following approach for applying § 1252(b)(9):
We must ask: If not now, when? If the answer would otherwise be never, then § 1252(b)(9) poses no jurisdictional bar. . . . [T]he point of the provision is to channel claims into a single petition for review, not to bar claims that do not fit within that process. E.O.H.C. v. Dep’t of Homeland Sec., 950 F.3d 177, 185–86 (3d Cir. 2020) (internal citation omitted); see also INS v. St. Cyr, 533 U.S. 289, 299 (2001) (“A construction of the amendments at issue that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions.”). Plaintiffs’ claims are precisely the type of “now or never” claims that must proceed in district court, because they challenge Defendants’ unlawful policies and practices and not their impact in particular respondents’ cases, and because they are based on organizational harms that cannot be asserted or remedied through the petition-forreview process. Plaintiffs’ Take Care Clause claim alleges that the Attorney General has abused his authority by mismanaging the immigration courts and thereby suspended the INA’s case-by-case adjudication standards, resulting in the persistence and proliferation of asylum-free zones and the

8

The statutes that apply to removal proceedings do not authorize an organizational

challenge to Defendants’ broad, programmatic policies. Under § 1229a(c)(1)(A), at the

conclusion of a removal proceeding, the immigration judge determines only “whether an alien is

removable from the United States.” To determine whether an “alien” is “removable,” the judge

may look only to whether that specific “alien” is “inadmissible” or “deportable.” § 1229a(e)(2).

The judge must consider certain statutory factors in making that determination. See § 1182

(enumerating factors to consider when determining “inadmissibility”); see also § 1227(a) (same

for “deportability”). Those factors pertain to the individual, not to her legal representative.

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immigration court backlog. Compl. ¶ 197. The petition-for-review process gives courts of appeals jurisdiction to address only those constitutional violations that are based on the record in an individual case with respect to an individual petitioner. The process does not allow courts of appeal to consider broader systemic challenges to immigration court policies and practices. Those challenges must be made by filing suit in district court.
Cases brought by individual asylum-seeking petitioners reveal the limits of the petitionfor-review process. In Diaz-Rivas v. Attorney General, for instance, the Eleventh Circuit rejected an equal protection claim similar in some respects to Plaintiffs’ claims alleging the perpetuation of “asylum-free zones.” 769 F. App’x 748, 758 (11th Cir. 2019). The petitioner had argued that the Atlanta immigration court’s “shockingly low asylum grant rate of only 2% compared to the average grant rate of 43% in other Immigration Courts” showed an intent to discriminate against asylum applicants in Atlanta as compared with similarly situated asylum seekers whose cases were pending in other immigration courts. Id. The court conceded that the numbers “betray a troubling approach to asylum adjudication in Atlanta generally” but denied the petition for review because it had to limit its analysis to whether the petitioner had demonstrated any discriminatory intent “in this case.” Id. Similarly, although courts have granted individual petitions for review based in part on immigration court backlogs, the backlog itself remains intact. See Kouropova v. Gonzales, 200 F. App’x 692, 694–95 (9th Cir. 2006) (granting petition for review based in part on delay caused by BIA backlog); Salazar-Paucar v. INS, 281 F.3d 1069, 1077 (9th Cir. 2002), opinion amended on denial of rehearing by 290 F.3d 964 (9th Cir. 2002) (granting petition for review because of prejudicial effect of BIA backlog).
Nor could Plaintiffs’ INA claim be asserted or remedied through the petition-for-review process. In that claim, Plaintiffs allege that Defendants’ have pushed immigration judges to prejudge cases by implementing the Enforcement Metrics Policy and the FAMU Directive, and by fostering adjudicatory system that is infected with bias against immigrants. Compl. ¶ 204.

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Challenges to such system-wide policies and practices cannot be raised or remedied in an individual case.9
Plaintiffs’ APA claims are no different. In their APA claims, Plaintiffs challenge the legality of the policies themselves on the basis that they are arbitrary and capricious, not in accordance with law, or implemented in excess of Defendants’ statutory authority. They do not challenge the impact of the policies on individual respondents. Thus, with respect to the Enforcement Metrics Policy, Plaintiffs allege that the policy, as a whole, requires immigration judges to consider factors other than the facts and merits of cases they decide and gives them a pecuniary interest in the adjudication of those cases. Compl. ¶ 213. Similarly, Plaintiffs allege that the FAMU Directive, as a whole, stigmatizes cases of recently arrived families and imposes rigid timelines that curtail procedural protections guaranteed under federal law. Id. ¶ 231. Even if those policies were challenged in an individual case,10 their deleterious effects would continue to taint the immigration court system. In other words, only a lawsuit filed in district court can provide systemwide relief.
Defendants’ reliance on J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) is misplaced for two reasons. First, because J.E.F.M. pre-dates Jennings, its focus on the sweeping text of §§ 1252(a)(5) and (b)(9) no longer is controlling. Compare J.E.F.M., 837 F.3d at 1031 (relying on “breathtaking . . . scope” of text) (internal quotation marks omitted), with Jennings, 138 S. Ct.

9

Although individual petitioners in removal proceedings may raise claims of bias in a

petition for review, any decision on that petition for review will affect only that individual’s

case. See, e.g., Reyes-Melendez v. INS, 342 F.3d 1001, 1007-09 (9th Cir. 2003) (granting

petition for review on the basis that immigration judge had violated individual’s due process

rights by abandoning her role as a neutral adjudicator); Wang v. Att’y Gen., 423 F.3d 260 (3d Cir.

2005) (same).

10 The practical effect of both policies on the individuals who Plaintiffs serve would likely

take the form of biased decision making or the denial of a continuance, which could form the

basis of a petition for review. See, e.g., Raffin v. Gonzales, 143 F. App’x 26 (9th Cir. 2005)

(denying petition for review because denial of motion for continuance did not violate petitioner’s

right to counsel). But any relief that a court of appeals might provide would be limited to that

individual’s case.

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at 840 (rejecting broad reading of text as “uncritical literalism”) (internal quotation marks omitted); see Cancino-Castellar, 338 F. Supp. 3d at 1114 (so stating). Second, the J.E.F.M. petitioners were individual, unrepresented children who alleged that the lack of governmentappointed counsel in removal proceedings violated their constitutional and statutory rights. 837 F.3d at 1029. The individual petitioners’ claims were deemed “part and parcel of the removal proceeding itself” and could thus be raised through the petition-for-review process. Id. at 1033 (internal quotation marks omitted). Plaintiffs here, by contrast, are organizations raising systemic challenges that would otherwise be unreviewable. Because Plaintiffs’ claims are “collateral to” the removal process, J.E.F.M. does not preclude this Court from hearing them. Id. at 1032 (citing cases).11
Defendants’ comparison of Plaintiffs’ claims to the claims alleged in Asylum Seeker Advocacy Project (ASAP) v. Barr is also unpersuasive. 409 F. Supp. 3d 221 (S.D.N.Y. 2019). In ASAP, several organizational plaintiffs challenged the defendants’ unlawful issuance of in absentia removal orders without notice and sought declaratory and injunctive relief. Id. at 22223. The court dismissed the complaint under § 1252(a)(5) and (b)(9), finding that “while Plaintiffs may presently seek only an order entitling unrepresented immigrants to a hearing, . . . their ultimate goal is to challenge the lawfulness of the removal orders themselves.” Id. at 225 (internal quotation marks omitted). The court found that it lacked jurisdiction because the plaintiffs were challenging the underlying removal orders “in substance if not form.” Id. at 226. Here, by contrast, Plaintiffs’ claims stem not from case outcomes or removal orders but from the frustration of Plaintiffs’ missions and diversion of their resources resulting from Defendants’ unlawful policies and practices.

11 Alvarez v. Sessions, 338 F. Supp. 3d 1042 (N.D. Cal. 2018), and Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007), in which individual respondents also alleged violations of their right to counsel in removal proceedings, similarly have no bearing on jurisdiction in this case.

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Defendants’ reliance on P.L. v. Immigration & Customs Enforcement is similarly misplaced. 2019 WL 2568648 (S.D.N.Y. June 21, 2019). There, individual respondents and their legal representatives challenged the government’s use of video teleconferencing (VTC) in removal proceedings. Id. at *1-2. The court held that the plaintiffs were required to pursue their claims before the BIA or through a petition for review, reasoning that “[h]ow immigrants appear for removal proceedings constitutes part of the process of these proceedings.” Id. at *3. While acknowledging that the organizational plaintiffs raised a claim on their own behalf, the court merged its consideration of that claim with the claims the individual plaintiffs raised. See Id. (noting that plaintiffs “challenge Defendants’ VTC policy, not their detention” (emphasis added)). Moreover, VTC is a mechanism for conducting removal proceedings explicitly provided in the INA. See § 1229a(b)(2)(A)(iii). Plaintiffs here challenge policies that violate the INA by preventing the full and fair adjudication of cases. “[C]ramming judicial review” of such unlawful policies “into the review of final removal orders would be absurd.” Jennings, 138 S. Ct. at 840.
Defendants’ overly expansive reading of § 1252(b)(9) ignores the plain language of the statute and Congress’s carefully constructed statutory scheme, which was intended to channel claims “arising from” removal proceedings through the petition-for-review process. Allowing Plaintiffs’ collateral claims to proceed would “not undermine Congress’s desire to limit all [noncitizens] to one bite of the apple with regarding to challenging their removal orders.” EBSC II, 950 F.3d at 1269 (internal quotation marks omitted); see also E.O.H.C., 950 F.3d at 185–86. Instead, district court jurisdiction here would ensure that Plaintiffs’ claims are not “effectively unreviewable.” Jennings, 138 S. Ct. at 840.
3. Section 1252(g) does not preclude jurisdiction. Defendants also assert that jurisdiction is barred by § 1252(g), which restricts federal courts’ ability to hear claims arising from discretionary decisions or actions by the Attorney

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General “to commence proceedings, adjudicate cases, or execute removal orders.” Motion at 21. Specifically, Defendants contend that Plaintiffs’ claims challenge discretionary “actions” to “adjudicate cases” and therefore cannot be considered by this Court. The Supreme Court has rejected that argument.
In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999), the Court held that § 1252(g) applies only to the discrete decisions or actions listed in the statute— i.e., to commence removal proceedings, to adjudicate a case, or to execute a removal order. Id. at 482. According to the Court, that construction is consistent with Congress’s intent, which was to protect the Attorney General’s exercise of prosecutorial discretion, e.g., by deciding not to pursue the removal of certain noncitizens.12 Id. at 483–86. Since Reno, the federal courts of appeal have construed § 1252(g) narrowly. See Arce v. United States, 899 F.3d 796, 800 (9th Cir. 2018) (§ 1252(g) does not preclude jurisdiction over all claims challenging decisions or actions related to deportation process; claims relating to government’s violation of mandatory duties required by statute or court order fall outside its scope); Selgeka v. Carroll, 184 F.3d 337, 342 (4th Cir. 1999) (§ 1252(g) does not preclude petition for review of impartial adjudicator claim).
Moreover, the Ninth Circuit has already rejected the reading of § 1252(g) that Defendants urge this Court to adopt here. In Barahona-Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001), the Ninth Circuit considered whether § 1252(g) bars claims arising from policy directives halting immigration judges’ ability to consider applications to suspend deportation. Id. at 1117–18. In that context, the court held that the term “adjudicate” in § 1252(g) refers only to “the

12 Defendants cite Reno for the proposition that § 1252(g) was intended “to prevent deconstruction, fragmentation, and hence prolongation of removal proceedings,” suggesting it should be read broadly to bar any claim relating to the adjudication of any case. Motion at 22. Defendants take this statement out of context. The Reno Court made that statement in the context of discussing the relationship between the various jurisdiction-stripping provisions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, concluding that “[o]ur narrow reading of § 1252(g) makes sense of the statutory scheme as a whole.” 525 U.S. at 487.

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discretionary, quasi-prosecutorial decisions of asylum officers and INS district directors to adjudicate cases or to refer them to IJs for hearing” and not to the administration of such proceedings by an immigration judge once a referral has occurred. Id. at 1120–21. Thus, according to the Ninth Circuit, § 1252(g) does not preclude review of all “decisions or actions that occur during the formal adjudicatory process,” see id. at 1121.
Consistent with that result, federal courts have found challenges to programmatic policy decisions outside the scope of § 1252(g), even if they relate to the adjudication of removal proceedings. See, e.g., Regents of the Univ. of Cal. v. Dep’t of Homeland Sec., 908 F.3d 476, 504 (9th Cir. 2018), cert. granted sub nom. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 139 S. Ct. 2779 (2019); Catholic Soc. Servs., Inc. v. Reno, 232 F.3d 1139, 1150 (9th Cir. 2000) (en banc); Inland Empire, 2018 WL 4998230, at *12. In short, Defendants’ assertion that any claim challenging the lawfulness of EOIR’s programmatic policy decisions and management of the immigration court system generally is barred by § 1252(g) is squarely at odds with binding precedent from the Supreme Court and the Ninth Circuit.13
4. Section 1329 does not preclude jurisdiction. Finally, Defendants cite to § 1329, a jurisdiction-granting provision in the INA, contending that because that provision grants district court jurisdiction over claims arising under

13 As a fallback position, Defendants appear to argue that even if § 1252(g) does not bar Plaintiffs’ claims, the claims are not justiciable because no law or statute governs “how the agency dockets cases or manages its backlog.” Motion at 21. That assertion is wrong— immigration courts are subject to the case-by-case adjudication standards set forth in the INA. And the cases that Defendants cite relating to the justiciability of decisions committed to an agency’s discretion do not apply to the agency actions challenged in this case. See Heckler v. Chaney, 470 U.S. 821, 823, 830–31 (1985) (prisoners' challenge to FDA enforcement action to prevent the alleged misuse of lethal injection drugs); Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1116-17 (9th Cir. 2009) (challenge to BIA refusal to reopen immigration case sua sponte); Ekimian v. INS, 303 F.3d 1153, 1159 (9th Cir. 2002) (same).

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the INA brought by the government, no other federal court jurisdiction exists.14 In other words, by negative implication only, Defendants would strip federal courts of jurisdiction over any case arising under any aspect of the INA, except those brought by Defendants themselves. That reading of § 1329 is overbroad and implausible and has been rejected by the Ninth Circuit. See Sulit v. Schiltgen, 213 F.3d 449, 453 n.2 (9th Cir. 2000) (“nothing in the language of § 1329 forecloses the operation of other jurisdictional mechanisms”).
Defendants cite only two inapposite cases. In Bains v. Schiltgen, 1998 WL 204977, (N.D. Cal. Apr. 21, 1998), the Northern District of California considered only whether § 1329 conferred jurisdiction over an APA claim, not whether the provision eliminated federal jurisdiction otherwise provided by law. See id. at *2–3. The court recognized that, under 28 U.S.C. § 1331 and the APA, federal courts generally have jurisdiction to review agency actions unless Congress explicitly has said otherwise. Id. at *2. And in Saavedra Bruno v. Albright, the D.C. Circuit affirmed the district court’s dismissal of the plaintiff’s challenge to a visa denial based on the doctrine of consular non-reviewability. 197 F.3d 1153, 1160 (D.C. Cir. 1999). The court went on to note, in dicta, that § 1329 recently had been narrowed to apply only to actions brought by the United States. Id. at 1162-63 (citing Reno, 525 U.S. at 476 n.4). The court did not hold that the narrowing of § 1329 served to eliminate federal question jurisdiction generally. Without further explanation or analysis, Saavedra Bruno can only be read to eliminate § 1329 as an end-run around the doctrine of consular non-reviewability. Defendants’ interpretation, which would mean that § 1329 is an end-run around 28 U.S.C. § 1331’s grant of federal question jurisdiction entirely, is not correct. The Ninth Circuit expressly has rejected the interpretation of Saavedra Bruno that Defendants urge this Court to adopt. See Sulit, 213 F.3d at 453 n.2 (so stating) (citing Sabhari v. Reno, 197 F.3d 938, 941–42 (8th Cir. 1999) (same)).

14 Section 1329 reads, in part, “The district courts of the United States shall have jurisdiction of all causes, civil and criminal, brought by the United States that arise under the provisions of this subchapter.”

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Section 1331 provides district courts with original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States,” and, except where review is precluded by statute, “confer[s] jurisdiction on federal courts to review agency action.” Califano v. Sanders, 430 U.S. 99, 105 (1977). That general grant of jurisdiction remains over claims that are not barred by the INA’s judicial review provisions. See Ortiz v. Meissner, 179 F.3d 718, 721–22 (9th Cir. 1999) (so holding). If § 1329 were as broad as Defendants argue, none of the INA’s judicial review provisions, see § 1252, would be necessary, and the Supreme Court’s presumption in favor of judicial review would be meaningless. See Kungys v. United States, 485 U.S. 759, 778 (1988) (noting the “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant”); St. Cyr, 533 U.S. at 298 (noting “strong presumption in favor of judicial review of administrative action” in immigration context).
D. This Court should deny Defendants’ Rule 12(b)(6) motions. Defendants also move against all of Plaintiffs’ claims on their merits. The Court should deny Defendants’ motion because Plaintiffs state a plausible claim for relief as to each cause of action they allege. Plaintiffs begin with their APA claims, against which Defendants make only cursory arguments that are easily resolved. Plaintiffs’ APA claims challenge the Enforcement Metrics Policy and the FAMU Directive as discrete agency actions subject to judicial review. All four claims satisfy the Twombly/Iqbal standard because Plaintiffs identify final agency actions subject to judicial review. Plaintiffs turn next to their claim under the INA, which challenges Defendants’ actions that have undermined the impartiality of immigration court proceedings, including the Enforcement Metrics Policy and the FAMU Directive. Those actions contravene the case-bycase adjudication standards that the INA requires.

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Finally, Plaintiffs address their claim for relief under the Take Care Clause. The Take Care Clause may properly be invoked to stop widespread, persistent, and egregious Executive conduct that effectively suspends the laws that Congress has enacted. Plaintiffs’ claim under the Take Care Clause raises core separation-of-powers concerns, the proper balance of which it is this Court’s duty to maintain. See Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982).
1. Plaintiffs state a claim under the APA. Plaintiffs state plausible claims for relief under the APA. Again, Defendants distort the nature of Plaintiffs’ claims by attempting to frame the claims as attacks on individual removal decisions. But Plaintiffs do not challenge any decision in any specific immigration case; they challenge policies that Defendants have implemented across all immigration courts. Through their APA claims, Plaintiffs seek to remedy only the injuries that those policies have caused to Plaintiffs as organizations. Plaintiffs thus properly bring their claims under the APA. In support of their motion, Defendants contend, incorrectly, that Plaintiffs cannot state a claim under the APA because they have not identified a “final agency action,” and that the claims fail in any event because § 1252(b)(9) provides an “other adequate remedy in a court.” Motion at 30–32. But Plaintiffs have alleged facts challenging two final agency actions. Both the Enforcement Metrics Policy and the FAMU Directive are final agency actions because they are neither tentative nor interlocutory and because legal consequences flow from both. And, as explained above, § 1252(b)(9) does not apply to any of Plaintiffs’ claims, and therefore cannot constitute an “other adequate remedy” in court. See supra Section IV(C)(2).
a. Plaintiffs have alleged two final agency actions. Under the APA, agency actions are reviewable only if they are “final agency actions.” 5 U.S.C. § 704. A “final agency action” must (1) “mark the consummation of the agency’s decision-making process—it must not be of a merely tentative or interlocutory nature” and (2) “be one by which rights or obligations have been determined, or from which legal

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consequences will flow.” Bennett, 520 U.S. at 177–78 (internal citations and quotation marks omitted). Here, Plaintiffs sufficiently allege that the Enforcement Metrics Policy and FAMU Directive are final agency actions.
Both policies easily meet the first element. An agency action is “final” for purposes of the APA when it has “an actual or immediate threatened effect.” Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 139 (D.D.C. 2018). In Aracely, the plaintiffs brought an APA claim challenging a policy directing local officials to heavily weigh immigration deterrence when making parole decisions. Id. at 123–24. The district court held that, because parole decisions based on improper factors have “actual or immediately threatened effects,” the policy was a “final agency action” under the APA. Id. at 139.
Here, as in Aracely, Plaintiffs have alleged that two policies have negatively affected Plaintiffs since they were implemented in late 2018. Compl. ¶ 117. The Enforcement Metrics Policy sets mandatory timelines and remand limits for immigration judges. Id. ¶¶ 118, 121–46. The financial incentives embedded in the policy introduce systemic bias into the immigration court system and undermine Plaintiffs’ ability to offer meaningful legal assistance to respondents. Id. ¶¶ 118, 121–46. Similarly, the FAMU Directive creates a specialized accelerated docket, primarily for Central American families seeking asylum. Id. ¶¶ 119, 147–54. By stigmatizing family-unit cases, the policy reflects Defendants’ intent to deport certain asylum seekers as quickly as possible, regardless of the merits of their claims. Id. ¶¶ 119–20.
Both policies have actual, immediate, lasting, and negative effects, not only on Plaintiffs’ clients but also on Plaintiffs themselves. Plaintiffs’ Complaint alleges several of those effects. See Compl. ¶¶ 155–92. For example, the Enforcement Metrics Policy has squandered Plaintiffs’ financial resources, impaired Plaintiffs’ abilities to provide meaningful legal assistance to respondents, nullified the effect of Plaintiffs’ pro se support, and impaired of Plaintiffs’ abilities to provide useful technical assistance and mentorship to other removal defense attorneys.

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Id. ¶¶ 163, 172, 177, 188, 192. Similarly, the FAMU Directive has impaired Plaintiffs’ ability to provide meaningful legal assistance, id. ¶ 178, substantially weakening their pro bono programs, id. ¶ 189, and harming their abilities to assist and mentor other attorneys, id. ¶¶ 178, 189, 192. Plaintiffs have sufficiently alleged specific agency actions that have actual or immediately threatened effects. The policies mark the consummation of Defendants’ decision-making process, and thus are final agency actions under the APA. Bennett, 520 U.S. at 177–78.
The policies are also actions “by which rights or obligations have been determined, or from which legal consequences will flow,” and therefore meet the second element. Id. In R.I.L.R v. Johnson, the plaintiffs challenged a Department of Homeland Security policy directing ICE officers to consider deterrence of mass migration as a factor in their custody determinations. 80 F. Supp. 3d 164, 174 (D.D.C. 2015). The court held that ICE’s reliance on an impermissible factor in making custody determinations had profound and immediate consequences for asylum seekers and, therefore, was an agency action “by which rights or obligations have been determined, or from which legal consequences will flow.” Id. at 184.
Here, as in R.I.L.-R, Plaintiffs challenge two policies that force immigration judges to rely on impermissible factors in making removal decisions. See Compl. ¶¶ 172, 192 (alleging that the policies require immigration judges to consider “extra-legal” and “extra-record” factors). As discussed above, these policies have immediate and lasting effects on Plaintiffs. See State v. Immigration & Customs Enf’t, 2019 WL 6906274 (S.D.N.Y. Dec. 19, 2019) (holding that a policy was a “final agency action,” by looking at the direct consequences to noncitizens, not the plaintiff). Therefore, they constitute “final agency actions” under the APA.
b. Section 1252(b)(9) is not an “other adequate remedy in court.” Defendants raise § 1252(b)(9) as a jurisdictional bar to all claims, and then again as a bar to Plaintiffs’ APA claims. Plaintiffs have addressed this issue extensively in Section IV(C)(2), and incorporate by reference those same arguments here.

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In addition to those arguments, § 1252(b)(9) does not provide an adequate alternative remedy to the APA because Plaintiffs could not raise their APA claims through the petition-forreview process. Under the APA, an “other adequate remedy in court” does not exist in the immigration context if “neither the immigration judge nor the Board of Immigration Appeals can review” the challenged agency action. O.A. v. Trump, 404 F. Supp. 3d 109, 137 (D.D.C. 2019) (quotations omitted). Here, because immigration judges and members of the BIA have no authority to review a challenge by legal service providers to the Enforcement Metrics Policy or FAMU Directive, see supra Section IV(C)(2) n.9 (citing provisions of the INA), § 1252(b)(9) does not provide an “other adequate remedy.”
2. Plaintiffs state a claim under the INA. Plaintiffs state a plausible claim that Defendants’ weaponization of the immigration courts violates the INA’s requirement that immigration judges be impartial. Compl. ¶¶ 201–07. As a threshold matter, Defendants’ assertion of sovereign immunity, see Motion at 24, disregards the APA’s waiver of sovereign immunity in all actions “seeking relief other than money damages” against federal officials “in an official capacity or under color of legal authority.” 5 U.S.C. § 702. This waiver is not limited to actions brought under the APA’s judicial review provisions. Presbyterian Church v. United States, 870 F.2d 518, 523–26 (9th Cir. 1989). Plaintiffs’ claim under the INA thus properly falls under the APA’s waiver.15
a. Plaintiffs allege that Defendants have created a constitutionally intolerable probability of bias in immigration courts.
The statutory scheme governing removal proceedings requires that immigration judges be impartial, and it necessarily incorporates the Fifth Amendment guarantee of an impartial adjudicator. See Compl. ¶¶ 34–39; 8 U.S.C. § 1229a(c)(1)(A) (decisions in removal proceedings “shall be based only on the evidence produced at the hearing,” not on extra-record factors or

15 Because Plaintiffs request injunctive and declaratory relief, Defendants’ citations to cases discussing claims for money damages are irrelevant.

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biases); see also Wong Yang Sung v. McGrath, 339 U.S. 33, 49–50 (1950) (“When the Constitution requires a hearing,” as in the removal context, “it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality.”), superseded by statute on other grounds as stated in Ardestani v. I.N.S., 502 U.S. 129, 133 (1991).
To decide whether there is an “intolerable probability of actual bias,” courts look to “objective standards that do not require proof of actual bias.” Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 882-83 (2009). A due process violation—and by extension, a violation of § 1229a(c)(1)(A)—arises when there is a “serious risk of actual bias or prejudgment” based on “a realistic appraisal of psychological tendencies and human weakness.” Id. at 883–84 (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). This test “does not require a showing of actual judicial bias,” but rather, “only a showing of an undue risk of bias, based on the psychological temptations affecting an ‘average judge.’” Echavarria v. Filson, 896 F.3d 1118, 1128 (9th Cir. 2018) (quoting Caperton, 556 U.S. at 881, 883), cert. denied sub nom Gittere v. Echavarria, 2019 WL 2166437 (May 20, 2019).
Defendants do not explain why that standard does not apply to the structural features of the immigration courts that Plaintiffs challenge in this case. Instead, they incorrectly assert that Plaintiffs must demonstrate “actual” bias in individual decisions, citing several cases in which plaintiffs challenged the denial of individual claims for relief from removal on grounds of bias and political interference. Motion at 24, 28–29 (citing Yang v. Reno, 925 F. Supp. 320, 330–32 (M.D. Pa. 1996); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954); Shaughnessy v. United States ex rel. Accardi, 349 U.S. 280, 282 (1955); Marcello v. Bonds, 349 U.S. 302, 311 (1955)). They also cite ineffective-assistance-of-counsel cases, which apply a different legal test altogether. See Motion at 28–29 (citing Lafler v. Cooper, 566 U.S. 156, 163 (2012) (applying Strickland v. Washington to ineffective-assistance-of-counsel claim); United States v. Decoster, 624 F.2d 196, 336 (D.C. Cir. 1976) (MacKinnon, J., dissenting) (similar)).

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Those cases do not apply here because Plaintiffs do not challenge any decision in any individual case.16 Instead, Plaintiffs challenge the ways in which Defendants have created a constitutionally intolerable probability of actual bias throughout the immigration court system. Compl. ¶¶ 201–07; Williams v. Pennsylvania, 136 S. Ct. 1899, 1909–10 (2016) (finding harm where “the objective risk of actual bias on the part of a judge rises to an unconstitutional level”).
b. Plaintiffs state a plausible claim that Defendants violated the INA’s impartial adjudicator requirement.
Plaintiffs state a plausible claim that Defendants have violated the INA. Specifically, Plaintiffs allege that the Enforcement Metrics Policy, the FAMU Directive, Defendants’ pervasive hostility toward asylum seekers, and Defendants’ perpetuation of asylum-free zones, “either individually or collectively, create a constitutionally and statutorily intolerable probability of actual bias in immigration court adjudication.” Compl. ¶¶ 202, 204 (emphasis added).
To start, the Enforcement Metrics Policy and the FAMU Directive create an unlawful, intolerable structural risk of bias by requiring judges to consider factors unrelated to the facts and merits of the cases they decide. Id. ¶ 204. This risk affects all immigration judges in FAMUdesignated cases pending in all immigration courts. Id. ¶¶ 118–19, 121–46, 147–54.
Contrary to Defendants’ argument, see Motion at 26–27, Plaintiffs sufficiently allege that as a result of the case quotas and time limits imposed through these policies immigration judges do not act as impartial adjudicators. Compl. ¶¶ 118, 128–40, 151–54, 204. The policies require judges to prioritize speed regardless of the specific facts and circumstances of each case. Id. ¶¶ 125–26, 134, 154. The FAMU designation further stigmatizes family-unit asylum cases from the beginning, indicating to judges that the case should be “hastened through the system with

16 Defendants’ argument that “the decisions of immigration judges are entitled to a presumption of regularity,” see Motion at 24, likewise does not apply to Plaintiffs’ claims, which do not challenge the individual decisions of any immigration judge. Moreover, the presumption of regularity does not create an elevated pleading standard and does “not . . . shield [agency] action from a thorough, probing, in-depth review.” Citizens to Preserve Overton Parkin, Inc. v. Volpe, 401 U.S. 402, 413 (1971).

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little regard for individualized facts or circumstances.” Id. ¶¶ 10, 119, 154, 231. And the Enforcement Metrics Policy poses a risk of negative professional repercussions if a case is not moved quickly enough. Compl. ¶¶ 130–33. Defendants remind immigration judges of the pressure to comply with the Enforcement Metrics Policy by placing a dashboard on their computers, with stoplight indicators showing how the judge is performing under the policy. Id. ¶ 127. Both policies violate the INA and its implementing regulations, which require immigration judges to protect due process and make impartial decisions based solely on the facts of the cases before them. 8 U.S.C. § 1229a; 8 C.F.R. §§ 1003.10(b).
Plaintiffs have also alleged that the Enforcement Metrics Policy gives immigration judges a pecuniary interest in the pace and outcome of the cases before them, regardless of each case’s individual facts. See, e.g., Compl. ¶¶ 131, 133–37, 204. When an “adjudicator has a pecuniary interest in the outcome” of a case, “the probability of actual bias . . . is too high to be constitutionally tolerable.” Withrow, 421 U.S. at 47; see also Williams, 136 S. Ct. at 1905–06 (a judge cannot try cases “where he has an interest in the outcome.” (citing In re Murchison, 349 U.S. 133, 136 (1955))); Gibson v. Berryhill, 411 U.S. 564, 579 (1973) (judges “with substantial pecuniary interest in legal proceedings should not adjudicate these disputes”). Here, Plaintiffs allege that the Enforcement Metrics Policy imposes potential negative employment consequences, including termination, on immigration judges who take actions that delay adjudication—actions such as granting a continuance, postponing a hearing when a witness is unavailable, or taking a matter under advisement to consider evidence—even if the actions are necessary to protect rights under the INA. Compl. ¶¶ 130–33. The policy thus gives judges a personal pecuniary interest in the pace of adjudication of pending cases that undermines their impartiality in every case. Id. ¶¶ 131, 204.
The court may also reasonably infer that mandating the pace of adjudication, through both the Enforcement Metrics Policy and the FAMU Directive, leads to biased decision-making.

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Immigration judges who deny asylum more often tend to do so early in a case, making it more likely that they will satisfy the speed-related requirements. See David Hausman, The Failure of Immigration Appeals, 164 U. Penn. L. Rev. 1177, 1197–98, 1203, 1216–17 (2016) (explaining that judges who tend to deny relief more often “partly reach their results by preventing an individual relief hearing with a lawyer, rather than by denying relief to immigrants who make it that far”). But having time to prepare a case works in a respondent’s favor because “the facts underlying an application for relief from removal may continue to develop up to the time of, and even during, the final individual hearing on the merits.” Matter of E-F-H-L-, 26 I&N Dec. 319, 322 (BIA 2014), vacated on other grounds, 27 I. & N. Dec. 226 (A.G. 2018). The factual and legal complexity of asylum proceedings also means it will be faster for a judge to deny rather than grant relief. To grant asylum, a judge must analyze several factual and legal predicates to demonstrate eligibility.17 To deny asylum, however, a judge need only find an applicant not credible or ineligible on a single legal ground.
The Remand Rate, which is an Enforcement Metric that punishes immigration judges when their decisions are reversed on appeal, gives judges a pecuniary interest in the outcome, as well as the pace, of adjudications. Compl. ¶ 130. The Remand Rate conditions satisfactory performance reviews on whether the BIA or a federal court of appeals affirms an immigration judge’s decision, thus directly tying judges’ jobs to case outcomes. Id. And contrary to Defendants’ assertions, the Remand Rate will not necessarily encourage the “right outcome” and therefore negate the psychological temptations caused by the other benchmarks. See Motion at 27. As Plaintiffs allege, the BIA is not a “fair and functioning administrative appellate system.”

17 These factual and legal predicates include positive credibility, 8 U.S.C. § 1158(b)(1)(B)(ii)-(iii), the definition of a refugee, see § 1158(b)(1)(B)(i), 8 C.F.R. § 208.13(a)(b), and any other contested eligibility criteria, § 1158(a)(2), (b)(2), 8 C.F.R. § 208.13(c).

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Compl. ¶ 102.18 And at the circuit court level, immigration judge decisions are often subject to
highly deferential judicial review; thus, an affirmance is often based on the standard of review
rather than whether the judge's decision was correct. See, e.g., Andrew Tae-Hyun Kim,
Rethinking Review Standards in Asylum, 55 Wm. & Mary L. Rev. 581, 584–85, (2013) (noting
that agency factual and credibility determinations often drive asylum cases outcomes, yet these
decisions are subject to very circumscribed judicial review).
Defendants would have this Court believe that the Enforcement Metrics Policy and the
FAMU Directive are merely immigration court corollaries to 28 U.S.C. § 476. See Motion at 26
n.3. The differences between the two, however, highlight the ways in which the policies that
Plaintiffs challenge are likely to have an oversized effect on the decision making of immigration
judges. For federal judges, who are appointed for life, the only consequence of failing to meet a
case completion goal is public disclosure. See 28 U.S.C. § 476(a). Immigration judges, by
contrast, are non-supervisory career attorneys subject to disciplinary measures by Defendants.
Compl. ¶ 50; 8 U.S.C. § 1101(b)(4) (immigration judges “shall be subject to such supervision . . .
as the Attorney General shall prescribe”). And the consequences of failing to comply with the
Enforcement Metrics Policy include not only disciplinary actions, but also threats to job security.
18 BIA members are appointed by the Attorney General, who has politicized hiring at the BIA by elevating judges with some of the highest asylum denial rates to the appellate bench. Compl. ¶ 103. The Remand Rate, rather than providing a meaningful marker of the legal correctness of immigration judge decisions, thus encourages ideologically motivated results. See generally Baez-Sanchez v. Barr, 947 F.3d 1033 (7th Cir. 2020) (vacating BIA decision after the BIA “defi[ed] a [prior] remand order;” refusing to remand for further proceedings because doing so “would do little beside give the [BIA] a free pass for its effrontery;” and threatening BIA members with contempt); Guzman Orellana v. Att’y Gen., 2020 WL 1898251, at *7 (3d Cir. Apr. 17, 2020) (reversing BIA decision and noting that “we are troubled by the BIA’s apparent distortion of evidence favorable to [the respondent] in this case”); Hausman, Failure of Immigration Appeals, 164 U. Penn. L. Rev., at 1179–81, 1203-04 (whether an immigration judge’s denial of relief is appealed depends in part on whether the respondent has counsel, which in turn depends on how much time the judge provides to retain counsel); id. at 1192–94 (removal orders of “harsher” judges tend to evade scrutiny through review, while the BIA more often reverses the grants of relief by “generous” judges when the government appeals).

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Compl. ¶ 130. Plaintiffs know of no other federal adjudication system that conditions performance evaluations on speed of decision or rate of affirmance.19
Beyond the policies themselves, Plaintiffs further allege that Defendants have violated the INA by perpetuating asylum-free zones that create an “intolerable probability of actual bias.” Caperton, 556 U.S. at 882. With respect to those allegations, the statistics Plaintiffs allege speak for themselves—in many immigration courts, asylum claims are almost always denied. Compl. ¶ 95; see generally id. ¶¶ 87–94, 96; see also, e.g., Diaz-Rivas, 769 F. App’x at 768 (Jordan, J., dissenting) (observing that the two percent asylum grant rate in Atlanta is “a telltale sign of purposeful discrimination” (internal quotation marks omitted)). Although Defendants claim that asylum-free zones do not relate to judicial bias and attack the truth of Plaintiffs’ allegations, Motion at 25–29, that claim is inaccurate, and, in any event, this Court need not reach it at this stage.20 Plaintiffs’ allegations suffice to create a plausible inference that Defendants have

19 The statutory and regulatory framework governing federal Administrative Law Judges (ALJs) is illuminating on this point. In stark contrast to immigration judges, ALJs are hired based on merit by the Office of Personnel Management. 5 U.S.C. §§ 1104, 3304, 5372. The Merit Systems Protection Board is the only entity that can determine whether an ALJ should be removed or disciplined. § 7521. And the agencies that employ ALJs are prohibited from rating an ALJ’s job performance or influencing their pay. § 5732; 5 C.F.R. § 930.206 20 Defendants request that this Court infer that asylum-free zones are not based on legitimate differences between immigration courts. Motion at 25–26. But at the motion to dismiss stage, Plaintiffs, rather than Defendants, are entitled to all reasonable inferences in their favor. Plaintiffs’ allegations demonstrate that the fact of detention does not account for asylumfree zones. See, e.g., Compl. ¶¶ 87–90 (discussing high denial rates in Atlanta, El Paso, and Houston, which all have both detained and non-detained dockets); id. ¶ 95 (list of asylum-free zones including detained and non-detained courts). Even if all individuals at a detained court were subject to mandatory detention—which is not necessarily the case—the criminal grounds for mandatory detention under § 1226(c) are also considerably broader than the criminal bars to asylum under § 1158(b)(2). Nor does the existence of a 2019 regulation regarding asylum eligibility explain the systemic trends that Plaintiffs allege. See Motion at 25–26.

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undermined the impartiality of the immigration court system by failing to address the intolerable risk of bias posed by asylum-free zones. See Compl. ¶¶ 84–103, 204, 206.21
Finally, Plaintiffs allege that Defendants violated the INA’s impartial adjudicator guarantee by “fostering an adjudicatory system that is permeated by bias against immigrants.” Compl. ¶ 204. The Complaint contains allegations that Defendants are hostile toward asylum seekers, their legal representatives, and the immigration court system. Id. ¶¶ 55–79. The Enforcement Metrics Policy and the FAMU Directive exist in the context of Defendants’ rhetorical war against immigrants; Plaintiffs allege that the combination pushes immigration judges to use both policies as a shortcut or excuse to deny relief. Id. ¶¶ 55–79, 138–40, 154. Plaintiffs have thus alleged a plausible claim that Defendants’ weaponization of the immigration court system—through their policies, their perpetuation of asylum-free zones, and their pervasive hostility toward asylum seekers—creates a constitutionally intolerable probability of actual bias in immigration courts that violates the INA. See § 1229a; Caperton, 556 U.S. at 882–84.
3. Plaintiffs state a claim under the Take Care Clause. The Take Care Clause is a cornerstone of our constitutional design, operating not only to empower the Executive branch, but also to constrain Executive actions by reference to duly enacted laws passed by Congress. By its text, the Take Care Clause requires the Executive not simply to “execute” the laws, but to “take Care” that the laws be “faithfully” executed.22 U.S. Const. art. II, § 3. “Faithfully execute” was understood at the Founding to mean “strict adherence to duty . . . [w]ithout failure of performance . . . [s]incerely . . . [h]onestly.” Andrew

21 Defendants muddle the concept of causation in a way that ignores Plaintiffs’ allegations. See Motion at 27–28. Plaintiffs’ allegations are based on the most recent EOIR data available and are entitled to all reasonable inferences in their favor. See Compl. ¶¶ 84–96. It is reasonable to infer that asylum-free zones persist to the present. Plaintiffs properly allege that they result from Defendants’ unlawful actions. Id ¶ 204. 22 The Executive’s duty under the Take Care Clause “can be delegated to subordinates, including the attorney general.” United States v. Navarro-Vargas, 408 F.3d 1184, 1205 (9th Cir. 2005) (en banc). The Take Care Clause thus applies equally to Executive officials, including the Attorney General, whose power derives from the President.

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Kent, Ethan J. Leib & Jed Handelsman Shugerman, Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2132 (June 2019). “Execute” meant “to carry out or put into effect or force, to enforce, to administer,” like it means today. Id. at 2133. The phrase “take Care” was understood to be “a directive from a superior to an agent, directing that special attention be paid to ensure that a command or duty was carried out.” Id. at 2134.
Although the contours of the Take Care Clause have not yet been defined by the federal courts, the Executive’s “constitutional obligation to ensure the faithful execution of the laws” stands as a bulwark of our Constitution’s separation-of-powers principles. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 484 (2010) (quotations omitted); see also Chadha, 462 U.S. at 951 (The Constitution “divide[s] the delegated powers of the . . . federal government into three defined categories . . . to assure, as nearly as possible, that each Branch of government . . . confine[s] itself to its assigned responsibility.”). Thus, under our constitutional system, “Congress makes laws and the President, acting at times through agencies . . . , ‘faithfully execute[s]’ them.” Util. Air Reg. Grp. v. EPA, 573 U.S. 302, 327 (2014). By imposing on the Executive the obligation to take care that the laws be faithfully executed, the Take Care Clause affords due respect to Congress and limits the Executive’s authority to act against the laws that Congress has enacted. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“[T]he Constitution is neither silent nor equivocal about who shall make laws which the President is to execute.”); id. at 633 (“[T]he power to execute the laws starts and ends with the laws Congress has enacted.”) (Douglas, J., concurring).
The Take Care Clause may properly be invoked to prevent widespread, persistent, and egregious Executive misconduct in flagrant disregard of congressional command.23 Here, Plaintiffs challenge that very sort of misconduct, alleging that the Attorney General persistently

23 The Clause need not be invoked against isolated agency action or inaction. Such challenges fall within the purview of the APA. See 5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.”).

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and egregiously has mismanaged the immigration court system in flagrant disregard of the adjudicatory standards of the INA, and to such an extent that he effectively has suspended the statutory scheme that Congress created. Compl. ¶¶ 193–200. Plaintiffs’ Take Care Clause claim not only is justiciable but also states a plausible claim for relief.
a. Plaintiffs’ Take Care Clause claim is justiciable. Defendants contend that the Take Care Clause is nonjusticiable because it starts and ends with the Executive and is judicially unenforceable. See Motion at 22–23. That argument is contrary to the plain mandate of the Take Care Clause itself and the separation-of-powers principles inherent in our constitutional design.24 Defendants rely primarily on an overly broad reading of the Supreme Court’s 1866 decision in Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866), without acknowledging that Johnson’s ruling was limited to claims brought against the President, rather than executive officials. Defendants contend that Johnson held that the Take Care Clause is nonjusticiable. Motion at 22. But there are “no case[s] adopting that understanding of Johnson.” Citizens for Responsibility & Ethics in Wash. v. Trump (CREW), 302 F. Supp. 3d 127, 139 (D.D.C. 2018). In Johnson, the State sued, in part on federalism grounds, to enjoin President Andrew Johnson from carrying out duly enacted provisions of the Reconstruction Acts, which would have delayed the reintegration of the Southern states into the Union. 71 U.S. (4 Wall.) at 492; see id. at 477. The

24 It also runs afoul of a relatively recent order from the Supreme Court, in which it directed the parties in United States v. Texas to address the question whether the Obama administration’s Deferred Action for Parents of Americans policy “violates the Take Care Clause of the Constitution, Art. II, § 3.” 136 S. Ct. 906 (2016) (Mem.); see also Citizens for Responsibility & Ethics in Wash. v. Trump (CREW), 302 F. Supp. 3d 127, 139 (D.D.C. 2018) (noting the order in United States v. Texas “suggest[s] that the Clause’s justiciability is an open question”); Jack Goldsmith & John F. Manning, The Protean Take Care Clause, 164 U. Pa. L. Rev. 1835, 1848 (2016) (“The Supreme Court has also invoked the Take Care Clause as the textual source of the President’s duty to abide by and enforce the laws enacted by Congress—that is, as the instantiation of the President’s duty to respect legislative supremacy and not to act contra legem.”).

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Court “limit[ed its] inquiry to the question presented,” which was whether the President may be named as a Defendant and personally enjoined from enforcing federal law on the basis that the law is arguably unconstitutional. Id. at 498. The Court held that he could not. Id. at 499 (emphasis added). Johnson, by its terms is limited to its facts and does not foreclose Plaintiffs’ claim, “particularly against executive branch officials other than the President.” CREW, 302 F. Supp. 3d at 139; see also Johnson, 71 US at 490 (citing statements by the prevailing party that, “[i]n the case of a mere subordinate officer the court may very well enforce its authority . . . because, taking a secretary from the head of his department, or an Attorney General from his office . . . does not stop the government, does not interfere with any great branch or department of the government. The President is there to make another Attorney General . . . .”).25
Defendants’ argument that the Take Care Clause falls under general principles forbidding judicial interference is also unavailing. See Motion at 22. A suit “to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Armstrong v. Exceptional Child Ctr., 575 U.S. 320, 326 (2015); see also Free Enter. Fund, 561 U.S. at 491 n.2 (“[E]quitable relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.” (internal quotation marks omitted)); Franklin v. Massachusetts, 505 U.S. 788, 828 (1992) (Scalia, J., concurring in part and concurring in the judgment) (“Review of the legality of [Executive] action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the [Executive’s] directive . . . .”). Thus, the Supreme Court has

25 Defendants’ reliance on Lujan is also misplaced. See Motion at 22. In Lujan, the Supreme Court addressed Article III’s limitations as they relate to generalized grievances challenging Executive action—i.e., cases in which the plaintiff claims “only harm to his and every citizen’s interest in proper application of the Constitution and laws.” 504 U.S. at 573. By analogy only, the Lujan Court likened jurisdiction over generalized grievance challenges to a “transfer from the President to the courts [of] the Chief Executive’s most important constitutional duty,” to “take Care that the Laws be faithfully executed.” Id. at 577 (quoting U.S. Const. art. II, § 3). Lujan is a standing case, pure and simple—it is not a Take Care Clause case, and it certainly does not hold that the clause is unenforceable.

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held that “[w]hen judicial action is needed to serve broad public interests—as when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance . . . —the exercise of jurisdiction has been held warranted,” even as a check on the Executive. Nixon, 457 U.S. at 754(citations omitted); see also EBSC I, 932 F.3d at 774 (“[I]f there is a separation of powers concern . . . it is between the President and Congress, a boundary that we are sometimes called upon to enforce.”).
At bottom, “[t]he courts, when a case or controversy arises, can always ascertain whether the will of Congress has been obeyed.” Chadha, 462 U.S. at 953 n.16 (internal quotation marks omitted). That authority is a core judicial function—indeed, it remains “emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). It is therefore well within the authority of this Court to adjudicate Plaintiffs’ constitutional claim.
b. Plaintiffs do not challenge an exercise of Executive discretion. Under the Take Care Clause, the Executive’s obligation to “faithfully execute” the laws means that it lacks any discretion to suspend them. U.S. Const. art. II, § 3. “The Constitution does not confer upon [the Executive] any power to . . . suspend or repeal such [laws] as the Congress enacts.” United States v. Midwest Oil Co., 236 U.S. 459, 505 (1915). Nor does the clause confer a “dispensing power”—in Kendall v. United States, the Supreme Court rejected the contention that “the obligation imposed on the President to see the laws faithfully executed, implies a power to forbid their execution.” 37 U.S. (12 Pet.) 524, 612–13 (1838). Defendants attempt to mischaracterize Plaintiffs’ Take Care Clause claim as a challenge to Executive discretion and contend that, as such, it is nonjusticiable. See Motion at 22–23. To support their position, Defendants cite Heckler v. Chaney, 470 U.S. 821, 832 (1985), and United States v. Navarro-Vargas, 408 F.3d 1184 (9th Cir. 2005). Both cases involve the Executive’s exercise of prosecutorial discretion—a distinct form of discretion long deemed unreviewable.

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See Heckler, 470 U.S. at 832. In Heckler, an APA case, the Court analogized an agency’s decision not to take an enforcement action to “the decision of a prosecutor in the Executive branch not to indict.” Id. Likewise, in Navarro-Vargas, a criminal case, the Ninth Circuit held that the same is true with respect to discretion exercised by a grand jury in deciding to issue an indictment. 408 F.3d at 1205.
Neither Heckler nor Navarro-Vargas applies here, as Plaintiffs do not challenge any exercise of Executive discretion, let alone an exercise of prosecutorial discretion in an individual case. Instead, Plaintiffs challenge Defendants’ widespread, persistent, and egregious violations of standards established by Congress and set forth in the INA—conduct in which no government official has discretion to engage.26
To be sure, “[t]he power of executing the laws necessarily includes both authority and responsibility to resolve some questions left open by Congress that arise during the law’s administration.” Util. Air Reg. Grp., 573 U.S. at 327. But if “it does not include a power to revise clear statutory terms that turn out not to work in practice,” see id., it “does not permit the [Executive] to refrain from executing laws duly enacted by the Congress,” Nat’l Treasury Emps. Union, 492 F.2d at 604; EBSC I, 932 F.3d at 774 (same). Under the Take Care Clause, the Executive has no discretion to persistently and egregiously disregard the case-by-case adjudication standards of the INA.
c. Plaintiffs plead a plausible claim for relief. Through the INA, Congress has delegated to the Attorney General the obligation to oversee the immigration court system in accordance with the case-by-case adjudication standards

26 Defendants claim that under United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950), the nonjusticiability of Executive discretion is “especially true for immigration.” Motion at 23. Knauff addressed the Attorney General’s authority to decide, in an individual case and during a national emergency, that a person’s admission into the country is not in the national interest. 338 U.S. at 540–42, 544–45. It is limited to the Attorney General’s discretion to enforce immigration laws in individual cases; it does not hold that the Executive has “discretion at a vast scale” to act in violation of their statutory mandates or constitutional obligations.

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of the INA. See Compl. ¶¶ 194–95; 8 U.S.C. §§ 1101(b)(4), 1103(g). That obligation requires the Attorney General to ensure that the INA’s case-by-case adjudication standards are upheld. Compl. ¶ 195; § 1229a(b)(4)(A)–(B), (c)(1)(A), (c)(4)(B). Given that clear command, the Attorney General has no discretion to suspend or limit their operation. See Util. Air Reg. Grp., 573 U.S. at 327–28; Youngstown, 343 U.S. at 587; Kendall, 37 U.S. (12 Pet.) at 612–13.
Plaintiffs’ Complaint states a plausible claim for relief under the Take Care Clause based on allegations that the Attorney General has persistently and egregiously disregarded the adjudicatory standards in the INA. Plaintiffs allege that the Attorney General has “suspended the INA’s case-by-case adjudication standards through the abuse of authority and mismanagement of the immigration courts.” Compl. ¶ 197. As explained above, Section II(B), (C), Plaintiffs allege that he has abused his authority to control the immigration court system by allowing courts to categorically deny asylum claims regardless of their merits. Id. ¶ 86. Those rates of denials have been increasing for years, but the Attorney General has taken no meaningful action to correct such persistent and egregious violations of law. Id. ¶¶ 82, 84–101. Instead, he has taken affirmative actions to exacerbate them, including reorganizing the administrative appellate system in a manner that removes the independence of its members, permits Defendant McHenry himself to decide individual appeals, and rewards judges in asylum-free zones with appointments to the appellate bench. Id. ¶ 103. He has nullified asylum law in Plaintiffs’ asylum-free zones— creating courts in which the INA effectively is suspended. Id. ¶ 99.
Plaintiffs also allege that the Attorney General has mismanaged the immigration court docket in a manner that has increased the backlog by nearly 300 percent. Compl. ¶¶ 104–05. He has directed immigration judges to postpone long-scheduled hearings to respond to politically motivated priorities at the border. Id. ¶¶ 113–15. Through his refer-and-review authority, he has eliminated docket management practices that aim to manage caseloads and preserve already

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limited immigration court resources. Id. ¶ 112.27 Those actions have caused the immigration court backlog to increase, causing cases to remain unresolved for years. Id. ¶¶ 104, 106–110. The Attorney General’s actions have the effect of undermining the case-by-case adjudication standards that Congress commanded must apply in all immigration courts. Id. ¶ 111.
Plaintiffs allege that the Attorney General effectively has suspended the INA’s case-bycase adjudication standards by taking persistent and egregious actions that disregard the operation of those standards throughout the immigration court system. His actions have the effect of “dispensing” with laws enacted by Congress, see Kendall, 37 U.S. (12 Pet.) at 612–13, and violate the Executive’s obligation to “Take Care” that those laws be faithfully executed. Nat’l Treasury Emps. Union, 492 F.2d at 604. Plaintiffs plead sufficient facts to state a plausible claim for relief under the Take Care Clause.
E. Venue is proper in the District of Oregon. Venue is proper in this Court under 28 U.S.C. § 1391(e)(1). In cases against United States officers or employees, venue is proper in judicial districts where “(A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred,” or “(C) the plaintiff resides.” 28 U.S.C. § 1391(e)(1). A plaintiff organization’s residence, for venue purposes, is where the organization “maintains its principal place of business.” 28 U.S.C. § 1391(c)(2). A corporation’s principal place of business is “the place where corporation’s officers direct, control, and coordinate the corporation’s activities” or the corporation’s “nerve center.” Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010); see also RAJMP, Inc. v. United States, 2019 WL 2613304, at * 2 (D. Colo. May 9, 2019) (applying Hertz to § 1391(e)(1)).28

27 See, e.g., Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). 28 Plaintiffs assume for the purposes of argument that a party’s “residence” within the meaning of § 1391(e)(1) is the same as its “residence” for the purposes of § 1391(c)(2). See RAJMP, 2019 WL 2613304, at *2 n.4 (citing Hammonds v. Stamps.com, Inc., 844 F.3d 909, 911–12 (10th Cir. 2016) (applying a presumption of consistent usage in jurisdictional statutes)).

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Defendants suggest that no Plaintiff maintains its principal place of business in Oregon. Motion at 32. This is incorrect. Law Lab was founded and incorporated in Oregon and directs and controls its operations out of its Portland, Oregon, office. Compl. ¶ 20. In Portland, Law Lab manages Equity Corps of Oregon and other nationwide programs, including in Atlanta, Georgia; Kansas City, Missouri; San Diego, California; Charlotte, North Carolina; and El Paso, Texas. Compl. ¶ 20. Law Lab’s nerve center is in Oregon; thus, for the purposes of § 1391, Law Lab’s principal place of business is in Oregon. See Hertz, 669 U.S. at 92-93.
Defendants accuse Plaintiffs of forum shopping, suggesting that the venue statute was not designed to allow one judicial district to decide claims that apply nationwide. Motion at 32–33. But that position is contrary to established case law. Under § 1391(e)(1), the phrase “the plaintiff” means “any plaintiff,” and only one “plaintiff” need reside in a judicial district for venue to be proper. See, e.g., Exxon v. Fed. Trade Comm’n, 588 F.2d 895, 898–99 (3d Cir. 1978) (“[R]equiring every plaintiff in an action against the federal government . . . to independently meet section 1391(e)’s standards would result in an unnecessary multiplicity of litigation. . . . There is no requirement that all plaintiffs reside in the forum district.”).29 Because Plaintiff Law Lab resides in Oregon, venue is proper in this district.
This Court should also reject Defendants’ request to sever Plaintiffs’ claims. Multiple plaintiffs may properly join an action if they assert any right to relief jointly with respect to the same “transaction, occurrence, or series of transactions or occurrences” and “any question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. (a)(1). In this action, Plaintiffs challenge Executive-level immigration policies that apply across the immigration court

29 The cases that Defendants cite are not to the contrary. In Natural Resources Defense Council, Inc. v. Tennessee Valley Authority, 459 F.2d 255, 257 (1972), the Second Circuit considered whether a suit against the Tennessee Valley Authority fell within the exceptions clause of § 1391(a). And National Distillers & Chemical Corp. v. Department of Energy, 487 F. Supp. 34, 36–37 (1980), dealt with an issue of fraudulent joinder, which Defendants do not and cannot allege here.

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system. See Compl. ¶¶ 37–44 (explaining the creation and enforcement of the Enforcement Metrics Policy and FAMU Directive). They do not, as Defendants contend, challenge the adjudication of individual asylum claims or require particularized factual analysis. See Motion at 34. Because Plaintiffs assert systemic challenges to broad, programmatic policies, severance is unnecessary and nonsensical. It would only result in unnecessarily repetitive litigation—the very problem that Rule 20(a)(1) seeks to avoid. See League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th Cir. 1977) (permissive joinder rule should “be construed liberally in order to promote trial convenience and to expedite the final determination of disputes, thereby preventing multiple lawsuits.”).
Finally, Defendants’ cursory request to dismiss Plaintiffs’ claims based on the doctrine of forum non conveniens should be rejected out of hand. Forum non conveniens provides for dismissal when no adequate alternative forum exists and the balance of private and public interest factors favors dismissal. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981). Defendants bear the burden to identify an adequate alternative forum. Cheng v. Boeing Co., 708 F.2d 1406, 1411 (9th Cir. 1983). Defendants have not met this burden, as they identify no specific court better suited to adjudicate this case. See Motion at 35. In all events, forum non conveniens dismissal is generally more appropriate when the alternative court sits in a foreign country. See, e.g., Lueck v. Sundstrand Corp., 236 F.3d 1137, 1145 (9th Cir. 2001). Moreover, courts are reluctant to dismiss on forum non conveniens grounds if the plaintiff resides in the forum. See id. Here, there is no “transferee” court in another judicial system or foreign country, and Plaintiff Law Lab resides in Oregon. Plaintiffs’ claims were properly brought in Oregon and should be adjudicated here. V. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendants’ Motion to Dismiss.

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DATED: April 24, 2020

PERKINS COIE LLP

Stephen Manning, OSB No. 013373 smanning@ilgrp.com Nadia Dahab, OSB No. 125630 nadia@innovationlawlab.org Jordan Cunnings, OSB No. 182928 jordan@innovationlawlab.org Tess Hellgren, OSB No. 191622 tess@innovationlawlab.org INNOVATION LAW LAB The Oregon Trail Bldg 333 SW 5th Ave Ste 200 Portland OR 97204 Telephone: 503.241.0035
Melissa Crow (admitted pro hac vice) Melissa.Crow@splcenter.org SOUTHERN POVERTY LAW CENTER 1101 17th Street, NW, Suite 705 Washington, DC 20036 Telephone: 202.355.4471
Rebecca Cassler (admitted pro hac vice) Rebecca.Cassler@splcenter.org Gracie Willis (admitted pro hac vice) Gracie.Willis@splcenter.org SOUTHERN POVERTY LAW CENTER 150 E. Ponce de Leon Avenue, Suite 150 Decatur, GA 30030 Telephone: 404.221.6700

By: s/ Thomas R. Johnson Thomas R. Johnson, OSB No. 010645 TRJohnson@perkinscoie.com Bryan D. Beel, OSB No. 073408 BBeel@perkinscoie.com Heidee Stoller, OSB No. 072835 HStoller@perkinscoie.com Nathan R. Morales, OSB No. 145763 NMorales@perkinscoie.com 1120 N.W. Couch Street, 10th Floor Portland, OR 97209-4128 Telephone: 503.727.2000
Attorneys for Plaintiffs Las Americas Immigrant Advocacy Center; Asylum Seeker Advocacy Project; Catholic Legal Immigration Network, Inc.; Innovation Law Lab; Santa Fe Dreamers Project; and Southern Poverty Law Center

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Perkins Coie LLP 1120 N.W. Couch Street, 10th Floor
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 Case 3:19-cv-02051-IM Document 62 Filed 05/08/20 Page 1 of 28
Gary M. Berne, OSB No. 774077 Email: gberne@stollberne.com Keith S. Dubanevich, OSB No. 975200 Email: kdubanevich@stollberne.com Keil M. Mueller , OSB No.085535 Email: kmueller@stollberne.com STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 S.W. Oak Street, Suite 500 Portland, Oregon 97204 Telephone: (503) 227-1600 Facsimile: (503) 227-6840
Attorneys for Amici Curiae

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

LAS AMERICAS IMMIGRANT ADVOCACY CENTER; ASYLUM SEEKER ADVOCACY PROJECT; CATHOLIC LEGAL IMMIGRATION NETWORK, INC.; INNOVATION LAW LAB; SANTA FE DREAMERS PROJECT; AND SOUTHERN POVERTY LAW CENTER,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; WILLIAM BARR, in his official capacity as Attorney General of the United States; U.S. DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; AND JAMES MCHENRY, in his official capacity as EOIR Director of the United States,

Case No. 3:19-cv-02051-IM
BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF BOARD OF IMMIGRATION APPEALS IN SUPPORT OF PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS
ORAL ARGUMENT REQUESTED

Defendants.

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Case 3:19-cv-02051-IM Document 62 Filed 05/08/20 Page 2 of 28
TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. ARGUMENT ...................................................................................................................... 6
A. THE ATTORNEY GENERAL AND EOIR DIRECTOR HAVE EXTENSIVE POWER OVER IMMIGRATION JUDGES, CREATING A SYSTEM THAT LACKS INDEPENDENCE........................................................ 7 1. IJ Performance Metrics ............................................................................... 7 2. FAMU Dockets ......................................................................................... 13 3. Treatment of Unaccompanied Minors ...................................................... 15 4. Attorney General Decisions ...................................................................... 16 a. Decisions limiting docket management tools................................ 17 b. Matter of A-B- ............................................................................... 19
B. THE ATTORNEY GENERAL AND EOIR DIRECTOR HAVE CREATED AN ADMINISTRATIVE APPEALS SYSTEM THAT LACKS INDEPENDENCE .................................................................................. 22
III. CONCLUSION................................................................................................................. 24
i
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TABLE OF AUTHORITIES
Cases Baez-Sanchez v. Barr
947 F.3d 1033 (7th Cir. 2020) .............................................................................................. 3, 23 De Pena Paniagua v. Barr
No. 18-2100, 2020 WL 1969458 .............................................................................................. 22 Guzman Orellana v. Att’y Gen. of United States
956 F.3d 171 (3d Cir. 2020)...................................................................................................... 23 Matter of A-B-
27 I. & N. Dec. 316 (AG 2018) .............................................................................. 19, 20, 21, 22 Matter of A-R-C-G-
26 I. & N. Dec. 388 (BIA 2014) ................................................................................... 20, 21, 22 Matter of Castro-Tum
27 I. & N. Dec. 271 (AG 2018) ................................................................................................ 17 Matter of E-F-H-L-
27 I. & N. Dec. 226 (A.G. 2018) .............................................................................................. 12 Matter of L-A-B-
R-, 27 I. & N. Dec. (AG 2018)................................................................................................. 19 Matter of R-A-V-P-
27 I. & N. Dec. 803 (BIA 2020) ............................................................................................... 10 Quinteros v. Att’y Gen. of United States
945 F.3d 772 (3d Cir. 2019).............................................................................................. 3, 7, 23 Statutes 8 U.S.C. § 1229a ........................................................................................................................... 11 8 U.S.C. § 1229a(b)(5)(A) ............................................................................................................ 18 8 U.S.C. §§ 1103, 1230............................................................................................................. 1, 21 8 U.S.C. §§ 1229a(b)(4)(A), 1230(b)(2), 1362............................................................................... 9
ii
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Regulations 8 C.F.R. § 1003.1(a)(1) ................................................................................................................. 22 8 C.F.R. § 1003.1(d)(1)............................................................................................................. 1, 21 8 C.F.R. § 1003.1(d)(3)(i) ............................................................................................................. 23 8 C.F.R. § 1003.1(d)(3)(ii)............................................................................................................ 23 8 C.F.R. § 1003.1(e)(4) ................................................................................................................. 23 8 C.F.R. § 1003.1(h) ............................................................................................................... 16, 21 8 C.F.R. § 1003.10(a)...................................................................................................................... 7 8 C.F.R. § 1003.10(b) ............................................................................................................... 1, 21 8 C.F.R. §§ 1003.16(b), 1003.25(c), 1292.1 ................................................................................... 9 Organization of the Executive Office for Immigration Review
84 FR 44537-01 (Aug. 26, 2019).............................................................................................. 23
iii
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I. INTRODUCTION The immigration court system lacks independence. An agency within the Department of
Justice, the Executive Office for Immigration Review (EOIR) houses the immigration court system, which consists of trial-level immigration courts and a single appellate tribunal known as the Board of Immigration Appeals (BIA). Immigration judges, including appellate immigration judges, are viewed by EOIR “management” not as judges, but as Department of Justice attorneys who serve at the pleasure and direction of the Nation’s prosecutor-in-chief, the Attorney General.
As former immigration judges, we offer the Court our experience and urge that corrective action is necessary to ensure that immigration judges are permitted to function as impartial adjudicators, as required under the Immigration and Nationality Act. The INA and its implementing regulations set forth procedures for the “timely, impartial, and consistent” resolution of immigration proceedings. See 8 U.S.C. §§ 1103, 1230; 8 C.F.R. § 1003.1(d)(1) (charging the Board with appellate review authority to “resolve the questions before it in a manner that is timely, impartial, and consistent with the [INA] and regulations”) (emphasis added); 8 C.F.R. § 1003.10(b) (similarly requiring “immigration judges . . . to resolve the questions before them in a timely and impartial manner”) (emphasis added).
Although housed inside an enforcement agency and led by the Nation’s chief prosecutor, immigration judges must act neutrally to protect and adjudicate the important rights at stake in immigration cases and check executive overreach in the enforcement of federal immigration law. Applying a detached and learned interpretation of those laws, judges must correct overzealous bureaucrats and policy makers when they overstep the bounds of reasonable interpretation and the requirements of due process.
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But that is not how the immigration courts work today, and that is not the role that immigration judges have been directed to undertake. Instead, the immigration judge corps repeatedly is reminded by the EOIR Director and the Attorney General, of whom they serve and, therefore, where their loyalties should lie. Addressing a new class of immigration judges in March 2019, then-Deputy Attorney General Rod Rosenstein reminded the group that they are “not only judges,” but also employees of the Department of Justice, and members of the Executive branch. As such, Rosenstein admonished them to “follow lawful instructions from the Attorney General, and . . . share a duty to enforce the law.”1 EOIR and Department of Justice
0F
memos recently obtained through a Freedom of Information Act request also demonstrate bias in the hiring process of new immigration judges and appellate immigration judges, affording preference to individuals with government backgrounds and, for appellate immigration judges, preference to immigration judges with high denial rates.2
1F
Recent agency actions in particular immigration cases give special cause for alarm. In January 2020, the U.S. Court of Appeals for the Seventh Circuit issued a published opinion expressing disbelief at the BIA’s decision to ignore the Seventh Circuit’s binding remand order

1

U.S. Dep’t of Justice, Deputy Attorney General Rod J. Rosenstein Delivers Opening

Remarks at Investiture of 31 Newly Appointed Immigration Judges (Washington, D.C., March

15, 2019), available at https://www.justice.gov/opa/speech/deputy-attorney-general-rod-j-

rosenstein-delivers-opening-remarks-investiture-31-newly.

2

American Immigration Lawyers Association, AILA and the American Immigration

Council Obtain EOIR Hiring Plan via FOIA Litigation (May 5, 2020), available at

https://www.aila.org/EOIRHiringPlan; Tanvi Misra, DOJ Hiring Changes May Help Trump’s

Plan to Curb Immigration, ROLL CALL (May 4, 2020), available at

https://www.rollcall.com/2020/05/04/doj-hiring-changes-may-help-trumps-plan-to-curb-

immigration/?utm_source=AILA+Mailing&utm_campaign=feb9599445-AILA8-05-04-

2020&utm_medium=email&utm_term=0_3c0e619096-feb9599445-292022685.

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because the Attorney General had disagreed with it. The Seventh Circuit, having “never before

encountered defiance of a remand order,” warned that the BIA must count themselves lucky not

to have been held in contempt. Baez-Sanchez v. Barr, 947 F.3d 1033, 1035–36 (7th Cir. 2020).

Similarly, in December 2019, the U.S. Court of Appeals for the Third Circuit expressed concern

that the BIA was operating not as an impartial appellate tribunal but as a mechanism to ensure

deportation: “For reasons I will explain below, it is difficult for me to read this record and

conclude that the Board was acting as anything other than an agency focused on ensuring [the

petitioner’s] removal rather than as the neutral and fair tribunal it is expected to be. That

criticism is harsh and I do not make it lightly.” Quinteros v. Att’y Gen. of United States, 945

F.3d 772, 789 (3d Cir. 2019) (McKee, J., concurring).

Under the current Administration, the Department of Justice consistently has shown

evidence of bias, including by releasing public statements and inaccurate propaganda that

undermine the immigration courts’ neutrality and independence. In a speech to EOIR staff,

including immigration judges, in October 2017, then-Attorney General Jeff Sessions denounced

“case law that has expanded the concept of asylum,” complained that “vague, insubstantial, and

subjective [asylum] claims have swamped our system,” proposed there be “cost or risk for those

who make a baseless asylum claim,” and suggested there should not be “a court hearing on every

asylum application.”3 The Attorney General made similar statements in several other speeches.4

2F

3F

3

U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks to the Executive

Office for Immigration Review (Oct. 12, 2017), available at https://www.justice.gov/opa/speech/

attorney-general-jeff-sessions-delivers-remarks-executive-office-immigration-review.

4

U.S. Dep’t of Justice, “Attorney General Jeff Sessions Statement on Central American

‘Caravan’” (Apr. 23, 2018), available at https://www.justice.gov/opa/pr/attorney-general-jeff-

sessions-statement-central-american-caravan; U.S. Dep’t of Justice, Attorney General Sessions

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However, as former immigration judges, every day we heard cases of legitimate refugees fleeing persecution. While not all applications were granted because the asylum standard is complex and rigid, this in no way means that cases were “baseless.” Such statements by the Attorney General undermine the immigration courts’ integrity and clearly reveal the agency’s bias.
In May 2019, under the leadership of current Attorney General William Barr, EOIR published a document entitled “Myths v. Facts About Immigration Proceedings.”5 The “facts” as set forth in the document implied that most immigrants do not appear for their court hearings, that most asylum applications are denied, and that representation by an attorney has no significant impact on a respondent’s case outcome. A number of groups, including the National Association of Immigration Judges (NAIJ), the immigration judges’ union, responded to refute the statements in the EOIR document.6 The Washington Post printed an analysis of four of EOIR’s statements, concluding that, “[t]aken individually, each of the four claims . . . relies on a dubious read of the data or tells only part of the story, which tips the scale toward Two

Delivers Remarks on the Administration’s Efforts to Combat MS-13 and Carry Out Its Immigration Priorities (Dec. 12, 2017), available at https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-administrationsefforts-combat-ms-13-and-carry.

5

Executive Office for Immigration Review, Myth v. Facts About Immigration Proceedings

(May 2019), available at https://www.justice.gov/eoir/page/file/1161001/download.

6

National Association of Immigration Judges, National Assn. of Immigration Judges Says

DOJ’s “Myths v. Facts” Filled With Errors and Misinformation (May 13, 2019), available at

https://www.naij-usa.org/images/uploads/newsroom/NAIJFacts_vs_Fiction2.pdf.

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Pinocchios. The effect is more pernicious when considering all four claims together, which is an argument for Three Pinocchios.”7
Unsurprisingly, there have been calls for the creation of an independent immigration court for decades.8 Now more than ever, it is clear that an immigration court system controlled by the Attorney General is both unsustainable and fundamentally unfair. The Attorneys General serving the present administration systematically have attempted to erode due process and neutrality under the guise of efficiency, with the goal to incentivize deportation orders.9 They have responded to criticism of such efforts from the immigration judges themselves by seeking to decertify the NAIJ.10 The impact of such efforts is reflected in the above-cited circuit court decisions.
Under the current administration, EOIR has imposed on the immigration courts a series of policies that have even further undermined immigration judges’ independence and neutrality.

7

Salvador Rizzo, Fact-Checking the Trump Administration’s Immigration Fact Sheet,

WASHINGTON Post (May 10, 2019), available at https://www.washingtonpost.com/politics/

2019/05/10/fact-checking-trump-administrations-immigration-fact-sheet/.

8

See, e.g., Bill McCollum, Immigration Courts Need an Upgrade, WASHINGTON TIMES,

June 17, 2013, available at https://www.washingtontimes.com/news/2013/jun/17/immigration-

courts-need-an-upgrade/ (mentioning in which McCollum’s sponsorship in 1999 of H.R. 185

(“United States Immigration Court Act of 1999”) to create an Article I Immigration Court).

McCollum introduced a similar bill, H.R. 4258 (104th Congress), in 1996.

9

U.S. Dep’t of Justice, Return to Rule of Law in Trump Administration Marked by

Increase in Key Immigration Statistics (Aug. 8, 2017), available at https://www.justice.gov/

opa/pr/return-rule-law-trump-administration-marked-increase-key-immigration-statistics

(equating an increase in the number of deportation orders as a “return to the rule of law”).

10 Hon. Amiena Khan and Hon. Dorothy Harbeck, DOJ Tries to Silence the Voice of the Immigration Judges—Again!, THE FEDERAL LAWYER (March/April 2020), at 9 (reposted on immigrationcourtside.com at https://immigrationcourtside.com/wpcontent/uploads/2020/04/Immigration-TFL_Mar-Apr2020.pdf).

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Those policies, which we discuss in more detail below, serve the Administration’s deportation agenda and clearly demonstrate and propagate systemic bias across the immigration court system. The policies include:
• The imposition of strict case completion quotas on all immigration judges; • The creation of Family Unit “rocket dockets” with strict timelines for scheduling and
adjudicating cases; • The elimination of administrative closure as a docketing tool for judges to maintain
efficiency in adjudicating cases; • The limitation of judges’ ability to grant continuances despite good cause; • The prioritization of speed over due process, even in cases involving unrepresented
children; and • The EOIR Director’s review of individual cases for purposes of disciplining
immigration judges and modifying case outcomes. As an agency that exists solely to house the immigration courts, EOIR’s function should be to protect the independence and integrity of the hundreds of judges who preside over those courts and of the BIA. As former immigration judges, we observe that other U.S. courts, including this one, do not issue propaganda prejudging the outcomes of the proceedings before them, devaluing the participation of attorneys in those proceedings, undermining their own pro bono attorney assistance program, or casting unsuccessful litigants as deceitful or not credible. Such statements demonstrate a bias that is unacceptable and, frankly, shocking.
II. ARGUMENT The immigration courts and Board of Immigration Appeals lack independence. The
process by which cases are managed, oversight is provided, and decisions are made within EOIR demonstrates a broken and politically motivated system that lacks justice.
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A. THE ATTORNEY GENERAL AND EOIR DIRECTOR HAVE EXTENSIVE POWER OVER IMMIGRATION JUDGES, CREATING A SYSTEM THAT LACKS INDEPENDENCE.
Immigration judges are attorneys appointed by the Attorney General “to conduct specified classes of proceedings.” 8 C.F.R. § 1003.10(a). “Immigration judges shall act as the Attorney General’s delegates in the cases that come before them.” Id (emphasis added). The immigration courts are housed within the Office of the Chief Immigration Judge (“OCIJ”), a component of EOIR, which is an administrative agency in the Department of Justice. As a part of the executive, rather than judicial, branch of government, immigration courts and the BIA are controlled by the Attorney General, a political appointee whose policies are guided by the political priorities of the administration he or she serves.
Under the current administration, the President and Attorney General have used the immigration courts to carry out their anti-immigrant agenda. Because of the lack of independence in the immigration court system, the changes the administration has implemented have removed discretion, neutrality, and basic tools for administrative efficiency and docket management from immigration judges. Some clear examples are described below. These changes impact the day-to-day work of sitting judges.
1. IJ Performance Metrics On January 17, 2018, James McHenry, the current EOIR Director, issued a memorandum setting forth several metrics for evaluating the performance of immigration judges.11 In March 2018, Director McHenry sent a memorandum to the immigration judge corps instructing that
11 Memorandum from James McHenry to The Office of the Chief Immigration Judge, et al. (Jan. 17, 2018), available at https://www.justice.gov/eoir/page/file/1026721/download. Page 7 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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each immigration judge complete at least 700 cases per year to receive a satisfactory
performance review. The result of the performance metrics is to force immigration judges to cut
corners, to push them to adjudicate cases more quickly, and to incentivize deportation orders.
NAIJ repeatedly has pushed back on the performance metrics, urging that a one-size-fits-all
approach is inappropriate for immigration judges who are supposed to be impartial arbiters in immigration cases.12 In response, the administration has sought to decertify the union.13
Although Director McHenry has stated that the case quota was set after reviewing court
statistics, it is clear that considerations for individual courts like San Francisco and New York,
courts with lower adjudication rates, were disregarded in an effort to increase the pace of
deportations. Instead, the quotas reflect case completion rates in courts like Atlanta—a highly “efficient” court with one of the highest asylum denial rates in the country.14
The performance metrics appear on each immigration judge’s “dashboard,” an animated
odometer on their computers complete with “needles” that must be kept in the “green” zone for
12 National Association of Immigration Judges, Imposing Quotas on Immigration Judges Will Exacerbate the Case Backlog at Immigration Courts (Jan. 31, 2018), available at https://www.naij-usa.org/images/uploads/publications/NAIJ_Imposing_Quotas_on_IJs_will_ Exacerbate_the_Court_Backlog_1-31-18._.pdf; National Association of Immigration Judges, Threat to Due Process and Judicial Independence Caused by Performance Quotas on Immigration Judges (Oct. 2017), available at https://www.naij-usa.org/images/uploads/ publications/NAIJ_Quotas_in_IJ_Performance_Evaluation_10-1-17.pdf. 13 See Jacqueline Thomsen, Immigration Judges, Joined by Latham & Watkins, Fight DOJ Effort to Decertify Union, LAW.COM (Jan. 7, 2020), available at https://www.law.com/therecorder/2020/01/07/immigration-judges-joined-by-latham-watkinsfight-doj-effort-to-decertify-union/?slreturn=20200403153441. 14 See TRAC Immigration, Asylum Decisions, available at https://trac.syr.edu/phptools/ immigration/asylum/ (data through March 2020). Page 8 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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each designated category.15 The dashboard acts as a real-time reflection of the judge’s performance, reminding the judge to complete cases within expedited timeframes and adjudicate motions expeditiously. If they fail to meet their performance metrics, the judges may be subject to discipline, reassignment, or even termination. The performance metrics thus actively disincentivize judges from issuing continuances, require that all asylum cases be expedited, irrespective of the individual due process considerations in each case, and give each immigration judge a pecuniary interest in the cases they decide.
The performance metrics impair respondents’ ability to secure legal representation and present evidence in their cases—both clear requirements of the Immigration and Nationality Act (INA). See 8 U.S.C. §§ 1229a(b)(4)(A), 1230(b)(2), 1362; 8 C.F.R. §§ 1003.16(b), 1003.25(c), 1292.1. 1001.1(f). For example, the metrics require 85 percent of detained cases to be completed within 60 days of the filing of the charging document. Because respondents have no right to appointed counsel in removal proceedings, detained individuals who are not able to work and earn income generally must rely on limited pro bono resources or on family to pay private counsel. As a result, in 2017, only approximately 30 percent of detained individuals were able to secure legal representation in removal proceedings.16 The performance metrics, and the limited, 60-day timeframe they impose in detained cases make it even more difficult to do so. That is
15 A depiction of the dashboard is included in the Complaint at paragraph 127. 16 TRAC Immigration, Who is Represented in Immigration Court? (Oct. 16, 2017), available at https://trac.syr.edu/immigration/reports/485/. Page 9 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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particularly true today, as pro bono legal service providers are overwhelmed by the current immigration court case load, recently reported as consisting of 1.4 million cases.17
Requiring judges to complete cases within 60 days reduces the likelihood that detained individuals will obtain representation, which also significantly reduces the likelihood that they will receive a favorable outcome in their case. A comparison of asylum denial rates in immigration court from Fiscal Years 2012 through 2017 by Syracuse University’s TRAC Immigration research center showed a 26.7 percent difference in denial rates between unrepresented (95.1 percent) and represented (68.4 percent) asylum seekers from Guatemala. For asylum seekers from China, the difference in denial rate for unrepresented (78.7 percent) and represented (17.7 percent) asylum seekers was sixty percent.18
Many detained respondents in removal proceedings also request continuances to obtain documents to support their cases. Thousands of noncitizens in immigration detention have no criminal background, are seeking protection from persecution, and do not speak English.19 Gathering documents, while representing oneself from detention, is exceptionally challenging and takes time. Detention facilities and jails limit access to phones and have under-resourced law libraries. Requiring immigration judges to complete cases within 60 days causes them to
17 See TRAC Immigration, Mapping Where Immigrants Reside While Waiting for Their Immigration Court Hearing (Mar. 24, 2020), available at https://trac.syr.edu/immigration/reports/600/. 18 TRAC Immigration, Immigration Court Asylum Denial Rates by Nationality and Representation Status, FY 2012 - FY 2017 (Nov. 20, 2017), available at https://trac.syr.edu/immigration/reports/491/include/table2.html. 19 Asylum seekers with no criminal history may be denied bond and detained indefinitely upon a finding that they might be a flight risk. See, e.g., Matter of R-A-V-P-, 27 I. & N. Dec. 803 (BIA 2020). Page 10 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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deny continuances for respondents to secure counsel and to gather necessary documents. The result is a violation of the right to counsel and due process. The performance metrics show that speed and deportation are valued more than due process and justice.
Another particularly impactful metric is the requirement that 95 percent of hearings must be completed on the initial scheduled individual merits date. This metric similarly pushes immigration judges to deny continuances, even for legitimate reasons. It also pushes judges to rush through hearings to ensure cases are completed in one hearing. Coupled with the 700-case completion requirement, which necessitates scheduling at least three merits hearings a day, this metric forces judges to complete cases that are factually and legally complex, including those that require a foreign language interpreter, in under two hours. In practice, to meet this metric, immigration judges must deny continuances and limit in-court testimony, presentation of witnesses, and closing arguments. If they do not, they risk losing their jobs. Immigration judges are thus effectively prevented from providing full and fair hearings, a due process requirement that is also enshrined in the INA. See 8 U.S.C. § 1229a.
Despite pushback from NAIJ and some Assistant Chief Immigration Judges, EOIR Director McHenry has insisted that 700 cases annually is a reasonable completion number for all immigration judges. But it is impossible to reasonably set a single completion rate for courts that hear exclusively detained cases and courts that hear non-detained cases, as well as courts from different circuits. Some respondents on detained dockets request removal orders at their initial hearings. As a result, those cases are completed much more quickly than cases on non-detained dockets, where the majority of respondents apply for asylum. Despite vast docket disparities,
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EOIR Director McHenry has refused to make modifications based on docket types, instead imposing a one-size-fits-all directive.
The performance metrics were a focus at a national training for immigration judges in the summer of 2018. EOIR management hosted several sessions focused on reviewing the metrics and ways that immigration judges could hear cases more expeditiously. One recommendation was that judges deny cases without scheduling merits hearings at all.20 EOIR management suggested that immigration judges consider reviewing applications for relief, many of which are filed without the assistance of counsel, and determine, without hearing any testimony, that applicants failed to meet their burden of proof. Because of that suggestion, many immigration judges deny applications for immigration relief without hearing any testimony. That practice is inconsistent with due process and impacts unrepresented respondents particularly harshly.21
Remarkably, EOIR has refused to hold case completion quotas in abeyance during the present COVID-19 pandemic. As a result, immigration judges hearing cases in detained courts (which have remained open in spite of the health crisis) wishing to grant continuances to avert
20 See also Matter of E-F-H-L-, 27 I. & N. Dec. 226 (A.G. 2018) (Attorney General certified to himself and vacated a BIA precedent decision from 2014 guaranteeing asylum seekers the right to a merits hearing). 21 Another presenter at the same conference, Appellate Immigration Judge Roger Pauley, instructed the judges not to apply binding Supreme Court precedent when doing so would not lead to a “sensible” result. Matthew Hoppock, FOIA Results: Immigration Judges’ Conference Materials for 2018 (Aug. 21, 2018), available at https://www.hoppocklawfirm.com/foia-resultsimmigration-judges-conference-materials-for-2018/. Page 12 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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health risks do so at risk of not meeting their quotas, and possibly imperiling their own professional standing.22
2. FAMU Dockets The “FAMU” (short for “Family Unit”) docket was memorialized on November 16, 2018, in another policy memorandum issued by Director McHenry.23 The memorandum
requires that FAMU cases be docketed expeditiously and completed in one year or less (although
internal memos have instructed judges in some courts to schedule cases after a single 40-day
continuance to obtain counsel). The administration has created a narrative that family units
traveling to the United States from Central America are “gaming” the United States asylum system and are not legitimate refugees.24 As a result, Attorney General Sessions emphasized to
the immigration judge corps at the 2018 training that individuals are abusing the asylum system,
and that immigration judges must stop such abuse. That narrative plagues the FAMU docket.
22 Immigrant detention centers have also become hot spots for COVID-19 outbreaks. See, e.g., Patricia Sulbarán Lovera, Coronavirus: Immigration Detention Centres in Crisis, BBC NEWS MUNDO (May 1, 2020), available at https://www.bbc.com/news/world-us-canada52476131; Alejandro Lazo & Zusha Elinson, Inside the Largest Coronavirus Outbreak in Immigration Detention, THE WALL STREET JOURNAL (Apr. 30, 2020), available at https://www.wsj.com/articles/inside-the-largest-coronavirus-outbreak-in-immigration-detention11588239002. 23 Memorandum from James R. McHenry III to All of EOIR (Nov. 16, 2018), available at https://www.justice.gov/eoir/page/file/1112036/download. 24 U.S. Dep’t of Justice, Attorney General Jeff Sessions Delivers Remarks to the Executive Office for Immigration Review (Oct. 12, 2017), available at https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-executiveoffice-immigration-review (“The system is being gamed [by] dirty immigration lawyers who are encouraging their otherwise unlawfully present clients to make false claims of asylum providing them with the magic words needed to trigger the credible fear process.”). Page 13 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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Most families on the FAMU docket are fleeing actual persecution in Central America and have limited resources. The expeditious nature of the docket means that fewer families are represented by counsel, as they do not have sufficient time to find private counsel or make it through most nonprofit legal services’ waitlists. Immigration judges must limit continuances for counsel despite the impossible situation the FAMU docket timeframe creates for respondents. Likewise, judges have limited authority to grant continuances for case preparation and document gathering. In addition, to meet performance metrics and complete the cases within the required timeframe, immigration judges must hear complex asylum cases—often for multiple family members, many of whom have suffered severe trauma—in less than two hours. This timeline is impossible when considering asylum cases for families of four or more, where multiple family members have their own stories to tell. Rapid adjudication without the opportunity to develop the record means that immigration judges are denying more cases, because it is simply impossible for applicants to prove their cases in such circumstances. Indeed, it is easier for a judge to deny rather than grant asylum on such a limited record, particularly for unrepresented respondents who will be unable to present technical legal arguments about due process violations on appeal.
Finally, because of the expedited timeline for FAMU cases, families sometimes fail to appear at their initial hearings because their hearing notices do not arrive timely or at all.25
25 The hiring of immigration court support staff has not kept pace with Immigration Judge hiring, causing delays in the processing of change of address forms received by the courts, and in the mailing of notices of hearing. Furthermore, cases are commonly transferred to the dockets of newly hired judges or visiting judges. Thus, an immigrant who was given a notice in court for a hearing years in the future might suddenly be calendared for a much sooner date by a newly assigned judge. Page 14 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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Although many families appear if they are given a second opportunity to do so, most immigration judges do not afford them that opportunity. The expedited docket does not allow the judges the time to investigate reasons for respondents’ failure to appear, but instead pushes them to issue removal orders in absentia to meet their performance goals.
3. Treatment of Unaccompanied Minors The agency’s prioritization of speed over due process extends to its treatment of unaccompanied minors appearing in immigration court. In December 2017, Attorney General Sessions issued a memorandum ordering IJs to adhere to the principles that the “timely and efficient conclusion of cases serves the national interest,” “efficient and timely completion of cases and motions before EOIR is aided by the use of performance measures,” and “any and all suspected instances of fraud should be promptly reported.”26 Fifteen days later, EOIR’s Chief Immigration Judge released a memorandum specifically addressing minors who appear in immigration court. Echoing the Attorney General’s concerns for efficiency, the Chief Immigration Judge instructed all immigration judges to familiarize children with the courtroom but only “[t]o the extent that resources and time permit” and “to resolve issues of removability and relief without undue delay.”27 Reiterating the mandate for skepticism, the memo twice reminded immigration judges of the “adversarial” nature of immigration court and twice invoked
26 Memorandum from Attorney General (Dec. 5, 2017), available at https://www.justice.gov/opa/press-release/file/1015996/download. 27 Memorandum from MaryBeth Keller, Chief Immigration Judge, to All Immigration Judges, et al. (Dec. 20, 2017) at 4, 6, available at https://www.justice.gov/eoir/file/oppm1703/download. Page 15 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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the importance of ensuring due process for the government.28 The memo also advised judges that “legal requirements, including credibility standards and burdens of proof, are not relaxed or obviated for juvenile respondents.”29 As for cases involving an Unaccompanied Alien Child (UAC), the memo noted that there is “an incentive to misrepresent accompaniment status or age in order to attempt to qualify for the benefits associated with UAC status,” and that IJs “should be vigilant in adjudicating cases of a purported UAC.”30 The memo continues to inform
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proceedings today. 4. Attorney General Decisions
The Attorney General has the authority to “certify” decisions to himself pursuant to 8 C.F.R. § 1003.1(h). Attorneys General under all administrations have published decisions through the certification process. However, the Attorneys General under the current administration have systematically referred cases at a far greater pace than their predecessors in order to limit immigration judges’ independence, control their dockets, and create new limitations on asylum and other forms of relief.31

28 Id. at 4, 6-7 (reminding immigration judges of the need for cross examination of children in immigration court and the credibility and burden of proof standards that apply to all respondents, including children).

29

Id. at 7.

30 Id. at 7-8.

31 One case each was certified under the administrations of Presidents Reagan and George H.W. Bush. Four cases were certified under the Clinton Administration. While the Attorneys General serving under President George W. Bush certified a total of 15 cases, the number dropped to 4 under the Obama Administration; two of those certifications were simply to vacate decisions by Bush Attorney General Michael Mukasey. While the 15 certifications under Bush II occurred over 8 years, the Attorneys General under the Trump Administration have certified 13 cases in just over three years.

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a. Decisions limiting docket management tools One major change in immigration court policy carried out through a certified decision of the Attorney General was the elimination of administrative closure, a crucial docketing tool used by immigration judges to prioritize active cases by removing from their active calendars cases with pending applications for seeking collateral immigration benefits that judges lack jurisdiction to adjudicate.32 Administrative closure was also used in other special circumstances, including where the Department of Homeland Security (DHS), the prosecutor in immigration court, exercised its prosecutorial discretion not to pursue removal proceedings. In a system where there is now a backlog of over one million cases, judges relied on administrative closure as a tool to manage their dockets. On May 17, 2018, the Attorney General published Matter of Castro-Tum, 27 I. & N. Dec. 271 (AG 2018), in which he eliminated administrative closure as a docketing tool in all but very limited circumstances. 27 I. & N. Dec. at 271 (Holding that “immigration judges and the Board may only administratively close a case where a previous regulation or a previous judicially approved settlement expressly authorizes such an action.”). In addition to the decision’s impact on judges’ independence and ability to manage their dockets, Matter of Castro-Tum had a direct and notable impact on the judge who originally heard the case. A highly respected immigration judge in Philadelphia, Steven Morley, issued the eCastro-Tum had entered the United States as an unaccompanied minor. After his release from detention, he did not appear for his immigration proceedings. Judge Morley was concerned,
32 DHS maintains sole jurisdiction to adjudicate immigrant visas and certain waivers. For example, where a noncitizen in proceedings before the immigration court marries a U.S. citizen, it is DHS (and not the immigration judge) that must adjudicate the resulting immigrant visa application. Page 17 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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based on his past experience, that Immigration and Customs Enforcement (ICE) had provided the court with an inaccurate address for the youth. Judge Morley thus felt it would be unfair to order him removed in absentia without first determining if he had received proper notice of the hearing, as required by law.
On remand, the Attorney General directed Judge Morley to proceed according to the section of the law that governs in absentia orders. That section also requires a finding of proper notice.33 Judge Morley proceeded consistently with the Attorney General’s order by granting a short continuance for briefing on the issue of notice. In response, EOIR management immediately removed the case from Judge Morley’s calendar. EOIR then hand-picked a management-level supervisory judge known for following the agency line, who was sent from Virginia to Philadelphia to conduct a single five-minute hearing in which she ordered the youth removed in absentia.34 Eighty-six similar cases were later removed from Judge Morley’s calendar, sending a strong warning to the all immigration judges (many of whom were new hires still in their two-year probationary period) of what to expect should they choose to act as “only judges” and not as loyal employees of the Attorney General and executive branch.
33 8 U.S.C. § 1229a(b)(5)(A) mandates the entry of a removal order where a noncitizen does not appear for their hearing “after written notice required under paragraphs (1) and (2) of section 1229(a) of this title.” 34 Judge Morley was also chastised by his supervisor who, according to a grievance filed by the NAIJ, incorrectly told Judge Morley that he was required to enter a final decision at the first hearing on remand, and falsely accused him of acting unprofessionally in purportedly criticizing the Attorney General’s and the BIA’s decisions. See Tal Kopan, Immigration Judge Removed From Cases After Perceived Criticism of Sessions, CNN (Aug. 8, 2018), available at https://www.cnn.com/2018/08/08/politics/immigration-judges-justice-departmentgrievance/index.html (containing a link to the NAIJ’s grievance). Page 18 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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The Attorney General similarly limited the use of continuances when he published Matter of L-A-B-R-, 27 I. & N. Dec. 504 (AG 2018). Matter of L-A-B-R- limits circumstances in which immigration judges may consider granting continuances. The decision, in conjunction with EOIR memoranda, pushes judges to deny continuances. A July 31, 2007, policy memorandum from then-Chief Immigration Judge MaryBeth Keller specifies that immigration judges must make clear the reason for adjournments through the use of the proper adjournment code.35 But no similar requirement exists for the denial of continuances. Judges were advised that Director McHenry reviews cases and adjournment codes to ensure that judges are honest and accurate when documenting reasons for granting continuances—again sending a clear message that judges were being watched closely to ensure they did not deviate from the administration’s emphasis on rapid adjudication to facilitate deportation.
b. Matter of A-BThe Attorney General’s decision in Matter of A-B-, 27 I. & N. Dec. 316 (AG 2018), raises several concerns for due process and neutrality. That case involved a BIA decision reversing an immigration judge’s denial of asylum. The BIA had directed the judge to grant asylum on remand, pending a DHS background security check required by regulation. Instead of granting relief as ordered, the judge attempted to certify the case back to the BIA. See 27 I. & N. Dec. at 321–22.
35 Memorandum from MaryBeth Keller, Chief Immigration Judge, to All Immigration Judges, et al. (July 31, 2017), available at https://www.justice.gov/eoir/file/oppm17-01/download (a specific adjournment code is required every time an immigration judge continues a case. The list of reasons for adjournments and the corresponding codes are issued by the EOIR Director). Page 19 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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Before the file reached the BIA, however, the Attorney General had certified the case to himself—from a posture in which it was procedurally improper to do so. The Attorney General then unilaterally changed the issue on appeal, turning the case into a referendum on whether domestic violence could form the basis for asylum. That issue had been decided by the BIA in its 2014 decision in Matter of A-R-C-G-, 26 I. & N. Dec. 388 (BIA 2014), in which DHS, in its role as prosecutor, had stipulated to the holding that victims of domestic violence who were unable to leave their relationships constituted a cognizable particular social group for asylum purposes. 26 I. & N. Dec. at 395.
Consistent with that stipulation, in response to the Attorney General’s request for briefs on the issue in Matter of A-B-, DHS stated that Matter of A-R-C-G- had been properly decided by the BIA in accordance with all applicable precedent and asked the Attorney General not to vacate that decision. In other words, both parties (and all amici, with the single exception of the anti-immigrant group FAIR) agreed that Matter of A-R-C-G- had been properly decided. Of course, the function of courts is to resolve disputes between the parties, and there was no dispute on this point.
While the case was still pending before him, the Attorney General stated in a radio interview that “We’ve had situations in which a person comes to the United States and says they are a victim of domestic violence; therefore, they are entitled to enter the United States. Well that’s obviously false, but some judges have gone along with that.”36 Clearly, any judge making
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36 Jeff Sessions Wants to Close “Blatant Loopholes” in Immigration Law, KTAR NEWS (May 7, 2018), available at http://ktar.com/story/2054280/ag-jeff-sessions-says-closingloopholes-can-fight-illegal-immigration/. Page 20 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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such a statement would have to recuse him or herself from the case. However, the Attorney General neither felt the need to be impartial, nor was he held accountable for his bias.37
Both issues—procedural irregularity and perceived bias—were raised in briefs submitted
to the Attorney General, who brushed them aside in his decision. Matter of A-B-, 27 I. & N.
Dec. at 324–25. Regarding the issue of bias, the Attorney General wrote that there is no
“requirement that an administrator with significant policymaking responsibilities withdraw from
‘interchange and discussion about important issues,’” adding “[i]f policy statements about
immigration-related issues were a basis for disqualification, then no Attorney General could
fulfill his or her statutory obligations to review the decisions of the Board.” Id. at 325.
The next problem involved the BIA. Although the decision in Matter of A-B- did not
preclude all victims of domestic violence from being granted asylum, the BIA chose to apply it
that way, categorically denying pending asylum appeals that had relied on Matter of A-R-C-G’s
analysis without engaging in the individualized factual analysis required in such cases.
Furthermore, there was no consideration by the BIA as to whether Matter of A-B- could properly
be applied retroactively. It would seem that if Matter of A-B- was viewed as a policy shift
undertaken by the Attorney General, it could be applied only to future cases. Even if applied
retroactively, cases that were heard before A-B- was decided (and therefore had formulated their
37 As described in Section I, supra, the INA and its implementing regulations set forth procedures for the “timely, impartial, and consistent” resolution of immigration proceedings. See 8 U.S.C. §§ 1103, 1230; 8 C.F.R. § 1003.1(d)(1) (charging the Board with appellate review authority to “resolve the questions before it in a manner that is timely, impartial, and consistent with the [INA] and regulations”); 8 C.F.R. § 1003.10(b) (similarly requiring “immigration judges . . . to resolve the questions before them in a timely and impartial manner”). Those procedures— and the requirement that they be fairly and impartially administered—extends not only to the BIA and the immigration courts, but also to the Attorney General in the exercise of his refer and review authority under 8 C.F.R. § 1003.1(h). Page 21 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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Case 3:19-cv-02051-IM Document 62 Filed 05/08/20 Page 26 of 28
particular social groups under the A-R-C-G- standard) should have been remanded to allow respondents to reformulate their analysis and/or provide additional evidence or arguments in response to the superseding precedent.
The recent precedent decision of the U.S. Court of Appeals for the First Circuit in De Pena Paniagua v. Barr, No. 18-2100, 2020 WL 1969458, – F.3d – (1st Cir. Apr. 24, 2020), contains two additional points worth noting here: (1) in its rejection of the proposed particular social group, “A-B- itself cites only fiat”; and (2) nothing in A-B- provided “justification for categorically rejecting such a group without further consideration of the particulars of a given case.” 2020 WL 1969458 at *4. Matter of A-B- is thus a prime example of how the Attorney General’s abuse of power has resulted in ill-reasoned and biased precedent that discourages immigration judges from granting asylum in meritorious cases.
B. THE ATTORNEY GENERAL AND EOIR DIRECTOR HAVE CREATED AN ADMINISTRATIVE APPEALS SYSTEM THAT LACKS INDEPENDENCE
Federal regulations require that “[t]here shall be in the Department of Justice a Board of Immigration Appeals, subject to the general supervision of the Director, Executive Office for Immigration Review (EOIR). The Board members shall be attorneys appointed by the Attorney General to act as the Attorney General’s delegates in the cases that come before them.” 8 C.F.R. § 1003.1(a)(1).
Because the BIA lacks independence, just as the immigration courts do, the statutory right to appeal does not address the inherent due process violations that permeate the system. Respondents in removal proceedings have a right to appeal to the BIA. But the administration is stacking the BIA with judges who had particularly high asylum denial rates as immigration
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Case 3:19-cv-02051-IM Document 62 Filed 05/08/20 Page 27 of 28
judges.38 Recent federal court decisions have also expressed concerns about the BIA’s lack of legal reasoning and anti-respondent bias.39
In addition, as described above, the Attorneys General have shown the ease with which they are willing to certify cases to themselves when they perceive the BIA to diverge from the administration’s political priorities. The Department of Justice has also recently introduced new regulations allowing the Director of EOIR, a purely political appointee, to certify and decide cases himself. Organization of the Executive Office for Immigration Review, 84 FR 44537-01 (Aug. 26, 2019). Moreover, the standard of review at the BIA is highly deferential to the immigration judge who decided the case—the BIA applies a clearly erroneous standard to a judge’s findings of fact, including credibility findings. See 8 C.F.R. § 1003.1(d)(3)(i).40 That standard results in the affirmance of many decisions that may nevertheless have been incorrect on their merits. Such decisions include affirmances without opinion, where the BIA need not provide any reasoning for its affirmance. 8 C.F.R. § 1003.1(e)(4).
In addition, while some respondents in removal proceedings can pursue petitions for review before the federal courts of appeals, such an appeal cannot correct systemic issues. If an asylum applicant is prevented from presenting her case in immigration court because the
38 American Immigration Lawyers Association, AILA and the American Immigration Council Obtain EOIR Hiring Plan via FOIA Litigation (May 5, 2020), available at https://www.aila.org/EOIRHiringPlan. 39 See Baez-Sanchez v. Barr, 947 F.3d at 1035–36; Quinteros, 945 F.3d at 789; Guzman Orellana v. Att’y Gen. of United States, 956 F.3d 171, 175 (3d Cir. 2020) (reiterating evidentiary standards because “we are troubled by the BIA’s apparent distortion of evidence favorable to [the respondent] in this case”). 40 But see 8 C.F.R. § 1003.1(d)(3)(ii) (the BIA applies a de novo standard of review to questions of law, discretion, judgment, and other issues). Page 23 - BRIEF OF AMICI FORMER IMMIGRATION JUDGES AND MEMBERS OF
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immigration judge is rushing the case and refuses to permit testimony, then the asylum applicant has no record on which to pursue her appeal. If she is unrepresented, it will be impossible for her to articulate the lack of due process she received during her hearing before the immigration judge. III. CONCLUSION
The immigration court system is broken. It lacks independence, neutrality, and does a disservice to the individuals who must appear before it. The policies implemented by this administration have created a situation in which immigration judges have a pecuniary interest in rushing cases and issuing removal orders at a rapid pace. This violates the basic statutes that require impartiality and is not justice.
DATED this 8th day of May, 2020.
STOLL STOLL BERNE LOKTING & SHLACHTER P.C.
By: s/ Keil M. Mueller Gary M. Berne, OSB No. 774077 Keith S. Dubanevich, OSB No. 975200 Keil M. Mueller, OSB No. 085535
209 SW Oak Street, Suite 500 Portland, OR 97204 Telephone: (503) 227-1600 Email: kmueller@stollberne.com
kdubanevich@stollberne.com gberne@stollberne.com Attorneys for Amici Curiae Former Federal Immigration Judges and Members of Board of Immigration Appeals
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 JOSEPH H. HUNT Assistant Attorney General Civil Division WILLIAM C. PEACHEY Director Office of Immigration Litigation District Court Section EREZ R. REUVENI Assistant Director BRIAN C. WARD Senior Litigation Counsel P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 616-9121 Email: brian.c.ward@usdoj.gov
Attorneys for Defendants

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

LAS AMERICAS IMMIGRANT ADVOCACY )

CENTER, et al.,

)

)

Plaintiffs,

)

v.

)

)

DONALD TRUMP, et al.,

)

)

Defendants.

)

)

)

CASE NO. 3:19-cv-02051-IM
DEFENDANTS’ REPLY IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 2
I. Plaintiffs lack Article III standing. ....................................................................................2 II. Plaintiffs are outside of the zone of interests.....................................................................6 III. Plaintiffs’ claims should be dismissed for lack of jurisdiction........................................10
A. Section 1252(a)(5) and (b)(9).................................................................................. 10 B. Section 1252(g) ....................................................................................................... 19 C. Section 1252(f) ........................................................................................................ 22 D. Section 1329 ............................................................................................................ 24 IV. Plaintiffs fail to state a claim upon which relief can be granted. ....................................26 A. Plaintiffs fail to state a claim under the Take Care Clause (claim I). ..................... 26 B. Plaintiffs fail to state a claim under the Due Process Clause or INA (claim II). .... 27 C. Plaintiffs fail to state an APA claim (claims III-VI). .............................................. 32 V. The complaint should be dismissed for improper venue.................................................34 CONCLUSION............................................................................................................................. 35
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TABLE OF AUTHORITIES
Cases
AFL-CIO v. Trump, 929 F.3d 748 (D.C. Cir. 2019) .................................................................................................. 17
Aguilar v. ICE, 510 F.3d 1 (1st Cir. 2007) ......................................................................................................... 22
Al Otro Lado v. Nielsen, 327 F. Supp. 3d 1284 (S.D. Cal. 2018)....................................................................................... 7
Alvarez v. Sessions, 338 F. Supp. 3d 1042 (N.D. Cal. 2018) .................................................................................... 13
Am. Fed’n of Gov’t Employees v. Sec’y of Air Force, 716 F.3d 633 (D.C. Cir. 2013) .................................................................................................. 18
Anoushiravani v. Fishel, No. 04-cv-212-MO, 2004 WL 1630240 (D. Or. July 19, 2004)............................................... 24
Ashcroft v. Iqbal, 556 U.S. 662 (2009)...................................................................................................... 27, 29, 32
Barahona-Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001) .................................................................................................. 21
ASAP v. Barr, 409 F. Supp. 3d 221 (S.D.N.Y. 2019)................................................................................. 15, 16
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)............................................................................................................ 29, 30
Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984).................................................................................................................. 25
Byam v. Cain, No. 2:18-CV-1030-SI, 2019 WL 3779508 (D. Or. Aug. 12, 2019).......................................... 24
Cancino-Castellar v. Nielsen, 338 F. Supp. 3d 1107 (S.D. Cal. 2018)............................................................................... 18, 19
Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)............................................................................................................ 28, 29
ii

Cisneros v. Alpine Ridge Group, 508 U.S. 10 (1993)............................................................................................................. passim
Dalton v. Specter, 511 U.S. 462 (1994)............................................................................................................ 33, 34
CREW v. DOJ, 846 F.3d 1235 (D.C. Cir. 2017) .......................................................................................... 34, 35
East Bay Sanctuary Covenant v. Trump (East Bay I), 932 F.3d 742 (9th Cir. 2018) .................................................................................................. 7, 9
East Bay Sanctuary Covenant v. Trump (East Bay III), 950 F.3d 1242 (9th Cir. 2020) ................................................................................................ 2, 7
El Rescate Legal Servs. v. EOIR, 959 F.2d 742 (9th Cir. 1991) .................................................................................................. 3, 5
Fed’n for Am. Immigration Reform (FAIR), Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996) ................................................................................................ 9, 10
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., Inc., 528 U.S. 167 (2000).................................................................................................................. 24
Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194 (9th Cir. 1998) .................................................................................................. 28
Hamama v. Adducci, 912 F.3d 869 (6th Cir. 2018) .............................................................................................. 23, 24
Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).................................................................................................................... 3
In re Gilead Scis. Sec. Litig., 536 F.3d 1049 (9th Cir. 2008) ............................................................................................ 32, 33
INS v. Legalization Assistance Project of L.A. Cty. (LAP), 510 U.S. 1301 (1993).......................................................................................................... 6, 8, 9
J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) ................................................................................ 12, 13, 15, 17
Jarkesy v. S.E.C., 803 F.3d 9 (D.C. Cir. 2015) ...................................................................................................... 18
iii

Jennings v. Rodriguez, 138 S. Ct. 830 (2018) .............................................................................................. 12, 13, 15, 18
Lexmark Int’l v. Static Control Components, 572 U.S. 118 (2014).................................................................................................................... 6
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)................................................................................................................ 5, 6
Martinez v. Napolitano, 704 F.3d 620 (9th Cir. 2012) .................................................................................................... 11
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012).............................................................................................................. 9, 28
Nat’l Immigration Project of Nat’l Lawyers Guild v. EOIR, No. 1:20-cv-852, 2020 WL 2026971 (D.D.C. Apr. 28, 2020)............................................ 18, 24
P.L. v. ICE, No. 1:19-cv-1336, 2019 WL 2568648 (S.D.N.Y. June 21, 2019) ............................................ 16
Padilla v. ICE, 953 F.3d 1134 (9th Cir. 2020) .................................................................................................. 23
People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087 (D.C. Cir. 2015) .................................................................................................. 3
Perez-Guzman v. Lynch, 835 F.3d 1066 (9th Cir. 2016) .................................................................................................. 26
RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012).................................................................................................................. 26
Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471 (1999)................................................................................................ 12, 20, 21, 22
Rochester Tel. Corp. v. United States, 307 U.S. 125 (1939).................................................................................................................. 33
Rueda Vidal v. DHS, No. 18-cv-9276, 2019 WL 7899948 (C.D. Cal. Aug. 28, 2019) .............................................. 13
Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) .......................................................................................... 26, 27
iv

Sangers v. Brown, 504 F.3d 903 (9th Cir. 2007) .................................................................................................... 32
Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) .................................................................................................... 19
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ................................................................................................................ 3
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)............................................................................................................ 17, 25
E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec., 950 F.3d 177 (3d Cir. 2020)...................................................................................................... 19
Vazquez Perez v. Decker, No. 18-cv-10683, 2019 WL 4784950 (S.D.N.Y. Sept. 30, 2019) ............................................ 24
Statutes 5 U.S.C. § 702......................................................................................................................... 27, 28 8 U.S.C. § 1158......................................................................................................................... 7, 16 8 U.S.C. § 1229......................................................................................................................... 7, 23 8 U.S.C. § 1229a .................................................................................................................... passim 8 U.S.C. § 1252...................................................................................................................... passim 8 U.S.C. § 1329............................................................................................................................. 24 28 U.S.C. § 1331........................................................................................................................... 25
v

INTRODUCTION The Court should dismiss this case. Plaintiffs raise a range of general grievances with the immigration court system, but the only actual agency practices they challenge are immigration judge performance metrics and other case-completion goals that the Executive Office for Immigration Review (EOIR) has instituted to ensure that cases are resolved on a reasonable timeline. Plaintiffs challenge these goals under the Take Care Clause, the Immigration and Nationality Act (INA), and the Administrative Procedure Act (APA). Each of these claims fails. First, Plaintiffs lack standing. See ECF No. 24, Motion to Dismiss (Mot.), at 7-14. They have identified no concrete injury that is fairly traceable to these goals or redressable by a favorable decision from this Court. Id. Second, Plaintiffs are outside the zone of interests of the INA provisions they cite, which address the rights of individual aliens in removal proceedings. Nothing in these provisions extends rights to or protects interests of organizations. Id. at 16. Third, in 8 U.S.C. § 1252 and § 1329, Congress created a comprehensive scheme for claims arising from removal proceedings that eliminated district court jurisdiction. Id. at 16-22. The statutory bars to judicial review extend to policy-and-practice claims, as well as claims brought by organizations, and, as the Ninth Circuit recently ruled, also prohibit granting injunctive relief related to the INA provisions governing removal proceedings when sought by organizational plaintiffs. Id. Fourth, Plaintiffs fail to state a claim upon which relief can be granted. Id. 22-32. Their Take Care Clause claim is nonjusticiable, their INA claim is not based on any plausible allegations that casecompletion goals are biasing the outcome of proceedings in immigration court, and their APA claims challenge future decisions that cannot be considered final agency action or ripe for review, and for which an APA claim cannot be raised because Congress has set out an alternative, and exclusive, avenue for review. Id. Finally, Plaintiffs’ claims do not relate to any government action or activities by the Plaintiffs in this District, and so venue is improper here. Id. at 32-35.
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ARGUMENT I. Plaintiffs lack Article III standing.
Plaintiffs cannot establish standing for any of their claims. Mot. 7-9. Here, Plaintiffs— which are all organizations—raise only speculative injuries of aliens who are not parties to this case. Id. As the government has explained, Plaintiffs allege no concrete or particularized injury to their own interests sufficient to establish Article III standing. Id. at 9-14.
None of Plaintiffs’ arguments in response solve this fundamental problem with their claims. See ECF No. 57, Plaintiffs’ Opposition (Pls.’ Opp.), at 6-11. They argue that they have “a legally protected interest in using their organizational resources to achieve their missions,” and standing because “defendants impaired their missions to serve asylum-seeking clients and caused organizational resources to be diverted.” Pls.’ Opp. 7. But they cannot meet the standard from any of the cases they cite in support of this diversion-of-resources theory of standing. Plaintiffs rely on East Bay Sanctuary Covenant v. Trump (East Bay III), 950 F.3d 1242, 1265 (9th Cir. 2020), which held that diversion of resources can establish standing in some circumstances. Pls.’ Opp. 7. There, however, the court found that the challenged rule had “caused the Organizations to divert” “significant resources” to activities that were “not part of [their] core mission,” and that they otherwise “would have suffered some other injury,” because “[e]ach organization would have lost clients … had it not diverted resources toward counteracting the effect of the Rule.” Id. at 1266. As explained below, Plaintiffs have not identified any resources that they have diverted outside their core mission, let alone significant resources, nor do they allege that they risk losing clients or any other injury absent some diversion of resources. An organization “cannot manufacture the injury” by choosing to expend resources “fixing a problem that otherwise would not affect the organization.” East Bay III, 950 F.3d at 1265-66; see Mot. 11.
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Plaintiffs next cite Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), which held that an organization whose mission was to achieve equal access to housing had organizational standing to bring suit under the Fair Housing Act. Pls.’ Opp. 7. But Havens involved an organization that had diverted “significant resources to identify and counteract” the challenged practices. 455 U.S. at 379; see Mot. 12-13. Havens also involved the Fair Housing Act, which includes a private right of action and extends certain legal rights to “associations” in addition to individuals. People for the Ethical Treatment of Animals v. U.S. Dep’t of Agric., 797 F.3d 1087, 1100 (D.C. Cir. 2015) (Millett, J., dubitante); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016) (“Congress may ‘elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law.’”). There is no similar legally protected organizational interest at issue here. In El Rescate Legal Servs. v. EOIR, 959 F.2d 742, 748 (9th Cir. 1991), on which Plaintiffs also rely, see Pls.’ Opp. 7, the court held that organizations have standing to challenge a practice that “requires the organizations to expend resources in representing clients they otherwise would spend in other ways.” Plaintiffs do not identify any resources that they are similarly expending in a different way as a result of EOIR’s case-completion goals or any concrete injury or diversion of resources sufficient to satisfy Article III.
Plaintiffs also argue that they have alleged “concrete, particular, and actual harms to the[ ] organizations,” “separate from any potential injuries to respondents in immigration court.” Pls.’ Opp. 8. But nowhere in their arguments on standing, id. at 6-11, or in their complaint, see e.g., ¶¶ 155-92, do they identify these concrete injuries. Plaintiffs merely assert “that they are unable to fulfill their missions of providing meaningful legal assistance to asylum seekers because Defendants have denied them a fair court system in which to practice,” and that they have thus “been forced to divert organizational resources to redesign programs and systems; retrain staff and
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volunteers; rewrite guides and materials; and engage in increasing education, monitoring, and advocacy work to address underlying systemic problems with the immigration courts.” Id. at 9 (citing Compl. ¶¶ 160, 166, 170, 181-85). The cited paragraphs of their complaint offer no concrete examples of how they have been forced to divert resources in these ways and do not identify any programs that they have changed since the case-completion goals took effect. Moreover, Plaintiffs offer no plausible theory of why setting reasonable case-completion goals for immigration courts would require any diversion of resources whatsoever. Rather, the cited allegations show that Plaintiffs are continuing to carry out their missions of representing asylum seekers in removal proceedings. Compl. ¶¶ 166, 170. Plaintiffs’ allegations related to recruiting pro bono attorneys, id. ¶¶ 181-85, relate not to the case-completion goals but rather to the “backlog” and scheduling “delays,” id. ¶¶ 182-85—issues the case-completion goals should help remedy.
Plaintiffs mainly argue that their efforts and resources are “wasted” where immigration courts fail to adjudicate claims on a case-by-case basis, and cite portions of their complaint alleging that their efforts to represent asylum seekers in immigration court are nullified where immigration judges deny relief to their clients. Pls.’ Opp. 9. But this is an argument about the outcome of the proceedings in immigration court, not about Plaintiffs’ ability to carry out their missions of representing aliens in immigration court. There is no allegation that Plaintiffs are prevented from representing their clients or that case-completion goals have “impaired the organization’s ability to provide services” or “carry out” its “core activities,” as they must show to establish standing under the theory they advance. Mot. 11-12. And Plaintiffs put forth no concrete allegations or examples of any immigration judge making decisions based on case-completion goals rather than the facts of a particular case. Plaintiffs’ standing argument is based on an alleged failure of immigration judges to adjudicate claims on a case-by-case basis but their allegations do not show
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that this is happening. Moreover, the denial of a claim in immigration court could at most be an injury to the individual alien bringing the claim. Plaintiffs cannot establish standing based on injuries to these non-parties, see Mot. 7-9, and they disavow any such theory of standing anyway by claiming their “injuries [are] separate from any potential injuries to respondents in immigration court,” Pls.’ Opp. 8. If Plaintiffs’ argument is that the United States should grant asylum to more individuals, this is precisely the type of abstract and generalized grievance that the Supreme Court has repeatedly said cannot establish standing under Article III. Mot. 8, 13-14.
Having failed to identify any actual diversion of resources, Plaintiffs attempt to lower the standard for establishing standing. They argue that even an insignificant “loss of resources” that they would “otherwise would spend in other ways” should be enough to support standing. Pls.’ Opp. 9 & n.1 (quoting El Rescate, 959 F.2d at 748). But what resources have Plaintiffs diverted that they would have spent in other ways absent EOIR’s case-completion goals? Plaintiffs’ complaint and response to the motion to dismiss provide no answer to this question. See Mot. 1213. Rather, Plaintiffs attack the government’s argument that they must show some actual diversion of resources from their missions by saying that this argument “misses the point entirely” because, in their view, they do not have to show any such diversion of resources if their mission is to provide “legal assistance to asylum-seeking individuals” in immigration court, Pls.’ Opp. 9. The Supreme Court says otherwise. See Mot. 11-13.
Plaintiffs’ causation and redressability arguments fail for the same reasons. On causation, Plaintiffs argue, circularly, that their injuries are “fairly traceable” to the agency’s case-completion goals because they “allege that their injuries result from” these goals. Pls.’ Opp. 11. But the burden is on Plaintiffs to identify a particular, concrete injury and explain how it is caused by the challenged action, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992), and Plaintiffs do not
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even attempt to trace a connection here. See generally Pls.’ Opp. 6-11. Plaintiffs’ redressability arguments fare no better. Plaintiffs argue only that courts have power to award declaratory or injunctive relief and make no attempt to explain how it is “likely, as opposed to merely speculative,” that their claimed injuries would “be redressed by a favorable decision” granting them the declaratory or injunctive relief they seek in the complaint. Lujan, 504 U.S. at 561. In addition, their argument that the Court “has broad equitable powers to afford remedies in the form of injunctive relief,” Pls.’ Opp. 11, is incorrect as to organizational plaintiffs seeking injunctive relief related to the operation of removal proceedings in immigration court. See infra, 22-24. And Plaintiffs provide no explanation for how the declaratory relief they seek will redress any injury or have any effect whatsoever. See Complaint, Prayer for Relief (a)(1)-(3).
The Court should dismiss Plaintiffs’ claims for lack of standing. II. Plaintiffs are outside of the zone of interests.
Plaintiffs’ claims based on the INA also fail because they cannot show that organizations fall within the zone of interests of the INA provisions on which they base these claims. Mot. 1416. Under the APA, a plaintiff must show that they have some protected interest under the relevant statute, and the INA provisions Plaintiffs cite provide rights only to individual aliens in removal proceedings, not to organizations. Id. Plaintiffs’ arguments, see Pls.’ Opp. 11-24, do not explain how they fall within the zone of interests of the statutory provisions identified in the complaint.
Plaintiffs concede that a “statutory cause of action extends only to plaintiffs whose interests fall within the zone of interests protected by the law involved.” Pls.’ Opp. 11-12 (citing Lexmark Int’l v. Static Control Components, 572 U.S. 118 (2014)). They focus their arguments instead on distinguishing INS v. Legalization Assistance Project of L.A. Cty. (LAP), 510 U.S. 1301, 1305 (1993) (O’Connor, J., in chambers), in which Justice O’Connor concluded that “immigration advocacy organizations are outside the immigration statutes’ zone of interests,” and rely heavily
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on East Bay Sanctuary Covenant v. Trump (East Bay I), 932 F.3d 742, 769 (9th Cir. 2018). Pls.’ Opp. 12. East Bay I distinguished LAP on the grounds that the organizational interests asserted in that case were “markedly different from the interest” asserted in LAP. 932 F.3d at 769, n.10. East Bay I represents an incorrect and overly generous application of the zone-of-interests test, but even if it were correct, East Bay I involved interests that are materially different from the interests Plaintiffs assert here.
East Bay I dealt with the asylum statute, 8 U.S.C. § 1158, and noted that, “[w]ithin the asylum statute, Congress took steps to ensure that pro bono legal services of the type that the Organizations provide are available to asylum seekers.” East Bay, 932 F.3d at 768 (discussing the provisions at 8 U.S.C. § 1158(d)(4)(A)-(B)). Plaintiffs’ claims here are instead based on 8 U.S.C. § 1229a, which addresses the rights of individual aliens in removal proceedings in immigration court, see Mot. 18; Plaintiffs’ claims are not based on § 1158, see Complaint ¶¶ 193-242. Plaintiffs also cite Al Otro Lado v. Nielsen, 327 F. Supp. 3d 1284, 1300 (S.D. Cal. 2018), but Al Otro Lado similarly dealt with 8 U.S.C. § 1158. See 327 F. Supp. 3d at 1290, 1301. Plaintiffs next note that the Ninth Circuit held that “organizational plaintiffs, including Plaintiff Innovation Law Lab … fell within the INA’s zone of interests” in East Bay III. Pls.’ Opp. 13 (citing East Bay III, 950 F.3d at 1270). That case also dealt with the asylum statute, § 1158, and “[m]igrants in the country who file affirmatively for asylum,” whose claims are “collateral to the process of removal,” and who “never encounter the statutory provisions governing removal” under 8 U.S.C. § 1229a. Id. at 126970. Plaintiffs argue that this Court should follow East Bay and Al Otro Lado and distinguish LAP because it addresses “the zone of interests of an entirely different statute,” Pls.’ Opp. 12, but Plaintiffs’ claims are not based on the statute at issue in East Bay and Al Otro Lado. Plaintiffs must
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at a minimum show that 8 U.S.C. § 1229a was intended to provide rights to organizations—as the courts in East Bay and Al Otro Lado held § 1158 does—but Plaintiffs make no attempt to do so.
Plaintiffs advance no argument that they fall within the zone of interests of 8 U.S.C. § 1229a and, in fact, do not address § 1229a at all in their arguments on the zone of interests, see Pls.’ Opp. 11-14. This is not surprising: there is nothing in § 1229a that even arguably regulates or protects the interests of legal services organizations. Mot. 15. Plaintiffs base their claim that EOIR is violating “the INA’s case-by-case adjudication standards” on “8 U.S.C. §§ 1229a(b)(4)(A)-(B), (c)(1)(A), (c)(4)(B).” Complaint ¶¶ 195, 197; see also id. ¶¶ 202, 210, 228, 239. These statutory provisions say nothing about organizations. Section 1229a(b)(4), titled “Alien’s rights in proceedings,” addresses the “privilege[s]” and “rights” “the alien shall have” in these proceedings. 8 U.S.C. § 1229a(b)(4)(A)-(B) (emphasis added). Section 1229a(c)(1)(A) addresses determinations immigration judges must make related to “an alien,” and § 1229a(c)(4)(A) addresses “[a]n alien applying for relief” and the burden of proof on “the alien.”
Section 1229a does not regulate organizational interests at all, and provides even less basis for an organizational claim than the statute at issue in LAP. The opinion in LAP concludes that organizations failed to satisfy the zone-of-interests test even though that statute specifically addressed “qualified designated entities” who were to assist aliens seeking legalization under the statute. 510 U.S. at 1305. There is no similar language in § 1229a aimed at organizations, and even if there were it would not be enough given the LAP opinion’s conclusion that a statute’s reference to “organizations … [who] play[ed] a role in the [ ] scheme” “[f]or purposes of assisting in the program of legalization provided under” the statute is not enough to find that the statute “[i]s in any way addressed to their interests.” 510 U.S. at 1305. For a statute that is “clearly meant to protect the interests of undocumented aliens, not the interests of organizations,” even if the statute
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or an agency’s actions implementing the statute “may affect the way an organization allocates is resources,” this “does not give standing to an entity which is not within the zone of interests the statute meant to protect.” Id. Whatever the merits of East Bay and Al Otro Lado are, Plaintiffs’ claims fall squarely within the rule applied in LAP rather than those cases because the statutory provisions they rely on address the rights only of individual aliens, not organizations.
Plaintiffs argue that the zone-of-interests test is not “especially demanding” and that “there need be no indication of congressional purpose to benefit the would-be plaintiff” so long as suit by organizations would not be “inconsistent with the purposes implicit in the statute” and it can “reasonably be assumed that Congress authorized the plaintiff to sue.” Pls.’ Opp. 13-14 (quoting East Bay I, 932 F.3d at 768). But here there are clear indications that Congress did not intend to authorize organizations to bring suit to challenge how removal proceedings are conducted. Section 1229a governs the rights of individual aliens in removal proceedings, the “sole and exclusive procedure for determining” whether an alien is removable. 8 U.S.C. § 1229a. And Congress has specified that “the sole and exclusive means of judicial review” of a determination in removal proceedings is “a petition for review” filed by an individual alien in the “appropriate court of appeals,” 8 U.S.C. § 1252(a)(5)—a limitation on who can sue to enforce the provisions of § 1229a that extends to “[j]udicial review of all questions of law and fact” “arising from any action taken or proceedings brought to remove an alien,” id. § 1252(b)(9). As a result, “it cannot reasonably be assumed that Congress intended to permit suit” by organizations challenging how § 1229a is implemented in immigration court. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012); see also Mot. 19-20.
Finally, Plaintiffs attempt to distinguish Fed’n for Am. Immigration Reform (FAIR), Inc. v. Reno, 93 F.3d 897 (D.C. Cir. 1996). Pls.’ Opp. 12 n.5. FAIR held that an organization with an
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interest in a particular level of immigration does not fall within the INA’s zone of interests. Id. at 901-04. Plaintiffs argue that FAIR is “unhelpful” because it addressed an organization that sought lower rates of immigration and Plaintiffs here alternatively want more aliens to have an avenue to obtain legal status within the United States. Pls.’ Opp. 12 n.5. But they point to nothing in the statutory text indicating that Congress intended suits by organizations that want aliens to have easier access to legal status in United States but not organizations that want less immigration. “The question under the zone-of-interests test … is simply whether the language of the statutes invoked by the plaintiff or the supporting legislative history suggests a congressional intent to permit the plaintiff’s suit.” FAIR, 93 F.3d at 902. Nothing in § 1229a shows any such intent.
The Court should dismiss the statutory claims because Plaintiffs are outside the zone of interests. III. Plaintiffs’ claims should be dismissed for lack of jurisdiction.
Plaintiffs’ claims are also barred by jurisdictional provisions in the INA that foreclose challenges in district courts to the conduct of removal proceedings, including policy-and practices challenges and claims brought by organizations, 8 U.S.C. § 1252(a)(5), (b)(9), challenges to how cases are adjudicated, id. § 1252(g), and requests from organizational plaintiffs for injunctive relief related to 8 U.S.C. § 1229a or other provisions governing removal proceedings, id. § 1252(f). Plaintiffs’ arguments to the contrary, see Pls.’ Opp. 14-25, are inconsistent with the text of § 1252 and Ninth Circuit cases interpreting its jurisdictional limitations, see Mot. 16-22.
A. Section 1252(a)(5) and (b)(9) The INA contains a carefully constructed scheme for review of legal or factual challenges arising from any action in removal proceedings. For any such challenge, Congress sharply limited federal court jurisdiction, providing that “a petition for review filed with an appropriate court of appeals” “shall be the sole and exclusive means for judicial review.” 8 U.S.C. § 1252(a)(5);
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see also id. § 1252(b)(9). Plaintiffs’ claims thus must be dismissed for lack of jurisdiction. See Mot. 16-20.
Plaintiffs resist this conclusion by arguing that § 1252(a)(5) bars review only of removal orders and that they “do not seek review of any removal orders” or any issues “inextricably linked” to removal orders. Pls.’ Opp. 14-15. Their complaint says otherwise. See, e.g. Complaint ¶ 5 (alleging case-completion goals lead to “rapid removals”), ¶ 62 (alleging “increase in removal orders”), ¶ 79 (challenging practices they allege lead EOIR to “issue removal orders”), ¶ 138 (casecompletion goals lead “immigration judges to order removal instead of granting asylum”), ¶ 166 (alleging challenged practices lead to “inevitable appeal of the immigration judge’s decision” to issue removal order). The entire theory of their case is that case-completion goals will somehow lead immigration judges to deny asylum and instead order removal, “nullifying” their efforts to assist aliens in obtaining asylum in immigration court. See, e.g., Complaint ¶ 159; see also Mot. 7, 18. There is no way to separate Plaintiffs’ claims from the removal orders issued to aliens whose claims are denied. The denial of an asylum claim is reviewed as part of the appeal of a removal order, see 8 U.S.C. § 1252(b)(1), (b)(4)(D), which can be judicially reviewed “sole[ly] and exclusive[ly] in the appropriate “court of appeals,” id. § 1252(a)(5). Even where there is not yet a removal order, whenever a claim, “however it is framed, challenges the procedure and substance of an agency determination that is ‘inextricably linked’ to the order of removal, it is prohibited by section 1252(a)(5).” J.E.F.M., 837 at 1032 (quoting Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012)).1
1 Plaintiffs argue that their “claims stem not from case outcomes or removal orders but from the frustration of Plaintiffs’ missions and diversion of their resources resulting from Defendants’ unlawful policies and practices.” Pls.’ Opp. 20. But if Plaintiffs are not challenging case outcomes, this further demonstrates their lack of standing. There is no injury to an alien who is granted
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Plaintiffs next argue that § 1252(b)(9) does not bar review because their claims are “independent of or collateral to the removal process.” Pls.’ Opp. 15-21. This argument fails for many of the same reasons. Section 1252(b)(9) provides that “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States … shall be available only in judicial review of a final order under this section” and that, with the exception of judicial review in the court of appeals authorized by § 1252(a)(5), “no court shall have jurisdiction … to review … such questions of law or fact.” 8 U.S.C. § 1252(b)(9). As the Ninth Circuit has recognized, § 1252(b)(9) channels to the courts of appeals all claims related to “any removal-related activity,” J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016), and the Supreme Court has held that § 1252(b)(9) covers all “decisions and actions leading up to or consequent upon final orders of deportation,” Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471, 483-85 (1999); see also Mot.16-20.
Plaintiffs make two main arguments to evade § 1252(b)(9) and J.E.F.M. Each fails. First, Plaintiffs argue that J.E.F.M. is “no longer controlling” because it “pre-dates Jennings.” Pls.’ Opp. 19 (citing Jennings v. Rodriguez, 138 S. Ct. 830 (2018)). Jennings, however, was a habeas case that held that § 1252(b)(9) should not be read so broadly as to limit habeas “claims of prolonged detention” that would be “effectively unreviewable” in a petition for review (PFR) to the court of appeals under § 1252(b)(9). 138 S. Ct. at 840. In doing so, the Supreme Court distinguished cases like this one challenging “any part of the process by which [an alien’s] removability will be determined.” Id.; see also id. at 841 n.3 (plurality opinion) (“the question is … whether the legal
asylum—case-completion goals may merely have helped the alien obtain asylum sooner—and any diversion of resources would be purely self-inflicted if undertaken to respond to practices that lead to asylum grants rather than removal orders.
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questions in this case arise from” “an action taken to remove an alien” (emphasis in original)). Plaintiffs cite language in Jennings addressing claims that, unlike the claims here, are completely collateral to proceedings in immigration court, which the Supreme Court identified as “detention” claims, claims based on “conditions of confinement,” and state-law claims based on criminal or tort law. Id. at 840; see Pls’ Opp. 21. Justice Alito’s opinion explained that “cramming judicial review of those questions into the review of final removal orders would be absurd” because these claims do not arise from actions in the removal proceedings. Jennings, 138 S. Ct. at 840. Nothing in Jennings narrows § 1252(b)(9)’s application to challenges to things that do occur in immigration court or overturns J.E.F.M. See, e.g., Alvarez v. Sessions, 338 F. Supp. 3d 1042, 1048-49 (N.D. Cal. 2018) (noting that it does not require “an expansive interpretation of § 1252(b)(9)’s ‘arising from’ language to find that” “issues related to legal representation during removal proceedings” “fall squarely within the purview of the provision,” and that J.E.F.M.’s holding remains good law post-Jennings); Rueda Vidal v. DHS, No. 18-cv-9276, 2019 WL 7899948, at *11, n.17 (C.D. Cal. Aug. 28, 2019) (J.E.F.M. remains “binding circuit precedent” following Jennings).
Second, Plaintiffs attempt to argue that, although their challenges relate to things that take place in immigration court, their challenges are nonetheless collateral to removal proceedings and thus escape § 1252(b)(9)’s channeling provisions. Pls.’ Opp.16. They maintain that they do not “challenge any part of the process through which an individual’s removability is determined,” but instead challenge the “manner in which Defendants administer the removal process.” Id. This is not a meaningful distinction under the plain statutory text, as their claims, even as they describe them, do not evade the Ninth Circuit’s holding that “any issue—whether legal or factual—arising from any removal-related activity can be reviewed only through the PFR process.” J.E.F.M., 837 F.3d at 1031; see Mot. 16-19.
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Plaintiffs argue that § 1259(b)(9) cannot be read to bar claims that cannot be raised in a PFR, see Pls.’ Opp. 16-18, but fail to show that their claims fall into this category. They acknowledge that “petitioners in removal proceedings may raise claims of bias in a petition for review” and that for the case-processing goals for family-unit cases and other case-completion goals they challenge, “[t]he practical effect of both policies on the individuals who Plaintiffs serve would likely take the form of biased decision making or the denial of a continuance, which could form the basis of a petition for review.” Id. at 19 nn.9-10 (citing cases raising bias and scheduling challenges in PFRs). They also concede that claims challenging the “asylum grant rate” at immigration courts have been raised through PFRs, and that “courts have granted individual petitions for review based in part on immigration court backlogs.” Id. at 18 (citing PFR decisions from different appellate courts). They quarrel with the outcome of those cases, but that does not mean that these types of claims are not reviewable through a PFR. There is no exception to § 1252(b)(9) that permits Plaintiffs to seek review in district court of an appellate decision they disagree with from another part of the country addressing the immigration court in that circuit— an immigration court from which that court of appeals will have regularly heard PFRs and with which it will be most familiar.
Plaintiffs attempt several other versions of this same argument. They argue that their claims escape § 1252(b)(9) because they raise “broader systemic challenges to immigration court policies and practices” that are not reviewable through a PFR that is limited to claims raised by an individual alien. Pls.’ Opp. 18-19. But Congress’s decision to limit the manner in which claims related to removal proceedings are reviewed to individual claims does not mean that Plaintiffs’ claims are unreviewable. Also, Plaintiffs cannot reasonably dispute that Congress intended to foreclose claims in district courts raising systemic challenges to proceedings in immigration court
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when it enacted § 1252(b)(9). Congress specifically “crafted language to channel challenges to agency policies through the PFR process,” “including policies-and-practices challenges.” J.E.F.M., 837 F.3d at 1034-35; see also Mot. 19-20. Reading § 1252(b)(9) to bar jurisdiction for district court review or systemic claims relating to practices in immigration court does not involve the “uncritical literalism” the Supreme Court warned against in Jennings that would read this provision in a way that “no sensible person could have intended.” 138 S. Ct. at 840. Congress intended precisely this result: “When it enacted § 1252(b)(9) in 1996, Congress was legislating against the backdrop of recent Supreme Court law” that “offered a blueprint for how Congress could draft a jurisdiction-channeling statute that would cover not only individual challenges to agency decisions, but also broader challenges to agency policies and practices.” J.E.F.M., 837 F.3d at 1034. “[Section] 1252(b)(9) neatly tracks the policy and practice jurisdiction-channeling language suggested” by the Supreme Court and “[t]hus, the legislative history and chronology of amendments to § 1252(b)(9) confirm” that § 1252(b)(9) channels “review of all claims, including policies-and-practices challenges, through the PFR process.” J.E.F.M., 837 F.3d at 1035.
Plaintiffs also argue that organizational claims should escape § 1252(b)(9) because organizations cannot file PFRs so their claims “would otherwise be unreviewable.” Pls.’ Opp. 20; see Mot. 20. Here again, Plaintiffs incorrectly try to cast claims that they concede are reviewable in a PFR as unreviewable solely because the INA requires that an alien, rather than an organization, bring the claim. Plaintiffs argue that the government’s reliance on cases to the contrary is “misplaced” and that these cases are “unpersuasive,” Pls.’ Opp. 20-21, but they identify no meaningful basis to distinguish cases holding that § 1252(b)(9) prevents organizations from raising challenges that arise from removal proceedings. Plaintiffs attempt to distinguish ASAP v. Barr, 409 F. Supp. 3d 221 (S.D.N.Y. 2019), because ASAP held that the organizations were challenging
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removal orders “in substance if not form,” and here “Plaintiffs’ claims stem not from case outcomes or removal orders.” Pls.’ Opp. 20. The assertion that Plaintiffs are not challenging case outcomes or removal orders is incorrect for the reasons set out above, but it also misses the point. Plaintiffs do not respond to ASAP’s holding that § 1252(b)(9) bars claims by organizations. If Plaintiffs’ argument were correct, ASAP would have held that § 1252(b)(9) was irrelevant because Plaintiffs were “a group of organizations dedicated to helping immigrant families,” ASAP, 409 F. Supp. 3d at 222, that could not alternatively file a PFR raising their claims.
Plaintiffs also attempt to distinguish P.L. v. ICE, No. 1:19-cv-1336, 2019 WL 2568648 (S.D.N.Y. June 21, 2019), which similarly dismissed organizational claims as barred by § 1252(b)(9). Plaintiffs note that P.L. addressed a challenge to conducting removal proceedings by video teleconference (VTC), which, they maintain, is different from their claims because VTC is explicitly authorized by the INA. Pls.’ Opp. 21. Plaintiffs do not acknowledge that the INA also provides, as part of the “procedures” for “consideration of asylum applications,” that immigration judges should complete “adjudication of the asylum application” within six months where circumstances allow, and that “the Attorney General shall establish a procedure for the consideration of asylum applications.” 8 U.S.C. § 1158(d)(1), (d)(5)(A)(iii). More importantly, however, Plaintiffs once again do not respond to the court’s conclusion that organizational claims are foreclosed by § 1252(b)(9). The court in P.L. did not just dismiss the claims of individual plaintiffs under § 1252(b)(9). It also dismissed the claims of the organizations, who argued that VTC causes “scheduling challenges” and delays and “increases the time and cost associated with providing legal services to detained immigrants and their ability to effectively represent their clients.” P.L., 2019 WL 2568648, at *2. Plaintiffs acknowledge that in P.L., “the organizational plaintiffs raised a claim on their own behalf,” Pls.’ Opp. 21, that was dismissed under § 1252(b)(9).
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Plaintiffs identify no basis on which this Court can reach a different conclusion than the multiple courts that have held that § 1252(b)(9) bars organizational claims.
Ultimately, even if Plaintiffs were correct that the limits on PFRs to claims brought by individual aliens makes their claims “effectively unreviewable,” there is no “effectively unreviewable” exception to § 1252(b)(9). Pls.’ Opp. 17, 21. Section 1252(b)(9) bars review of all claims “arising from any action taken or proceeding brought to remove an alien” except for claims that can be brought through a PFR under § 1252(a)(5). Section 1252(b)(9) does not say that it bars district-court review of only those claims that can otherwise be brought in a PFR. It says that if a claim cannot be brought “as otherwise provided in” § 1252—i.e., through a PFR—then “no court shall have jurisdiction.” 8 U.S.C. § 1252(b)(9) (emphasis added).
A statutory review scheme may lawfully require a plaintiff to wait until the agency initiates proceedings and issues a decision before challenging the relevant statute or rule. AFL-CIO v. Trump, 929 F.3d 748, 755-56 (D.C. Cir. 2019). This is true even where the statute “ma[kes] it impossible to obtain particular forms of review or relief”—a “Statute can preclude a claim from being brought in a district court even if it forecloses the claim from administrative review and provides no other way to bring the claim.” Id. at 756. Where the “statutory scheme provide[s] no way to assert” a “nationwide’ attack,” that does not mean that Plaintiffs can “resort to the courts”; it means that Plaintiffs “may not raise the claim at all.” Id. A statute that provides for a “comprehensive review process” for agency decisions thus forecloses “pre-enforcement claims” where the review scheme “does not distinguish between preenforcement and postenforcement challenges” and instead “applies to all” legal and factual challenges arising from the agency proceedings. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 208-09 (1994). That is what § 1252 does by limiting “challenges to INS procedures and practices” to the PFR process. J.E.F.M., 837
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F.3d at 1036. This is no different from other contexts where facial challenges are routinely channeled through administrative proceedings before federal-court review. See Am. Fed’n of Gov’t Employees v. Sec’y of Air Force, 716 F.3d 633, 639 (D.C. Cir. 2013) (statute providing for an exclusive review mechanism “applies to a ‘systemwide challenge’ to an agency policy … just as it does to the implementation of such a policy in a particular case”); Jarkesy v. S.E.C., 803 F.3d 9, 12, 28-29 (D.C. Cir. 2015).
Jennings did not create an exception to § 1252(b)(9) for claims “arising from” removal proceedings if those claims cannot be raised in a PFR. Rather, Jennings concluded that detention claims do not fall under § 1252(b)(9), not because they cannot be reviewed in a PFR, but because § 1252(b)(9) applies where “the legal questions” “arise from” “an action taken to remove an alien,” and detention questions do not arise from and “are too remote from” actions or proceedings in immigration court. Jennings, 138 S. Ct. at 841, n.3. While claims that do not arise in immigration court may be unreviewable in a PFR as a result, it is the “arising from” analysis and not the ultimate reviewability of the claim that drives the determination of whether § 1252(b)(9) applies. See Cancino-Castellar v. Nielsen, 338 F. Supp. 3d 1107, 1116 (S.D. Cal. 2018) (Jennings “should not be read to fashion a free-standing exception to Section 1252(b)(9) based on the mere assertion that a claim is effectively unreviewable … . As Justice Alito himself confirmed, a court must decide whether the legal or factual question a plaintiff raises arises from an action taken to remove or the removal process.”); Nat’l Immigration Project of Nat’l Lawyers Guild v. EOIR, No. 1:20cv-852, 2020 WL 2026971, at *8-9 (D.D.C. Apr. 28, 2020) (rejecting similar argument).
The cases Plaintiffs cite are not to the contrary. See Pls.’ Opp. 15, 17. In E.O.H.C. v. Sec’y United States Dep’t of Homeland Sec., the court acknowledged that the relevant inquiry “start[s] with the statutory text” and asks whether the claims arise from an action taken to remove
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individuals from the United States. 950 F.3d 177, 184 (3d Cir. 2020). The court concluded that the challenged action was reviewable because it “was not part of the process of removal,” and § 1252(b)(9) “does not reach claims that are independent of, or wholly collateral to, the removal process.” Id. at 184, 186. Plaintiffs’ reliance on Singh v. Gonzales, 499 F.3d 969, 979 (9th Cir. 2007), is similarly misplaced. They argue that Singh held that a “district court had jurisdiction over [an] ineffective assistance of counsel claim where [the] asylum seeker otherwise would have had no legal avenue to obtain judicial review.” Pls.’ Opp. 15. This is not what Singh held. Singh held that claims that “occurred after the issuance of the final order of removal” were not barred because they could not have arisen in the removal proceedings, but distinguished claims that arose during the proceedings, which were barred because the alien “should have raised” them “before the IJ or the BIA on direct review.” 499 F.3d at 974, 979; see also Cancino-Castellar, 338 F. Supp. 3d at 1111-12. Plaintiffs’ assertion that Singh was based on a finding that there would otherwise be “no legal avenue to obtain judicial review,” Pls.’ Opp. 15, is also incorrect—the court noted that there was “an alternative avenue for relief” that could lead to judicial review through a “petition for review.” Singh, 499 F.3d at 979.
This Court should dismiss Plaintiffs’ claims for lack of jurisdiction as required by § 1252(a)(5) and (b)(9).
B. Section 1252(g) Plaintiffs’ claims are separately barred by 8 U.S.C. § 1252(g). See Mot. 21-22. That provision, titled “Exclusive Jurisdiction,” provides that, outside of a PFR, “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g). This bar to judicial review squarely encompasses Plaintiffs’ claims, which they describe as challenges to how cases are “adjudicated” in immigration court. See, e.g.,
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Pls.’ Opp. 9 (describing basis of their challenge as practices that effect how “each case is individually adjudicated”); 16 (arguing that “Plaintiffs’ claims ‘arise from’ [ ] policies and practices” related to “adjudication” of cases “across the immigration court system”).
Plaintiffs contend that § 1252(g) must be read narrowly to apply only to the “decisions or actions listed in the statute—i.e., to commence removal proceedings, to adjudicate a case, or to execute a removal order.” Pls.’ Opp. 22. As noted above, however, Plaintiffs’ claims arise from decisions and actions “to adjudicate a case.” They argue that § 1252(g) and the “adjudicate a case” language applies only to decisions or actions antecedent to the “formal adjudicat[ion]” of claims in immigration court. Pls.’ Opp. 22-23. This is not correct: § 1252(g) applies to decisions or actions to “execute removal orders” that necessarily take place after the immigration-court proceedings and, as the Supreme Court noted, Congress stated in the legislation enacting § 1252(g) that this provision “shall apply without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.” Reno, 525 U.S. at 479-80 (quoting Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009–546, § 306(c)(1) (1996)). It would be inconsistent with Congress’s statement that § 1252(g) “shall apply without limitation to claims arising from all [ ] pending, or future … removal proceedings,” to hold that § 1252(g) does not apply to any decision or action arising in pending removal proceedings.
Plaintiffs maintain that § 1252(g) is limited to protecting the Attorney General’s discretionary decisions rather than decisions made by immigration judges, citing Barahona-Gomez v. Reno, 236 F.3d 1115 (9th Cir. 2001). Pls.’ Opp. 22. Plaintiffs here, however, are challenging the Attorney General’s oversight of how claims are adjudicated in immigration courts. See, e.g., Complaint ¶¶ 195, 197 (alleging their challenge is to the “Attorney General’s” oversight of “immigration court proceedings” and his decisions related to “adjudication of removal
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proceedings”). The Ninth Circuit in Barahona-Gomez distinguished actions by immigration judges from the “actions that the Attorney General may take” because “actions by the Executive are sharply different from the quasi-judicial, as opposed to quasi-prosecutorial, role of immigration judges.” Barahona-Gomez, 236 F.3d at 1119 (quoting AADC, 525 U.S. at 482). The Attorney General or his delegates’ decisions on what cases to prioritize and how many cases an immigration judge should aim to complete in a year are entirely discretionary. Mot. 21. Plaintiffs dispute the discretionary nature of these decisions, Pls.’ Opp. 23 n.13, but they point to no statute or regulation that governs these particular decisions or cabins the Attorney General’s discretion in this area.
As the Supreme Court explained, § 1252(g) covers discretionary decisions relating to “‘commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders’—which represent the initiation or prosecution of [the] various stages in the deportation process.” AADC, 525 U.S. at 482. The manner in which the stages of the removal process are prosecuted is what Plaintiffs challenge here. And as the Ninth Circuit held, “deconstruction, fragmentation, and hence prolongation of removal proceedings” are “the evils meant to be remedied by the statute.” Barahona-Gomez, 236 F.3d at 1119. There, the court held that “there [was] no rational way to find that” plaintiffs’ claims would lead to such fragmentation. Id. at 1119. This case presents the opposite situation, where Plaintiffs challenge case-scheduling issues that can also be raised in individual PFRs, leading to fragmented litigation arising from the same proceedings, and seek to strike down goals for completing removal proceeding on a reasonable timeline, potentially causing unnecessary prolongation of the proceedings.
Plaintiffs argue that § 1252(g)’s goals of preventing deconstruction and fragmentation must be assessed in the context of the statutory scheme as a whole. Pls.’ Opp. 22 (citing AADC, 525 U.S. at 487). But doing that just further confirms that this Court is not the proper place for
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these claims. Section 1252(g), like other provisions of § 1252, bars judicial review outside of a properly filed PFR. Bringing whatever claims are not barred by § 1252(g) as part of a PFR prevents multiple lawsuits addressing the same issues and avoids the type of fragmentation that the Supreme Court and the Ninth Circuit have held that § 1252(g) is designed to prevent. See also Aguilar v. ICE, 510 F.3d 1, 13 (1st Cir. 2007) (permitting parties “to ignore the channeling provisions of section 1252(b)(9)” and instead raise “claims directly in the district court would result in precisely the type of fragmented litigation that Congress sought to forbid”). Dismissing challenges to the Attorney General’s discretionary decisions is also consistent with the overall statutory scheme of § 1252, “many provisions of [which] are aimed at protecting the Executive’s discretion from the courts—indeed, that can fairly be said to be the theme of the legislation.” AADC, 525 U.S. at 486.
C. Section 1252(f) Plaintiffs’ requested relief is also barred by 8 U.S.C. § 1252(f)(1), which prevents district courts from granting organizations injunctive relief that would restrain the operation of the statutes governing the removal process. Section 1252(f)(1) provides that: “[r]egardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of [8 U.S.C. §§ 1221-1232], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” 8 U.S.C. § 1252(f)(1). Section 1229a, the provision governing the conduct of removal proceedings on which Plaintiffs base their claims, falls within the statutory range covered by § 1252(f)(1). Plaintiffs primarily seek “injunctive relief prohibiting Defendants from continuing to implement” the case-completion goals. Complaint, Prayer for Relief, (b)-(c). They ask this Court to “[i]ssue injunctive relief requiring Defendants to take specific corrective action” to change the operation of the “immigration court system.” Id. (d). As the Ninth Circuit just held, however,
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“Congress intended [§ 1252(f)] to prohibit injunctive relief with respect to organizational plaintiffs.” Padilla v. ICE, 953 F.3d 1134, 1150 (9th Cir. 2020). “The statute’s legislative history supports [this] reading,” as “Congress adopted § 1252(f)(1) after a period in which organizations and classes of persons, many of whom were not themselves in [removal] proceedings, brought preemptive challenges to the enforcement of certain immigration statutes.” Id. Congress enacted § 1252(f)(1) to end “suits brought by organizational plaintiffs and noncitizens not yet facing proceedings under 8 U.S.C. §§ 1221-1232.” Id.
Plaintiffs argue that “[t]his Court has broad equitable powers to afford remedies in the form of injunctive relief,” Pls.’ Opp. 11, but Padilla dooms their request for injunctive relief that would alter the statutory provisions that apply to proceedings in immigration court. For example, § 1229a requires that “[a]n immigration judge shall conduct proceedings for deciding” whether an alien is removable and rule on claims for relief from removal, including asylum applications. 8 U.S.C. § 1229a(a)(1), (c)(4). And § 1229 requires “Prompt Initiation of Removal” for aliens who are removable for having committed certain offenses, stating that “the Attorney General shall begin any removal proceedings as expeditiously as possible,” and, as to the scheduling of the initial hearing for aliens in removal proceeding “under section 1229a,” requires only that “the hearing date shall not be scheduled earlier than 10 days” after the start of the proceedings. 8 U.S.C. § 1229(b), (d)(1). Plaintiffs seek to enjoin how EOIR currently implements these provisions, but nothing in § 1229 or § 1229a requires the specific actions they ask this Court to order.
Section 1252(f) forecloses Plaintiffs’ attempt to rewrite these statutory provisions to place additional limitations on the government’s authority based on “requirement[s]” or “standards” “that [do] not exist in the statute.” Hamama v. Adducci, 912 F.3d 869, 879-80 (6th Cir. 2018). Section 1252(f)(1) provides that no court other than the Supreme Court has “jurisdiction or
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authority to enjoin or restrain the operation” of these provisions. If placing “limitations on what the government can and cannot do under the removal … provisions are not ‘restraints,’ it is not at all clear what would qualify as a restraint.” Id. at 880. This includes attempts to place limitations on the scheduling of hearings in immigration court. See Vazquez Perez v. Decker, No. 18-cv10683, 2019 WL 4784950, at *1, 6 (S.D.N.Y. Sept. 30, 2019). In Vazquez the court held that granting relief related to case scheduling “would enjoin or restrain, at a minimum, the operation of [§ 1229]” because, beyond the initial 10 days after removal proceedings begin, the statue does not state when hearings should be scheduled. Id. at *6. “Because Congress, in its judgment, chose not to mandate” that hearings be scheduled on a particular schedule, “an injunction imposing one where the statute is silent would displace that judgment in a way that would enjoin or restrain the method or manner of Section 1229(b)’s functioning.” Id.
Plaintiffs must separately establish jurisdiction for each of their claims and “for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envt’l Servs., Inc., 528 U.S. 167, 185 (2000). This Court cannot grant injunctive relief to organizations or relief that would alter or add to the requirements of § 1229, § 1229a, or the other INA provisions governing the removal process, and thus should dismiss Plaintiffs’ claims for injunctive relief. See, e.g., Byam v. Cain, No. 2:18-CV1030-SI, 2019 WL 3779508, at *1 n.1 (D. Or. Aug. 12, 2019) (dismissing claims for injunctive relief where injunctive relief barred by statute); Anoushiravani v. Fishel, No. 04-cv-212-MO, 2004 WL 1630240, at *3 (D. Or. July 19, 2004).
D. Section 1329 Amendments to 8 U.S.C. § 1329 further support the conclusion that § 1252 bars jurisdiction over all of Plaintiffs’ claims. Mot. 20-21. Plaintiffs argue that § 1329 does not itself bar their claims. Pls.’ Opp. 23-25. This is correct, but misses the point. By removing provisions in § 1329 that had previously allowed organizational claims related to immigration court proceedings
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at the same time that Congress enacted § 1252 and limited such claims to individual PFRs brought by aliens, Congress established a comprehensive and exclusive scheme for review. Plaintiffs and their claims fall outside of this scheme.
“When a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 344-51 (1984). Here, the Court need not resort to any implication—Congress expressly precluded review of organizational claims such as Plaintiffs’ in § 1252. A statutory provision that “establishes that the [agency] and the courts of appeals have exclusive jurisdiction over challenges to agency [ ] proceedings” and provides a “comprehensive review process” “applies to all” challenges, even to claims on which the statute is “facially silent.” Thunder Basis Coal Co., 510 U.S. at 208-09; see also supra, 17-18.
Plaintiffs argue that there is a “presumption in favor of judicial review” and urge this Court to find jurisdiction under the general federal-question statute, 28 U.S.C. § 1331, but they acknowledge that § 1331 does not provide jurisdiction “where review is precluded by statute.” Pls.’ Opp. 25. That is the case here, where § 1252 precludes jurisdiction over the types of claims Plaintiffs seek to raise and eliminates jurisdiction “[n]otwithstanding any other provision of law.” 8 U.S.C. § 1252(a)(5); see also id. § 1252(b)(9) (“no court shall have jurisdiction” under “any other provision of law”); id. § 1252(f) (“Regardless of the nature of the action or claim or the identity of the party or parties bringing the action, no court … shall have jurisdiction”); id. § 1252(g) (“notwithstanding any other provision of law (statutory or nonstatutory) … no court shall have jurisdiction”); Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) (use of “notwithstanding” in a statute “clearly signals the drafter’s intention that the provisions of the
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‘notwithstanding’ section override conflicting provisions of any other section”). “When two statutes come into conflict, courts assume Congress intended specific provisions to prevail over more general ones.” Perez-Guzman v. Lynch, 835 F.3d 1066, 1075 (9th Cir. 2016); see also RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (noting that rule “of statutory construction that the specific governs the general” “is particularly true where … Congress has enacted a comprehensive scheme”).
Because Congress enacted a comprehensive review scheme in the INA eliminating judicial review of all claims not specifically authorized, Plaintiffs’ claims are doomed by their concession that “[t]he statutes that apply to removal proceedings do not authorize an organizational challenge to Defendants’ broad, programmatic policies.” Pls.’ Opp. 17 n.8. By also removing jurisdiction for organizational claims from § 1329, see Mot. 20, Congress further “ma[de] clear that district court jurisdiction founded on the immigration statute is confined to actions brought by the government.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1162 (D.C. Cir. 1999); see also Mot. 20. IV. Plaintiffs fail to state a claim upon which relief can be granted.
Plaintiffs’ claims under the Take Care Clause, the INA and Due Process Clause, and the APA must also be dismissed under Rule 12(b)(6). See Mot. 22-32.
A. Plaintiffs fail to state a claim under the Take Care Clause (claim I). The Take Care Clause places no justiciable restraints on executive action and cannot be a basis for a claim by private parties. Mot. 22-23. Plaintiffs argue that they state a claim under the Clause, but acknowledge that “the contours of the Take Care Clause” have never “been defined.” Pls.’ Opp. 36-37. They insist that they have a plausible claim for relief under the Clause, id. at 38, but cite no cases setting out what is required to state a claim or grant relief under the Clause, because no such cases exist.
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Plaintiffs describe their claim as seeking to enforce the Attorney General’s “obligation to oversee the immigration court system in accordance with the case-by-case adjudication standards of the INA,” which they base on 8 U.S.C. § 1229a(b)(4)(A)-(B), (c)(1)(A), and (c)(4)(B). Pls.’ Opp. 42. They argue that the Attorney General has “suspended” these standards “through the abuse of authority and mismanagement of the immigration courts.” Id. But they offer no plausible theory or allegations of how, in their view, the Attorney General has done so. The statutory provisions they cite address the alien’s rights to retain counsel at no cost to the government, to examine and present evidence, to cross-examine witnesses, and to get a decision from the immigration judge based on the evidence in the record. They do not explain how reasonable case-completion goals “suspend” any of these provisions or give even one concrete example of an individual case where this has happened. They thus fail to plead “factual content” sufficient to state a plausible claim that the government “is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Ultimately Plaintiffs challenge discretionary decisions related to case scheduling that cannot form the basis of any claim, let alone a claim under the Take Care Clause. See Mot. 22.
The Court should dismiss this claim under Rule 12(b)(6). B. Plaintiffs fail to state a claim under the Due Process Clause or INA (claim II). Plaintiffs cannot state a bias claim under the INA or the Due Process Clause. Mot. 23. Plaintiffs have not identified a waiver of sovereign immunity for this claim, have not put forth any plausible allegations of bias, and have not linked their theory of bias to the case-completion goals they challenge. Id. at 24-30. Plaintiffs’ responses do not save this claim. Pls.’ Opp. 29-36. Plaintiffs first argue that the APA’s waiver of sovereign immunity applies to “all actions ‘seeking relief other than money damages’ against federal officials.” Pls.’ Opp. 29 (quoting 5 U.S.C. § 702). But “the APA’s waiver of immunity comes with an important carve-out: The waiver does not apply ‘if any other statute that grants consent to suit expressly or impliedly forbids
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the relief which is sought’ by the plaintiff.” Patchak, 567 U.S. at 215 (quoting 5 U.S.C. § 702); see also 5 U.S.C. § 702(a)(1) (providing that “This chapter,” which includes the APA’s waiver of sovereign immunity “applies … except to the extent that” “statutes preclude judicial review”). These provisions “prevent[ ] plaintiffs from exploiting the APA’s waiver to evade limitations on suit contained in other statutes,” Patchak, 567 U.S. at 215, and as explained, Congress has enacted statutes clearly limiting this suit from proceeding. See also Gallo Cattle Co. v. U.S. Dep’t of Agric., 159 F.3d 1194, 1198 (9th Cir. 1998) (“APA’s waiver of sovereign immunity contains several limitations,” and applies only to agency action “made reviewable by statute” or “final agency action for which there is no other adequate remedy”).
Plaintiffs next argue that a bias claim does “not require proof of actual bias” if there is an “intolerable probability of actual bias.” Pls’ Op. 30. As explained, however, stating a claim based on probability requires allegations that show an extraordinarily high probability that bias infected a particular decision, Mot. 30-31, such as “a direct, personal, substantial, pecuniary interest” in the outcome of a particular case, Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876-77 (2009). For example, in Caperton, a company contributed millions of dollars to elect a judge to a court that was about to hear the company’s appeal of a $50 million adverse judgment. Id. at 882-84. The Supreme Court emphasized that its finding of a “probability of actual bias [that rose] to an unconstitutional level” was based on the “extreme facts” presented by that case. Id. at 877-88. Plaintiffs rely heavily on Caperton, but that case sets a standard that Plaintiffs’ allegations come nowhere close to meeting, and dealt with the standard for recusal, not anything related to the INA.
The other cases that Plaintiffs cite, Pls.’ Opp. 30, similarly dealt with extreme factual scenarios, nothing like what is presented here, showing a clear connection between the decisionmaker and a particular case, and a personal interest by the decision-maker that created a high risk
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of bias, see Mot. 29-30. These cases further support the argument that bias claims must be adjudicated based on a specific record and on a case-by-case basis, as is the case when these claims are raised in individual PFRs. Mot. 29. Plaintiffs respond to cases treating bias claims as a backwards-looking inquiry requiring a showing that a particular decision could have been affected by bias and turned out differently, id., only by saying that “[t]hose cases do not apply here because Plaintiffs do not challenge any decision in any individual case.” Pls’ Opp. 30-31. They point to no cases that hold that a party can state a bias claim that is disconnected from the actual decision or decisions that are claimed to be biased.
Plaintiffs’ allegations do not come close to stating a plausible bias claim. Their argument reduces to asking this Court to infer wrongdoing (even in the absence of any specific allegations plausibly showing it) on the theory that the Court can “reasonably infer that mandating the pace of adjudication, through [case-completion goals,] leads to biased decision-making.” Pls.’ Opp. 32. This is incorrect. Plaintiffs must put forth allegations that contain “sufficient factual matter” to state a plausible claim for relief, Iqbal, 556 U.S. at 678, and that “raise a right to relief above the speculative level,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiffs’ allegations on this claim, see Compl. ¶¶ 117-54, 201-07, and the arguments they make to try to save it, see Pls.’ Opp. 31-32, are nothing but speculation that case-completion goals might affect the outcome of decisions without pointing to a single example or case of this allegedly widespread effect.
Plaintiffs argue that the case-completion goals “require judges to prioritize speed regardless of the specific facts and circumstances of each case.” Pls.’ Opp. 31. The performance metrics, however, simply set a target for the number of cases that an immigration judge should aim to complete in a year. Mot. 26-27. These metrics do not say that every pending case must be completed within a year—i.e., a case that is completed in a particular year may have been pending
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for multiple years if necessary—and the performance metrics “preserv[e] immigration judge discretion” to determine an appropriate schedule for a particular case. Id. Plaintiffs argue that the goals for completing family-unit cases within a year “stigmatizes family-unit asylum cases from the beginning” as cases that should be “hastened through the system with little regard for individual facts or circumstances.” Pls.’ Opp. 31-32. They provide no explanation for why that is so—EOIR has simply provided that these “cases should be completed expeditiously and without undue delay consistent with due process.” Tracking and Expedition of Family Unit Cases (Nov. 16, 2018), https://www.justice.gov/eoir/page/file/1112036/download. Plaintiffs also maintain that performance metrics setting case-completion goals give “immigration judges a pecuniary interest in the pace and outcome of the cases before them.” Pls.’ Opp. 32. But the performance metrics merely provide benchmarks for case completion—an immigration judge receives no pecuniary benefit from reaching a particular outcome. Mot. 26-27. They contend that it is faster to deny than grant asylum because a decision denying asylum potentially can address fewer “factual and legal issues.” Pls.’ Opp. 33. Plaintiffs point to nothing showing this is actually true, but even if it were, this could affect only the length of the judge’s decision, and would do nothing to shorten the overall time of the case or the length of hearings or testimony.
Plaintiffs argue that immigration judges face “negative employment consequences, including termination” for “granting a continuance, postponing a hearing when a witness is unavailable, or taking a matter under advisement to consider evidence,” Pls.’ Opp. 32, but the performance metrics say nothing even remotely like this and, unsurprisingly, Plaintiffs do not allege or point to any immigration judge who has actually faced negative consequences for these actions. The performance metrics also assess the rate at which an immigration judge’s decisions are overturned on appeal, so there is no incentive or advantage to quickly reaching an incorrect
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decision. Mot. 27. Plaintiffs argue that the remand-rate metric gives immigration judges an incentive to reach decisions that will be upheld on appeal, and argue that this is improper because they also allege that the Board of Immigration Appeals is not “fair or functioning.” Id. 33-34. They acknowledge that these decisions are also reviewed by the federal courts of appeals, but this is insufficient in Plaintiffs’ view because appeals are sometimes subject to deferential standards of review. Id. at 34. If, however, “Defendants have manipulated the immigration court system to serve an anti-immigrant agenda,” as Plaintiffs allege, see Compl. ¶ 5, and have done so since January 2017, id. ¶¶ 58-59, surely there would be at least some increase in the rate at which the appellate courts overturn agency decisions. Yet the statistics tell a very different story, showing a lower remand rate in recent years and an overall downward trend. See EOIR, Circuit Court Remands Filed, https://www.justice.gov/eoir/page/file/1199211/download.
As explained in Defendants’ motion, there are additional problems with Plaintiffs’ allegations of causation that further undermine the plausibility of their claims. There are many factors that might affect whether an alien is granted asylum, including that certain immigration courts hear claims from particular groups of aliens that are less likely to be eligible for asylum, Mot. 25, and rules unrelated to the issues raised in this case bar certain categories of aliens from applying, id. at 25-26. As the government further explained, Plaintiffs allege in their complaint that the Attorney General suspended case-by-case adjudication of asylum claims, but they did not explain why, if this were true, it only affects certain immigration courts and not all, or address the fact that the family-unit case-processing goals apply in only 10 cities and do not align with the immigration courts whose decisions they challenge. Id. at 28-29. Plaintiffs also rely on statistics that go back to 2014, long before the case-completion goals were in place. Id. at 29.
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Plaintiffs do not respond to any of these problems that make implausible their allegations that the case-completion goals have had the negative effects they allege. They respond only that “the statistics Plaintiffs allege speak for themselves,” that they “are entitled to all reasonable inferences in their favor,” and as to the government’s argument that they have not pleaded sufficient factual content to state a plausible claim of “judicial bias,” they argue that “this Court need not reach it at this stage.” Pls.’ Opp. 35. This ignores the standard at the motion-to-dismiss stage, which requires that Plaintiffs’ allegations permit a reasonable inference that Defendants are liable of the alleged misconduct to avoid dismissal. Iqbal, 556 U.S. at 678; see also Sangers v. Brown, 504 F.3d 903, 910 (9th Cir. 2007) (“Conclusory allegations and unreasonable inferences [ ] are insufficient to defeat a motion to dismiss.”); In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (A “court need not, however, accept as true allegations that contradict matters properly subject to judicial notice or by exhibit,” or “accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”).
Plaintiffs’ allegations do not meet this threshold standard and their claim must be dismissed as a result.
C. Plaintiffs fail to state an APA claim (claims III-VI). Plaintiffs’ maintain that the case-completion goals are arbitrary and capricious because they prevent impartial adjudication. But Plaintiffs cannot state an APA claim because they do not identify a final agency action subject to APA review and APA claims are not available where Congress has provided an alternative mechanism for review. Mot. 30-31. Plaintiffs argue that the case-completion goals in the immigration judge performance metrics and the family-unit case-processing goals are each final agency actions. Pls.’ Opp. 26-27. Plaintiffs do not dispute that to be final, an agency decision must mark the consummation of the agency’s decision-making process (as opposed to tentative or interlocutory decisions), and must
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determine rights or obligations or have legal consequences. Id. They argue that these practices are final because they have “an actual or immediate threatened effect” in that they “have negatively affected Plaintiffs since they were implemented in late 2018.” Id. at 27. But Plaintiffs elide an important step in their theory of the case. Plaintiffs do not allege that the case-completion goals in and of themselves have some negative impact on Plaintiffs. Certainly they could not contend that they are negatively affected where an alien is granted asylum and the asylum grant occurs more quickly as a result of the case-completion goals. Rather, they argue that the case-completion goals affect the outcome of some, but not all, decisions by immigration judges.
It is only in these decisions by immigration judges ruling on asylum claims in individual cases that the case-completion goals could theoretically have any effect. Plaintiffs have not shown that any such effect exists, but for purposes of whether they have stated an APA claim, the relevant inquiry looks to when the agency consummates its decision making. Even the ultimate decision by the immigration judge is not the final agency action where there is an appeal and the Board of Immigration Appeals (BIA) makes the agency’s final decision. EOIR’s recommended goals for how immigration judges should schedule cases, which may not even play any role at all in a particular case and which Plaintiffs have not shown have any particular effect on the outcome of any, let alone all, decisions in immigration court, are the type of action that courts have characterized as non-final. See Mot. 31; see also Dalton v. Specter, 511 U.S. 462, 470 (1994) (“The core question for determining finality [is] whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties.”); Rochester Tel. Corp. v. United States, 307 U.S. 125, 130 (1939) (holding that agency action is non-final and unreviewable under the APA if it “does not of itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action”).
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Plaintiffs also argue that “legal consequences flow” from the case-completion goals because they “force immigration judges to rely on impermissible factors.” Pls’ Opp. 28. Again, the case-completion goals neither mention nor require consideration of any impermissible factors and they have no legal consequences that “directly affect” the Plaintiff organizations in this case. Dalton, 511 U.S. at 470.
Finally, Plaintiffs argue that a PFR is not an adequate alternative remedy because neither the immigration judge nor the BIA can review “the challenged agency action.” Pls’ Opp. 29. Here Plaintiffs rehash their argument that an organization, rather than affected alien, must have an opportunity to bring a claim on behalf of an affected alien. There is no merit to this argument or to the argument that immigrations judges and the BIA cannot consider arguments that case scheduling may have an impact on a particular case. Even if Plaintiffs could point to any distinction between the review available in an APA claim brought by an organization and a claim raised by an alien in immigration court, the APA “requires only an adequate alternative,” meaning that “the alternative remedy need not provide relief identical to relief under the APA in order to have preclusive effect.” CREW v. DOJ, 846 F.3d 1235, 1244-46 (D.C. Cir. 2017).
The Court should dismiss Plaintiffs’ APA claims under Rule 12(b)(6). V. The complaint should be dismissed for improper venue.
Finally, Plaintiffs’ claims should be dismissed for improper venue. Mot. 32-35. Plaintiffs respond that Innovation Law Lab’s principal place of business is Oregon, Pls.’ Opp. 44, though this is not something they allege in their complaint. Plaintiffs point to this fact to dispute that they are forum shopping, but never explain why they chose to bring their suit here when all other Plaintiffs and all of their alleged harms are in other parts of the country. They raise no allegations and make no arguments about the immigration court in Oregon.
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Despite this, Plaintiffs argue that all Plaintiffs and all of their claims are properly joined because they challenge “policies that apply across the immigration court system.” Pls.’ Opp. 4445. This is not true. The family-unit case-processing goals apply in only 10 immigration courts in other parts of the country, and Plaintiffs’ allegations related to the case-completion goals similarly relate only to immigration courts in other parts of the country. Mot. 32-34. Courts have broad discretion to sever claims and parties, particularly where the claims involve distinct legal and factual issues related to things that Plaintiffs allege happen in some immigration courts in other parts of the country, but not in others, and not in the immigration court here. Id. Congress has created a review scheme for claims related to proceedings in immigration court that channel such claims exclusively to PFRs in the court of appeals for the circuit where the immigration court is located. That is more than enough reason to sever Plaintiffs’ claims that ask this Court to hear claims arising in other circuits, usurping the role of the courts of appeals for those circuits and challenging those courts’ decisions on similar claims.
Plaintiffs argue that this Court cannot dismiss based on forum non conveniens because Defendants have not identified “an adequate alternative forum.” Pls.’ Opp. 45. It is true that Defendants do not believe that there is an alternative forum that can hear Plaintiffs’ claims because they lack standing; they are outside the zone of interests of the statutes they seek to enforce; § 1252 bars jurisdiction for any district court to hear their claims; and, they fail to state any claim upon which relief can be granted. If, however, the Court holds that any claims survive, they should be severed and transferred to the circuit where they arise so that the “appropriate court of appeals” for a particular immigration court can ultimately resolve any resulting appeals relating to proceedings in that immigration court, as Congress intended. See 8 U.S.C. § 1252(a)(2)(D), (a)(5).
CONCLUSION Defendants respectfully request that the Court dismiss this case.
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Dated: May 29, 2020

Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
WILLIAM C. PEACHEY Director
EREZ REUVENI Assistant Director
/s/ Brian C. Ward BRIAN C. WARD Senior Litigation Counsel U.S. Department of Justice, Civil Division Office of Immigration Litigation, District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 616-9121 Email: brian.c.ward@usdoj.gov
Counsel for Defendants

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 Case 3:19-cv-02051-IM Document 79 Filed 07/31/20 Page 1 of 31
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

LAS AMERICAS IMMIGRANT ADVOCACY CENTER; CATHOLIC LEGAL IMMIGRATION NETWORK, INC.; INNOVATION LAW LAB; SANTA FE DREAMERS PROJECT; SOUTHERN POVERTY LAW CENTER; and ASYLUM SEEKER ADVOCACY PROJECT,
Plaintiffs,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; WILLIAM BARR, in his official capacity as Attorney General of the United States; U.S. DEPARTMENT OF JUSTICE; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; and JAMES MCHENRY, in his official capacity as EOIR Director of the United States,
Defendants.

Case No. 3:19-cv-02051-IM OPINION AND ORDER

IMMERGUT, District Judge, This matter comes before this Court on Defendants’ Motion to Dismiss. ECF 24. For the
reasons discussed below, Defendants’ motion is GRANTED in part and DENIED in part. // //
1 – OPINION AND ORDER

Case 3:19-cv-02051-IM Document 79 Filed 07/31/20 Page 2 of 31
PROCEDURAL BACKGROUND Plaintiffs are nonprofit organizations which serve individuals in the immigration court system, including refugees and asylum seekers. ECF 1 ¶¶17–22. They allege, broadly, that Defendants have adopted certain policies and practices that have rendered it nearly impossible for Plaintiffs to deliver their legal services to their clients because the immigration court system has been modified in such a way as to be biased and grossly inefficient. Id. ¶¶ 1–14 (providing summary of allegations).1 The allegations focus heavily on three policies or practices that Plaintiffs have identified: (1) “asylum-free zones” in which asylum applications are almost categorically denied, (2) the Enforcement Metrics Policy (“Metrics Policy”) that establishes performance metrics for immigration judges, and (3) the family docketing (FAMU) directive. Id. These allegations give rise to six claims for relief: 1. The asylum-free zones and the immigration court backlog violate the Take Care Clause of the U.S. Constitution and the Immigration and Nationality Act (INA); 2. The administration of the immigration courts violates the INA’s “impartial adjudicator” requirement; 3. The Metrics Policy violates the Administrative Procedure Act (APA) because it is unlawful; 4. The Metrics Policy violates the APA because it is arbitrary and capricious; 5. The FAMU directive violates the Administrative Procedure Act (APA) because it is unlawful, and; 6. The FAMU directive violates the APA because it is arbitrary and capricious. Id. at 53–62. Plaintiffs seek injunctive and declaratory relief to end these programs and to implement any necessary corrective actions. Id. at 63.
1 The specifics of Plaintiff’s allegations will be discussed at greater length below.
2 – OPINION AND ORDER

Case 3:19-cv-02051-IM Document 79 Filed 07/31/20 Page 3 of 31
Defendants filed this motion in an effort to dismiss all six claims for relief. They proffer four distinct theories of why Plaintiff’s lawsuit should be dismissed. First, Defendants argue that Plaintiffs do not have standing to bring these claims, either under the Constitution or under the INA, because they have not asserted the type of injury that is necessary to give rise to a lawsuit. ECF 24 at 17–26. Next, they argue that this court does not have jurisdiction over these claims because Congress has promulgated statutes that strip federal district courts of jurisdiction over claims arising out of decisions made by immigration courts. Id. at 26–32. Third, Defendants argue that Plaintiffs have failed to state a claim upon which relief can be granted, under Federal Rule of Civil Procedure 12(b)(6). Id. at 32–42. Finally, they argue that Oregon is not the proper venue for this case. Id. at 42–45.
Each of these arguments is addressed below. LEGAL STANDARD
When reviewing a motion to dismiss, the court must “accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). In this case, Plaintiff is the nonmoving party. To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere legal conclusions are insufficient to state a claim. Iqbal, 556 U.S. at 678. // // //
3 – OPINION AND ORDER

Case 3:19-cv-02051-IM Document 79 Filed 07/31/20 Page 4 of 31
DISCUSSION Although Defendants raise lack of venue as their final ground for dismissal, this Court addresses venue first because it is a threshold procedural question. ECF 24, at 42. If venue were improper, there would be no reason to address the substantive issues raised in the motion. Otherwise, this Court addresses each of Defendants’ arguments in the order they appear in the motion. I. Venue Defendants argue that the District Court of Oregon is not the proper venue for Plaintiffs’ claims because the only Plaintiff bearing a connection to Oregon is Innovation Law Lab, which Defendants claim has not alleged that Oregon is where it “maintains its principal place of business” as required by 28 U.S.C. § 1391(c)(2). ECF 24 at 42. Further, Defendants argue that even if Innovation Law Lab were doing business in Oregon, the venue statutes were not meant to allow organization plaintiffs to “forum shop” and bring claims alleging violations of immigration law occurring in other venues and other circuits. Id. at 42–43. Defendants urge this Court to sever the claims in this complaint and force the Plaintiffs to bring them as challenges to individual removal proceedings, rather than the systemic claims that have been alleged in this lawsuit because they “do not present common questions of law or fact.” Id. at 43–44. Notably, Defendants do not identify which venue they believe is proper. See id. at 42–45. Venue is proper if it is satisfied under 28 U.S.C. § 1391. Venue against United States officers, acting in their official capacity, can be proper where “(C) the plaintiff resides.” § 1391(e)(1). For an organization, venue is satisfied for a plaintiff’s residency requirement “in the judicial district in which it maintains its principal place of business.” § 1391(c)(2). To decide where a “principal place of business” is maintained, a court will consider the “nerve center” test
4 – OPINION AND ORDER

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which looks to “where a corporation's officers direct, control, and coordinate the corporation’s activities.” Hertz Corp. v. Friend, 559 U.S. 77, 92–93 (2010). Where there are multiple plaintiffs, only one plaintiff must be a resident of the district to satisfy the residency requirement of venue under § 1391(e)(1)(C). See Railway Labor Executives’ Ass’n v. ICC, 958 F.2d 252, 256 (9th Cir. 1991) (citing Exxon Corp. v. FTC, 588 F.2d 895, 898–99 (3d Cir. 1978) (“[R]equiring every plaintiff in an action against the federal government . . . to independently meet section 1391(e)’s standards would result in an unnecessary multiplicity of litigation . . . There is no requirement that all plaintiffs reside in the forum district.”).
Here, Plaintiff Innovation Law Lab was founded and incorporated in Oregon and directs and controls its operations out of its Portland office. ECF 57 at 56 (citing ECF 1 at ¶ 20). From the Portland office, Innovation Law Lab manages nationwide programs that do work in a number of other states, including Georgia, Missouri, California, North Carolina, and Texas. Id. This explanation of Innovation Law Lab’s activities establishes that its “nerve center” is in Portland and that it is therefore a proper plaintiff in the District Court of Oregon. As noted above, no other plaintiff needs to reside in Oregon in order for venue to be proper here.
As to Defendants’ other arguments, they are not persuasive. Plaintiffs are not challenging individual orders of removal or outcomes of individual cases—a point that will be relevant repeatedly in the analysis below as well. They are alleging systemic, executive-level harms that cause injury to themselves as organizations, and they have these harms in common. ECF 57 at 56–57. These claims have questions of law and fact in common, and severance is therefore not required. Further, not only is it not required, it would be improper in this case because it would require this Court to either force Plaintiffs to bring identical claims in multiple circuits or to
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change their claims into attacks on individual orders of removal. It is not the court’s role to do either.
Finally, Defendants suggest that this Court should transfer venue under the forum non conveniens doctrine. ECF 24 at 45 (citing Bos. Telecommunications Grp., Inc. v. Wood, 588 F.3d 1201, 1206 (9th Cir. 2009)). They argue that two factors weigh in favor of dismissal under this doctrine: “the lack of local interest in the lawsuit” and “the court’s familiarity with governing law.” Id. (citing Wood, 588 F.3d at 1211).This argument is not persuasive. The District of Oregon is home to immigration courts, immigrants, foreign nationals, and one of the plaintiffs in this lawsuit. That is sufficient to establish “local interest.” Further, the argument that this court is not familiar with “governing law” is not well taken. It is not clear what Defendants believe the “governing law” is, but to the extent it is the constitutional and statutory law of the Untied States, this federal court is sufficiently familiar with it to apply it in this case.2
For these reasons, Defendants’ motion to dismiss for lack of venue is DENIED. II. Standing
In order to bring a claim for relief, a plaintiff must have standing. That is, he or she must have brought a claim that falls within the scope of a federal court’s constitutional authority that presents a true case or controversy. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Here,
2 Defendants appear to suggest that each circuit has its own body of immigration law and that individual removal claims should be adjudicated in their respective circuits. ECF 24 at 45. As stated elsewhere in this opinion, Plaintiffs are not challenging any individual removal determinations, and this argument is inapplicable to this lawsuit. In any event, federal courts are capable of applying federal law outside the circuit where that law originates or is frequently adjudicated. “If some believe that federal judges in [specific circuits] should be the only ones to decide certain issues, that is terribly elitist. For better or worse, the Congress and the nation entrusts these issues to federal trial judges throughout the country . . .” New Mexico Health Connections v. United States Dep't of Health & Human Servs., 340 F. Supp. 3d 1112, 1144 n. 11 (D.N.M. 2018).
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Defendants advance two theories of standing, both of which they say preclude Plaintiffs from bringing this lawsuit. First, Defendants argue that Plaintiffs do not have Article III standing because they have not articulated the kind of cognizable injury necessary to bring a lawsuit in federal court. ECF 24 at 17. Second, Defendants argue that Plaintiffs’ claims fall outside the “zone of interests” created by the INA, which Defendants say creates a right of action for individuals but not for organizations. Id. at 24. While related, these arguments are distinct and ask somewhat different questions. This Court finds that Plaintiffs do have standing to bring their claims under either framework.
a. Article III standing In order to sue in federal court, a “constitutional minimum” of standing must be met. Lujan, 504 U.S. at 560. That minimum requires three elements to be satisfied: (1) the plaintiff must have suffered an “injury in fact”—i.e. an invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent (as opposed to conjectural or hypothetical), (2) there must be a causal connection between the injury and the offending conduct, and (3) it must be “likely” that the injury will be redressed by a favorable decision from the court. Id. at 560–61 (internal quotations and citations omitted); see also Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Plaintiffs bear the burden of proving all three elements. Lujan, 504 U.S. at 561. Defendants focus primarily on the first element, arguing that Plaintiffs have failed to plead an injury that gives rise to Article III standing. They characterize Plaintiffs’ alleged injury as “a speculative future injury in the form of an alien not obtaining asylum as a result” of the challenged policies. ECF 24 at 17. They argue that Plaintiffs have failed to plead concrete and particularized incidents of bias or specific allegations of harm to a particular alien’s case. Id. at
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18. They also argue that Plaintiffs are attempting to—and cannot—assert the rights of third parties in order to confer standing for themselves. Id. at 19. In other words, Defendants argue that Plaintiffs are contesting policies that do not affect them but, rather, affect other people with whom Plaintiffs have some relationship. Id.
This is not an accurate representation of the injuries that Plaintiffs have asserted, nor is it an accurate characterization of their legal argument. Plaintiffs allege, as a result of Defendants’ policies, that they have been forced to divert resources into redesigning programs and systems, retraining staff, and ramping up community education programs, that their volunteer recruitment efforts have been rendered “futile,” and that their attorneys have been forced to squander resources preparing for cases that are not heard on the merits. In sum, Plaintiffs allege that Defendants’ policies have rendered it nearly impossible for the organizations to fulfill their missions and for their attorneys and staff to do their jobs. ECF1 at 46–53. The asserted injuries alleged in the complaint, regardless of their merits on the facts, are sufficient to confer Article III standing in the Ninth Circuit and this Court is bound by that precedent.
An organization may assert standing on its own behalf without invoking the rights of third-party individuals. See East Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1265 (9th Cir. 2020) (“EBSC II”). In order to do so, an organization must show that “defendant’s behavior has “frustrated its mission and caused it to divert resources in response to that frustration of purpose.” Id. (citing Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002)); see also East Bay Sanctuary Covenant v. Barr, Nos. 19-16487, 19-16773, 2020 WL 3637585 *8–9 (9th Cir. July 6, 2020). An organizational plaintiff must show it has been “perceptibly impaired” in its ability to perform its services in order to prevail on its burden to prove standing. EBSC II, 950 F.3d at 1265.
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The bar is relatively low. In ESBC II, the Ninth Circuit found that it was sufficient for plaintiffs to have pleaded injuries that included frustration of their mission because the challenged policy discouraged asylum seekers and the loss of clients that resulted from that discouragement. 950 F.3d at 1266–67. Similarly, the Ninth Circuit also held that it was sufficient for Innovation Law Labs—a plaintiff in this case as well—to have pleaded that an immigration policy had hindered its core mission and forced it to divert resources because of the increased cost of the new program. Innovation Law Lab v. Wolf, 951 F.3d 1073, 1078 (9th Cir. 2020). Notably, the Ninth Circuit held that there is no “threshold magnitude” for the injuries that must be asserted. ESBC II, 950 F.3d at 1267. One less client, or an injury that “amount[s] to pennies” is enough. Id.
This Court is bound by the East Bay line of cases. There is no way to meaningfully distinguish the standing issues raised in the East Bay cases and the standing issues presented here. Plaintiffs in this case have pleaded more than a sufficient injury to confer Article III standing under ESBC II. It need not prove any “magnitude” of injury, and here, Plaintiffs have pleaded multiple injuries that satisfy the Lujan inquiry. For example, Plaintiffs have alleged that the challenged policies have forced them to divert resources away from their core activities, have rendered volunteer recruitment efforts futile, and have strained Plaintiffs’ resources to the point that they cannot deliver effective representation. ECF1 at ¶¶ 160–63. Further, Defendants’ arguments do not refute this. Defendants focus on third-party standing, which is not the applicable doctrine in this case, and which was rejected by the Ninth Circuit in ESBC II and Innovation Law Lab. In fact, many of the cases Defendants cite in their motion are the same third-party standing cases that the ESBC II court found were inapplicable to an organizationalstanding case. Compare ECF 24 at 19–20 with ESBC II, 950 F.3d at 1267 n.6.
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Given that Plaintiffs have satisfied the first the first prong of the Lujan analysis, they easily meet the second and third, neither of which Defendants challenge in their motion. ECF 24 at 17–24. There is no serious doubt, on these facts, that there is a causal link alleged between the policies described in the complaint and the alleged injuries, nor is there any serious doubt that injunctive relief—which Plaintiffs seek—would serve to redress that harm. Again, this Court is not ruling on the merits of the allegations at this stage in the proceedings, merely whether Plaintiffs have properly pled facts sufficient to confer standing. This Court therefore finds that Plaintiffs do have Article III standing to bring their claims and DENIES Defendants’ motion on this ground.
b. The Immigration and Nationality Act Defendants also argue that Plaintiffs’ claims are not within “the zone of interests” contemplated by the INA and are therefore not claims that may be brought under that statute. ECF 24 at 24. They argue that Congress did not intend for organizations to bring claims under 8 U.S.C. § 1229(a), the statute the Plaintiffs rely on, and that this lack of congressional intent precludes standing for the statutory claims. ECF 68 at 15–16. For their part, Plaintiffs argue that because they seek to enforce the INA and because their interests are aligned with and related to the interests of the individuals subject to removal proceedings, their claims fall squarely within the zone of interests contemplated by the INA. ECF 57 at 23–26. The ultimate question to be answered is whether Plaintiffs “fall within the class of plaintiffs whom Congress has authorized to sue under [§ 1229a].” Lexmark Int’l, Inc., v. Static Control Components, Inc., 572 U.S. 118, 128 (2014). They must do so in order to bring their claims in federal court. Id. at 129. The breadth of the zone-of-interests test varies, depending on the provisions of law at issue. Id. Under the APA, the test is not “especially demanding.” Id. at
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130, (citing Match–E–Be–Nash–She–Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012)). The zone-of-interests analysis forecloses suit “only when a plaintiff’s ‘interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that’ Congress authorized that plaintiff to sue.” Lexmark, 572 U.S. at 130 (quoting Patchack, 567 U.S. at 225).
Courts are “not limited to considering the [specific] statute under which [plaintiffs] sued but may consider any provision that helps us to understand Congress’ overall purposes” in enacting the statute. ESBC II, 950 F.3d at 1270 (citing Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 401 (1987)). This inquiry is intended only to help clarify the act’s scope, not to determine whether Congress intended for a particular plaintiff to benefit from the cause of action. Id. (citing Patchak, 567 U.S. at 225 (“We do not require any indication of congressional purpose to benefit the would-be plaintiff.”)). In other words, the question here is whether Plaintiffs’ claims relate to the purpose and scope of § 1229a, not whether Congress imagined Plaintiffs themselves to be bringing these claims. It is the type of claim, not the type of plaintiff that is central to the “zone of interests” inquiry.
The statute at issue here is 8 U.S.C. § 1229(a), which sets out the procedure, requirements, and parameters of removal proceedings pursuant to the INA. It includes a section on the “rights of aliens,” which provides aliens with the right to counsel in all proceedings covered by the section. §1229a(4)(A). Here, Plaintiffs’ organizational purpose and mission is to provide low-cost or pro bono legal representation for aliens in proceedings that fall under § 1229a and to provide community education relating to these proceedings. Aliens in these proceedings have a right to Plaintiffs’ services. The claims Plaintiffs have asserted allege that Defendants’ policies and practices render it nearly impossible to provide these services and, by
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extension, for aliens in removal proceedings to achieve their statutory right to counsel. Per ESBC II, these claims fall within the “zone of interests” covered by § 1229a. 950 F.3d at 1270 (“The Organizations’ purpose is to help individuals apply for and obtain asylum, provide low-cost immigration services, and carry out community education programs with respect to those services. This is sufficient for the Court’s lenient APA test: at the very least, the Organizations’ interests are ‘marginally related to’ and ‘arguably within’ the scope of the statute.”) (internal citations omitted).3 Accordingly, Ninth Circuit precedent compels this Court to DENY Defendants’ motion as to this ground.
III. Jurisdiction Defendants argue that, even if Plaintiffs have standing to bring these claims, a federal
district court does not have the jurisdiction to hear them. ECF 24 at 26. No one disputes that this case presents a federal question and diversity of the parties, either of which is typically all that is required to establish jurisdiction in a district court. See 28 U.S.C. §§ 1331, 1332. Rather, Defendants argue that Congress, consistent with its Article III power over lower federal courts,4 has enacted a series of statutes that limit district court jurisdiction over claims relating to the
3 Defendants attempt to distinguish ESBC II by arguing that Plaintiffs in this case have not brought their claims under the asylum statute that was at issue in the ESBC line of cases. ECF 68 at 13–14. This argument is not persuasive. The Ninth Circuit did not limit its holding in ESBC to the facts of that case, and the reasoning is almost perfectly analogous, as characterized by Defendants themselves: “Congress took steps to ensure that pro bono legal services of the type that the [Plaintiffs] provide are available to asylum seekers” and therefore Plaintiffs’ claims fell within the statute. Id. at 13. (citing East Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 768 (9th Cir. 2018) (“ESBC I”). That is exactly the reasoning this Court applies to the “zone of interests” question in this case. 4 “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” U.S. CONST. ART. III, § 1.
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Immigration and Nationality Act. Defendants cite five statutes, each of which are addressed in turn below.
a. § 1252(a)(5) Defendants argue that 8 U.S.C. § 1252 establishes a system of judicial review that precludes this lawsuit, beginning with § 1252(a)(5), which reads: “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal. . .” ECF 24 at 26. They argue that a review of the practices and policies at issue in this suit would amount to a review of removal orders because those policies eventually lead to removals. ECF 68 at 17. In response, Plaintiffs argue that they are not challenging any individual removal orders, nor are they challenging any action that is “inextricably linked” to a removal order, and § 1252(a)(5) therefore does not apply. ECF 57 at 26–27. The plain language of § 1252(a)(5) refers only to an “order of removal.” See also Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007). Plaintiffs have not challenged any particular order of removal—this Court is not being asked to review any decision by an immigration court, nor would a ruling in Plaintiffs’ favor have the effect of reversing any order of removal. This Court therefore finds that § 1252(a)(5) is inapplicable here and does not limit this Court’s jurisdiction over these claims because this lawsuit appears to fall outside the bounds of the narrow language of the statute.
b. § 1252(b)(9) Next, Defendants argue that § 1252(b)(9) bars district court jurisdiction over Plaintiffs’ claims. ECF 24 at 26. The statute provides that “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from
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any action taken or proceeding brought to remove an alien from the United States . . . shall be available only in judicial review of a final order under this section . . .” and no district court “shall have jurisdiction . . . to review such an order or such questions of law or fact.” 8 U.S.C. § 1252(b)(9). Defendants argue that Plaintiffs’ claims require a court to review removal proceedings and that the claims therefore fall within the statutory bar to judicial review outside the petition for review process. ECF 24 at 26–30. Plaintiffs argue that the statute does not preclude review of their claims and that Defendants’ proffered interpretation would render Plaintiffs’ claims effectively unreviewable, which they say is not a tenable outcome. ECF 57 at 27–33.
Read together with § 1252(a)(5), addressed above, § 1252(b)(9) requires that any question of law or fact “arising from” a removal proceeding is reviewable only through the petition for review (“PFR”) process. See J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016). These statutes do not, however, preclude judicial review for all questions of law that may be somehow related to removal proceedings. Claims that are independent of or collateral to the removal process fall outside the scope of § 1252(b)(9). Id. at 1032. As noted by the U.S. Supreme Court, Courts should not interpret “arising from” in such an expansive way as to preclude “any meaningful chance for judicial review” or that would lead to results “no sensible person could have intended.” Jennings v. Rodriguez, 138 S. Ct. 830, 840 (2018) (internal quotations omitted). Section 1252(b)(9) does not bar jurisdiction where the parties are not challenging any removal proceedings, order of removal, the decision to seek removal, or the process by which removal will be determined. Dep’t. of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1907 (2020).
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Defendants rely heavily on language in J.E.F.M. that characterizes § 1252(b)(9) as “breathtaking” in its scope and encompassing even “policies and practices” relating to the removal process. ECF 24 at 27 (citing J.E.F.M., 837 F.3d at 1031). In determining the scope of § 1252(b)(9), however, this Court must look not only to J.E.F.M. but also to Jennings, which was decided by the United States Supreme Court two years later and which appears to adopt a somewhat more limited view of the scope of § 1252(b)(9). Taken together, these cases stand for the proposition that § 1252(b)(9) could not be used to bar judicial review of claims that were unreviewable through the PFR process. Jennings, 138 S. Ct. at 840.
The Ninth Circuit in J.E.F.M. held that (1) § 1252(b)(9) limits all aliens to “one bite of the apple” with regard to challenging an order of removal, (2) independent or collateral claims are not channeled through the PFR process, and (3) any issue arising from any removal-related activity must be brought through PFR. J.E.F.M., 837 F.3d at 1031–33. The U.S. Supreme Court in Jennings agreed with this framework but suggested that the language of J.E.F.M. upon which Defendants rely heavily may be too broad. Jennings, 138 S. Ct. at 840. It also settled the question of whether claims that are unreviewable on PFR are necessarily independent and collateral to the removal process and therefore outside the scope of § 1252(b)(9). Id.
In applying this doctrine, district courts have generally applied a two-prong analysis to determine whether a question is unreviewable on PFR—i.e. whether it is collateral to the removal process. Courts ask (1) whether the claim “plainly” challenges the decision to detain an alien, and (2) whether the court may grant a remedy for the claim without impeding removal proceedings. Cancino-Castellar v. Nielsen, 338 F. Supp. 3d 1107, 1115–16 (S.D. Cal. 2018) (internal quotations removed); see also Innovation Law Lab v. Nielsen, 342 F. Supp. 3d 1067,
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1077–78 (D. Or. 2018) (finding jurisdiction where claims did not challenge a removal action and were “too remote” from such an action to fall within the scope of § 1252(b)(9)).
In this case, § 1252(b)(9) does not preclude this court’s jurisdiction over most of Plaintiffs’ claims because these claims would not be cognizable through the PFR process, with one exception. Plaintiffs’ claims relating to “asylum-free zones” appear to fall within the jurisdictional bar imposed by § 1252(b)(9), in spite of Plaintiffs’ efforts to frame the issue differently. The crux of Plaintiffs’ objection to the asylum-free zones is that the immigration courts Plaintiffs identify as belonging to this category deny asylum applications at rates that are too high to be legally tenable. In order to grant relief on these claims, this court would be required to issue a ruling that said that these courts need to produce different outcomes in some proportion of the asylum cases before them. In other words, these claims require a ruling that would interfere with immigration courts’ disposition of asylum cases. That posture for these claims appears to fall within the § 1252(b)(9) jurisdictional bar.
This is not to suggest that Plaintiffs cannot discuss these asylum-free zones in other contexts. The high rates of denials in these courts may be evidence of other claims that Plaintiffs have brought forward, including claims of bias or a failure to adhere to the requirements of the INA. But, as a stand-alone claim that objects to the high rate of denials itself and which alleges that outcome ratio is, itself, a violation of the INA, the asylum-free zones do not give rise to jurisdiction in this court.
Plaintiffs’ remaining claims, however, do fall within this court’s jurisdiction. First, these claims do not plainly challenge any decision to detain an alien. Second, Plaintiffs are not challenging any removal order, nor would granting a remedy require any removal order to be overturned. Plaintiffs’ challenge is to the immigration process, which they argue has become so
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cumbersome as to force them to expend extra resources and hinder their ability to recruit volunteers. Further, Plaintiffs are not individual aliens and they are not bringing claims on behalf of any alien. They therefore do not have access to the PFR process for their asserted claims. Allowing organizational plaintiffs to bring claims alleging systemic problems, independent of any removal orders, that allegedly cause harms specific to those organizations does not thwart the purpose of § 1252(b)(9).
c. § 1329 Defendant next argues that 8 U.S.C. § 1329 deprives this court of jurisdiction over Plaintiffs’ claims. ECF 24 at 30. That statute reads: “The district courts of the United States shall have jurisdiction of all causes, civil and criminal, brought by the United States that arise under the provisions of this subchapter.” 8 U.S.C.§ 1329 (emphasis added). Defendants argue that the statute’s affirmative grant of jurisdiction over cases brought by the United States implicitly strips district courts of jurisdiction over claims brought by any other party. ECF 24 at 30 (relying on Saavedra Bruno v. Albright, 197 F.3d 1153, 1162 (D.C. Cir. 1999)). This interpretation is correct, they argue, because the statute previously granted jurisdiction over all suits challenging the implementation of immigration laws, and Congress removed that language when it amended the statute in 1996. Id. For their part, Plaintiffs assert that even if this reading were correct, the amendment did not strip district courts of jurisdiction over any claim arising under the INA because those claims are cognizable under other sources of jurisdiction. ECF 57 at 36. As Plaintiffs note in their brief, the Ninth Circuit has stated that, although the amendments to § 1329 narrowed jurisdiction over claims arising under the INA, it did not strip district courts of jurisdiction over these claims through other “jurisdictional mechanisms.” Sulit v. Schiltgen, 213 F.3d 449, 453 n.2 (9th Cir. 2000) (“[N]othing in the language
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of § 1329 forecloses the operation of other jurisdictional mechanisms . . .”). Plaintiffs allege jurisdiction under 28 U.S.C. § 1331, general federal question jurisdiction, and § 1329 does not strip this court of the jurisdiction conferred by that statute. Rather, the Ninth Circuit has held that § 1329 does not confer jurisdiction under the INA for otherwise-unreviewable claims brought by private parties. See Allen v. Miles, 896 F.3d 1094, 1106–07 (9th Cir. 2018) (holding that Saavedra Bruno stands for the proposition that the Administrative Procedure Act and § 1329 do not confer jurisdiction over challenges to consular visa decisions, which are otherwise unreviewable.) As Plaintiffs’ claims here are not otherwise unreviewable, this Court finds that § 1329 neither confers nor strips district court jurisdiction in this case.
d. § 1252(g) Next, Defendants argue that 8 U.S.C. § 1252(g) bars jurisdiction outside the PFR process, citing the following language in the statute: “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” ECF 24 at 31. They argue that Plaintiffs cannot challenge the means by which the attorney general or the agency (EOIR) manage the immigration dockets or the backlog of cases because there is no “meaningful standard” for review. Id. (citing Heckler v. Chaney, 470 U.S. 821, 830 (1985); Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1118 (9th Cir. 2009). To the extent that an individual alien could prove that a backlog or a docket-management practice affected his individual case, he could seek review in the PFR process, Defendants argue, but these Plaintiffs cannot bring the freestanding claims asserted in this case. Id. at 31–32. This argument presents two distinct issues: first, whether § 1252(g) strips district courts of jurisdiction, and second, whether the claims before this Court are subject to a meaningful
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standard of review. As to the first question, this Court finds that the statute does not strip jurisdiction, for the same reasons § 1252(b)(9) does not. The scope of § 1252(g) is limited to the three discrete actions listed in the statute. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482 (1999) (“The provision applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’ . . . It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.”) (emphases in original); see also DHS v. Regents, 140 S.Ct. 1891, 1907 (2020). The statute is therefore narrower in scope than § 1252(b)(9), on its face and by way of the court’s interpretation. It stands to reason that if § 1252(b)(9) does not bar jurisdiction, § 1252(g) cannot.
Second, Defendants’ argument that Plaintiffs’ claims are not subject to a meaningful standard of review is not related to § 1252(g), nor is it persuasive on the issue of jurisdiction. Plaintiffs have argued throughout their briefing that the INA does impose standards for case-bycase adjudication and that some level of process is required in immigration proceedings. Further, the APA does provide a standard of review, which asks whether agency action is “arbitrary, capricious” or otherwise an “abuse of discretion.” 5 U.S.C. § 706(2)(A). That standard is well developed in federal case law. See, e.g. DHS v. Regents, 140 S. Ct. at 1910 (applying arbitrary and capricious review to the decision to rescind the Deferred Action for Childhood Arrivals (DACA) program). Plaintiffs’ claims are therefore subject to a “meaningful standard of review,” and this Court therefore has jurisdiction over them. // //
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e. § 1252(f)(1) Finally, Defendants argue that 8 U.S.C. § 1252(f)(1) prohibits this court from granting the injunctive relief that Plaintiffs seek in this case. ECF 68at 28; see also ECF 1 at 63 (requesting injunctive relief). Section 1252(f)(1) provides: Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated. 18 U.S.C. § 1252(f)(1). Part IV refers to 8 U.S.C. §§ 1221–1231. See Catholic Soc. Servs., Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir. 2000) (en banc). Therefore, Part IV includes § 1229a, the statute at issue in this case. Defendant argues that, because Plaintiffs are seeking injunctive relief, § 1252(f)(1) is fatal to Plaintiffs’ claims because only the United States Supreme Court could grant that relief. Def.’s Reply [68] at 23. Defendants rely on a recent Ninth Circuit decision, Padilla v. ICE, that Defendants argue should resolve this issue in their favor. Id. (citing 953 F.3d 1134, 1150 (9th Cir. 2020).5 Defendants cite Padilla for the proposition that “Congress intended [§ 1252(f)] to prohibit injunctive relief with respect to organizational plaintiffs.” Id. They rely on the Padilla court’s recitation of the legislative history underlying § 1252(f), which sought to prevent organizations and persons not involved in removal proceedings from bringing “preemptive challenges to the enforcement of certain immigration statutes.” Id. Defendants argue that Padilla and § 1252(f) prohibit this court from exercising jurisdiction over Plaintiffs’ claims.
5 Padilla was decided after Defendants filed their Motion to Dismiss (ECF 24) , which is why this argument appears only in the reply brief.
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This is not so. First, § 1252(f) does not prohibit district courts from granting declaratory relief to organizations, either on its face or by interpretation. See Rodriguez v. Hayes, 591 F.3d 1105, 1119 (9th Cir. 2010) (quoting Reno v. American-Arab Anti–Discrimination Comm., 525 U.S. 471, 481–82 (1999) (“By its plain terms, and even by its title, [Section 1252(f)] is nothing more or less than a limit on injunctive relief.”)). Plaintiffs in this case have sought declaratory relief as well as injunctive relief. ECF 1 at 63. Therefore, this Court has jurisdiction over their claims, if only for the purpose of considering whether to grant them the declaratory judgment they seek.
Regardless, § 1252(f) is inapplicable in this case. As Plaintiffs argue, § 1252(f)(1) bars district court review only in cases where a plaintiff seeks to enjoin the operation of the relevant portions of the INA, not when a plaintiff seeks to enforce those statutes. ECF 72 at 8–9. Rodriguez, 591 F.3d at 1120. (“[Section] 1252(f)(1) limits the district court's authority to enjoin the INS from carrying out legitimate removal orders. Where, however, a petitioner seeks to enjoin conduct that allegedly is not even authorized by the statute, the court is not enjoining the operation of part IV of subchapter II, and § 1252(f)(1) therefore is not implicated.”); see also Ali v. Ashcroft, 346 F.3d 873, 886 (9th Cir. 2003), vacated on unrelated grounds. Ali v. Gonzales, 421 F.3d 795 (9th Cir. 2005); Torres v. U.S. Dep’t of Homeland Sec., 411 F. Supp. 3d 1036, 1050 (C.D. Cal. Oct. 24, 2019) (holding that the requested injunction “would not prevent the operation of the law, but force Defendants to comply with it.”).
The case before this Court falls within the Ali/Rodriguez line of cases. Plaintiffs have brought their claims pursuant to § 1229a—they seek to enforce it, not enjoin it. See ECF 1 at 53– 62. They are alleging violations of the INA. They are not seeking to enjoin any aspect of the law but to force Defendants to comply with it. Nor have Defendants persuasively argued to the
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contrary. Rather, they rely on language in Padilla that seems to suggest that § 1252(f)(1) prohibits district courts from granting injunctions to organizations in immigration cases. But that is not the holding of Padilla, and the Padilla court did nothing to upset the holding of Rodriguez.
In Padilla, the Ninth Circuit held that § 1252(f)(1) does not bar class action lawsuits brought by a class of individuals. 953 F.3d at 1151. In reaching that holding, the court recounted the legislative history of the statute in order to explain why allowing class action lawsuits was consistent with the purpose of the statute. Id. at 1150–51. The Padilla court observed that, by adopting § 1252(f)(1), Congress attempted to prevent “organizations and classes of persons, many of whom were not themselves in proceedings, [from bringing] preemptive challenges to the enforcement of certain immigration statutes.” Id. at 1150. That is the same proposition on which the Ali and Rodriguez courts relied when they drew a distinction between enjoining the enforcement of a law and enjoining policies and practices that allegedly violate that law. See Rodriguez, 591 F.3d at 1120 (citing Ali, 346 F.3d at 886).
In sum, this Court finds that this case falls within the holding of Ali and Rodriguez and that § 1252(f)(1) does not prevent this Court from exercising jurisdiction over Plaintiffs’ claims for injunctive relief because Plaintiffs seek to enforce the operation of § 1229a, not to enjoin its enforcement.
Based on the foregoing analysis, Defendants’ motion to dismiss for lack of jurisdiction is GRANTED in part and DENIED in part.
IV. Failure to State a Claim It is important to note that the analysis above does nothing more than conclude that these
Plaintiffs have standing to bring their claims and that this court may hear them. It is not a ruling on the merits of those claims, and it does not have any bearing on whether Plaintiffs have stated
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Case 3:19-cv-02051-IM Document 79 Filed 07/31/20 Page 23 of 31
a valid claim for relief. That determination is set out in the discussion below. This Court finds that Plaintiffs’ claims do not allege individual harms to specific aliens but, rather, allege a systemic “gross mismanagement” of the immigration system by Defendants. While not a common or traditional approach to a lawsuit like this, the “gross mismanagement” theory is sufficient to state a claim on the merits.
a. Claim One Plaintiffs’ first claim for relief alleges that “asylum-free zones” and the immigration court backlog violate the Take Care Clause6 of the United States constitution and the INA’s case-bycase adjudication standards.7 ECF 1 at 53. By “asylum-free zones,” Plaintiffs refer to certain immigration courts where judges deny asylum petitions at such a high rate as to allegedly deny aliens due process. Id. at ¶¶ 84–103. Plaintiffs allege that these high rates of denials stem from a discriminatory animus against asylum seekers. Id. at ¶ 97. In these courts, Plaintiffs contend, the law governing asylum has been essentially suspended. Id. at ¶ 100. As to the backlog, Plaintiffs allege that it constitutes more than 1 million cases and has grown by nearly 300 percent in less than nine years. Id. at ¶ 104. It has resulted in wait times that last years, sometimes as long as 4.5 years. Id. at ¶ 110. The extreme delays caused by the backlog allegedly compromise lawyers’ ability to present witnesses and evidence and for asylum seekers to retain counsel. Id. at ¶ 111.
6 U.S. CONST., Art. III, § 3. (“[The President] shall take Care that the Laws be faithfully executed.”). 7 As explained above, this court does not have jurisdiction over Plaintiffs’ claim that these “asylum-free zones” violate the INA and the Constitution. It is also questionable whether the mere fact of high rates of asylum denials states a claim at all. However, Defendants did not make that argument, choosing instead to focus on the Take Care Clause argument. In any event, as stated above, the high rates of asylum denials may not be a viable stand-alone claim for relief but does appear to be admissible of Plaintiffs’ other, broader claims alleging systemic irregularities in the immigration system.
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As presented, Claim One actually alleges two acts that violate two different laws. It alleges that the asylum-free zones and the backlog both violate (1) the Take Care Clause and (2) the INA. In their motion, Defendants focus exclusively on the Take Care Clause, arguing that it does not create a justiciable cause of action and that Plaintiffs’ claim must therefore be dismissed under Federal Rule of Procedure 12(b)(6). ECF 24 at 22. Defendants do not take issue with the substance of Plaintiffs’ claim as it relates to the asylum-free zones, the backlog, or the INA.
The parties’ arguments focus exclusively on whether the Take Care Clause creates a justiciable cause of action. The case law, as it stands today, does not appear to provide any basis to find this claim non-justiciable. For example, the Ninth Circuit entertained a claim pursuant to the Take Care Clause as recently as December 2019. See Center for Biological Diversity v. Bernhardt, 946 F.3d 553, 561 (9th Cir. 2019) (considering on the merits a claim that an act of Congress interfered with the executive’s power under the Take Care Clause). Other circuits have recognized it as a plausible claim as well. See Texas v. United States, 809 F.3d 134, 146 n.3 (5th Cir. 2015) (declining to reach the merits of the Take Care claim for procedural reasons). Indeed, it appears that even the U.S. Department of Justice understands the Take Care Clause to create some actionable limits on the executive, given that former Attorney General Jeff Sessions argued via internal memoranda that the DACA program was unconstitutional because it violated the Take Care Clause. NAACP v. Trump, 298 F. Supp. 3d 209, 239–40 (D.D.C. Apr. 24, 2018) (referencing the “Sessions Letter” and its arguments against the constitutionality of DACA, including references to the Take Care Clause). Neither the Ninth Circuit nor the D.C. District Court appear to have doubted that the Take Care Clause could give rise to a justiciable cause of
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action, and this Court finds that it does not bar the cause of action asserted here. Defendants’ motion to dismiss Claim One is DENIED.8
b. Claim Two Plaintiffs’ second claim for relief alleges that Defendants’ policies and practices have infected the immigration court system with a degree of actual bias that violates the INA’s guarantee that every alien be heard by an impartial adjudicator. ECF 1 at 55. Plaintiffs argue that this impartial adjudicator guarantee is coextensive with the Fifth Amendment Due Process Clause. Id. at ¶ 202. This systemic judicial bias, which Plaintiffs say is driven both by policies and also by a general hostility toward immigrants, renders it nearly impossible to receive a fair hearing and for Plaintiffs to render their services. Id. at ¶¶ 204–07. Defendants attack this claim on two fronts. First, they argue that the INA does not waive the government’s sovereign immunity, and Plaintiffs may not sue them at all. ECF 24 at 34. As Plaintiffs point out, the APA contains a waiver of immunity that applies to all actions brought against agencies and federal officials, even when those actions do not seek review under the APA. ECF 57 at 41 (citing 5 U.S.C. § 702, Presbyterian Church v. United States, 870 F.2d 518, 523–26 (9th Cir. 1989)). Defendants correctly note that this waiver does not apply in circumstances where other statutes preclude judicial review. ECF 68 at 34 (citing 5 U.S.C. § 701(a)(1)). Defendants believe that the statutes discussed above bar judicial review in this case and that Plaintiffs’ claims therefore fall outside the APA’s waiver of immunity. Id. As discussed
8 Defendants did not attack Plaintiffs’ first claim for relief on any grounds other than the Take Care Clause. The court notes that it is likely debatable whether other aspects of this claim satisfy FRCP 12(b)(6) but because Defendants did not raise those arguments, this Court declines to reach them.
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above, this Court disagrees with Defendants about whether those statutes bar judicial review of these claims and finds that the APA waiver of immunity applies here.
Defendants next argue that Plaintiffs’ bias claim should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because Plaintiffs have not alleged facts sufficient to state a claim for judicial bias. ECF 24 at 34. They argue that Plaintiffs cannot show that the policies alleged in the complaint are evidence of bias in the immigration court system, and they focus heavily on whether Plaintiffs can show a causal link between the alleged bias and the outcomes of individual asylum cases, concluding that Plaintiffs cannot. Id. at 35–40.
A claim for actual bias in the judiciary requires a showing that “the average judge . . . is ‘likely’ to be neutral, or whether there in an unconstitutional ‘potential for bias.’” Echavarria v. Filson, 896 F.3d 1118, 1130–31 (9th Cir. 2018) (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009)). The inquiry extends to any procedure that could offer a “possible temptation” to the average judge to forego the proper burden of proof. Id. at 1131 (citing Hurles v. Ryan, 752 F.3d 768, 789 (9th Cir. 2014)). It is not a question of whether a judge harbors actual bias, only whether the potential for bias exists. Hurles, 752 F.3d at 789.
Here, Plaintiffs are alleging bias throughout a judicial system, rather than by a particular judge. They have pleaded facts that suggest a systemic bias or animus against immigrants and asylum seekers on the part of Defendants, including statements from former Attorney General Sessions and President Donald J. Trump. ECF 1 at ¶¶ 55–79. These statements include characterizations of DOJ policy to “end the lawlessness” in the immigration system and referring to “baseless [asylum] claims,” as well as suggesting that asylum seekers were “breaking into this country” and “exploiting” the process. Id. at ¶¶65, 67. Plaintiffs also allege facts such as the unusually high rate of denials for asylum petitions in some courts, the extreme backlog in the
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system, strict case-management guidelines, and policies that require judges to fast-track certain cases or certain aliens, all of which are at least plausible evidence of systemic bias and suggest a possibility that judges are influenced by factors independent of the merits of a particular case when making their decisions. It is not necessary for Plaintiffs to prove conclusively that actual bias led to any particular outcome. The facts pleaded here are sufficient to state a claim for actual bias.9 Defendants’ motion to dismiss Claim Two is DENIED.
c. Claims Three–Six Plaintiffs’ third and fourth claims allege that Defendants’ “metrics policy” violates the APA and the INA because it is unlawful and beyond the scope of Defendants’ authority and because it constitutes arbitrary and capricious rulemaking. ECF 1 at 56, 58. The metrics policy includes three parts: a case completion quota, a remand rate, and speed-related adjudication benchmarks. Id. at ¶ 122. Judges are required to complete 700 cases per year, to maintain a remand rate of less than 15 percent, and to adhere to strict limitations on the time they spend on matters within the life of a case (evidentiary issues, motions practice, etc.). Id. at ¶¶ 123–25. Plaintiffs allege that immigration judges are given a computerized “dashboard” that resembles a speedometer, which shows them how closely they are adhering to the case management metrics, and that judges’ performance toward these metrics is tied to their performance evaluations. Id. at ¶¶ 128–30. Judges may face discipline or termination if they do not meet the benchmarks set out in the metrics policy. Id. at ¶ 130. Plaintiffs allege that this metrics policy influences the outcomes in immigration cases in ways that are not related to the merits of the case, and it harms Plaintiffs in the ways already described above. Id. at ¶¶131, 155–60.
9 Notably, this is not a ruling on the merits of Plaintiffs’ claim. This Court is not making a finding that actual bias exists in the immigration system, only that Plaintiffs have presented facts sufficient to allow the claim to proceed.
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Similarly, Plaintiffs’ fifth and sixth claims for relief allege that Defendants have adopted a policy that requires immigration courts to fast-track certain cases that involve parents or guardians with minor children who seek asylum at the southern border of the United States and that this policy violates the INA and APA for the same reasons as the metrics policy. Id. at 60– 62, ¶ 149. This policy is known as the family unit, or “FAMU,” directive. Id. In these cases, courts are subject to strict deadlines and are required to resolve the case within one year. Id. at ¶¶ 151–53. The deadlines imposed via the FAMU directive include limitations on continuances, which are not allowed to exceed 45 days under any circumstances. Id. at ¶ 152. Plaintiffs allege the same harms described elsewhere.
Defendants argue that Plaintiffs have failed to state a claim under the APA with respect to either of these policies. ECF 24 at 40. First, they argue that Plaintiffs have failed to challenge any “final agency action,” as required to state an APA claim. Id. Second, Defendants argue that Plaintiffs cannot bring these claims because the PFR process provides an exclusive, adequate review mechanism for these claims, and any APA review is therefore barred. Id. at 41. As to this second argument, this Court addressed whether the INA statutes provided by Defendant create an exclusive review mechanism outside the standard path of judicial review, and this Court found that they do not. This Court therefore declines to address this argument further here and addresses only the question of whether Plaintiffs have identified a “final agency action” for purposes of APA review.
The APA allows judicial review only for final agency actions. 5 U.S.C. § 704 (precluding review for preliminary, procedural, or intermediate action). “Agency actions” include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13). Whether an agency action is “final” is subject to a two-part
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test. First, the action must be the “consummation” of the agency’s decision-making process. Bennett v. Spear, 520 U.S. 154, 177–78 (1997). Second, it must be one by which rights and obligations are determined or by which legal consequences will follow. Id. at 178 (internal quotations omitted). The second prong of the Bennett test is not met if an agency action carries “no direct consequences,” but it is met if the action “alters the legal scheme” to which the agency is subject. Id.
Plaintiffs allege two final agency actions: the adoption of the metrics policy and the promulgation of the FAMU directive. ECF 57 at 39. Defendants do not dispute that these actions are final, only that they carry any legal consequences independent of the outcomes in individual removal cases. ECF 24 at 41–42, ECF 68 at 38–39. This Court agrees that the alleged actions are final, as there is no indication that these policies are preliminary or subject to further review, so this Court will address only the question of whether they carry legal consequences for Plaintiffs.
Whether an agency action is final requires consideration of both legal and practical consequences. Gill v. United States Dept. of Justice, 913 F.3d 1179, 1185 (9th Cir. 2019). In Gill, the Ninth Circuit held that an administrative standard promulgated by the defendant in that case was a “final” action because agencies that did not comply could have their user agreement permits revoked for a related program. Id; see also Oregon Natural Desert Ass’n v. U.S. Forest Service, 465 F.3d 977 (9th Cir. 2006) (holding that “annual operating instructions” from the agency were a final action); Havasupai Tribe v. Provencio, 906 F.3d 1155, 1163 (9th Cir. 2018) (holding that agency opinion was a “final” action because both legal and practical consequences followed from the determination contained in the opinion).
Here, Defendants argue that no consequences of any kind follow from the metrics policy or the FAMU directive until an immigration judge makes a ruling in an individual case. But this
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does not appear to be so. Both policies change the way immigration judges run their dockets and their courtrooms. Accordingly, Plaintiffs have at least sufficiently alleged that such docket management has practical consequence for parties or their attorneys. For example, if this court adopted a docket management policy in criminal cases that required all suppression hearings to be held within 30 days of an indictment, no one could argue that such a policy would not have practical consequences for everyone involved. Further, as Plaintiffs have stated, the metrics policy has direct consequences for judges’ performance evaluations and, by extension, for their jobs. Finally, aliens in immigration courts have a statutory right to counsel, conferred by the INA. It seems plausible that the practical consequences of the challenged policies would interfere with their right to that representation and with Plaintiffs’ ability to provide it, thus interfering with legal rights and obligations related to the policies. This Court finds that the challenged actions are therefore final agency actions for purposes of the APA, and Defendants’ motion to dismiss these claims is DENIED. // // // // // // // /// // //
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CONCLUSION For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED in part and DENIED in part. Plaintiffs’ claims that seek enjoinder of “asylum-free zones”—i.e. immigration courts with unusually high rates of denials for asylum applications—are DISMISSED on the grounds that this Court does not have jurisdiction to hear them, and Defendants’ motion is GRANTED with respect to those claims. Defendants’ motion is DENIED with respect to all of Plaintiffs’ remaining claims. IT IS SO ORDERED. DATED this 31st day of July, 2020.
____________________________ KARIN J. IMMERGUT United States District Judge
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 Case 3:19-cv-02051-IM Document 84 Filed 09/04/20 Page 1 of 44

ETHAN P. DAVIS Acting Assistant Attorney General Civil Division WILLIAM C. PEACHEY Director Office of Immigration Litigation District Court Section EREZ REUVENI Assistant Director BRIAN C. WARD Senior Litigation Counsel P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel.: (202) 616-9121 Email: brian.c.ward@usdoj.gov
Attorneys for Defendants

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

LAS AMERICAS IMMIGRANT ADVOCACY )

CENTER, et al.,

)

)

Plaintiffs,

)

v.

)

)

DONALD TRUMP, et al.,

)

)

Defendants.

)

)

)

CASE NO. 3:19-cv-02051-IM
DEFENDANTS’ MOTION TO RECONSIDER

Case 3:19-cv-02051-IM Document 84 Filed 09/04/20 Page 2 of 44
TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7-1 .................................................. 1 MOTION TO RECONSIDER ........................................................................................................ 1 INTRODUCTION .......................................................................................................................... 1 ARGUMENT .................................................................................................................................. 4
I. The statutory text and structure of 8 U.S.C. § 1252 make clear that the Court lacks jurisdiction over claims arising from or relating to removal proceedings.........................4
II. The history and purpose of 8 U.S.C. § 1252 further confirm that Congress intended to bar district court jurisdiction over the type of claims Plaintiffs seek to raise here. ....11
III. Plaintiffs’ claims here are cognizable in the PFR process and even if they were not, Congress can limit Plaintiffs’ ability to bring their claims in this Court.........................21
IV. Plaintiffs fail to state any claim for which relief can be granted. ....................................29 CONCLUSION............................................................................................................................. 35
i

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TABLE OF AUTHORITIES Cases
AFL-CIO v. Trump, 929 F.3d 748 (D.C. Cir. 2019) ............................................................................................ 24, 25
Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009) .................................................................................................. 22
AILA v. Reno, 199 F.3d 1352 (D.C. Cir. 2000) .......................................................................................... 19, 28
Ali v. Barr, No. 20-CV-3337, 2020 WL 2986692 (S.D.N.Y. June 3, 2020) ............................................... 19
Alvarez v. Sessions, 338 F. Supp. 3d 1042 (N.D. Cal. 2018) .......................................................................... 7, 10, 20
Am. Fed’n of Gov’t Employees v. Sec’y of Air Force, 716 F.3d 633 (D.C. Cir. 2013) ............................................................................................ 26, 27
Am.-Arab Anti-Discrim. Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995) .............................................................................................. 12, 13
Arizona v. United States, 132 S. Ct. 2492 (2012) .............................................................................................................. 32
Ashcroft v. Iqbal, 556 U.S. 662 (2009)...................................................................................................... 32, 33, 34
ASAP v. Barr, 409 F. Supp. 3d 221 (S.D.N.Y. 2019)....................................................................................... 19
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).................................................................................................................. 33
Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005) .................................................................................................... 23
Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005) .................................................................................................. 22
Block v. Community Nutrition Institute, 467 U.S. 340 (1984)........................................................................................................... passim
ii

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Bowles v. Russell, 551 U.S. 205 (2007).................................................................................................................. 24
Briceno-Martinez v. Barr, 792 F. App’x 542 (9th Cir. 2020) ............................................................................................. 22
C.J.L.G. v. Barr, 923 F.3d 622 (9th Cir. 2019) .................................................................................................... 22
Cancino-Castellar v. Neilsen, 338 F. Supp. 3d 1107 (S.D. Cal. 2018)............................................................................... 10, 11
Castro v. DHS, 835 F.3d 422 (3d Cir. 2016)...................................................................................................... 28
Ctr. for Biological Diversity v. Bernhardt 946 F.3d 553 (9th Cir. 2019) .................................................................................................... 30
Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019) .............................................................................................................. 34
Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) ........................................................................................................ 10, 20
DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020) ........................................................................................................ 27, 28
Elgin v. Dep’t of Treasury, 567 U.S. 1 (2012)............................................................................................................ 4, 17, 24
Gill v. Dep’t of Justice, 913 F.3d 1179 (9th Cir. 2019) .................................................................................................. 35
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062 (2020) ....................................................................................................... passim
Havasupai Tribe v. Provencio, 906 F.3d 1155 (9th Cir. 2018) .................................................................................................. 35
Heckler v. Chaney, 470 U.S. 821 (1985).................................................................................................................. 32
Hovhannisyan v. Holder, 577 F. App’x 748 (9th Cir. 2014) ............................................................................................. 23
iii

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Hui Ran Mu v. Barr, 936 F.3d 929 (9th Cir. 2019) .................................................................................................... 22
Hurles v. Ryan, 752 F.3d 768 (9th Cir. 2014) .................................................................................................... 33
I.N.S. v. St. Cyr., 533 U.S. 289 (2001)............................................................................................................ 16, 17
Innovation Law Lab v. Nielsen, 342 F. Supp. 3d 1067 (D. Or. 2018) ................................................................................... 10, 11
J.E.F.M. v. Lynch, 837 F.3d 1026 (9th Cir. 2016) ........................................................................................... passim
Jarkesy v. S.E.C., 803 F.3d 9 (D.C. Cir. 2015) ...................................................................................................... 27
Jennings v. Rodriquez, 138 S. Ct. 830 (2018) ......................................................................................................... passim
Judulang v. Holder, 565 U.S. 42 (2011).................................................................................................................... 23
Lair v. Bullock, 798 F.3d 736 (9th Cir. 2015) ...................................................................................................... 8
Make the Road New York v. Wolf, 962 F.3d 613 (D.C. Cir. 2020) .................................................................................................. 28
Martinez v. Napolitano, 704 F.3d 620 (9th Cir. 2012) .................................................................................................... 18
Massachusetts v. EPA, 549 U.S. 497 (2007)............................................................................................................ 30, 31
Massieu v. Reno, 91 F.3d 416 (3d Cir. 1996).................................................................................................. 25, 29
Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209 (2012).................................................................................................................. 32
McKart v. U.S., 395 U.S. 185 (1969).................................................................................................................. 27
iv

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McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991)...................................................................................................... 15, 16, 20
Mendez-Garcia v. Lynch, 840 F.3d 655 (9th Cir. 2016) .................................................................................................... 22
Metro. Life Ins. Co. v. Trujillo, 2020 WL 2838528 (C.D. Cal. June 1, 2020) .............................................................................. 1
Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) ...................................................................................................... 9
Mississippi v. Johnson, 71 U.S. 475 (1866).................................................................................................................... 29
Murcia v. Godfrey, No. C19-587, 2019 WL 5597883 (W.D. Wash. Oct. 10, 2019) ................................................. 8
NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. Apr. 24, 2018)............................................................................ 31
Naranjo-Aguilera v. INS, 30 F.3d 1106 (9th Cir. 1994) .................................................................................................... 23
Nasrallah v. Barr, 140 S. Ct. 1683 (2020) .............................................................................................................. 20
Nat’l Assoc. of Immigration Judges v. McHenry, No. 20-CV-731, 2020 WL 4693166 (E.D. Va. Aug. 6, 2020).................................................. 29
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004).................................................................................................................... 35
Oregon Natural Desert Ass’n v. U.S. Forest Service, 465 F.3d 977 (9th Cir. 2006) .................................................................................................... 35
Padilla v. ICE, 953 F.3d 1134 (9th Cir. 2020) ...................................................................................... 11, 18, 19
P.L. v. U.S. ICE, No. 1:19-CV-01336, 2019 WL 2568648 (S.D.N.Y. June 21, 2019) .......................................................................... 19
Raffin v. Gonzales, 143 F. App’x 26 (9th Cir. 2005) ............................................................................................... 22
v

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Reno v. Am.-Arab Anti-Discrim. Comm. (AAADC), 525 U.S. 471 (1999)........................................................................................................... passim
Reyes-Melendez v. INS, 342 F.3d 1001 (9th Cir. 2003) .................................................................................................. 22
Rueda Vidal v. DHS, No. 18-cv-9276, 2019 WL 7899948, n.17 (C.D. Cal. Aug. 28, 2019)............................................................... 7, 9
Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) ................................................................................................ 13
Sackett v. EPA, 566 U.S. 120 (2012).................................................................................................................. 26
Sangers v. Brown, 504 F.3d 903 (9th Cir. 2007) .................................................................................................... 34
Shalala v. Ill. Council of Long Term Care, 529 U.S. 1 (2000)................................................................................................................ 23, 24
Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) ...................................................................................................... 5
Stone v. INS, 514 U.S. 386 (1995).................................................................................................................. 12
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) .............................................................................................. 30, 31
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994)........................................................................................................... passim
U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950).................................................................................................................. 32
United States v. Fausto, 484 U.S. 439 (1988).................................................................................................................... 4
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978).................................................................................................................. 32
Viloria v. Lynch, 808 F.3d 764 (9th Cir. 2015) .................................................................................................... 18
vi

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Wang v. Att’y Gen., 423 F.3d 260 (3d Cir. 2005)...................................................................................................... 22
Washington v. Trump, 302 F. Supp. 3d 127 (D.D.C. 2018) .......................................................................................... 29
Weinberger v. Salfi, 422 U.S. 749 (1975).................................................................................................................. 27 Statutes
5 U.S.C. § 701............................................................................................................................... 35 5 U.S.C. § 704............................................................................................................................... 34 8 U.S.C. § 1105a ........................................................................................................................... 12 8 U.S.C. § 1225............................................................................................................................. 28 8 U.S.C. § 1252...................................................................................................................... passim 8 U.S.C. § 1252(a)(2)(D) .............................................................................................................. 23 8 U.S.C. § 1252(a)(5).................................................................................................................... 25 8 U.S.C. § 1252(b)(9) ............................................................................................................ passim 8 U.S.C. § 1252(g) ........................................................................................................................ 14 8 U.S.C. § 1329............................................................................................................................. 13 28 U.S.C. § 1331..................................................................................................................... 13, 24 28 U.S.C. § 2341........................................................................................................................... 12
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CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7-1 Counsel for Defendants has conferred by telephone with Plaintiffs’ counsel, who oppose this motion. The parties made a good faith effort to resolve this dispute but were unable to do so.
MOTION TO RECONSIDER The government respectfully moves the Court to reconsider its order denying in part the government’s motion to dismiss. ECF No. 79. The Court may reconsider a ruling at any time before final judgment. Metro. Life Ins. Co. v. Trujillo, 2020 WL 2838528, at *2 (C.D. Cal. June 1, 2020).
INTRODUCTION The Court’s order denying in part the motion to dismiss overlooks several arguments raised by the government that require reconsidering the ruling and dismissing this case in its entirety. First, the Court did not address Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), or the other cases the government cited addressing comprehensive review schemes like the one Congress enacted in the Immigration and Nationality Act (INA). Under this line of cases, when Congress enacts a comprehensive review process that requires claims to be exhausted through an administrative scheme before seeking judicial review, it forecloses all judicial review outside of that scheme. The Supreme Court has repeatedly held that “where such intent is ‘fairly discernible in the statutory scheme,’” courts must “find that Congress has allocated initial review to an administrative body” and “delayed judicial review” until after agency review is complete. Id. at 207 (quoting Block v. Community Nutrition Institute, 467 U.S. 340, 351 (1984)). “Whether a statute is intended to preclude initial judicial review is determined from the statute’s language, structure, and purpose, its legislative history, and whether the claims can be afforded meaningful review.” Id. (citations omitted). Here, the statutory text, structure, purpose, history, and review available through the petition-for-review (PFR) process all show that Congress intended to foreclose district court review.
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The statutory text and structure of 8 U.S.C. § 1252 are clear that any challenges to the removal process may be brought only in the manner authorized by § 1252. These strict limitations on judicial review apply to “all questions of law or fact” arising from removal proceedings or “arising from any action” related to those proceedings. 8 U.S.C. § 1252(b)(9) (emphasis added). As the Ninth Circuit has held, these limitations are “breathtaking” in scope and apply to claims like Plaintiffs’ challenging the process by which immigration courts conduct proceedings and issue orders. J.E.F.M. v. Lynch, 837 F.3d 1026, 1031, 1034 (9th Cir. 2016). However, the Court did not apply this binding precedent. Instead, the Court held that Jennings v. Rodriquez, 138 S. Ct. 830 (2018) indicated that J.E.F.M.’s holding “may be too broad” and read § 1252(b)(9) narrowly. Op. 15. The government respectfully submits that the Court’s holding here was in error. Jennings held with respect to § 1252(b)(9) only that it did not apply to detention claims and otherwise expressly declined to define § 1252(b)(9)’s scope. Nothing in Jennings changed the Ninth Circuit’s broad reading of § 1252(b)(9) and the Supreme Court has confirmed J.E.F.M.’s broad reading of § 1252 in more recent cases than Jennings.
The statute’s history and purpose further make clear that Congress intended § 1252 to strip district court jurisdiction over any claims related to how removal proceedings are conducted, including claims by organizations and other individuals who are not in removal proceedings. The INA has long included provisions channeling judicial review to the courts of appeals but courts have at various times held that certain claims fell outside of those channeling provisions. Again and again Congress has responded and amended the INA to clarify its intent to foreclose district court jurisdiction over any claim related in any way to proceedings in immigration court.
The review Congress provided through a PFR provides final confirmation of Congress’s intent to eliminate jurisdiction here. The Court’s conclusion that § 1252(b)(9) does not “bar
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judicial review of claims that [are] unreviewable through the PFR process” and that “most of Plaintiffs’ claims” “would not be cognizable through the PFR process,” op. 15, 16, is flawed in two respects. First, Plaintiffs concede, as they must, that courts of appeals hear PFR challenges raising bias claims or challenges related to scheduling issues such as those Plaintiffs allege result from the backlog or case-completion benchmarks—precisely the claims that this Court held could go forward. Op. 2. In addition, Thunder Basin and similar cases hold that Congress can create a comprehensive review scheme permitting only certain individuals to raise specific types of claims, and in doing so, bar pre-enforcement claims brought by other parties or in other fora. In failing to consider whether congressional intent to foreclose district court review here was “fairly discernible” from the text, structure, and history of § 1252, see Thunder Basin, 510 U.S. at 207, the Court applied the wrong test and adopted a narrower reading of § 1252 than Congress intended.
Even if the Court had jurisdiction, Plaintiffs have failed to state any claim upon which relief can be granted. The Take Care Clause is non-justiciable and none of the cases this Court cited hold otherwise. Plaintiffs’ bias claim fails because § 1252, properly construed, bars application of the APA’s waiver of sovereign immunity to this or any of Plaintiffs’ remaining claims, and the Court’s holding that a mere possibility of bias is sufficient to survive a motion to dismiss contradicts clear Supreme Court precedent. Finally, the Court did not address the government’s argument that Plaintiffs cannot state a claim under the APA where they are challenging agency actions that can separately be challenged in a PFR and incorrectly concluded that the practical consequences of an agency’s discretionary choices constitute reviewable “final agency action” under the APA even where there are no associated legal consequences.
The Court should reconsider its earlier ruling and dismiss this case in full.
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ARGUMENT I. The statutory text and structure of 8 U.S.C. § 1252 make clear that the Court lacks
jurisdiction over claims arising from or relating to removal proceedings. In 8 U.S.C. § 1252 Congress eliminated district court jurisdiction for any claims related to the process by which removal proceedings are conducted. See ECF No. 24 at 16-22. The text and structure of § 1252 clearly and unambiguously provide that any challenges relating to removal proceedings, or any action related to those proceedings, may be brought only in the manner and to the extent authorized by § 1252. The Court read § 1252 too narrowly and as a result mistakenly held that it did not bar jurisdiction over all of Plaintiffs’ claims. Op. 13-22. Although the Court correctly explained that “read together with § 1252(a)(5),” “§ 1252(b)(9) requires that any question of law or fact ‘arising from’” removal proceedings are reviewable only through the PFR process, the Court incorrectly concluded that these “statutes do not, however, preclude judicial review for all questions of law that may be somehow related to removal proceedings.” Op. 14. In reaching that conclusion, the Court applied the wrong framework by holding that “claims that are unreviewable on PFR are necessarily independent and collateral to the removal process and therefore outside the scope of § 1252(b)(9).” Op. 15. The correct framework for assessing the scope of a claim-channeling provision like § 1252(b)(9) that provides a “scheme of administrative review followed by judicial review in a federal appellate court” looks not narrowly to the review specifically authorized in the statutory scheme but rather asks “only whether Congress’ intent to preclude district court jurisdiction ‘was fairly discernible in the statutory scheme.’” Elgin v. Dep’t of Treasury, 567 U.S. 1, 9 (2012) (quoting Block, 467 U.S. at 351)). That inquiry must consider the relevant statute’s “text, structure, and purpose.” Id. at 10; see also Thunder Basin, 510 U.S. at 207; United States v. Fausto, 484 U.S. 439, 444 (1988).
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Congress’s intent to preclude district court jurisdiction over Plaintiffs’ claims is clear from the statutory text and structure. Like the statute the Supreme Court held precluded district court review in Thunder Basin, which provided that the agency and the courts of appeals had “exclusive jurisdiction over challenges to agency enforcement proceedings,” 510 U.S. at 207, § 1252(a)(5) provides that a PFR “shall be the sole and exclusive means for judicial review of an order of removal.” Section 1252(b)(9) in turn says that review of any claim arising from removal proceedings or “any action” related to those proceedings is “available only in judicial review of a final order under” § 1252(a)(5). See Singh v. Gonzales, 499 F.3d 969, 976 (9th Cir. 2007) (“Congress made clear that review of a final removal order is the only mechanism for reviewing any issue raised in a removal proceeding.”); see also ECF No. 24 at 16-20.
The Court read § 1252(a)(5) to apply only to review of an “order of removal,” and held that it is inapplicable here because “Plaintiffs have not challenged any particular order of removal.” Op. 13. Next, the Court read § 1252(b)(9) not to apply because it viewed Plaintiffs’ claims as different from the claims that are normally reviewed through the PFR process, op. 15, because Plaintiffs challenge the “process” not “any removal order.” Op. 16. In doing so, the Court turned the test announced in Thunder Basin and similar cases on its head by focusing on what the Court viewed as the specific claims identified in § 1252 rather than the absence of any limitation on the scope of § 1252’s channeling for claims related to removal proceedings. Thunder Basin held that even where a statute “is facially silent with respect to pre-enforcement claims”—i.e., claims challenging the process leading up to the decision in the “agency enforcement proceedings”— preenforcement claims are similarly foreclosed by a statutory scheme that provides a “comprehensive review process [that] does not distinguish between preenforcement and postenforcement challenges.” 510 U.S. at 208. The Court’s reading of § 1252’s statutory structure
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to narrowly channel review only of challenges to removal orders or claims by aliens in removal proceedings contradicts this approach. Section 1252 does not distinguish between pre-removalorder and post-removal-order challenges and thus “demonstrates that Congress intended to preclude challenges such as the present one,” 510 U.S. at 208, relating to the pre-removal-order process. See Reno v. Am.-Arab Anti-Discrim. Comm. (AAADC), 525 U.S. 471, 482-83, 485 (1999) (holding that § 1252(b)(9) is a “general jurisdictional limitation” channeling review of all “decisions and actions leading up to or consequent upon final orders of deportation”).
The text and structure of § 1252 make this congressional intent even clearer than the statute at issue in Thunder Basin. In § 1252(b)(9), Congress provided for “consolidation of questions for judicial review” in the court of appeals, and broadly extended this provision to “all questions of law and fact, including interpretation and application” of “statutory provisions” governing removal proceedings and challenges “arising from any action taken … to remove an alien.” 8 U.S.C. § 1252(b)(9) (emphasis added). Congress was also clear that no district court otherwise “shall have jurisdiction” under any other provision of law to review “such questions of law or fact.” Id.; see also H.R. Rep. No. 109-72, at 172 (May 3, 2005) (Congress’s consistent “fundamental purpose” was to consolidate all review in the courts of appeals and “eliminat[e]” “judicial review” through “a suit in a District Court”).The Ninth Circuit has held correctly that § 1252(b)(9) applies broadly to “any removal-related activity.” J.E.F.M., 837 F. 3d at 1031 (emphasis in original).
In ruling on the motion to dismiss, the Court acknowledged J.E.F.M.’s holding that § 1252(b)(9) is “breathtaking” in scope and “encompasses even ‘policies and practices’ relating to the removal process” such as the ones Plaintiffs challenge here, but declined to apply this binding precedent requiring dismissal of all of Plaintiffs’ claims because the Court held that it must instead apply Jennings, which the Court stated “appears to adopt a somewhat more limited view of the
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scope of § 1252(b)(9).” Op. 15. As other courts have held, however, nothing in Jennings narrows J.E.F.M., and it remains binding precedent. See Alvarez v. Sessions, 338 F. Supp. 3d 1042, 104849 (N.D. Cal. 2018) (holding that J.E.F.M.’s ruling on § 1252(b)(9)’s scope remains good law following Jennings and applying it to dismiss claims alleging agency practices made it more difficult to secure or maintain pro bono counsel); Rueda Vidal v. DHS, No. 18-cv-9276, 2019 WL 7899948, at *11, n.17 (C.D. Cal. Aug. 28, 2019) (courts “must follow” J.E.F.M. as “binding circuit precedent” post-Jennings). Accordingly, J.E.F.M. continues to control and requires dismissal of all of Plaintiffs’ claims.
In reaching the contrary conclusion, this Court emphasized language in Jennings stating that the words “arising from” in § 1252(b)(9) should not be interpreted in an extreme way that would “lead[ ] to results that ‘no sensible person could have intended.’” Jennings, 138 S. Ct. at 840. But the test the Court took from this language appears nowhere in Jennings and fails to address both how the Supreme Court has directed courts to assess whether Congress intended to remove jurisdiction and the unavoidable conclusion that results from that assessment that Congress did intend § 1252(b)(9) to cover these claims. The Court concluded that Jennings “settled the question of whether claims that are unreviewable on PFR are necessarily independent and collateral to the removal process and therefore outside the scope of § 1252(b)(9).” Op. 15 (citing Jennings, 138 S. Ct. at 840). Jennings, however, says nothing of the sort. Rather, the portion of Jennings that the Court cites says instead that “the applicability of § 1252(b)(9) turns on whether the legal questions that we must decide ‘aris[e] from’ the actions taken to remove these aliens.” Jennings, 138 S. Ct. at 840.
Jennings did list some types of claims that may fall outside of § 1252(b)(9)’s bar because they do not relate to or arise from things that happen in immigration court: a Bivens claim
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challenging “conditions of confinement”; “a state-law claim for assault against a guard or fellow detainee”; or, a suit by an injured alien against a driver that “hits the bus transporting aliens.” Jennings, 138 S. Ct. at 840. These claims are easily distinguishable because, unlike Plaintiffs’ claims, they do not relate to the conduct of removal proceedings or any action taken in immigration court. And ultimately, Jennings was a habeas case challenging detention, id. at 839, so it cannot be read to adopt any broader interpretation of § 1252(b)(9) beyond its conclusion that § 1252(b)(9) does not bar detention claims. In fact, the Supreme Court expressly declined to “attempt to provide a comprehensive interpretation” of § 1252(b)(9) and noted that the scope of § 1252(b)(9) was not even briefed in that case. Jennings, 138 S. Ct. at 841 (“The parties in this case have not addressed the scope of § 1252(b)(9).”); see also Murcia v. Godfrey, No. C19-587, 2019 WL 5597883, at *4, 7 (W.D. Wash. Oct. 10, 2019) (emphasizing that “the parties did not brief the scope of § 1252(b)(9)” in Jennings, which highlighted only “detention, assault, and tort claims” as claims that are not “inextricably linked” to removal proceedings and declined to provide any “comprehensive interpretation”). The Supreme Court’s express decision not to offer any broader interpretation of § 1252(b)(9) runs contrary to this Court’s holding that Jennings “settled the question” of what claims fall “outside the scope of § 1252(b)(9).” Op. 15.
This Court correctly noted that J.E.F.M. requires dismissal of challenges to “‘policies and practices’ relating to the removal process,” op. 15, such as Plaintiffs raise here. Because Jennings’ holding with respect to § 1252(b)(9) applies only to detention claims and Plaintiffs raise no detention claims, J.E.F.M. applies and requires dismissal. This Court is bound by J.E.F.M. unless the Ninth Circuit overturns it or its holding is clearly irreconcilable with a Supreme Court decision. See Lair v. Bullock, 798 F.3d 736, 745 (9th Cir. 2015) (prior circuit decision binding unless “the reasoning or theory of [that] prior circuit authority is clearly irreconcilable with the reasoning or
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theory of higher authority”); Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc); Rueda Vidal, 2019 WL 7899948, at *11, n.17 (rejecting argument that court should consider whether Jennings’ “test differs from the standard announced in J.E.F.M.” because court “must follow binding circuit precedent”). Jennings’ holding on detention claims in a case where the scope of § 1252(b)(9) was not even briefed is not clearly irreconcilable with J.E.F.M.’s holding on nondetention claims. Moreover, the Ninth Circuit reached the same conclusion on the outer limits of § 1252(b)(9) in J.E.F.M. by holding that it does not apply to habeas challenges to detention. J.E.F.M., 837 F.3d at 1031.1 And in ruling that § 1252(b)(9) “swallows up virtually all claims that are tied to removal proceedings,” the Ninth Circuit held that the applicability of § 1252(b)(9) turns on whether the claims “arise[s] from removal proceedings” or “the removal process,” id., just as Jennings distinguished the detention claims in that case from claims “challenging any part of the process by which [ ] removability will be determined,” Jennings, 138 S. Ct. at 841. As this Court acknowledged, “Jennings agreed with th[e] framework” set out in J.E.F.M. Op. 15.
The text and structure of § 1252, Jennings, and J.E.F.M. all place challenges related to the removal process at the center of what § 1252(b)(9) covers and Plaintiffs do not dispute that they challenge the removal process. They describe their claims as challenging the “manner in which Defendants administer the removal process.” ECF No. 57 at 16. And this Court similarly held that “Plaintiffs’ challenge is to the immigration process.” Op. 16 (emphasis in original). Such claims run headlong into the core of what Jennings said § 1252(b)(9)’s “jurisdictional bar” covers— challenges to “any part of the process by which [an alien’s] removability will be determined. Jennings, 138 S. Ct. at 840 (emphasis added). As the plurality opinion explained, “the question is
_________________________ 1 Congress identified this same distinction when it passed § 1252. See H.R. Rep. No. 109-72, at 175 (noting that amendments to § 1252 “would not preclude habeas review over challenges to detention that are independent of challenges to removal orders”).
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… whether the legal questions in this case arise from” “an action taken to remove an alien.” Id. at 841 n.3. “[I]f a claim arises from an action taken to remove an alien, § 1252(b)(9) permits judicial review in only two circumstances: in connection with review of a final removal order and via a specific grant of jurisdiction in § 1252.” Id. at 854 (Thomas, J., concurring in part). And, as this Court correctly noted, the Supreme Court has affirmed this conclusion in more recent cases holding that § 1252(b)(9) applies to challenges to “the process by which removal will be determined.” Op. 14 (citing Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1907 (2020)); see also Alvarez, 338 F. Supp. 3d at 1048-49 (noting that it does not require “an expansive interpretation of § 1252(b)(9)’s ‘arising from’ language to find that” “issues related to legal representation during removal proceedings” “fall squarely within the purview of the provision”).
Finally, the other cases that the Court cited in support of its conclusion that § 1252(b)(9) does not bar Plaintiffs’ claims merely make the same distinctions identified in J.E.F.M. and Jennings and cannot save Plaintiffs’ claims. See Op. 15-16 (citing Cancino-Castellar v. Neilsen, 338 F. Supp. 3d 1107 (S.D. Cal. 2018); Innovation Law Lab v. Nielsen, 342 F. Supp. 3d 1067 (D. Or. 2018)). Cancino-Castellar is particularly instructive on this point. The court there held that § 1252(b)(9) did not bar plaintiffs’ challenge to the lawfulness of their detention without a hearing—a claim similar to Jennings. 338 F. Supp. 3d at 1116-17, 1115 n.7 (noting that Jennings petitioners sought “hearings to justify their continued detention”). However, as to plaintiffs’ claim challenging the timing of when a hearing must occur before an immigration judge—a claim not dissimilar to the claims here—the court held that § 1252(b)(9) did bar those claims. Id. at 111516. The court also cautioned that Jennings “should not be read to fashion a free-standing exception to Section 1252(b)(9) based on the mere assertion that a claim is effectively unreviewable” because, “[a]s Justice Alito himself confirmed, a court must decide whether the legal or factual
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question a plaintiff raises arises from an action taken to remove or the removal process.” Id. at 1116. And Innovation Law Lab dealt with conditions-of-confinement claims, a category of detention-related claims that was specifically discussed in Jennings. 342 F. Supp. 3d at 1076-77 (noting that challenge was not to “detainees’ removal proceedings” but rather to “conditions of the civil immigrant detainees’ pre-hearing confinement”).
Plaintiffs’ challenges to the immigration process fall squarely within § 1252(b)(9) and must be dismissed for lack of jurisdiction. II. The history and purpose of 8 U.S.C. § 1252 further confirm that Congress intended
to bar district court jurisdiction over the type of claims Plaintiffs seek to raise here. As to the purpose and history of § 1252 discussed in J.E.F.M. and Padilla v. ICE, 953 F.3d 1134 (9th Cir. 2020), the Court acknowledged the Ninth Circuit’s “recitation of the legislative history underlying” § 1252 that shows Congress “sought to prevent organizations and persons not involved in removal proceedings from bringing ‘preemptive challenges to the enforcement of certain immigration statutes,’” op. 20, but the Court held that this legislative history was not relevant because Plaintiffs’ claims were not the type of claims Congress intended § 1252 to cover, see, e.g., op. 21. This holding ignores clear precedent and legislative history of the type the Supreme Court has said courts should consider when evaluating jurisdiction-channeling provisions. See, e.g., Thunder Basin, 510 U.S. at 209-11. The history of § 1252 resolves any remaining ambiguity and shows that Congress intended § 1252 to apply here. Congress amended the jurisdictional provisions of the INA through the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996 and the REAL ID Act in 2005 to clarify the broad scope of § 1252 and strip district court jurisdiction over any claims related to removal proceedings. This includes foreclosing claims by organizations and other individuals who are not themselves subject to removal proceedings or the PFR process.
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Before IIRIRA, judicial review under the INA was governed by 8 U.S.C. § 1105a, “a special statutory-review provision directing that ‘the sole and exclusive procedure for the judicial review of all final orders of deportation’ shall be that set forth in the Hobbs Act, 28 U.S.C. § 2341 et seq., which gives exclusive jurisdiction to the courts of appeals.” AAADC, 525 U.S. at 476. Even so, courts often permitted bifurcated review of issues arising out of deportation proceedings on the theory that district court review was the “only means of obtaining factual development” of certain types of claims. See id. “Such litigation was possible because courts read § 1105a’s prescription that the Hobbs Act shall be ‘the sole and exclusive procedure for the judicial review of all final orders of deportation’ to be inapplicable to various decisions and actions leading up to or consequent upon final orders of deportation, and relied on other jurisdictional statutes to permit review.” Id. at 485. In doing so, those courts adopted an analysis nearly identical to this Court’s ruling here by holding that district court jurisdiction remained for certain claims related to deportation proceedings because “the provision for exclusive review in the court of appeals” did not apply to claims that courts of appeals “ordinarily cannot review” “as part of [the] review of a final deportation order.” AAADC. v. Reno, 70 F.3d 1045, 1055 (9th Cir. 1995); compare with Op. 16 (holding that “§ 1252(b)(9) does not preclude this court’s jurisdiction over” “claims [that] would not be cognizable through the PFR process”). As the Supreme Court has explained, this was contrary to Congress’s goal because “Congress visualized a single administrative proceeding in which all questions relating to an alien’s deportation would be raised and resolved, followed by a single petition in a court of appeals for judicial review.” Stone v. INS, 514 U.S. 386 (1995).
Through IIRIRA in 1996, Congress sought to eliminate this misreading of the statute. Specifically, Congress “reestablished” that only courts of appeals could review issues related to removal proceedings: “Congress made clear that review of a final removal order is the only
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mechanism for reviewing any issue raised in a removal proceeding.” H.R. Rep. No. 109-72, at 173 (emphasis added). “[T]hese provisions were intended to preclude all district court review of any issue raised in a removal proceeding.” Id.2; see also Guerrero-Lasprilla, 140 S. Ct. at 1071 (noting, in discussing the history of § 1252, that courts “normally assume that Congress is ‘aware of relevant judicial precedent’ when it enacts a new statute”).
IIRIRA eliminated two ways in which district courts had held that the INA’s jurisdictionstripping provisions did not apply to certain claims related to removal proceedings: (1) by finding “jurisdiction lies in the district court pursuant to the federal question statute, 28 U.S.C. § 1331”; and, (2) by finding jurisdiction “pursuant to the general grant of power to review matters arising under the immigration laws, 8 U.S.C. § 1329.” AAADC, 70 F.3d at 1055. As the government explained, § 1329, which is titled “jurisdiction of district courts,” had previously provided jurisdiction over claims “arising under any of the provisions of this subchapter”—the INA subchapter that includes removal proceedings under § 1229a. 8 U.S.C. § 1329 (1952); ECF No. 24 at 20-21. Section 1329 “was subsequently amended by IIRIRA to make clear that it applies only to actions brought by the United States.” AAADC, 525 U.S. at 477 n.4. Congress thus made “clear that district court jurisdiction founded on the immigration statute is confined to actions brought by the government,” eliminating § 1329 as a basis for district courts to find jurisdiction for claims brought by private parties. Saavedra Bruno v. Albright, 197 F.3d 1153, 1162 (D.C. Cir. 1999).
As to general federal question jurisdiction under § 1331, the basis on which this Court found jurisdiction, see op. 18, Congress foreclosed § 1331 jurisdiction for claims related to
_________________________ 2 As the Supreme Court said just this term, “[t]hose who deem legislative history a useful interpretive tool will find that the congressional history of the Limited Review Provision” in this “House Conference Report” relevant to interpreting “the limits on judicial review in various provision of § 1252.” Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1071-72 (2020) (citing H.R. Rep. 109-72).
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removal proceedings by enacting “the unmistakable ‘zipper’ clause of § 1252(b)(9).” Id. at 483. Unlike § 1252(g), which the Supreme Court read as limiting “judicial review of only some decisions and actions” “along the road to deportation”—i.e., commencing removal proceedings, adjudicating removal cases, and executing removal orders—the Supreme Court has held that “§ 1252(b)(9) channels judicial review of all of them.” Id. at 482-83 (emphasis in original); see also id. at 482 (defining a “zipper clause” as meaning “no judicial review in deportation cases unless this section provides judicial review”).3 In fact, in reading § 1252(g) as applying only to the “discrete” actions mentioned in that section, the Supreme Court noted that, if Congress wanted § 1252(g) to instead “impose a general jurisdictional limitation” on all claims that are somehow related to removal proceedings, Congress clearly knew how to do so because it had enacted just such a general jurisdictional limitation in § 1252(b)(9), which contains no limits to any particular type of action or decision related to removal proceedings and thus “stands in stark contrast to § 1252(g).” Id. at 482-83 (§ 1252(b)(9) represents “the normal manner of imposing” a “general jurisdictional limitation”). The Supreme Court’s broad reading of 1252(b)(9) aligns with the “many provisions of IIRIRA [ ] aimed at protecting the Executive’s discretion from the courts—indeed, that can fairly be said to be the theme of the legislation.” Id. at 486.
Despite Congress’s clear intent in IRRIRA to eliminate jurisdiction for any remaining claims in district courts related to removal proceedings, some courts nonetheless continued to find district court jurisdiction over systemic policy-and-practice claims or claims brought by parties who were not themselves subject to removal proceeding. This line of cases traced to the Supreme Court’s decision in McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991). McNary dealt with
_________________________ 3 Of particular relevance here, the Supreme Court noted that the broader list of decisions and actions covered by § 1252(b)(9) includes decisions about scheduling cases and hearings in removal proceedings, including the decision “to reschedule the deportation hearing.” 525 U.S. at 482.
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a program created by the Immigration Reform and Control Act of 1986 (Reform Act) that allowed certain aliens to seek relief from removal by applying for special agricultural worker (SAW) status. Id. at 481-83. The statute provided for review of a denial only through removal proceedings, permitting “judicial review of such a denial only in the judicial review of an order of exclusion or deportation.” Id. at 486. In McNary, a class of alien farmworkers nonetheless sued to challenge “practices and policies adopted by the INS in its administration of the SAW program” that they alleged violated the statute. Id. at 487. The district court allowed the claims to move forward despite the jurisdictional limitations of the Reform Act because it held that the suit did “not challenge any individual determination of any application for SAW status but rather attacks the manner in which the entire program is being implemented, allegations beyond the scope of administrative review.” Id. at 487-88.
When the jurisdictional question reached the Supreme Court, it affirmed that the jurisdictional provisions barred district court review only of challenges to individual applications, not broader policy or practice claims that did not challenge any individual application or removal order. Id. at 491-92. The Supreme Court, however, based that conclusion on specific “critical words” in the statute that indicated that the jurisdictional limits referred only to individual determinations on particular applications and that the provision was not aimed at limiting broader challenges to “a group of decisions or a practice or procedure employed in making decisions.” Id. at 492. As a result, the Supreme Court held that the statute stripped jurisdiction from the district courts only of challenges to “the denial of an individual application.” Id.
The Supreme Court was clear, however, that Congress “easily could have used broader statutory language” if it “intended the limited review provisions … of the INA to encompass challenges to INS procedures and practices,” by, for example, using language channeling “all
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causes . . . arising under any of the provisions,” or “all questions of law and fact” arising from the program. McNary, 498 U.S. at 494. Following McNary and the line of cases that followed, Congress amended the INA again in 2005 as part of the REAL ID Act and clarified that it intended § 1252 to have this broader scope. See H.R. Rep. No. 109-72, at 173-75. In doing so, Congress specifically added the “arising under” and “all questions of law and fact” language that the Supreme Court said it could use if it intended to bar broader challenges to agency “procedures and practices,” and clarified that § 1252(b)(9) bars “[j]udicial review of all questions of law and fact, including the interpretation of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States.” 8 U.S.C. § 1252(b)(9) (emphasis added). Congress further stated that, aside from the review authorized under § 1252(a)(5) in the court of appeals, “no court shall [otherwise] have jurisdiction” under any “provision of law . . . to review … such questions of law or fact.” Id.
When Congress passed the REAL ID Act, it also took steps to eliminate the one other remaining way in which courts had persisted in finding district court jurisdiction over some claims related to the removal process. After IIRIRA, the Supreme Court had interpreted the “jurisdictionstripping provisions as not barring (i.e., as permitting) review” of challenges to certain removal orders through habeas petitions. Guerrero-Lasprilla, 140 S. Ct. at 1072 (citing I.N.S. v. St. Cyr., 533 U.S. 289, 299-305 (2001)). In St. Cyr the Supreme Court had held that the “jurisdictionstripping provisions” should not be read to eliminate district court review of removal orders issued to certain criminal aliens because the statute permitting review in the court of appeals “essentially barred judicial review of removal orders based on an alien’s commission of certain crimes,” and would otherwise make claims by these individuals unreviewable. Id. However, just as it did in McNary, the Supreme Court “made clear that ‘Congress could, without raising any constitutional
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questions’” move what review remained in the district courts to the courts of appeals. 140 S. Ct. at 1071 (quoting St. Cyr., 533 U.S. at 314). “Congress, aware of this precedent (and wishing to substitute review in the courts of appeals for habeas review),” “took up this suggestion” in the REAL ID Act and “made clear that the limits on judicial review in various provisions of § 1252 included habeas review,” and by doing so “consolidated” all review in the courts of appeals. Id.
Congress was clear that its intent in the REAL ID Act was to address “confusion in the federal courts as to what immigration issues can be reviewed, and which courts can review them,” “resulting in bifurcated and inefficient review.” H.R. Rep. 109-72, 174. This “piecemeal review” that allowed some claims related to removal proceedings to continue to be heard in district courts was “the very opposite of what Congress tried to accomplish in 1996” through IIRIRA. Id. Congress, citing the Supreme Court’s direction in St. Cyr that it could remove what review remained in district courts, again “made clear that review of a final removal order is the only mechanism for reviewing any issue raised in” removal proceedings. Id. at 173. Congress thus definitively established that § 1252 barred district court review not just of removal orders, but also of all “decisions and actions leading up to” immigration judges’ decisions in removal proceedings, ensuring that, for claims related to removal proceedings, “if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.” AAADC, 525 U.S. at 486.
It was this clear history of § 1252 that the Ninth Circuit addressed in J.E.F.M. when it explained that § 1252(b)(9) is “breathtaking in scope and vise-like in grip,” and overturned a district court that held it had jurisdiction over a challenge related to the right to counsel in removal proceedings because the district court viewed the PFR process as “insufficient” to provide “meaningful judicial review” of such claims. J.E.F.M., 837 F.3d at 1031-32. “The legislative
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history of the INA, as well as amendments to § 1252(b)(9), confirm that Congress intended to channel all claims arising from removal proceedings … to the federal courts of appeals and bypass the district courts.” Id. at 1033. The Ninth Circuit emphasized, as set out above, that “Congress was legislating against the backdrop of recent Supreme Court law” that “offered a blueprint for how Congress could draft a jurisdiction-channeling statute that would cover not only individual challenges to agency decisions, but also broader challenges to agency policies and practices.” Id. at 1034. Section “1252(b)(9) neatly tracks the policy and practice jurisdiction-channeling language” the Supreme Court suggested and “channel[s] review of all claims, including policiesand-practices challenges, through the PFR process.” Id. at 1035. “Taken together, § 1252(a)(5) and § 1252(b)(9) mean that any issue—whether legal or factual—arising from any removal-related activity can be reviewed only through the PFR process.” Id. at 1031; see also Viloria v. Lynch, 808 F.3d 764, 767-68 (9th Cir. 2015) (“It is well established that this court’s jurisdiction over removal proceedings is limited to review of final orders of removal” and that “§ 1252(b)(9)’s emphatic jurisdictional restriction” bars review even in cases where no removal order has been issued.); Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (dismissing challenge to “procedure” by which agency found aliens “ineligible for asylum” and holding that whenever a claim, “however it is framed, challenges the procedure” for agency determinations linked to removal orders, “it is prohibited by section 1252”).
The Ninth Circuit has also properly held, based on the history of § 1252, that “Congress intended” to eliminate claims in district court brought by “organizational plaintiffs.” Padilla, 953 F.3d at 1150. The “statute’s legislative history supports [this] reading,” because Congress amended § 1252 “after a period in which organizations and class of persons, many of whom were not themselves in proceedings, brought preemptive challenges to the enforcement of certain
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immigration statutes.” Id. “This history supports the view that Congress intended § 1252(f)(1) to restrict courts’ power to impede the new congressional removal scheme on the basis of suits brought by organizational plaintiffs and noncitizens not yet facing proceedings under 8 U.S.C. §§ 1221-1232.” Id. at 1151; cf. AILA v. Reno, 199 F.3d 1352, 1359-60 (D.C. Cir. 2000) (“Congress meant to allow litigation challenging the new system by, and only by, aliens against whom the new procedures had been applied”).
Other courts to consider the question have reached the same conclusion. See ASAP v. Barr, 409 F. Supp. 3d 221, 222-26 (S.D.N.Y. 2019) (dismissing as barred by § 1252(b)(9) challenge brought by “a group of organizations dedicated to helping immigrant families” that alleged agency mismanaged process for scheduling hearings in immigration court in a way that denied organizations’ clients “a meaningful opportunity to be heard,” and rejecting argument that Jennings narrowed § 1252(b)(9)’s scope); P.L. v. U.S. ICE, No. 1:19-CV-01336, 2019 WL 2568648, at *1-2 (S.D.N.Y. June 21, 2019) (holding that § 1252(b)(9) barred challenges to procedures that allegedly caused “scheduling challenges,” made it more difficult to retain counsel, and injured organizations directly by increasing the “time and cost associated with providing legal services”); Ali v. Barr, No. 20-CV-3337, 2020 WL 2986692, at *6-8 (S.D.N.Y. June 3, 2020) (§ 1252 barred challenge based on “Organizational Plaintiffs’ frustrations” with difficulties caused by uncertain scheduling, finding “no authority in the context of a civil proceeding that requires a judge to rule on any specific timetable—let alone one that is driven by an attorney’s personal need for certainty”).
In finding that § 1252(b)(9) did not bar jurisdiction, this Court emphasized that the “organizational plaintiffs bring claims alleging systemic problems, independent of any removal orders” and “do not have access to the PFR process for their asserted claims.” Op. 17. But this is
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exactly the approach of McNary, which found a broader challenge was not barred because it did “not challenge any individual determination of any application … but rather attacks the manner in which the entire program is being implemented, allegations beyond the scope of administrative review.” McNary, 498 U.S. at 487-88. The text and history of § 1252 show that Congress sought to foreclose this precise theory of district court jurisdiction in the various post-McNary amendments to the INA. Jennings’ teaching that § 1252(b)(9) should not be read in an “extreme way” that “no sensible person could have intended,” 138 S. Ct. at 840, cannot be read to save these claims that Congress plainly intended § 1252(b)(9) to cover. See Alvarez, 338 F. Supp. 3d at 104849 (it does not require “an expansive interpretation of § 1252(b)(9)’s ‘arising from’ language to find that” “issues related to legal representation during removal proceedings” “fall squarely within the purview of the provision” post-Jennings).
Moreover, in cases more recent than Jennings, the Supreme Court has repeatedly emphasized the broad scope of § 1252(b)(9) that the Ninth Circuit arrived at based on its text, structure, and history. See Nasrallah v. Barr, 140 S. Ct. 1683, 1690 (2020) (Congress “eliminate[ed] review in the district courts” for “challenges arising from removal proceedings” under § 1229a and required that the “various challenges” that may relate to those proceedings “must be consolidated in a petition for review and considered by the courts of appeals”); Regents, 140 S. Ct. at 1907 (§ 1252(b)(9) is “a jurisdictional bar where those bringing suit” are “asking for review of” inter alia “the process by which .. removability will be determined”); GuerreroLasprilla, 140 S. Ct. at 1070 (2020) (noting that § 1252(b)(9) is a “zipper clause” intended to “consolidate judicial review of immigration proceedings” in courts of appeals).
Accordingly, the Court should reconsider its earlier ruling and dismiss all claims in this case for lack of jurisdiction because all of Plaintiffs’ claims are barred by § 1252(b)(9).
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III. Plaintiffs’ claims here are cognizable in the PFR process and even if they were not, Congress can limit Plaintiffs’ ability to bring their claims in this Court. As the government explained in its motion to dismiss, Plaintiffs acknowledge that the legal
questions that they seek to raise here can be raised by aliens through the PFR process. See ECF No. 24 at 19-21. And, as the Supreme Court has held, Congress can bar organizations or others from bringing similar claims. Id. The Court’s finding that “most of Plaintiffs’ claims” “would not be cognizable through the PFR process,” and that § 1252(b)(9) cannot be read “to bar judicial review of claims that [are] unreviewable through the PFR process” is therefore incorrect. Op. 1516. The Supreme Court has said that Congress can create “a detailed mechanism for judicial consideration of particular issues at the behest of particular persons” and in doing so, preclude “judicial review of those issues at the behest of other persons.” Block, 467 U.S. at 349.
The Court held that three claims can move forward in this case based on the conclusion that “these claims would not be cognizable through the PFR process”: (1) a challenge to “the immigration court backlog”; (2) APA challenges to agency benchmarks and metrics for the scheduling and completion of removal proceedings in immigration court; and (3) claims that immigration judges are not acting as an “impartial adjudicator.” Op. 2, 16. Each of these claims, however, is reviewable in a PFR.
The first two categories of claims relate to scheduling of cases. Plaintiffs allege that the backlog causes delays that make it more difficult to present witness and evidence and to obtain and sustain legal representation, and alternatively that agency metrics and case-completion goals lead to cases being hastened through the system in ways that influence the adjudication. See Compl. ¶¶ 111, 128, 154. Courts of appeals, however, regularly hear PFR challenges alleging that scheduling of hearings improperly influenced the outcome, including challenges to decisions to move cases along more quickly by denying a continuance or time to obtain counsel, or
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challenges alleging a case was impacted because the agency completed it too slowly. See, e.g. Hui Ran Mu v. Barr, 936 F.3d 929, 936 (9th Cir. 2019); C.J.L.G. v. Barr, 923 F.3d 622, 631 & n.3 (9th Cir. 2019) (Paez, J., concurring); Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir. 2005); Ahmed v. Holder, 569 F.3d 1009, 1012, 1014 (9th Cir. 2009) (listing factors Ninth Circuit considers in PFR challenge to immigration judge scheduling decisions, including any “evidence excluded as a result of the denial of the continuance”; “whether good cause exists in a given individual case” to delay hearings or resolution of a case; and remanding after concluding that “[a]dministrative efficiency alone cannot justify the denial of a continuance”); Briceno-Martinez v. Barr, 792 F. App’x 542, 543 (9th Cir. 2020) (PFR considering claim that case should be heard “without extraordinary delay”); Mendez-Garcia v. Lynch, 840 F.3d 655, 667 (9th Cir. 2016) (PFR addressing claim that “agency’s delays” violated aliens’ “rights by preventing them from reasonably presenting their cases at a meaningful time”).
Plaintiffs acknowledged that challenges related to the case-completion goals and the performance metrics can be raised in PFRs because “[t]he practical effect of both policies on the individuals who Plaintiffs serve would likely take the form of biased decision making or the denial of a continuance, which could form the basis of a petition for review” and cited an example PFR. See ECF No. 57 at 19 n. 10 (citing Raffin v. Gonzales, 143 F. App’x 26 (9th Cir. 2005)). Plaintiffs also correctly conceded that bias claims, the third claim the Court permitted to proceed, can be raised in PFRs: “petitioners in removal proceedings may raise claims of bias in a petition for review” and a claim of “biased decision making” as a result of agency case-completion goals or performance metrics “could form the basis for a petition for review.” ECF No. 57, at 19 n.9 (citing Reyes-Melendez v. INS, 342 F.3d 1001, 1007-09 (9th Cir. 2003); Wang v. Att’y Gen., 423 F.3d 260 (3d Cir. 2005)); id. at 19 n.10. As with Plaintiffs’ other claims, the Ninth Circuit regularly hears
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claims that an immigration judge considered improper factors in reaching a decision or was biased. See, e.g., Hovhannisyan v. Holder, 577 F. App’x 748, 750 (9th Cir. 2014) (addressing claim that “the immigration judge exhibited bias”); Bhasin v. Gonzales, 423 F.3d 977, 989 (9th Cir. 2005) (PFR addressing claim that agency considered improper factors).
The PFR process also allows aliens to bring broader challenges to agency practices. See, e.g., Naranjo-Aguilera v. INS, 30 F.3d 1106, 1114 (9th Cir. 1994) (noting that “Petitioners appealing orders of deportation routinely bring statutory and constitutional challenges to INS regulations and policies,” and rejecting contention that plaintiffs “will be unable to argue their claims effectively if forced to bring them in the context of appeals from orders of deportation”); Judulang v. Holder, 565 U.S. 42, 52 (2011) (overturning agency policy as arbitrary and capricious under the APA in PFR challenge initially raised to the Ninth Circuit); cf. Shalala v. Ill. Council of Long Term Care, 529 U.S. 1, 20, 23-24 (2000) (rejecting argument for review under § 1331 outside exclusive channeling provision for any “action arising under the Medicare Act” based on contention that channeling provision would postpone or deny judicial review or be less convenient, and noting that a court of appeals reviewing administrative proceedings “has adequate authority to resolve any statutory or constitutional contention that the agency does not, or cannot, decide, including, where necessary, the authority to develop an evidentiary record”). Congress was also clear that none of the provisions of § 1252 that “limits or eliminates judicial review” “shall be construed as precluding review of constitutional claims or questions of law” so long as those questions and claims are “raised upon a petition for review filed with an appropriate court of appeals.” 8 U.S.C. § 1252(a)(2)(D). In evaluating a comprehensive review scheme, the relevant question is not whether the legal questions can be reviewed through the administrative process alone, but rather whether they can be addressed through the statutory mechanism for administrative
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and judicial review as a whole. See Shalala, 529 U.S at 23-24; Elgin, 567 U.S. at 17. The Court overlooked these cases showing that the legal questions here can be reviewed in
a PFR. Considered in this context, Plaintiffs’ argument is not that these issues are not cognizable through the PFR process, but rather that organizations cannot be the ones to raise such claims. While that is true, the Supreme Court has made clear in Block, Thunder Basin, and the other cases that the government cited that Congress can decide who can raise certain claims or legal questions—and who cannot—and that courts must give effect to this congressional intent so long as it is, as set out above, fairly discernible from the statutory text, structure, and purpose. Although district courts generally “have jurisdiction over civil actions arising under the Constitution and laws of the United States [under] 28 U.S.C § 1331,” “Congress may preclude district court jurisdiction by establishing an alternative statutory scheme for administrative and judicial review.” AFL-CIO v. Trump, 929 F.3d 748, 755 (D.C. Cir. 2019). “Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider.” Bowles v. Russell, 551 U.S. 205, 212 (2007). In its decision, the Court did not address Thunder Basin or any of these cases holding that Congress can enact a comprehensive review scheme foreclosing claims by other parties or brought in other ways.
AFL-CIO is particularly instructive because there the D.C. Circuit held that Congress had enacted just such a comprehensive scheme dealing with “employee relations in the federal sector” where Congress created a “complicated and subtle scheme” that “provides the exclusive procedures by which federal employees” “may assert federal labor-management relations claims.” Id. at 755-56. That statute, which “establishes a scheme of administrative and judicial review” where agency decisions are “subject to direct review in the courts of appeals,” id at 752, and the Federal Mine Safety Act scheme the Supreme Court addressed in Thunder Basin are both similar
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to the INA, which provides for administrative review by the BIA and makes direct review in the courts of appeals the “sole and exclusive means of judicial review” for claims arising from removal proceedings. 8 U.S.C. § 1252(a)(5). See Massieu v. Reno, 91 F.3d 416, 420 (3d Cir. 1996) (holding that “Thunder Basin involved a statutory-review scheme similar to that of the INA.”).
In AFL-CIO, plaintiffs argued that their claims nonetheless fell outside that review scheme and could be raised under § 1331. Plaintiffs were not individual federal employees seeking to raise claims under federal labor law, but rather a group of unions seeking to bring a broader “preimplementation” and “pre-enforcement challenge” to certain executive orders “provid[ing] agencies with certain procedures that they should seek to institute” in labor disputes. AFL-CIO, 929 F.3d at 753. The unions challenged these 2018 executive orders as violating, or alternatively as not authorized by, the statutes governing labor relations, and as violating the Take Care Clause, and rather than challenge any particular agency proceedings, sought “relief barring agencies from implementing the executive orders” as a whole. AFL-CIO, 929 F.3d at 753-55. The unions argued, much as Plaintiffs do here, that such systemic challenges were still cognizable in district court under § 1331 because the existing statutory review “scheme [did] not provide for meaningful judicial review” of these sorts of claims. Id. at 755.
The D.C. Circuit rejected this argument as “foreclosed by the Supreme Court’s decision in Thunder Basin.” Id. at 755. Under Thunder Basin, when a statute provides for a “comprehensive review process” where “the courts of appeals have exclusive jurisdiction over challenges” to certain types of agency proceedings, the statutory scheme simultaneously forecloses broader “preenforcement claims” to how those agency proceedings are conducted. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 208-09 (1994). As noted above, where a review scheme “does not distinguish between preenforcement and postenforcement challenges” but instead “applies to all” claims and
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provides that “the courts of appeals have exclusive jurisdiction over challenges to agency [ ] proceedings,” it forecloses district court jurisdiction over all other claims relating to the agency proceedings, even claims on which the statute is “facially silent.” Id. The Supreme Court reached a similar conclusion in Block, holding that the “presumption favoring judicial review of administrative action” does not apply where a contrary congressional intent can “be inferred” from “the collective import of the legislative and judicial history behind a particular statute,” or “inferences of intent drawn from the statutory scheme as a whole.” 467 U.S. at 349. “In particular, when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded.” Id.; see also Sackett v. EPA, 566 U.S. 120, 130 (2012) (“Where a statute provides that particular agency action is reviewable at the instance of one party, who must first exhaust administrative remedies, the inference that it is not reviewable at the instance of other parties, who are not subject to the administrative process, is strong.”).
Applying this reasoning, the D.C. Circuit has held that plaintiffs “were required to raise their challenges through the scheme even if that made it impossible to obtain particular forms of review or relief.” AFL-CIO, 929 at 756 (emphasis in original). A “Statute can preclude a claim from being brought in a district court even if it forecloses the claim from administrative review and provides no other way to bring the claim.” Id. (emphasis in original). Thus, in Am. Fed’n of Gov’t Employees v. Sec’y of Air Force, 716 F.3d 633 (D.C. Cir. 2013), the court rejected a claim by plaintiffs who wished to challenge a generally applicable agency rule and wanted to do so, not through individual suits under the administrative scheme, “but rather sought to do so on a ‘nationwide’ basis in a APA suit before the district court.” Id. at 638. The court rejected the claim and held that, even though the “statutory scheme provided no way to assert such a ‘nationwide’
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attack” and plaintiffs might be less likely to “prevail using one of the[ ] procedures” in the statutory scheme, “that does not mean their claims may be brought outside the [statute’s] exclusive remedial scheme” or that plaintiffs could otherwise “resort to the courts.” Id. Rather, it means that plaintiffs “may not raise the claim at all.” Id.
Facial challenges to agency practices are routinely channeled through administrative proceedings before federal-court review, and for good reason. Id. at 639. Administrative exhaustion is “generally required” and “should be applied with a regard for the particular administrative scheme at issue” to prevent “premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.” Weinberger v. Salfi, 422 U.S. 749, 765 (1975); see also McKart v. U.S., 395 U.S. 185, 194 (1969) (explaining that courts should avoid piecemeal litigation where a party seeks judicial intervention in “intermediate stages” of agency proceedings, particularly in cases “where the relevant statute provides that certain administrative procedures shall be exclusive”). Section 1252 provides that BIA review and the PFR process are the “exclusive means of review” for any “challenges to [agency] procedures and practices.” J.E.F.M., 837 F.3d at 1036. And a comprehensive and exclusive review mechanism such as this “applies to a ‘systemwide challenge’ to an agency policy … just as it does to the implementation of such a policy in a particular case.” Am. Fed’n of Gov’t Employees, 716 F.3d at 639; see also Jarkesy v. S.E.C., 803 F.3d 9, 12, 28-29 (D.C. Cir. 2015).
The Supreme Court’s recent decision in DHS v. Thuraissigiam, 140 S. Ct. 1959 (2020), which considered a different portion of § 1252 addressing expedited removal proceedings, further supports the conclusion that Congress can limit both how certain legal questions can be raised and
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who can raise them. Thuraissigiam addressed a removal process for which Congress set out certain procedures by statute, see 8 U.S.C. § 1225(b), but also limited judicial review related to that process in the IRRIRA amendments to § 1252. Thuraissigiam, 140 S. Ct. at 1966 (discussing § 1252’s limits on review of a “claim arising from” an expedited “order of removal,” leaving certain claims “courts may not review”). Moreover, these provisions have long been interpreted to permit claims based only on injuries to individual affected aliens, eliminating claims based on organizational harms. See AILA, 199 F.3d at 1359-60 (“Congress meant to allow litigation challenging the new system” for expedited removal in § 1252 only as provided for by that statute, i.e., “by, and only by, aliens against whom the new procedures had been applied”); Make the Road New York v. Wolf, 962 F.3d 613, 628 (D.C. Cir. 2020) (claims permitted only where “aggrieved individuals sue”). In a challenge to the limited review provided by § 1252, the Supreme Court held that the Constitution does not require any particular review of removal proceedings beyond what Congress authorized in § 1252, and as to the limits on what Congress intended to authorize, noted that “[a] major objective of IIRIRA” was “to protect the Executive’s discretion from undue interference by the courts.” Thuraissigiam, 140 S. Ct. at 1964-66 (quotations and citations omitted); see also Castro v. DHS, 835 F.3d 422, 433 (3d Cir. 2016) (“if jurisdiction exists to review any claim related to an expedited removal order, it exists only” as provided by § 1252).
Accordingly, the Court should reconsider its prior decision and dismiss all of Plaintiffs’ claims for lack of jurisdiction. The Court concluded that “[a]llowing organizational plaintiffs to bring claims alleging systemic problems … does not thwart the purpose of § 1252(b)(9),” op. 17, but that conclusion is incongruous with the text, structure, and history of § 1252(b)(9). When a statute has a “comprehensive” scheme and “legislative history” expressing “clear concern with channeling and streamlining” the “process,” it “establishes a ‘fairly discernible intent to preclude
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district court review,” to which the Court must give effect. Thunder Basin, 510 U.S. at 216 (quoting Block, 467 U.S. at 351). To do otherwise would create precisely the type of fragmentation that Congress sought to foreclose in § 1252. See ECF No. 24 at 21-22; see also Nat’l Assoc. of Immigration Judges v. McHenry, No. 20-CV-731, 2020 WL 4693166, at *5-6 (E.D. Va. Aug. 6, 2020) (holding based on Thunder Basin that creative pleading of a “jurisdictionally precluded lawsuit does not remove it from Congress’ prescribed channeling structure” even when pleaded as a “preenforcement,” “structural, prophylactic, or preventative” claim); Massieu, 91 F.3d at 421 (applying Thunder Basin and concluding that § 1252 bars review even where a party is “not, strictly speaking, attacking a final order of deportation”). IV. Plaintiffs fail to state any claim for which relief can be granted.
The government also respectfully requests that the Court reconsider its ruling that some of Plaintiffs’ claims state a claim upon which relief may be granted. Even if the Court had jurisdiction over these claims, each should be dismissed under Rule 12(b)(6).
Take Care Clause claim. As the government explained in its motion, the Take Care Clause is non-justiciable, as the Supreme Court long ago explained. ECF No. 24 at 22-23; ECF No. 68 at 26-27; see Citizens for Responsibility & Ethics in Washington v. Trump, 302 F. Supp. 3d 127, 139 (D.D.C. 2018), aff’d, 924 F.3d 602 (D.C. Cir. 2019) (noting that Mississippi v. Johnson, 71 U.S. 475 (1866) “can be fairly read to suggest that a Take Care Clause claim is outright nonjusticiable”). The Court’s contrary ruling was based on the conclusion that “[n]either the Ninth Circuit nor the D.C. District Court appear to have doubted that the Take Care Clause could give rise to a justiciable cause of action,” op. 24-25, but that conclusion is incorrect.
The Court based its ruling on three cases that mention the Take Care Clause, op. 24, but none of them—and as far as the government is aware, no other case—holds that Plaintiffs can state a claim under the Take Care Clause. In the first case, Ctr. for Biological Diversity v. Bernhardt,
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the Ninth Circuit discussed the Take Care Clause in the context of a claim that Congress violated the separation of powers by enacting legislation that directed a federal agency to take certain actions. 946 F.3d 553, 561-62 (9th Cir. 2019). Plaintiffs argued that Congress had improperly tried to “interfere with the Executive Branch’s” authority under the Take Care Clause and were seeking to protect rather than restrain or obtain review of agency authority and discretion, the exact opposite of what Plaintiffs seek here. Id. Accordingly, even if the Ninth Circuit had held that this claim could proceed it would not support finding Plaintiffs can state a plausible claim here. But, importantly, this Court’s finding that “the Ninth Circuit entertained a claim pursuant to the Take Care Clause” in Ctr. for Biological Diversity is not accurate. Op. 24. Rather, the Ninth Circuit held with respect to the “Take Care Clause, [plaintiff]’s complaint fails to state a claim that is plausible on its face.” 946 F.3d at 562; see also id. at 556 (affirming dismissal of the complaint because plaintiff’s “constitutional claims do not allege a plausible basis for relief”).4
Neither of the other two cases on which this Court relied held that a private party can state a claim under the Take Care Clause. First, Texas v. United States, 809 F.3d 134 (5th Cir. 2015) was a case brought by states, which the Fifth Circuit recognized as “entitled to special solicitude” and standing to bring claims that private parties cannot. Id. at 151 (“It is of considerable relevance that the party seeking review here is a sovereign State and not ... a private individual” because “States are not normal litigants for the purposes of invoking federal jurisdiction.” (quoting Massachusetts v. EPA, 549 U.S. 497 (2007)). Second, Texas involved an appeal of a preliminary injunction that was not at all based on the Take Care Clause because the district court had not ruled that plaintiffs were likely to succeed on such a claim. Id. at 150. The government argued that the
_________________________ 4 The Ninth Circuit also acknowledged that Congress can, by using “specific language,” “foreclose judicial review” of claims, including constitutional claims. Id. at 561.
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states did not have “standing or a right to judicial review” on any of their claims, id., and the Fifth Circuit was clear that nothing in its opinion “address[ed] … the challenge based on the Take Care Clause,” id. n. 3. There is nothing in Texas that indicates that the court “recognized it as a plausible claim.” Op. 24; see NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. Apr. 24, 2018) (noting that Fifth Circuit in Texas “expressly declined to address the states’ constitutional challenges”).
The Court also cited to a discussion in NAACP v. Trump of an “internal memoranda” from Attorney General Sessions, from which the Court concluded that “the U.S. Department of Justice understands the Take Care Clause to create some actionable limits on the executive.” Op. 24. But NAACP says nothing of the sort. The court there noted that the memorandum made “a fleeting reference to the Attorney General’s ‘duty to … faithfully execute the laws’” but offered no explanation or argument that DACA violated the Clause, and any such explanation would be inconsistent with DOJ’s view, contained in an OLC memo, that it was consistent with the “Take Care duty.” 298 F. Supp. 3d at 239. Nothing in NAACP or the memo it discusses recognizes claims by private parties under the Take Care Clause as in any way actionable.
The Court also incorrectly concluded that the government “did not attack Plaintiffs’ first claim for relief on any other grounds” or “take issue with the substance of Plaintiffs’ claim as it relates to the asylum-free zones, the backlog, or the INA.” Op. 24-25 & n.8. As the government argued, Plaintiffs cannot state a claim under the INA because they point to nothing in § 1229a that requires cases to proceed on any particular schedule and challenge unreviewable discretionary choices about agency priorities under a statute that the agency is charged with implementing. See ECF No. 24 at 23; ECF No. 68 at 27. As the Supreme Court has said, “[w]hatever the rule may be concerning deportation … it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch,” as immigration is “a field where
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flexibility and the adaptation of the congressional policy to infinitely variable conditions constitute the essence of the program.” U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950); see also Arizona v. United States, 132 S. Ct. 2492, 2499 (2012) (“principal feature of the removal system is the broad discretion exercised by immigration officials”); Heckler v. Chaney, 470 U.S. 821, 831 (1985); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 543 (1978) (noting that Supreme Court decisions “could hardly be more explicit” that “administrative agencies should be free to fashion their own rules of procedure”). Even if stating a claim was possible under the Take Care Clause, Plaintiffs could not plausibly do so based on statutory claims that must fail. Moreover, Congress has provided no private right of action under § 1229a beyond the review permitted through a PFR, and the Court correctly dismissed Plaintiffs’ challenge to “asylum-free zones” for lack of jurisdiction, op. 16.
Bias claim. The government also respectfully requests that the Court reconsider its ruling that Plaintiffs’ have pleaded facts sufficient to state a claim for actual bias. Op. 25-27.
First, although the Court agreed that the APA’s waiver of sovereign immunity does not apply where other statutes preclude review, the Court rejected the government’s argument that § 1252 precluded review. Op. 25-26. This was incorrect for the reasons set out above and, as a result, there is no waiver of sovereign immunity Plaintiffs’ bias or APA claims. See Match-E-BeNash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 215 (2012) (APA’s waiver of sovereign immunity is limited to “prevent[ ] plaintiffs from exploiting the APA’s waiver to evade limitations on suit contained in other statutes”); ECF No. 24 at 24; ECF No. 68 at 27-28.
Second, the bias claim must be dismissed because Plaintiffs failed to plead “sufficient factual matter” to state a plausible claim. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); ECF No. 24 at 24-30. The Court incorrectly held that Plaintiffs had alleged a plausible claim where they alleged
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“a possibility that judges are influenced by factors independent of the merits of a particular case when making their decisions.” Op. 27. But Plaintiffs must show more than a possibility. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557-58 (2007) (“something beyond [a] mere possibility” is required); Iqbal, 556 U.S. at 678 (allegations must show “more than a sheer possibility that a defendant has acted unlawfully”). The burden is on Plaintiffs to plead sufficient facts to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555; see also id. at 556 (pleading that “merely creates a suspicion” of “a legally cognizable right of action” insufficient). Plaintiffs’ lengthy complaint does not contain a single concrete allegation or example of an immigration judge whose decision on an asylum claim was influenced by scheduling or the backlog.
In holding otherwise, the Court cited Caperton and Hurles as holding that a “procedure that could offer a ‘possible temptation’ to the average judge to forego the proper burden of proof” is sufficient to state a bias claim. Op. 26. But Plaintiffs’ allegations fall far short of the allegations of a direct, substantial, personal connection between a particular judge and a particular litigant at issue in these cases, which dealt with recusal where a judge has a personal interest in the outcome. See Hurles v. Ryan, 752 F.3d 768, 791 (9th Cir. 2014) (noting that the judge made factual findings that “involved her own conduct”); ECF No. 68 at 28 (explaining that the Supreme Court in Caperton held that a claim of “intolerable probability of actual bias” is limited to the “extreme facts” where a judge has a substantial personal connection to a particular litigant).
The Court also cited statements from the President and former Attorney General addressing “baseless claims,” op. 26, but these statements do not relate to the performance metrics or casecompletion goals at issue here, and are thus insufficient to state a claim. See, e.g., Twombly, 550 U.S. at 553-54 (holding that “parallel conduct” and allegations that two things are connected because they happened at or near the same time insufficient to state a plausible claim); Iqbal, 556
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U.S. at 680-81 (“bare assertions” or “formulaic recitation of the elements of a constitutional discrimination claim” arguing that the Attorney General adopted a policy because of “its adverse effects upon an identifiable group” not enough); see also Sangers v. Brown, 504 F.3d 903, 910 (9th Cir. 2007) (“Conclusory allegations and unreasonable inferences” are “insufficient to defeat a motion to dismiss.”); Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2582-83 (2019) (Thomas, J., concurring in part) (statements of administration officials insufficient to establish pretext where statements not connected to “Secretary’s stated rationale” even if “a judge predisposed to distrust the Secretary or the administration could arrange those facts on a corkboard and—with a jar of pins and a spool of string—create an eye-catching conspiracy web”). Finally, to the extent that the Court found a plausible bias claim based on the “rate of denials for asylum claims in some courts,” or “the extreme backlog in the system,” op. 26-27, the Court improperly gave no weight to the government’s far more plausible explanations for the backlog and grant rates. See ECF No. 24 at 25-28; ECF No. 28-31; Iqbal, 556 U.S. at 682 (allegations do not “plausibly establish” a claim where there are “more likely explanations”).
APA claims. Plaintiffs’ APA claims should be dismissed because the APA does not provide a cause of action where there is another avenue for review of agency action. ECF No. 24 at 31-32. In permitting the APA claims to go forward, the Court “decline[d] to address this argument” because it held that § 1252 did not “create an exclusive review mechanism.” Op. 28. As set out above, this is incorrect. But also, the Court did not address the government’s argument that, in addition to barring claims where another statute “precludes judicial review,” a different provision of the APA, 5 U.S.C. § 704, separately requires that “there is no other adequate remedy in a court” to challenge an agency action and that the alternative remedy need to provide identical relief to foreclose APA claims. See ECF No. 24 at 31-32; ECF No. 68 at 34. As set out above, each
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agency action Plaintiffs challenge can instead be raised through a PFR. An APA claim also cannot be based on challenges such as Plaintiffs’ to “agency discretion.” See 5 U.S.C. § 701(a)(2). “The principal purpose of the APA limitations … is to protect agencies from undue judicial interference with their lawful discretion, and to avoid judicial entanglement in abstract policy disagreements which courts lack both expertise and information to resolve.” Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 66-67 (2004) (rejecting APA claims relating to “day-to-day agency management” or that seek to “compel[ ] compliance with broad statutory mandates”).
Finally, Plaintiffs fail to state an APA claim because they have not identified any final agency action with legal consequences. ECF No. 24 at 30-31. In finding reviewable final agency action the Court noted that courts have considered the “practical consequences” of agency action. Op. 29. But each of the cases the Court cites discusses practical legal consequences. See Gill v. Dep’t of Justice, 913 F.3d 1179, 1184-85 (9th Cir. 2019) (addressing guidelines with “legal force” and “effects” because failure to follow “practical requirement[s]” of guidelines could lead to “direct and appreciable legal consequences”); Oregon Natural Desert Ass’n v. U.S. Forest Service, 465 F.3d 977, 982-83, 988, 990 (9th Cir. 2006) (addressing “annual operating instructions” that imposed “intricate legal obligations” on permit holders, and failure to follow them had “legal consequences” including “administrative sanctions”); Havasupai Tribe v. Provencio, 906 F.3d 1155, 1163 (9th Cir. 2018) (failure to comply with “practical requirement” created by agency had legal consequence, i.e., denial of authorization to operate a mine). None of these cases supports finding “final agency action” based on purely practical effects such as how immigration judges “run their dockets.” Op. 30.
CONCLUSION The government respectfully requests that the Court dismiss this case in its entirety.
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Dated: September 4, 2020

Respectfully submitted,
ETHAN P. DAVIS Acting Assistant Attorney General
WILLIAM C. PEACHEY Director
EREZ REUVENI Assistant Director
/s/ Brian C. Ward BRIAN C. WARD Senior Litigation Counsel U.S. Department of Justice, Civil Division Office of Immigration Litigation, District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Tel: (202) 616-9121 Email: brian.c.ward@usdoj.gov
Counsel for Defendants

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