U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:20-cv-02118-PX

Casa De Maryland, Inc. et al v. Wolf et al Assigned to: Judge Paula Xinis Cause: 05:706 Judicial Review of Agency Action

Date Filed: 07/21/2020 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff
Casa De Maryland, Inc. on behalf of itself and its members

represented by Justin B Cox International Refugee Assistance Project P.O. Box 170208 Atlanta, GA 30317 (678) 404-9119 Email: jcox@refugeerights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Conchita Cruz Asylum Seeker Advocacy Project 228 Park Ave. S. #84810 New York, NY 10003 3054849260 Fax: 6469680279 Email: conchita.cruz@asylumadvocacy.org PRO HAC VICE ATTORNEY TO BE NOTICED

Dennise Moreno Asylum Seekers Advocacy Project 228 Park Avenue Suite 84810 New York, NY 10003 6469370368 Email: dennise.moreno@asylumadvocacy.org ATTORNEY TO BE NOTICED

Geroline A Castillo International Refugee Assistance Project 1 Battery Park Plaza New York, NY 10004 5168244256 Fax: 9299998115 Email: gcastillo@refugeerights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Evall Gibson Dunn and Crutcher LLP 200 Park Ave. New York, NY 10166 2123514000 Fax: 2123514035 Email: JEvall@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Shu-yeng Austin International Refugee Assistance Project 1 Battery Park Plaza New York, NY 10004 5162960688 Fax: 2125334598 Email: kaustin@refugeerights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Katie Marquart Gibson Dunn and Crutcher LLP 200 Park Ave. New York, NY 10166 2123514000 Fax: 2123514035 Email: KMarquart@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Linda B Evarts International Refugee Assistant Project One Battery Park Plaza

Plaintiff
Asylum Seeker Advocacy Project on behalf of itself and its members

New York, NY 10004 5168381655 Fax: 9299998115 Email: levarts@refugeerights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose International Refugee Assistance Project One Battery Park Plaza 4th Floor New York, NY 10004 5167014620 Fax: 9299998115 Email: mhirose@refugeerights.org PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Mark Gibson Dunn and Crutcher LLP 200 Park Ave. New York, NY 10166 2123514000 Fax: 2123514035 Email: RMark@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Manfredi Asylum Seeker Advocacy Project 228 Park Ave. S. #84810 New York, NY 10003 2488400744 Fax: 6469680279 Email: zachary.manfredi@asylumadvocacy.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Justin B Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Conchita Cruz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dennise Moreno (See above for address) ATTORNEY TO BE NOTICED
Geroline A Castillo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Evall (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Shu-yeng Austin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katie Marquart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linda B Evarts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Mark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Manfredi (See above for address)

Plaintiff Centro Legal de la Raza

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Justin B Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Conchita Cruz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dennise Moreno (See above for address) ATTORNEY TO BE NOTICED
Geroline A Castillo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Evall (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Shu-yeng Austin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katie Marquart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linda B Evarts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) PRO HAC VICE

Plaintiff Oasis Legal Services

ATTORNEY TO BE NOTICED
Richard Mark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Manfredi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Justin B Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Conchita Cruz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dennise Moreno (See above for address) ATTORNEY TO BE NOTICED
Geroline A Castillo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Evall (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Kathryn Shu-yeng Austin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katie Marquart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Pangea Legal Services

Linda B Evarts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Mark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Manfredi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Justin B Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Conchita Cruz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Dennise Moreno (See above for address) ATTORNEY TO BE NOTICED
Geroline A Castillo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph Evall (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Chad F. Wolf in his official capacity as the purported Acting Secretary of Homeland Security
Defendant

Kathryn Shu-yeng Austin (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katie Marquart (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Linda B Evarts (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Mariko Hirose (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Mark (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zachary Manfredi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Jane Elizabeth Andersen United States Attorney's Office District of Maryland 6500 Cherrywood Lane, Suite 200 Greenbelt, MD 20770 3013444422 Fax: 3013444516 Email: Jane.Andersen@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

U.S. Department of Homeland Security Amicus District of Columbia
Amicus State of New York
Amicus KIND (Kids In Need of Defense)

represented by Jane Elizabeth Andersen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Philip J Levitz New York State Office of the Attorney General 28 Liberty St. New York, NY 10005 2124166325 Email: philip.levitz@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jimmy Rock District of Columbia Office of Attorney General 441 Fourth Street NW Suite 600-S Washington, DC 20001 2027410770 Email: jimmy.rock@dc.gov ATTORNEY TO BE NOTICED
represented by Jimmy Rock (See above for address) ATTORNEY TO BE NOTICED
Philip J Levitz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Keren Hart Zwick National Immigrant Justice Center 224 S. Michigan Ave. Ste. 600 Chicago, IL 60604 3126601364 Fax: 3126601505 Email: kzwick@heartlandalliance.org PRO HAC VICE

Amicus Constitutional Accountability Center
Amicus Morton Rosenberg
Amicus Oxfam America

ATTORNEY TO BE NOTICED
Xiaonan April Hu Munger Tolles and Olson LLP 601 Massachusetts Avenue NW Suite 500E Washington, DC 20001-5369 2022201123 Fax: 2022202300 Email: april.hu@mto.com PRO HAC VICE ATTORNEY TO BE NOTICED
Gabriel Moreno KIND 1 South Street Suite 1100 Baltimore, MD 21202 9152273817 Email: gabrielthelawyer@gmail.com ATTORNEY TO BE NOTICED
represented by Dayna Jennifer Zolle Constitutional Accountability Center 1200 18th St NW Ste 501 Washington, DC 20036 2022966889 Email: dayna@theusconstitution.org ATTORNEY TO BE NOTICED
represented by Robert Stanton Jones Arnold & Porter Kaye Scholer LLP 601 Massachusetts Avenue NW Washington, DC 20001 202-942-5563 Fax: 202-942-5999 Email: stanton.jones@arnoldporter.com ATTORNEY TO BE NOTICED
represented by Maureen A Sweeney Maryland Carey School of Law

Amicus
University of Maryland Carey Immigration Clinic

500 W Baltimore St Baltimore, MD 21201 4107063922 Fax: 4107065856 Email: msweeney@law.umaryland.edu ATTORNEY TO BE NOTICED
represented by Maureen A Sweeney (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/21/2020
07/21/2020
07/21/2020
07/21/2020 07/22/2020 07/22/2020 07/22/2020

# Docket Text

COMPLAINT for Declaratory & Injunctive Relief against All

1

Defendants ( Filing fee $ 400 receipt number 0416-8764158.), filed

by Casa De Maryland, Inc., Asylum Seeker Advocacy Project,

Oasis Legal Services, Pangea Legal Services, Centro Legal de la

Raza. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Cox,

Justin) (Entered: 07/21/2020)

2 MOTION to Appear Pro Hac Vice for Mariko Hirose (Filing fee $100, receipt number 0416-8764245.) by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services (Cox, Justin) (Entered: 07/21/2020)

3 MOTION to Appear Pro Hac Vice for Kathryn S. Austin (Filing fee $100, receipt number 0416-8764458.) by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services (Cox, Justin) (Entered: 07/21/2020)

4 Summons Issued 60 days as to U.S. Department of Homeland Security, Chad F. Wolf, U.S. Attorney and U.S. Attorney General(ybs, Deputy Clerk) (Entered: 07/21/2020)

5 Local Rule 103.3 Disclosure Statement by Casa De Maryland, Inc. (Cox, Justin) (Entered: 07/22/2020)

6 Local Rule 103.3 Disclosure Statement by Asylum Seeker Advocacy Project (Cox, Justin) (Entered: 07/22/2020)

7 Local Rule 103.3 Disclosure Statement by Centro Legal de la Raza (Cox, Justin) (Entered: 07/22/2020)

07/22/2020 07/22/2020 07/22/2020 07/22/2020 07/22/2020 07/22/2020 07/22/2020 07/23/2020
07/23/2020

8 Local Rule 103.3 Disclosure Statement by Oasis Legal Services (Cox, Justin) (Entered: 07/22/2020)
9 Local Rule 103.3 Disclosure Statement by Pangea Legal Services (Cox, Justin) (Entered: 07/22/2020)
10 MOTION to Appear Pro Hac Vice for Conchita Cruz (Filing fee $100, receipt number 0416-8767266.) by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services (Cox, Justin) (Entered: 07/22/2020)
11 MOTION to Appear Pro Hac Vice for Zachary Manfredi (Filing fee $100, receipt number 0416-8767296.) by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services (Cox, Justin) (Entered: 07/22/2020)
12 MOTION to Appear Pro Hac Vice for Richard W. Mark (Filing fee $100, receipt number 0416-8768757.) by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services (Cox, Justin) (Entered: 07/22/2020)
13 MOTION to Appear Pro Hac Vice for Joseph Evall (Filing fee $100, receipt number 0416-8768762.) by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services (Cox, Justin) (Entered: 07/22/2020)
14 MOTION to Appear Pro Hac Vice for Katherine Marquart (Filing fee $100, receipt number 0416-8768766.) by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services (Cox, Justin) (Entered: 07/22/2020)
15 PAPERLESS ORDER granting 2 Motion to Appear Pro Hac Vice on behalf of Mariko Hirose. Directing attorney Mariko Hirose to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-password-reset. Signed by Clerk on 7/23/2020. (srds, Deputy Clerk) (Entered: 07/23/2020)
16 PAPERLESS ORDER granting 3 Motion to Appear Pro Hac Vice on behalf of Kathryn Shu-yeng Austin. Directing attorney Kathryn Shu-yeng Austin to use the attorney's existing CM/ECF login and

07/23/2020 07/23/2020 07/23/2020 07/23/2020 07/23/2020 07/24/2020

password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filingpassword-reset. Signed by Clerk on 7/23/2020. (srds, Deputy Clerk) (Entered: 07/23/2020)
17 PAPERLESS ORDER granting 10 Motion to Appear Pro Hac Vice on behalf of Conchita Cruz. Directing attorney Conchita Cruz to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 7/23/2020. (srds, Deputy Clerk) (Entered: 07/23/2020)
18 PAPERLESS ORDER granting 11 Motion to Appear Pro Hac Vice on behalf of Zachary Manfredi. Directing attorney Zachary Manfredi to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 7/23/2020. (srds, Deputy Clerk) (Entered: 07/23/2020)
19 PAPERLESS ORDER granting 12 Motion to Appear Pro Hac Vice on behalf of Richard W. Mark. Directing attorney Richard W. Mark to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 7/23/2020. (srds, Deputy Clerk) (Entered: 07/23/2020)
20 PAPERLESS ORDER granting 13 Motion to Appear Pro Hac Vice on behalf of Joseph Evall. Directing attorney Joseph Evall to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 7/23/2020. (srds, Deputy Clerk) (Entered: 07/23/2020)
21 PAPERLESS ORDER granting 14 Motion to Appear Pro Hac Vice on behalf of Katherine Marquart. Directing attorney Katherine Marquart to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 7/23/2020. (srds, Deputy Clerk) (Entered: 07/23/2020)
22 MOTION to Appear Pro Hac Vice for Geroline A. Castillo (Filing fee $100, receipt number 0416-8771790.) by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services (Cox, Justin) (Entered: 07/24/2020)

07/24/2020 07/24/2020
07/24/2020 07/24/2020 07/24/2020

23 MOTION for Preliminary Injunction , MOTION to Stay Effective Dates Under 5 U.S.C. 705 by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services (Attachments: # 1
Memorandum in Support, # 2 Index of Exhibits)(Hirose, Mariko) (Entered: 07/24/2020)
24 AFFIDAVIT re 23 MOTION for Preliminary Injunction MOTION to Stay Effective Dates Under 5 U.S.C. 705 by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services (Attachments:
# 1 Exhibit Summary Table, # 2 Exhibit Timeline Repeal Rule, # 3 Exhibit Broader EAD Rule, # 4 Exhibit CASA
Declaration, # 5 Exhibit ASAP Declaration, # 6 Exhibit Centro Legal Declaration, # 7 Exhibit Oasis Declaration, # 8 Exhibit Pangea Declaration, # 9 Exhibit Donald J. Trump Memorandum, # 10 Exhibit Martin Article (1995), # 11 Exhibit Martin Article (2000), # 12 Exhibit Martin Article (1990), # 13 Exhibit CIS Ombudsman Annual Report, # 14 Exhibit Nielsen Resignation Letter, # 15 Exhibit DHS Orders of Succession, # 16 Exhibit Executive Order 13753, # 17 Exhibit Amendment to DHS Order of Succession, # 18 Exhibit NIJC Comment, # 19 Exhibit IJN Comment, # 20 Exhibit State Comment, # 21 Exhibit City of New York Comment, # 22 Exhibit Members of Congress Comment, # 23 Exhibit LSS-NY Comment, # 24 Exhibit MIRC Comment, # 25 Exhibit RAICES Comment, # 26 Exhibit McLaughlin Comment)(Hirose, Mariko) (Entered: 07/24/2020)
25 PAPERLESS NOTICE: A recorded conference call has been scheduled for July 27, 2020 at 1:00 p.m. Instructions were emailed to the Parties. (tb2s, Chambers) (Entered: 07/24/2020)
26 NOTICE of Appearance by Jane Elizabeth Andersen on behalf of All Defendants (Andersen, Jane) (Entered: 07/24/2020)
27 CERTIFICATE OF SERVICE by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services re 24 Affidavit,,,, 23 MOTION for Preliminary Injunction MOTION to Stay Effective Dates Under 5 U.S.C. 705 (Hirose, Mariko) (Entered: 07/24/2020)

07/27/2020 28

SCHEDULING ORDER: a virtual hearing is scheduled for August 11, 2020 at 11:00 am. Signed by Judge Paula Xinis on 7/27/2020. (ybs, Deputy Clerk) (Entered: 07/27/2020)

07/27/2020 29

Amended SCHEDULING ORDER:a virtual hearing is scheduled for August 14, 2020 at 11:00 am. Signed by Judge Paula Xinis on 7/27/2020. (ybs, Deputy Clerk) (Entered: 07/27/2020)

07/30/2020

30 CERTIFICATE OF SERVICE by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services re 5 Local Rule 103.3 Disclosure Statement, 8 Local Rule 103.3 Disclosure Statement, 12 MOTION to Appear Pro Hac Vice for Richard W. Mark (Filing fee $100, receipt number 0416-8768757.), 7 Local Rule 103.3 Disclosure Statement, 13 MOTION to Appear Pro Hac Vice for Joseph Evall (Filing fee $100, receipt number 04168768762.), 2 MOTION to Appear Pro Hac Vice for Mariko Hirose (Filing fee $100, receipt number 04168764245.), 11 MOTION to Appear Pro Hac Vice for Zachary Manfredi (Filing fee $100, receipt number 04168767296.), 3 MOTION to Appear Pro Hac Vice for Kathryn S. Austin (Filing fee $100, receipt number 0416-8764458.), 9 Local Rule 103.3 Disclosure Statement, 6 Local Rule 103.3 Disclosure Statement, 14 MOTION to Appear Pro Hac Vice for Katherine Marquart (Filing fee $100, receipt number 04168768766.), 22 MOTION to Appear Pro Hac Vice for Geroline A. Castillo (Filing fee $100, receipt number 04168771790.), 10 MOTION to Appear Pro Hac Vice for Conchita Cruz (Filing fee $100, receipt number 0416-8767266.) (Hirose, Mariko) (Entered: 07/30/2020)

07/30/2020

31 MOTION to Appear Pro Hac Vice for Philip J. Levitz (Filing fee $100, receipt number 0416-8782266.) by District of Columbia, State of New York(Rock, Jimmy) (Entered: 07/30/2020)

07/30/2020

32 SUMMONS Returned Executed by Asylum Seeker Advocacy Project, Oasis Legal Services, Pangea Legal Services, Casa De Maryland, Inc., Centro Legal de la Raza. U.S. Department of Homeland Security served on 7/22/2020, answer due 9/21/2020; Chad F. Wolf served on 7/22/2020, answer due 9/21/2020.(Hirose, Mariko) (Entered: 07/30/2020)

07/30/2020

33 SUMMONS Returned Executed by Asylum Seeker Advocacy Project, Oasis Legal Services, Pangea Legal Services, Casa De Maryland, Inc., Centro Legal de la Raza. All Defendants.(Hirose, Mariko) (Entered: 07/30/2020)

07/31/2020

34 PAPERLESS ORDER granting 22 Motion to Appear Pro Hac Vice on behalf of Geroline A Castillo. Directing attorney Geroline A Castillo to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 7/31/2020. (srds, Deputy Clerk) (Entered: 07/31/2020)

07/31/2020

35 PAPERLESS ORDER granting 31 Motion to Appear Pro Hac Vice on behalf of Philip J Levitz. Directing attorney Philip J Levitz to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 7/31/2020. (srds, Deputy Clerk) (Entered: 07/31/2020)

08/03/2020

36 Final MOTION to Appear Pro Hac Vice for Xiaonan April Hu (Filing fee $100, receipt number 0416-8787469.) by KIND (Kids In Need of Defense)(Moreno, Gabriel) (Entered: 08/03/2020)

08/03/2020

37 Final MOTION to Appear Pro Hac Vice for Keren Hart Zwick (Filing fee $100, receipt number 0416-8787836.) by KIND (Kids In Need of Defense) (Attachments: # 1 Attachment Attachment in Response to paragraph 2.)(Moreno, Gabriel) (Entered: 08/03/2020)

08/03/2020

38 MOTION for Leave to File Amicus Curiae Brief by Constitutional

Accountability Center (Attachments: # 1 Attachment Amicus Brief)(Zolle, Dayna) (Entered: 08/03/2020)

08/03/2020

39 MOTION for Leave to File Amicus Curiae Brief by KIND (Kids In

Need of Defense) (Attachments: # 1 Attachment Amicus Curiae Brief by Nonprofit Immigration Advocates and Legal and Social Service Providers, # 2 Attachment Proposed Order)(Moreno, Gabriel) (Entered: 08/03/2020)

08/03/2020

40 MOTION for Leave to File Amicus Curiae Brief by Morton Rosenberg (Attachments: # 1 Attachment Amicus Brief)(Jones, Robert Stanton) (Entered: 08/03/2020)

08/03/2020 41

RESPONSE in Opposition re 23 MOTION for Preliminary Injunction MOTION to Stay Effective Dates Under 5 U.S.C. 705 filed by U.S. Department of Homeland Security, Chad F. Wolf.

(Attachments: # 1 Affidavit Juliana Blackwell, # 2

Affidavit Neal Swartz)(Andersen, Jane) (Entered: 08/03/2020)

08/03/2020

42 MOTION for Leave to File Amici Curiae Brief by District of

Columbia, State of New York (Attachments: # 1 Attachment Brief for States and Localities as Amici Curiae)(Levitz, Philip) (Entered: 08/03/2020)

08/03/2020

43 NOTICE of Appearance by Oxfam America, University of Maryland Carey Immigration Clinic(Sweeney, Maureen) Modified on 8/4/2020 (ybs, Deputy Clerk). (Entered: 08/03/2020)

08/03/2020

44 MOTION for Leave to File amicus brief in support of Plaintiffs motion for a preliminary injunction. by Oxfam America, University of Maryland Carey Immigration Clinic(Sweeney, Maureen) (Entered: 08/03/2020)

08/06/2020 45

NOTICE by U.S. Department of Homeland Security, Chad F. Wolf of Supplemental Authority (Andersen, Jane) (Entered: 08/06/2020)

08/07/2020

46 NOTICE of Appearance by Dennise Moreno on behalf of All Plaintiffs (Moreno, Dennise) (Entered: 08/07/2020)

08/07/2020 47

REPLY to Response to Motion re 23 MOTION for Preliminary Injunction MOTION to Stay Effective Dates Under 5 U.S.C. 705 filed by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services.(Hirose, Mariko) (Entered: 08/07/2020)

08/10/2020

48 PAPERLESS ORDER granting 36 Motion to Appear Pro Hac Vice on behalf of Xiaonan April Hu. Directing attorney Xiaonan April Hu to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 8/10/2020. (srds, Deputy Clerk) (Entered: 08/10/2020)

08/10/2020

49 PAPERLESS ORDER granting 37 Motion to Appear Pro Hac Vice on behalf of Keren Zwick. Directing attorney Keren Zwick to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic-case-filing-registration. Signed by Clerk on 8/10/2020. (srds, Deputy Clerk) (Entered: 08/10/2020)

08/13/2020

50 NOTICE by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services - Notice of Additional Authority (Attachments: # 1 La Clinica Decision)(Mark, Richard) (Entered: 08/13/2020)

08/14/2020 51

NOTICE by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services of Supplemental Authority (Attachments: # 1 Attachment GAO Decision dated August 14, 2020)(Cox, Justin) (Entered: 08/14/2020)

08/14/2020

52 Motions Hearing held on 8/14/2020 before Judge Paula Xinis. (Court Reporter: Marlene Kerr-via Zoom) (ss5s, Deputy Clerk) (Entered: 08/14/2020)

08/14/2020 53

LETTER ORDER directing parties to submit pleadings on or before August 21, 2020. Signed by Judge Paula Xinis on 8/14/2020. (ybs, Deputy Clerk) (Entered: 08/14/2020)

08/17/2020 54

Substantive legal issues - addressing (Attachments: # 1 Text of Proposed Order Proposed Order)(Hirose, Mariko) (Entered: 08/17/2020)

08/17/2020

55 RESPONSE re 53 Order filed by U.S. Department of Homeland Security, Chad F. Wolf.(Andersen, Jane) (Entered: 08/17/2020)

08/18/2020

56 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 8/14/2020, before Judge Paula Xinis. Court Reporter/Transcriber Marlene Kerr, Telephone number 3013443499. Total number of pages filed: 100. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 9/8/2020. Redacted Transcript Deadline set for 9/18/2020. Release of Transcript Restriction set for 11/16/2020.(mmk, Court Reporter) (Entered: 08/18/2020)

08/20/2020

57 MOTION for Leave to File Excess Pages by U.S. Department of Homeland Security, Chad F. Wolf(Andersen, Jane) (Entered: 08/20/2020)

08/21/2020

58 PAPERLESS ORDER GRANTING 57 Motion for Leave to File Excess Pages. Signed by Judge Paula Xinis on 8/21/2020. (tb2s, Chambers) (Entered: 08/21/2020)

08/21/2020 59

Substantive legal issues - addressing (Moreno, Dennise) (Entered: 08/21/2020)

08/21/2020 60

RESPONSE re 53 Order and in Further Opposition to Plainitffs' Motion for a Preliminary Injunction filed by U.S. Department of Homeland Security, Chad F. Wolf. (Attachments:

# 1 Exhibit 1, # 2 08/21/2020)

Exhibit 2)(Andersen, Jane) (Entered:

08/24/2020 61

Request for Hearing re 59 Substantive legal issues -

addressing, 54 Substantive legal issues addressing, 23 MOTION for Preliminary Injunction MOTION to Stay Effective Dates Under 5 U.S.C. 705 requesting status conference today on TRO and related matters (Hirose, Mariko) (Entered: 08/24/2020)

08/26/2020 62

MOTION for Leave to File / PLAINTIFFS' MOTION FOR LEAVE TO FILE RESPONSE TO DEFENDANTS' AUGUST 21, 2020 SUPPLEMENTAL BRIEF by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal

Services, Pangea Legal Services (Attachments: # 1 Exhibit A Draft Supplemental Letter Brief)(Mark, Richard) (Entered: 08/26/2020)

08/28/2020

63 Motion Hearing held on 8/28/2020 before Judge Paula Xinis re 23 MOTION for Preliminary Injunction MOTION to Stay Effective Dates Under 5 U.S.C. 705 filed by Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services, Casa De Maryland, Inc., Asylum Seeker Advocacy Project. (Court Reporter: Marlene Kerr) (ds2s, Deputy Clerk) (Entered: 08/28/2020)

08/31/2020 64

LETTER ORDER directing parties to submit pleadings. Signed by Judge Paula Xinis on 8/31/2020. (ybs, Deputy Clerk) (Entered: 08/31/2020)

09/02/2020 65

RESPONSE in Opposition re 23 MOTION for Preliminary Injunction MOTION to Stay Effective Dates Under 5 U.S.C. 705 ,

RESPONSE re 64 Order filed by U.S. Department of

Homeland Security, Chad F. Wolf. (Attachments: # 1 1)(Andersen, Jane) (Entered: 09/02/2020)

Exhibit

09/02/2020 66

RESPONSE re 64 Order filed by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services.(Mark, Richard) (Entered: 09/02/2020)

09/04/2020

67 RESPONSE re 64 Order, 65 Response in Opposition to Motion,,, filed by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services. (Attachments: # 1 Exhibit A (index), # 2 Exhibit B (cumulative table of authorities))(Hirose, Mariko) (Entered: 09/04/2020)

09/04/2020

68 RESPONSE re 64 Order, 66 Response filed by U.S. Department of Homeland Security, Chad F. Wolf.(Andersen, Jane) (Entered: 09/04/2020)

09/11/2020 69

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 9/11/2020. (kns, Deputy Clerk) (Entered: 09/11/2020)

09/11/2020 70

ORDER granting in part and denying in part 23 Motion for Preliminary Injunction; denying 23 Motion to Stay pending judicial review and granting 38 , 39 , 40 , 42 and 44 Motions for Leave to File amicus curiae briefs. Signed by Judge Paula Xinis on 9/11/2020. (kns, Deputy Clerk) (Entered: 09/11/2020)

09/11/2020

71 PAPERLESS ORDER granting 62 Motion for Leave to File Response to Defendants' August 21, 2020 Supplemental Brief. Signed by Judge Paula Xinis on 9/11/2020. (kns, Deputy Clerk) (Entered: 09/11/2020)

09/15/2020

72 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings held on 08/28/2020, before Judge Paula Xinis. Court Reporter/Transcriber Marlene Kerr, Telephone number 301-3443499. Total number of pages filed: 119. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 10/6/2020. Redacted Transcript Deadline set for 10/16/2020. Release of Transcript Restriction set for 12/14/2020.(mmk, Court Reporter) (Entered: 09/15/2020)

09/17/2020 09/21/2020 09/23/2020
10/09/2020

73 MOTION to Appear Pro Hac Vice for Linda Evarts (Filing fee $100, receipt number 0416-8868799.) by Asylum Seeker Advocacy Project, Casa De Maryland, Inc., Centro Legal de la Raza, Oasis Legal Services, Pangea Legal Services (Cox, Justin) (Entered: 09/17/2020)
74 Consent MOTION for Extension of Time to File Answer re 1
Complaint, by U.S. Department of Homeland Security, Chad F. Wolf(Andersen, Jane) (Entered: 09/21/2020)
75 PAPERLESS ORDER granting 73 Motion to Appear Pro Hac Vice on behalf of Linda B Evarts. Directing attorney Linda B Evarts to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic-case-filing-password-reset. Signed by Clerk on 9/23/2020. (srds, Deputy Clerk) (Entered: 09/23/2020)
76 Request for Conference (Andersen, Jane) (Entered: 10/09/2020)

PACER Service Center Transaction Receipt

PACER Login:
Description:
Billable Pages:

10/09/2020 23:00:52

CRClearinghouse:2563377:0

Client Code:

Docket Report

Search Criteria:

14

Cost:

peach
8:20-cv02118-PX
1.40

 
 Case 8:20-cv-02118-PX Document 1 Filed 07/21/20 Page 1 of 54

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SOUTHERN DIVISION
CASA DE MARYLAND, INC., on behalf of itself and its members, 8151 15th Avenue Hyattsville, MD 20528 Prince George’s County;

ASYLUM SEEKER ADVOCACY PROJECT, INC., on behalf of itself and its members, 228 Park Ave. S #84810 New York, NY 10003-1502;

Case No. 8:20-cv-2118

CENTRO LEGAL DE LA RAZA 3022 International Blvd., 4th floor Oakland, CA 94601;

COMPLAINT

OASIS LEGAL SERVICES 1900 Addison St., Suite 100 Berkeley, CA 94704; and

PANGEA LEGAL SERVICES 350 Sansome St., Suite 650 San Francisco, CA 94104;
Plaintiffs,
– versus –
CHAD F. WOLF, in his official capacity as the purported Acting Secretary of Homeland Security, c/o Office of the General Counsel U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave, SE Washington, DC 20528-0485; and

U.S. DEPARTMENT OF HOMELAND SECURITY c/o Office of the General Counsel U.S. Department of Homeland Security 2707 Martin Luther King Jr. Ave, SE Washington, DC 20528-0485;
Defendants.

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INTRODUCTION 1. This case challenges two interrelated final rules issued by the Department of Homeland Security in June 2020 (“Asylum EAD Rules”) in utter disregard of the requirements of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. If permitted to take effect as scheduled starting August 21, these rules would place a crushing and unlawful burden on asylum applicants by upending the well-established system by which they have been able to obtain work authorization in the form of employment authorization documents (“EADs”). 2. The Asylum EAD Rules are part and parcel of the Trump Administration’s broader agenda to dismantle the U.S. commitment to assisting migrants fleeing persecution that was codified into law through the Refugee Act of 1980. 3. Congress has enshrined in law the right to apply for asylum in the United States, but the federal government does not offer any economic support or legal representation to applicants during the process. Thus, EADs are essential for asylum applicants so that they can earn income to secure housing, food, medical care, legal counsel, and other basic needs for themselves and their families as they pursue a safe, permanent life in this country. 4. The Asylum EAD Rules will eviscerate the current system that asylum applicants rely on to obtain work authorization by complicating and delaying the adjudication of EAD applications, depriving applicants of the predictability that they need about when and whether they might obtain their EADs, and denying EADs even to applicants who will win their cases at the end of the asylum process. 5. By DHS’s own estimate, the Asylum EAD Rules will deprive hundreds of thousands of asylum applicants of income in the magnitude exceeding $ 2.3 billion annually, even while recognizing that other harms of restricting applicants’ ability to work are unquantifiable.
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6. The asylum applicants who will be harmed by these rules will be vulnerable to homelessness, hunger, inadequate healthcare, and exploitation. They will not be able to afford an attorney to assist with their asylum process, even though legal representation significantly increases their chance of obtaining asylum. Some may have no choice but to abandon their asylum claims and return home to danger even when they would have ultimately won asylum.
7. For example, W.L., a member of Plaintiff Asylum Seeker Advocacy Project, Inc., is a single mother with an 8-year-old son and an 8-month-old U.S. citizen daughter who fled Guatemala after being raped repeatedly, forced to have an abortion, and threatened with death by a prominent man who used his connections to government officials to evade arrest. She is currently staying in a family member’s home where she shares a single room with her children.
8. W.L. filed her asylum application on April 3, 2020, and had been hoping to take one of the jobs that had been offered through her contacts at her local church, or another stable job, once she receives an EAD. Under the current system, she would be eligible to apply for an EAD on August 31 and would receive a determination on her application at most 30 days later, or by the end of September.
9. If the Asylum EAD Rules are permitted to take effect, however, W.L will be forced to wait an additional 7 months before she can even apply for an EAD and an indeterminate length of time for the government to process her application. During this time, she will not be able to provide a better housing situation for her children, sustainably pay for adequate basic necessities, or hire an immigration attorney to pursue her asylum claim.
10. Delay in obtaining EADs will not be the only problem for asylum applicants if the Asylum EAD Rules are permitted to take effect, as many will be denied EADs altogether. Plaintiff Oasis Legal Services, which serves LGBTQ+ asylum seekers who have endured horrific violence
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because of their sexual orientation, gender identity, and/or HIV+ status, has a 99% success rate in helping its clients obtain asylum but estimates that 80% of its clients will be denied EADs while they await the adjudication of their asylum claims because of the new ineligibility grounds in the Asylum EAD Rules.
11. The Asylum EAD Rules will also harm—and in fact have already begun to irreparably harm—plaintiff organizations, which offer legal and other services to asylum applicants. The Asylum EAD Rules have already required these organizations to divert resources to properly advise their asylum-seeking members and clients on their asylum and EAD applications. If the rules take effect, Plaintiffs will have to devote significantly more resources to assist these members and clients with the more burdensome EAD application process and to connect them to social and financial services during their extended period of unemployment. Some Plaintiffs face the prospect of financial loss that will threaten their programming and operations. These harms will frustrate the organizations’ missions to serve their clients and members, including but not limited to asylum applicants.
12. The Asylum EAD Rules violate the Administrative Procedure Act and are otherwise unlawful in multiple ways, including because DHS failed to consider the impact of the rules on asylum applicants and the humanitarian purposes of the Refugee Act; prevented the public from commenting on the interplay among multiple proposed rules and refused to consider the interrelated impact of the pending rules and other recent changes that affect the asylum process; failed to reasonably explain the need for the new rules and the changes from its prior positions; and acted through Defendant Chad Wolf, who has no valid claim to the Office of Acting DHS Secretary and therefore lacked the authority to issue the rules.
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13. Plaintiffs ask that this Court ensure that the Asylum EAD Rules do not take effect, vacate the rules, and hold DHS to its obligation to follow the law.
THE PARTIES 14. Plaintiff CASA de Maryland, Inc. (“CASA”) is a nonprofit organization headquartered in Langley Park, Maryland, with offices in Maryland, Virginia, and Pennsylvania. CASA’s mission is to create a more just society by building power and improving the quality of life in low-income immigrant communities, including for those seeking asylum. 15. CASA is the largest membership-based immigrants’ rights organization in the midAtlantic region, with more than 100,000 dues-paying members, including asylum seekers who have applied for or anticipate applying for an EAD. CASA’s members drive the organization’s priorities and agenda, participate in campaigns and programs, and benefit from the social, health, job training, employment, and legal services offered by the organization. Some members of CASA have seats on the organization’s board, participate in the organization’s Leadership Council, and serve on other programming committees. In these roles, members provide ongoing input on, establish, and approve the organization’s long-term strategic priorities and policies. 16. Plaintiff the Asylum Seeker Advocacy Project, Inc. (“ASAP”) is a nonprofit organization headquartered in New York, New York. ASAP’s mission is to provide individuals who came to the Mexico-U.S. border seeking asylum with community support and legal services regardless of where they are located. ASAP implements its mission by providing emergency legal aid and other support to its members and other asylum seekers and by engaging in nationwide systemic reform. 17. ASAP has over 4,000 members, the majority of whom are mothers who sought asylum at the Mexico-U.S. border and now live throughout the United States in more than 40 U.S.
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states and the District of Columbia. ASAP adds an average of 70 new members per month by screening individuals who have been referred by nonprofit organizations at the border or by existing members. Many of ASAP’s members are asylum applicants who have applied for or anticipate applying for an EAD. The members receive daily informational support from ASAP, have the opportunity to access ASAP’s emergency pro bono legal aid, and set the priorities and goals for the organization’s systemic reform and advocacy work.
18. Plaintiff Centro Legal de la Raza (“Centro Legal”) is a nonprofit organization headquartered in Oakland, California. Centro Legal is a legal services agency that protects and advances the rights of low-income individuals through bilingual legal representation, education, and advocacy. Centro Legal’s mission is to combine quality legal services with know-your-rights education and youth development programming in order to ensure access to justice for thousands of individuals throughout Northern and Central California. Centro Legal has over 2,000 open asylum cases and helps asylum seekers file for work authorization as part of their representation.
19. Plaintiff Oasis Legal Services (“Oasis”) is a nonprofit organization headquartered in Berkeley, California. Oasis’s mission is to provide direct legal services and holistic case management to LGBTQ+ asylum seekers living within the jurisdiction of the U.S. Citizenship and Immigration Services San Francisco Asylum Office. Oasis’s clients are undocumented immigrants, low-income people of color, and victims of hate crimes. All of Oasis’s clients have endured horrific violence in their countries of origin because of their sexual orientation, gender identity, and/or HIV+ status. Oasis supports asylum applicants through the application process, including by assisting them in applying for EADs, and connecting them to job training and available benefits.
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20. Plaintiff Pangea Legal Services (“Pangea”) is a nonprofit organization headquartered in San Francisco, California. Pangea’s mission is to stand with immigrant communities and to provide services through legal representation, especially in the area of deportation defense. In addition to direct legal services, Pangea advocates on behalf of noncitizens through policy advocacy, education, and legal empowerment efforts. Pangea provides direct legal assistance with asylum applications and EADs to asylum seekers, including those arrested or convicted of crimes.
21. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet agency of the United States Government. DHS is the agency that proposed and issued both of the Asylum EAD Rules and is charged with implementing them should they go into effect. Within DHS, the U.S. Citizenship and Immigration Services (“USCIS”) is responsible for adjudicating asylum applications and EADs for asylum applicants.
22. Defendant Chad F. Wolf has purportedly held the title of Acting Secretary of the U.S. Department of Homeland Security since November 13, 2019. He issued both of the Asylum EAD Rules under that purported authority. He is sued in that official capacity.
JURISDICTION AND VENUE 23. This Court has subject matter jurisdiction under 28 U.S.C. § 1331, as this action arises under the laws of the United States, including the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. 24. Venue is proper in this district under 28 U.S.C. § 1391(e) and in this division because Defendants are agencies and officers of the United States, the action does not involve real property, and Plaintiff CASA resides in this district and division.
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ALLEGATIONS I. WORK AUTHORIZATION BOLSTERS U.S. COMMITMENT TO PROVIDING
REFUGE TO THOSE FLEEING PERSECUTION. A. The Refugee Act Reflects U.S. Commitment to Asylum Applicants. 25. Congress enshrined the U.S. commitment to providing refuge to those fleeing violence and persecution by passing the Refugee Act of 1980, § 101(a), Pub. L. No. 96-212, 94 Stat. 102, and signing on to the 1967 Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577 (1968). 26. The Refugee Act declared it to be “the historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands.” § 101(a), Pub. L. No. 96-212, 94 Stat. 102. 27. Under the Refugee Act, asylum in the United States is available to those who meet the definition of a “refugee”—that is, they are unable or unwilling to return to their home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1158(b)(1)(A); id. § 1101(a)(42). 28. The asylum laws guarantee the right to apply for asylum to all non-citizens arriving at the U.S. border or within the United States. Id. § 1158(a)(1). 29. A person may apply for asylum when they arrive at the U.S. border or soon thereafter. In such instances, individuals may generally apply for asylum defensively in removal proceedings if an asylum officer or immigration judge determines in an initial screening process (called a “credible fear interview”) that there is a significant possibility that they could establish eligibility for asylum. Id. § 1225(b)(1)(A)(ii) & (B)(ii).
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30. A person in the United States may also become an asylum applicant by submitting an affirmative application to an asylum office of USCIS, 6 U.S.C. § 271, or as a defense to deportation in removal proceedings, 8 U.S.C. § 1229a(c)(4)(A).
31. Regardless of how a person applies for asylum, an asylum applicant cannot be deported to their home country before they receive a decision on their asylum claim after a full hearing in a removal proceeding. See id. § 1229a(b)(4), (c)(4); § 1231(a)(1).
32. An asylum applicant who is found ineligible for asylum in a removal proceeding before an immigration judge has the right to appeal that determination, including to the federal court of appeals. See id. § 1252(b).
33. The asylum laws urge prompt processing of asylum applications. 34. For applications made directly to DHS, the agency must grant an asylum applicant an initial interview within 45 days of the filing of the application and reach a decision on the application within 180 days absent exceptional circumstances. Id. § 1158(d)(5)(A)(ii), (iii). 35. For asylum requests made to an immigration court, the judge must grant a hearing within 45 days of the application and issue a decision within 180 days absent exceptional circumstances. Id. 36. A grant of asylum allows the person to continue to live in the United States and automatically gives work authorization as part of the status. 37. A grant of asylum creates a pathway to lawful permanent resident status in the United States (i.e., a “green card”), and, ultimately, U.S. citizenship. 38. Each year, tens of thousands of asylum applicants are granted asylum in the United States. Most of them eventually become U.S. citizens.
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B. Work Authorization Permits Asylum Applicants to Fully Exercise Their Right to Seek Asylum.
39. The asylum process is complicated, expensive, and difficult to navigate, particularly for those who are not trained in U.S. law or fluent in English.
40. To substantiate their application, asylum applicants must often collect documentary evidence from their home countries, contact people who can testify in support of their applications, translate documents if necessary, retain experts, prepare written materials in accordance with changing laws and rules, and travel to interviews or hearings to present their cases.
41. In the affirmative asylum process, an asylum applicant must submit evidence to USCIS and testify before an asylum officer, who can grant asylum or recommend the case be heard in immigration court by an immigration judge.
42. In immigration court, an asylum applicant faces an adversarial system and must respond to arguments made by attorneys representing the government.
43. The asylum process can be lengthy. 44. The government routinely fails to meet the statutory time limits for processing asylum applications for reasons directly attributable to its decisions about staffing, case processing, and case management. 45. For affirmative asylum applications, applications for which the agency does not promptly arrange an interview languish because of DHS’s “last-in, first-out” system by which newer applications are decided first. 46. For defensive asylum applications, applicants wait on average three years for their cases to be decided in immigration court, with a quarter of the applicants waiting nearly four years. 47. The federal government does not provide any economic support or legal representation to asylum applicants during the asylum application process.
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48. Many asylum applicants lack independent financial resources and require a source of income to support themselves and their families during the pendency of their asylum applications.
49. For many asylum applicants, the only viable source of income is through employment, which requires an EAD.
50. Many asylum applicants rely on income received from employment made possible by their EAD to be able to afford housing, medical care, food, and other basic provisions for themselves and their families during the asylum process.
51. Additionally, for many asylum applicants, an EAD is the only government-issued photo identification document that proves that the individual is lawfully in the country as an asylum applicant.
52. Many asylum applicants rely on their EAD for identification in potential interactions with government authorities, or for securing apartment leases, bank accounts, utilities, health care, and other necessities of life.
53. Many asylum applicants rely on their income from employment to retain attorneys and to help them fully exercise their right to seek asylum.
54. Legal representation in the asylum application process significantly increases an applicant’s chance of obtaining asylum.
55. In a defensive asylum proceeding, legal representation increases the chance of obtaining asylum five-fold.
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II. THE ASYLUM EAD RULES DRAMATICALLY CHANGE THE EXISTING SYSTEM BY WHICH ASYLUM APPLICANTS HAVE BEEN ABLE TO OBTAIN WORK AUTHORIZATION. A. The Existing Work Authorization System Generally Allows Asylum Applicants to Obtain Work Authorization 180 Days after Filing Their Asylum Applications. 56. The Refugee Act authorized the federal government to establish a regulatory system
to grant work authorization to asylum applicants. 57. Work authorization has long been available to asylum applicants under this
regulatory system. 58. In the 1990s, the Immigration and Naturalization Service, a predecessor agency to
the DHS, engaged in notice and comment rulemaking to create the current EAD regulatory system. 59. The current EAD regulatory system attempts to balance the need of asylum
applicants to begin working promptly with the agency’s desire to impose a waiting period for an EAD in order to discourage fraudulent asylum filings made solely for the purpose of obtaining immediate work authorization.
60. Under the current EAD system, see 8 C.F.R. § 208.7,1 an asylum applicant may submit an EAD application after a waiting period of 150 days after filing for asylum, discounting any applicant-caused delays to the asylum process. The EAD application and adjudication process are relatively simple: DHS must grant the EAD application within 30 days to any asylum applicants without an aggravated felony conviction whose asylum applications have been pending for over 180 days. The initial EAD is renewable so that work authorization will continue to last through the end of the asylum process, including any federal appeals.
1 Citations to the regulations are to the version in effect as of the filing of the Complaint, except where otherwise indicated. 12

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61. When Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act in 1996 with the goal of restricting immigration, it amended the asylum laws to adopt the aspect of the regulatory system that requires asylum applicants to wait at least 180 days after filing their asylum application to receive an EAD. See 8 U.S.C. § 1158(d)(2). Congress otherwise continued DHS’s authority to implement an EAD system for asylum applicants through regulations. See id.
B. The Asylum EAD Rules Will Introduce Delays, Uncertainties, and Unfair Obstacles in the Existing System.
62. The Asylum EAD Rules published during the week of June 22, 2020 will dramatically change the regulatory system that DHS has been operating for over two decades.
63. On June 22, 2020, DHS issued one final rule (“Timeline Repeal Rule”), which, in relevant part, repeals the requirement that DHS rule on an EAD application within 30 days of its filing.2 See Final Rule, Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applicants, 85 Fed. Reg. 37,502, et seq.
64. The Timeline Repeal Rule is scheduled to become effective on August 21, 2020. 65. On June 26, 2020, DHS issued a second final rule (“Broader EAD Rule”), which destroys the current system for making EADs available to asylum applicants by delaying, burdening, and in some instances eliminating asylum applicants’ access to work authorization. See Final Rule, Asylum Application, Interview, and Employment Authorization for Applicants, 85 Fed. Reg. 38,532, et seq. 66. The Broader EAD Rule is scheduled to become effective on August 25, 2020.
2 References to the “Timeline Repeal Rule” and “Asylum EAD Rules” do not include the rule change requiring that EAD renewal applications be received 90 days prior to the expiration of the EAD. This reflected a technical change to align the regulation with a final rule issued in 2017 and has no relationship to or impact on the Timeline Repeal Rule or the Broader EAD Rule. 13

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67. Together, the two Asylum EAD Rules will introduce new delays, uncertainties, and unfair obstacles in the system that many asylum applicants, and the organizations that assist and provide services to them, rely upon to ensure that they can safely remain in the United States and support themselves and their families during the pendency of their asylum applications.
68. First, the Asylum EAD Rules will eliminate the regulatory provision that generally allows asylum applicants to obtain work authorization 180 days after applying for asylum.
69. Under the current system, the 180-day window is created through two components of one regulatory provision, see 8 C.F.R. § 208.7(a)(1). First, an asylum applicant may generally submit their EAD application 150 days after filing their asylum application. Second, DHS must rule on any such EAD application within 30 days if the application for asylum is still pending.
70. The Broader EAD Rule will change this system by requiring asylum applicants to wait at least 365 days after they submit their asylum application, instead of 150 days, before submitting an EAD application. See id. § 208.7(a)(1)(ii) (new) (“365-Day Waiting Period”).
71. The Timeline Repeal Rule will eliminate the requirement that DHS adjudicate an initial EAD application within 30 days of receipt, or on any prescribed timeline or priority basis. See id. § 208.7(a)(1) (new).
72. These changes will delay asylum applicants’ access to EADs and deprive them of the certainty and predictability of planning for when they can expect to begin receiving income.
73. Second, the Asylum EAD Rules will impose new ineligibility grounds even though those grounds may not prevent a grant of asylum.
74. Under the current system, the sole ground for ineligibility for an EAD for asylum applicants is a conviction for an aggravated felony. See id. § 208.7(a)(1).
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75. The Asylum EAD Rules will make an asylum applicant presumptively ineligible for work authorization if they did not file their underlying asylum application within one year of arrival to the United States, even though asylum laws allow applicants to file past one year by demonstrating justifiable circumstances, see 8 U.S.C. § 1158(a)(2)(D). These circumstances may include changed conditions in their home country like a regime change, changed personal circumstances such as coming out as LGBTQ+, or Post-Traumatic Stress Disorder that hampers a person’s ability to prepare an application. An asylum applicant who files past one year will nonetheless remain ineligible for an EAD under the Asylum EAD Rules unless and until an asylum officer or an immigration judge decides in the underlying asylum proceeding that the applicant was justified in not filing their asylum application within the first year. See 8 C.F.R. § 208.7(a)(1)(iii)(F) (new) (“One-Year Filing Bar”).
76. The Asylum EAD Rules will make an asylum applicant presumptively ineligible for work authorization if they entered without inspection between ports of entry, even though entry without inspection is irrelevant to asylum eligibility, see 8 U.S.C. § 1158(a)(1). The applicant will remain ineligible unless and until an officer adjudicating the EAD application determines that the applicant: (1) presented themselves without delay but no later than 48 hours after entry, or attempted entry, to Border Patrol agents or other delegates of the DHS Secretary; (2) indicated an intention to apply for asylum or expressed a fear of persecution or torture; and (3) had “good cause” for the entry. See 8 C.F.R. § 208.7(a)(1)(iii)(G) (new) (“EWI Bar”).
77. The Asylum EAD Rules will make an asylum applicant ineligible for work authorization if they have been convicted of or have committed a crime that an officer adjudicating the EAD application believes would bar an asylum grant, even though an asylum officer or immigration judge may later determine that such convictions and crimes do not render the
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applicant ineligible for asylum based on a full assessment of criminal records and applicable state, federal, and foreign law. See id. § 208.7(a)(1)(iii)(B)-(D) (new) (“EAD Criminal Bar”).
78. These changes will burden the EAD adjudication process and increase delays in receiving EADs.
79. These changes will prevent applicants from receiving EADs while their applications are pending even if they will ultimately succeed on their asylum claims. For example, Plaintiff Oasis has a 99% success rate in helping their clients obtain asylum but 80% of their asylum clients do not file their asylum claims within one year of arrival to the United States and over 67% entered the United States without inspection. Thus, many of Plaintiff Oasis’s clients will be denied EADs under the Asylum EAD Rules even though they will likely ultimately succeed on their asylum claims.
80. Third, the Asylum EAD Rules will grant DHS new discretion to delay or deny work authorization.
81. Under the current system, DHS must inform asylum applicants within 30 days if it considers their asylum application to be incomplete, or else deem the application complete and properly filed. See 8 C.F.R. § 208.3(c)(3).
82. Under the current system, applicant-caused delays in the asylum proceedings toll the waiting period for an EAD application but do not serve as a ground for denying an EAD. See id. § 208.7(a)(2).
83. Under the current regulatory scheme, DHS must grant work authorization to asylum applicants who are eligible for an EAD. See id. § 274a.13(a)(1).
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84. The Asylum EAD Rules will give DHS discretion to deem an asylum application incomplete, and therefore not filed, at any point in the asylum application process. See id. § 208.3(c)(3) (new) (“Deem Complete Removal”).
85. As a matter of policy, DHS deems applications incomplete for minor, technical reasons, such as failing to write “n/a” next to any question that is inapplicable to the applicant or marking the applicant’s name and identification number in pen rather than pencil on the back of an accompanying passport photo.
86. This change will mean that asylum applicants may learn long after they have filed the application that DHS has determined that their asylum application was incomplete and therefore must be refiled, triggering a new waiting period for the EAD application or the One-Year Filing Bar.
87. The Asylum EAD Rules will give DHS discretion to deny an EAD application if it deems that an “applicant-caused delay” in an asylum proceeding is “outstanding or has not been remedied” on the date that the EAD application is filed. See id. § 208.7(a)(1)(iv) (new) (“Applicant-Caused Delay Denial”).
88. DHS has not defined “outstanding” or “has not been remedied,” and has provided a broad, non-exhaustive list of circumstances that it may deem to be “applicant-caused delay.”
89. The Asylum EAD Rules will give DHS discretion to deny EADs to those who are eligible for them. See id. § 274a.13(a)(1) (new) (“Discretionary Denials”).
90. These changes will increase delays in receiving EADs, deprive asylum applicants of the certainty and predictability of planning for future income, and prevent applicants from receiving EADs while their applications are pending.
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91. Fourth, the Asylum EAD Rules will eliminate existing procedural options for certain asylum applicants to obtain work authorization earlier than 180 days from the date of filing their asylum applications.
92. Under the current system, asylum applicants who have completed the asylum process successfully except for the government’s resolution of fingerprint and other final security checks may receive “recommended approvals,” permitting the immediate issuance of their EADs. See id. § 208.7(a)(1); § 274a.12(c)(8).
93. Separately, asylum seekers who have passed the credible fear screening (and thus have been found to have a significant possibility that they could establish eligibility for asylum), and who have demonstrated that they should be paroled from custody for “urgent humanitarian reasons” or “significant public interest,” 8 U.S.C. § 1182(d)(5)(A), are permitted to apply for work authorization under a separate EAD regulation for parolees that does not require a waiting period. See id. § 274a.12(c)(11).
94. The Asylum EAD Rules will eliminate recommended approvals. See 8 C.F.R. § 208.7(a)(1) (new), § 274a.12(c)(8) (new) (“Recommended Approval Removal”).
95. The Asylum EAD Rules will prevent asylum seekers who are paroled from applying for work authorization under the EAD regulation for parolees. See id. § 274a.12(c)(11) (new) (“Parolee EAD Removal”). It will require asylum applicants who already have an EAD based on parole to apply for an EAD based on an asylum application under the Broader EAD Rules.
96. These changes will impose new delays, compounded by other changes in the Asylum EAD Rules, on asylum applicants who DHS had previously determined merit earlier access to work authorization.
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97. Fifth, the Asylum EAD Rules will impose a new and redundant biometrics requirement and an accompanying new fee. See id. § 208.7(a)(1)(i) (new) (“Biometrics Requirement”).
98. Under the current system, asylum applicants are required to submit to fingerprinting and other biometrics collection in connection with their asylum application, but there is no fee for the collection and asylum applicants are not required to resubmit the same information separately to support their EAD application.
99. The Asylum EAD Rules will require asylum applicants to attend another biometric appointment, to pay a fee, and to re-submit to the same biometric collection that was required for their asylum application in order to have their EAD application processed.
100. This change will burden the EAD adjudication process, cause delays, and require asylum applicants to travel to a redundant biometrics appointment and to pay for the processing at a time when their resources are limited because of their inability to work.
101. Sixth, the Asylum EAD Rules will impose new limitations on the validity period of work authorization.
102. Under the current system, EADs for asylum applicants are available during the time that asylum applicants seek federal court review of a denial of their asylum application, whether through the initial EAD or through a renewal. See 8 C.F.R. § 208.7(b).
103. The Asylum EAD Rules will prevent asylum applicants from continuing to work pursuant to their EADs while they pursue federal court review of a denial of their asylum application. Instead, the Asylum EAD Rules will cap the maximum validity period for each EAD at 2 years, after which an applicant will have to renew, and the EADs will automatically terminate when an asylum officer denies an asylum application, the Board of Immigration Appeals affirms
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a denial of an asylum application by an immigration judge, or when a removal order becomes administratively final. See id. § 208.7(a)(1)(i), (b) (new) (“Limited EAD Validity”). If an asylum applicant prevails in their federal court review, they must re-apply for an EAD and wait for their application to be processed.
104. These changes will impose new burdens, uncertainties, and delays on asylum applicants and prevent asylum applicants from continuing to work under an existing EAD while they pursue federal court review to which they are statutorily entitled. III. THE ASYLUM EAD RULES WILL HARM PLAINTIFFS, THEIR CLIENTS,
THEIR MEMBERS, AND SOCIETY AS A WHOLE. 105. The costs of the Asylum EAD Rules to our society are significant. 106. DHS estimates costs of the Asylum EAD Rules to include lost compensation to asylum applicants exceeding $ 2.3 billion annually. 107. Even this estimate is low given DHS’s reliance on flawed assumptions, the limitations in its data, and its refusal to consider the cumulative and interrelated impacts of the rules. 108. For asylum applicants, lost compensation means risks of homelessness, hunger, inadequate healthcare, vulnerability to exploitation, and inability to access legal counsel to pursue their right to seek asylum. 109. Lost compensation for asylum applicants increases burdens on their social support networks, which may include state and local entities, social and legal services organizations, religious groups, and families and friends in the United States. 110. Lost compensation for asylum applicants means lost productivity for businesses that employ them and lost tax revenue for federal and state governments. 111. The Asylum EAD Rules have already begun to cause irreparable harm.
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112. In light of the upcoming effective dates for the Asylum EAD Rules, each plaintiff organization has already begun to divert resources to address the problems raised by the rules, including by providing urgent legal services to clients and members who are seeking to file asylum applications or EADs prior to the effective dates, addressing questions from anxious clients and members, and/or educating their staff, clients, and members about the rules.
113. Plaintiffs ASAP, Centro Legal, Pangea, and Oasis have had to expend resources to prepare for the impact of the Asylum EAD Rules on their clients should they take effect. ASAP, Centro Legal, and Oasis have set aside or significantly reduced other programming—such as other emergency legal aid or legal assistance to vulnerable youth—to prioritize assisting in the filing of EAD applications before the effective dates of the Asylum EAD Rules and advising asylum applicants and attorneys on the impact of the rules.
114. Although Plaintiff CASA does not ordinarily assist members with their asylum applications, it has shifted its resources at the expense of other programming so that it can help its members file applications before the effective dates of the Asylum EAD Rules, both to preserve their eligibility and to minimize the delay they will now face.
115. The Asylum EAD Rules will further these harms if they take effect. 116. Because the Asylum EAD Rules will complicate and prolong the EAD application process, Plaintiffs ASAP, Centro Legal, Pangea, and Oasis will have to permanently set aside or significantly reduce other programming in order to continue providing legal assistance to asylum applicants seeking EADs and to educate their clients and members on the new rules. It will take these legal services organizations much longer—at least twice as long by Centro Legal’s estimate—to assist clients and members with the EAD application process under the Asylum EAD Rules than under the current system, including because of the need to screen for, collect evidence
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on, and argue against the application of the EAD Criminal Bar or the EWI Bar. The lack of clarity in certain provisions of the rules, such as the vague definition of an “applicant-caused delay” in defensive asylum proceedings that could result in an EAD denial (under the Applicant-Caused Delay Denial), will force plaintiffs to expend additional resources to understand the rules’ effect on their members and clients.
117. Because the Asylum EAD Rules will prolong the EAD process, Plaintiffs ASAP, Centro Legal, Pangea, and Oasis will be forced to keep EAD matters open on their docket for longer and to dedicate resources to affirmatively inquiring about the status of the EAD application with the agency and potentially filing mandamus actions to require an adjudication.
118. Because the Asylum EAD Rules will result in delay or denial of EADs to asylum applicants, Plaintiffs ASAP, Centro Legal, Pangea, and Oasis will have to dedicate additional legal resources to support their clients and members who now cannot afford paid private legal representation.
119. The Asylum EAD Rules also make providing asylum representation more difficult and complicated, including by imposing draconian and vague rules on what may constitute “applicant-caused delay” (under the Applicant-Caused Delay Denial) and by eliminating the requirement that DHS notify counsel of any technical problems with the asylum application within 30 days of filing (under the Deemed Complete Removal). Plaintiffs that provide asylum representation will have to spend additional time communicating with clients and USCIS to ensure that DHS has determined that the initial asylum application has been filed and ensuring that they are avoiding what DHS may characterize as “applicant-caused delay” in the asylum process even if the delay might be justified.
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120. Because the Asylum EAD Rules will result in delay or denial of EADs to asylum applicants, Plaintiffs CASA, ASAP, and Oasis will have to dedicate additional resources to providing non-legal support to their members and clients.
121. ASAP will have to dedicate additional resources to referring members to a wide range of social services.
122. Oasis will have to dedicate additional resources, including hiring an additional staff member, to providing case management services to their clients.
123. CASA will have to divert more resources to sustain the financial assistance program that it has offered to its members during the pandemic, which has already distributed more than $740,000 to almost 2,000 of its members. CASA anticipates that many of its asylum-seeking members will not receive EADs promptly under the Asylum EAD Rules and will rely more heavily than under the current EAD system on CASA’s financial assistance program for basic life necessities, such as groceries, rent, and healthcare costs.
124. CASA will also be forced to spend additional resources to re-train staff on advising members about how to demonstrate eligibility for assistance programs, including health care, when they lack an EAD to confirm identity.
125. The Asylum EAD Rules will threaten some plaintiff organizations’ finances. 126. One-third of Oasis’s budget in 2019 came from client revenue. Oasis charges fees using a sliding scale based on a client’s income and requires clients to start paying fees only when they are able to do so. Currently, many clients begin paying Oasis for its services after they receive an EAD. Oasis anticipates that its ability to retain staff and stay open as an organization will be jeopardized because Oasis believes that under the Asylum EAD Rules approximately 80% of its clients will be barred from receiving EADs while their asylum applications are pending and the
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remaining 20% will be unable to receive EADs until at least 365 days after filing their asylum application.
127. CASA will also risk loss of funding if the Asylum EAD Rules take effect. CASA operates worker centers for its members that are funded in part by contracts with local governments. These contracts require that a certain percentage of the work placements made by the worker centers involve work-authorized individuals placed in long-term employment positions. If CASA’s members are unable to obtain EADs promptly as a result of the Asylum EAD Rules, CASA may not be able to meet the contract requirements, which risks the sustainability of its worker centers for all of its membership.
128. DHS recognized in the Asylum EAD Rules that the rules will burden nonprofit organizations that serve asylum applicants, like plaintiff organizations, because their clients and members will have to rely more heavily on their assistance.
129. Given limitations on organizational resources, all of these harms will frustrate the plaintiff organizations’ ability to pursue their missions to serve their clients and members, including but not limited to asylum applicants.
130. While the harms to plaintiff organizations are serious, the harms to the clients and members that they serve will be devastating if the Asylum EAD Rules are allowed to take effect.
131. CASA is currently providing pro se application assistance to one of its members, M.C., in filing her asylum application. M.C. fled Guatemala with her two daughters after receiving multiple threats to her life as a result of reporting a crime. Since M.C. will have recently filed her asylum application, she will not be eligible to apply for an EAD before the effective date of the Asylum EAD Rules. If the Asylum EAD Rules take effect, MC will be forced to wait an additional
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7 months before she can even apply for an EAD, and an indeterminate length of time for the government to process her application.
132. Another member of CASA, A.O., is a Venezuelan national, who entered the United States in December of 2019 on a nonimmigrant visitors’ visa. A.O. was a journalist in Venezuela and her family has been extremely outspoken about their opposition to Venezuela’s President, Nicolás Maduro. A.O. and her parents fled to the U.S. after being attacked by Maduro party officials, who tied them up and robbed their house after threatening them. CASA is now providing A.O. with pro se assistance in filing her asylum application, but she too will have to wait a significantly longer time to obtain an EAD under the new Asylum EAD Rules, dramatically impacting her ability to support herself while her application is pending.
133. In addition to W.L. mentioned above, ASAP’s member N.G., filed her asylum application in April 2020. Under the current rules, she would be able to apply for an EAD in September 2020 and would expect to receive a response from the government 30 days later.
134. N.G. fled Honduras with her young daughter because she and her family experienced targeted violence and death threats after defying a drug cartel. The Honduran police would not have protected her due to their corruption and collusion with drug traffickers. She and her daughter are currently staying in a trailer with a friend and her children, and she has been relying on pandemic-related food benefits from her state to make ends meet. Once she obtains an EAD, she hopes to take up her neighbor’s offer to help her find employment at a local factory where they work. If her EAD is delayed or denied as a result of the Asylum EAD Rules, she will not be able to provide more suitable housing for her daughter, alleviate her family’s food insecurity, or save money to hire a lawyer for her immigration case.
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135. With the possibility of work authorization so distant and uncertain, some asylum applicants who cannot otherwise support themselves and their families during the asylum application process will have no choice but to abandon their claims and ultimately to return to their home countries—notwithstanding the risk of persecution and even death.
136. Given the prospect of forced destitution during the asylum application process, some noncitizens fleeing persecution who would be eligible for asylum will be deterred from exercising their right to apply for asylum. IV. THE ASYLUM EAD RULES WERE ISSUED THROUGH ARTIFICIALLY
SEGREGATED RULEMAKINGS. 137. In April 2019, President Trump directed DHS to undertake rulemaking to transform the asylum and the EAD systems as a part of his broader agenda to curtail humanitarian immigration to the United States. See Donald J. Trump, Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System (Apr. 29, 2019), available at https://www.govinfo.gov/app/details/DCPD-201900251. 138. DHS began its efforts to dismantle the existing work authorization system for asylum applicants in the fall of 2019 through artificially segregated and staggered rulemakings on overlapping issues, starting by issuing two notices that later became the Asylum EAD Rules (“Asylum EAD Notices”). 139. On September 9, 2019, DHS issued a notice of proposed rulemaking that initiated the public comment period for what later became the Timeline Repeal Rule. See Notice of Proposed Rulemaking, Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications, 84 Fed. Reg. 47,148 (“Timeline Repeal Notice”).
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140. The Timeline Repeal Notice informed the public that DHS would separately pursue a “broader asylum EAD” rulemaking but claimed that the two rulemakings were “distinct.”
141. The Timeline Repeal Notice limited the content of the comments DHS would consider to comments it deemed related to only that specific proposal.
142. The comment period for the Timeline Repeal Notice closed on November 8, 2019. 143. DHS received over 3,200 comments in response to the Timeline Repeal Notice. 144. On November 14, 2019, six days after the comment period for the Timeline Repeal Notice closed, DHS issued a notice of proposed rulemaking that initiated the public comment period for what later became the Broader EAD Rule. See Notice of Proposed Rulemaking, Asylum Application, Interview, and Employment Authorization for Applicants, 84 Fed. Reg. 62,374 (“Broader EAD Notice”). 145. The Broader EAD Notice referenced the Timeline Repeal Notice, and in fact included in its proposal the same change proposed in the Timeline Repeal Notice, but claimed that the two rulemakings were “distinct.” 146. The Broader EAD Notice limited the content of the comments DHS would consider to comments it deemed related to only that specific proposal. 147. The comment period for the Broader EAD Notice closed on January 13, 2020. 148. DHS received a total of 1,074 comments in response to the Broader EAD Notice. 149. In addition to these rulemakings, DHS has issued other proposed rules to limit asylum that interact with the Asylum EAD Rules. 150. On the same day that it issued the Broader EAD Notice, DHS issued a notice of proposed rulemaking that would, for the first time, require asylum applicants to pay a fee to file an asylum application and to file an initial application for an EAD. See Proposed Rule, U.S.
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Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 84 Fed. Reg. 62,280 (“Fee Notice”). It also increased the EAD renewal fee and eliminated the availability of any fee waivers. See id.
151. If the Fee Notice is finalized as proposed, it will impose fees on the asylum and EAD process in addition to the fees that will be imposed by the Biometrics Requirement in the Asylum EAD Rules, at a time when asylum applicants will not have work authorization and will not know when they will become work authorized.
152. On December 19, 2019, DHS issued a notice of proposed rulemaking that would expand criminal bars to asylum eligibility. See Joint Notice of Proposed Rulemaking, Procedures for Asylum and Bars to Asylum Eligibility, 84 Fed. Reg. 69,640 (“Asylum Criminal Bars Notice”).
153. If the Asylum Criminal Bars Notice is finalized as proposed, the criminal bars will become the ineligibility grounds that EAD adjudication officers will apply to deny EADs under the EAD Criminal Bar.
154. On June 15, 2020, DHS issued a notice of proposed rulemaking that would impose significant additional barriers to the asylum process. See Joint Notice of Proposed Rulemaking, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 36,264 (“Broader Asylum Notice”).
155. If the Broader Asylum Notice is finalized as proposed, it will prevent many people from pursuing asylum and will substantially decrease the number of applications for EADs by asylum applicants.
156. The comment periods for the Fee Notice, the Asylum Criminal Bars Notice, and the Broader Asylum Notice have closed, but DHS has not issued the final rules.
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V. THE ASYLUM EAD RULES WERE ISSUED BY DEFENDANT WOLF, WHO LACKED LAWFUL AUTHORITY TO DO SO. 157. As a consequence of President Trump’s chaotic effort to block humanitarian
immigration to the United States, there has been constantly rotating leadership at DHS. 158. Indeed, there has been no Senate-confirmed Secretary leading DHS since April 10,
2019 at the latest. 159. Defendant Chad Wolf issued both of the final Asylum EAD Rules under his
purported authority as Acting DHS Secretary. 160. However, Defendant Wolf is and has been serving as Acting Secretary in violation
of both the Homeland Security Act (“HSA”) and the Federal Vacancies Reform Act (“FVRA”). 161. Accordingly, Defendant Wolf had no authority to issue the final Asylum EAD
Rules. A. Defendant Wolf’s Service as Acting Secretary Violates the HSA, Which Governs the Order of Succession for the Office. 162. The HSA governs the order of succession for the office of Acting DHS Secretary.
See 6 U.S.C. § 113. 163. Defendant Wolf’s service as Acting DHS Secretary violates the HSA because he
was not next in the order of succession at the time that he purported to succeed to that office. 164. Nor was Defendant Wolf next in the order of succession at any time since he
purported to begin exercising the authority of Acting DHS Secretary. 165. The HSA requires that the DHS Secretary shall be “appointed by the President, by
and with advice and consent of the Senate.” 6 U.S.C. § 112(a)(1).
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166. The HSA mandates that, in the event of the “absence, disability, or vacancy in office” of the Secretary, the Deputy DHS Secretary is first in the order of succession as Acting Secretary and the Under Secretary of Management is second. Id. § 113(a)(1)(A), (g)(1).
167. After the Deputy Secretary and Under Secretary of Management, the HSA allows the DHS Secretary to “designate such other officers of the Department in further order of succession to serve as Acting Secretary.” Id. § 113(g)(2).
168. On December 15, 2016, then-DHS Secretary Jeh Johnson issued a memorandum adopting a succession order “[i]n case of the Secretary’s death, resignation, or inability to perform the functions of the Office.” Department of Homeland Security, DHS Orders of Succession and Delegation of Authorities for Named Positions (Dec. 15, 2016) (“DHS Orders of Succession & Delegation”).
B. Secretary Nielsen’s Resignation Triggered a Line of Unlawful Appointments Under the HSA.
169. The line of unlawful successions began when DHS Secretary Kirstjen Nielsen, who had been appointed by the President with consent of the Senate, resigned.
170. President Trump announced Secretary Nielsen’s departure from office on April 7, 2019 by tweet, and at the same time announced that her successor would be Kevin McAleenan, who was then serving as Commissioner of U.S. Customs and Border Protection (“CBP”).
171. Secretary Nielsen announced her resignation later in the day on April 7, 2019 and publicly submitted her resignation letter, which stated that it was “effective April 7th, 2019.”
172. A few hours later in the day on April 7, 2019, however, former Secretary Nielsen announced by tweet that she “ha[d] agreed to stay on as Secretary” until April 10, 2019.
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173. On April 7, 2019, former Secretary Nielsen’s effective resignation date, Claire Grady served as the Senate-confirmed Under Secretary for Management, and in that capacity, had been the Acting DHS Deputy Secretary since April 16, 2018.
174. Pursuant to the text of the HSA and DHS Orders of Succession & Delegation in place at the time of Secretary Nielsen’s resignation, Grady became Acting DHS Secretary as soon as former Secretary Nielsen’s resignation was effective.
175. Grady submitted her resignation as Acting DHS Secretary on April 9, 2019, which became effective April 10, 2019.
176. On April 10, 2019, former Secretary Nielsen, who had resigned three days earlier, purported to issue an amendment to the DHS Orders of Succession & Delegation “in the event [she was] unavailable to act during a disaster or catastrophic emergency.” Department of Homeland Security, DHS Orders of Succession and Delegation of Authorities for Named Positions (Dec. 15, 2016) as amended (Apr. 10, 2019) (emphasis added).
177. Former Secretary Nielsen’s purported amendments, however, left intact the section of the DHS Orders of Succession & Delegation that governed succession in case of the Secretary’s “death, resignation, or inability to perform the functions of the Office.” Id.
C. Kevin McAleenan’s Succession to the Office was Unlawful Under the HSA. 178. On April 11, 2019, Kevin McAleenan, who was then the CBP Commissioner, purported to assume the Office of Acting Secretary. 179. Under the DHS Orders of Succession & Delegation, however, two other Senateconfirmed individuals were ahead of McAleenan to succeed to that Office: Christopher Krebs, who then served as the Senate-confirmed Under Secretary for National Protection and Programs,
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and David Glawe, who then served as the Senate-confirmed Under Secretary for Intelligence and Analysis.
180. Because McAleenan’s purported succession was unlawful under the HSA and DHS Orders of Succession & Delegation, he had no valid legal claim to the Office of Acting DHS Secretary.
181. Because McAleenan had no valid legal claim to the Office of Acting DHS Secretary, he could not lawfully exercise the authority of that Office, including the following purported actions in paragraphs 182, 183, and 185.
182. On September 9, 2019, McAleenan purported to cause the DHS to issue the Timeline Repeal Notice as the signing authority.
183. On November 8, 2019, McAleenan purported to issue a new amendment to the DHS Orders of Succession & Delegation that revised the order of succession “[i]n case of the Secretary’s death, resignation, or inability to perform the functions of the Office.” Department of Homeland Security, Amendment to the Order of Succession for the Secretary of Homeland Security (Nov. 8, 2019).
184. McAleenan resigned as Acting DHS Secretary on November 13, 2019. 185. On November 14, 2019, McAleenan purported to cause the DHS to issue the Broader EAD Notice as the signing authority, although he had resigned the day before. D. Defendant Wolf’s Purported Succession to the Office Was Unlawful Under
the HSA. 186. On November 13, 2019, Defendant Wolf, who had been confirmed by the Senate the same day as the DHS Under Secretary for Strategy, Policy, and Plans after serving in an Acting capacity until then, purported to assume the Office of Acting DHS Secretary upon McAleenan’s resignation.
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187. Defendant Wolf’s succession was pursuant to McAleenan’s unlawful amendment to the DHS Orders of Succession & Delegation, which purported to place the DHS Under Secretary for Strategy, Policy, and Plans fourth in the line of succession after the Deputy Secretary, Under Secretary of Management, and CBP Commissioner to fill the role of Acting DHS Secretary.
188. Defendant Wolf had and has no valid legal claim to the Office of Acting DHS Secretary. Under the governing DHS Orders of Succession & Delegation, multiple DHS officials were ahead of Wolf to succeed to that Office.
189. Because Defendant Wolf had no valid legal claim to the Office of Acting DHS Secretary, he could not lawfully exercise the authority of that Office, including the following purported actions in paragraphs 190-91.
190. On June 22, 2020, Defendant Wolf purported to issue the Timeline Repeal Rule. 191. On June 26, 2020, Defendant Wolf purported to issue the Broader EAD Rule. 192. DHS had notice that McAleenan’s and Defendant Wolf’s service as Acting Secretary was unlawful, including through press accounts that immediately noted the legal problems posed by their service as Acting Secretary and through comments on the proposed Asylum EAD Rules. 193. On November 15, 2019 Representative Bennie Thomas, Chairman on the House Homeland Security Committee, and Representative Carolyn Maloney, Acting Chairwoman of the House Oversight and Reform Committee, also submitted a letter to the U.S. Government Accountability Office detailing their concerns about McAleenan’s and Defendant Wolf’s service as Acting Secretary, and copied Defendant Wolf.
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E. Defendant Wolf’s Service as Acting Secretary Also Violates the FVRA. 194. The FVRA limits the time period for which any acting officer may fill a vacancy that requires Senate confirmation. See 5 U.S.C. § 3346. 195. Congress enacted the FVRA to prevent the President from avoiding their obligations under the Appointments Clause, which requires certain high-ranking U.S. officials like the DHS Secretary to be appointed through the Senate’s advice-and-consent process. 196. The FVRA provides that an acting officer may serve in a vacancy that requires Senate confirmation “for no longer than 210 days beginning on the date the vacancy occurs,” with limited exceptions that are inapplicable here. Id. § 3346(a)(1). 197. After 210 days without a Senate-confirmed officer, the FVRA requires an office to remain vacant until the President submits a new nominee for Senate confirmation. See id. § 3348(b)(1). 198. The FVRA requires that an “action taken by any person who is not acting” in accordance with its requirements “in the performance of any function or duty of a vacant office . . . shall have no force or effect.” Id. § 3348(d)(1). 199. Although the FVRA provides guidance on succession when a Senate-confirmed position becomes vacant, it permits another statute to expressly dictate a different means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency that requires Senate confirmation. See id. § 3347(a). 200. In the case of DHS, the HSA expressly governs the order of succession in the agency. See ¶¶ 166-68.
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201. However, the HSA does not expressly extend the FVRA’s 210-day limit on the period for an acting official to hold a position that requires Senate confirmation. See 5 U.S.C. § 113(g).
202. On November 3, 2019, the office of DHS Secretary had been vacant for 210 days since April 7, 2019, the effective date of Secretary Nielsen’s resignation letter.
203. On November 6, 2019, the office of DHS Secretary had been vacant for 210 days since April 10, 2019, the date that former Secretary Nielsen purported to leave office.
204. After November 6, 2019 at the latest, the FVRA required the office to “remain vacant” until the President submitted a new nominee for Senate Confirmation. Id. § 3348(b)(1).
205. After November 6, 2019 at the latest and continuing to today, no officer or employee could perform the functions and duties of the Office of DHS Secretary under the FVRA, unless and until the President submitted a new nominee for Senate Confirmation.
206. Since Secretary Nielsen left office, and as of the filing of the present complaint, President Trump has not submitted a new nominee for the position of DHS Secretary to the Senate for confirmation.
207. Defendant Wolf began serving as Acting DHS Secretary on November 13, 2019, after the 210-day period under the FVRA had passed.
208. Any action that Defendant Wolf has taken during his tenure, including the issuance of the Asylum EAD Rules on June 22, 2020 and June 26, 2020, was taken without authority and has no force or effect under the FVRA.
209. In addition, any action that McAleenan took after November 6, 2019 at the latest, including the issuance of his amendments to DHS Orders of Succession & Delegation on November 8, 2019, was taken without authority and has no force or effect under the FVRA.
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210. Because McAleenan’s amendments to the DHS Orders of Succession & Delegation were without force or effect under the FVRA, Defendant Wolf could not have lawfully assumed the office of Acting Secretary by succession under those amendments. VI. THE ASYLUM EAD RULES VIOLATE THE APA.
211. The Asylum EAD Rules are legislative rules that will have the force and effect of law after their effective date, and DHS was required to follow the requirements of the APA for notice-and-comment rulemaking in issuing them.
212. The Asylum EAD Rules are final agency actions because they represent the consummation of the agency’s decisionmaking processes—in this case, the rulemaking processes—and because they have direct consequences for hundreds of thousands of asylum applicants and for the plaintiff organizations and others that serve them.
213. The Asylum EAD Rules are unlawful under the APA, including because: a. DHS failed to adequately consider the interests of asylum applicants and the humanitarian purposes of U.S. asylum laws (see ¶¶ 216-23); b. DHS engaged in flawed rulemaking processes that failed to consider the interrelated impact of its segregated rulemakings and policy changes (see ¶¶ 224-36); c. DHS failed to reasonably explain the need for the Asylum EAD Rules and the departures from prior factual findings, legal conclusions, and policy positions (see ¶¶ 237-51); and d. DHS otherwise engaged in arbitrary and capricious rulemaking and acted without observance of required procedure, in excess of statutory authority and limitations, and otherwise not in accordance with law (see ¶¶ 252-73).
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214. Each of the foregoing deficiencies, on its own and together, requires that the Asylum EAD Rules be vacated.
215. DHS received comments and/or otherwise was on notice during the rulemaking process regarding each of these ways in which the proposed rules are unlawful but did not cure the defects in finalizing the Asylum EAD Rules.
A. DHS Failed to Consider the Interests of Asylum Applicants and the Humanitarian Purpose of the Refugee Act.
216. The APA requires agencies to consider important aspects of the problem in its rulemaking and to articulate a satisfactory explanation for their actions.
217. In issuing the Asylum EAD Rules, DHS failed to consider the interests of asylum applicants and the humanitarian purposes of the Refugee Act, which are important aspects of the EAD system for asylum applicants.
218. In responding to comments that raised concerns about the wellbeing of asylum applicants, DHS repeatedly relied on the notion that asylum applicants do not have the right to be granted asylum in the United States or the right to an EAD while their asylum applications are pending, without recognizing that even so it must consider the humanitarian purposes of U.S. asylum laws in changing and issuing its policies.
219. In responding to comments that expressed concern about preventing or impeding asylum applicants from pursuing asylum, DHS stated repeatedly that the rules do not, as a technical matter, bar anyone from seeking asylum, participating in the adjudication process, or seeking review to which they are entitled, without recognizing and considering the practical effects of its own rules—including that delaying or denying work authorization burdens the right to seek asylum and erects a de facto barrier to pursuing relief.
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220. DHS’s principal stated purpose in issuing the Broader EAD Rules was not only to deter frivolous and fraudulent applications, but also to deter bona fide applications that may be denied at the conclusion of the asylum process.
221. In describing this purpose, DHS failed to recognize and consider that the asylum adjudication process exists to determine which applications are legally meritorious; there is no way for anyone to distinguish between meritorious and non-meritorious applications before the adjudication has taken place.
222. In responding to comments raising concerns about deterring and hindering asylum applications that will succeed at the end of the process, DHS stated in an irrational and conclusory manner, without any support, that the Asylum EAD Rules will not deter such applications.
223. The Asylum EAD Rules will deter meritorious asylum applications and undermine the humanitarian purpose of the Refugee Act.
B. DHS Deprived the Public of a Meaningful Opportunity to Comment on, and Failed to Consider, the Interrelated Impact of Its Segregated Rulemaking Processes and Other Policy Changes.
224. The APA requires agencies to give the public the meaningful opportunity to comment when it engages in rulemaking.
225. In issuing the Asylum EAD Rules, DHS engaged in rulemaking that was artificially segregated so as to deprive the public of the meaningful opportunity to comment on the interrelated impact of its proposed rules and other policy changes. Accordingly, the public was not able to provide meaningful comments regarding the full impact of each proposed rule against other changes to the asylum landscape that DHS is simultaneously pursuing through multiple rulemakings.
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226. In issuing the Asylum EAD Rules, DHS failed to consider the interrelated impact of its segregated rulemaking processes and other policy changes, even though such interrelated impact is an important aspect of the EAD system for asylum applicants. DHS only considered the impact of each rule change on its own and considered comments regarding each rule as if it would be in effect against the existing asylum landscape, instead of considering the impact of all of the rule changes in the aggregate and the rule changes as they would be in effect in the asylum landscape that DHS is simultaneously changing through multiple rulemakings.
227. In issuing the Timeline Repeal Rule, DHS categorized comments related to the Broader EAD Notice as “out of scope” and refused to consider comments on the interaction of the two notices.
228. In responding to comments stating that it is “essentially impossible” to meaningfully comment on the Timeline Repeal Notice without analyzing how the repeal would interact with the Broader EAD Notice (which had not yet been issued at the time that the comment period for the Timeline Repeal Notice closed), DHS recognized that the two Asylum EAD Rules interact but that “to the extent that there is interaction or overlap, DHS will address such concerns if it finalizes the broader rule.”
229. DHS broke that promise when it issued the Broader EAD Rule and refused to consider comments that pointed to the problems with segregated and staggered rulemaking and the interaction of the two rules.
230. In conducting the cost-benefit analysis on the Broader EAD Rule, as well as in analyzing each rule change, DHS refused to consider the cumulative impact of the rule changes within the Broader EAD Rule or of the interrelated impact of the Timeline Repeal Rule or of other pending rule changes.
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231. For example, in finalizing the EAD Criminal Bar, DHS abandoned its initial proposal to add certain specific criminal bars to EADs and decided instead to align the EAD criminal bars to criminal grounds of ineligibility for asylum. DHS did so even though it is simultaneously pursuing, and has not completed, another rulemaking through the Asylum Criminal Bars Notice that proposes to change the asylum ineligibility grounds. This decision deprived the public of a meaningful opportunity to comment on the new proposal, including whether the new asylum ineligibility grounds that may be adopted as a result of the Asylum Criminal Bars Notice are also appropriate grounds for denying EADs.
232. In allowing Discretionary Denials, DHS justified granting itself discretion to deny EADs to eligible asylum applicants because it “cannot continue to provide EADs with virtually no eligibility criteria and nearly limitless renewal opportunities,” without recognizing that in the same rulemaking it was imposing such limitations on eligibility and renewal opportunities.
233. In finalizing the Recommended Approval Removal and Parolee EAD Removal, DHS failed to consider the cumulative impact of the Asylum EAD Rules, which indefinitely delay work authorization, on this group of asylum seekers who DHS had previously deemed should receive earlier access to work authorization.
234. DHS refused to consider the cumulative impact of other policies that the Trump Administration has adopted related to asylum, including but not limited to the Presidential Proclamation banning migrants from applying for asylum if they entered without inspection; the so-called “Migrant Protection Protocols” that force asylum applicants to return to Mexico and remain there for the duration of their asylum proceedings; and an interim final rule that disqualifies people from receiving asylum unless they have already unsuccessfully sought similar protection in another country on their way to the United States.
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235. For example, in responding to comments raising concerns about curtailing asylum applicants’ access to attorneys, DHS assumed that low-cost or pro bono legal assistance will be available to unemployed asylum applicants who cannot afford to retain a lawyer without considering how the cumulative impact of parallel rulemakings and other policies burdens the availability of resources.
236. In responding to comments raising concerns about the lack of socioeconomic support for asylum applicants, DHS assumed that social services provided by state and local governments and nonprofit organizations will be available to support asylum applicants who are not permitted to work through the application process without considering how the cumulative impact of parallel rulemakings and other policies burden these resources.
C. DHS Failed to Reasonably Explain the Need for the Asylum EAD Rules and to Explain Changes from Its Prior Positions.
237. The APA requires the agency to reasonably explain that there is a problem to be solved in its rulemaking, which includes providing an explanation that makes a rational connection between the facts found and the choices made.
238. The APA requires the agency to acknowledge and reasonably explain changes from its prior factual findings, legal conclusions, and policy positions.
239. DHS failed to reasonably explain the need for the Asylum EAD Rules. 240. In explaining the purpose of the Broader EAD Rule, DHS alleged that the rule was needed to reduce incentives for “frivolous, fraudulent, or otherwise non-meritorious asylum applications,” but DHS provided no basis to support the conclusion that these problems exist or that if such problems exist they would be addressed by the Broader EAD Rule. 241. In support of its position, DHS relied solely on a decades-old body of work that discusses problems in the early 1990s that the current work authorization system was created to
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address, not problems with the current system—analysis that contradicts the agency’s position that the current work authorization system requires and warrants further restriction.
242. In stating the need for the Broader EAD Rule, DHS alleged that the rule was necessary because the asylum system has not changed in recent years to effectively address incentives for illegal immigration and frivolous asylum filings, but DHS ignored the pending parallel rulemakings and policy changes that it is undertaking to change asylum allegedly for these same reasons.
243. Similarly, in describing the background for the Timeline Repeal Rule, DHS alleged that the rule was necessary because the current rules do not reflect current operational realities, but DHS did not consider that the changes in the Broader EAD Rule and other parallel rulemakings and policy changes will significantly affect operational realities.
244. In explaining the purpose of the Timeline Repeal Rule, DHS alleged that the rule was needed to address fraud in the EAD application process, but DHS provided no basis to support the conclusion that problems of fraud exist in the EAD application process.
245. DHS further alleged that another purpose of the Timeline Repeal Rule was to provide flexibility, but DHS failed to reasonably explain why “flexibility” was needed now when the agency had faced backlogs and fluctuations in application volumes in the past, including at the time of the prior rulemaking. DHS failed to reasonably explain why it departed from its prior decision that the current regulatory system appropriately balances agency flexibility and accountability.
246. In adopting the Asylum EAD Rules, DHS failed to reasonably explain why it departed from its prior decision that 180 days is adequate to reduce incentives to file fraudulent or frivolous asylum applications for the purpose of obtaining work authorization and that the current
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EAD system will appropriately incentivize the agency to adjudicate asylum applications within the 180-day statutory timeline.
247. In adopting the Asylum EAD Rules, DHS failed to reasonably explain why it departed from its prior decision to adopt 180 days as the time period by which most asylum applicants should be able to obtain work authorization given the humanitarian concerns at stake.
248. In justifying the 365-Day Waiting Period, DHS alleged that the waiting period for filing an EAD should be extended from 150 days because of current average delays in the asylum proceedings, but failed to reasonably explain why the waiting period should be tied to such data when the asylum laws continue to require the government to adjudicate applications within 180 days and when the failure to meet that timeline is the government’s fault.
249. In imposing the One-Year Filing Bar and the EAD Criminal Bar, DHS failed to reasonably explain why it departed from its previous decision to separate EAD adjudication from asylum eligibility because of the administrative burdens of attempting to duplicate the asylum adjudication process within the EAD adjudication process.
250. In finalizing the One-Year Filing Bar, DHS failed to explain why it departed from its previous decision to not impose a One-Year Filing Bar for EADs in part because it did not want to encourage people who are in lawful status during their first year of presence in the United States to prematurely submit an asylum application if they were hoping for the situation in their country to improve such that they could return at the end of their lawful stay.
251. In finalizing the Deemed Complete Removal, DHS failed to reasonably explain why it departed from its previous decision to promptly reject or deem complete applications for asylum in view of the potentially harsh consequences of permitting the agency to reject applications later and on technical grounds.
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D. DHS Violated the APA in Numerous Other Ways. 252. The APA prohibits an agency from relying on incorrect legal analysis in its rulemaking. 253. In issuing the Broader EAD Rules, DHS violated this mandate by relying on reasoning that conflicts with the asylum laws, including as alleged in paragraphs 254-57. 254. In imposing the One-Year Filing Bar, DHS stated that it “believes that one year is ample time for a bona fide asylum applicant to submit his or her application.” But the asylum laws recognize that sometimes one year is definitely not “ample time for a bona fide asylum applicant to submit [their asylum] application,” such as when the circumstances of the applicant or their home country change in ways that materially affect their asylum eligibility, or because of circumstances, including trauma, that might pose barriers to filing within one year. See 8 U.S.C. § 1158(a)(2)(D). 255. In imposing the EWI Bar, DHS stated that it “believes that illegally entering the United States without good cause should be strongly deterred.” This “belief” is irreconcilable with the right of all individuals to seek asylum under the asylum laws, including those who entered the country without inspection. See 8 U.S.C. § 1158(a)(1). DHS mistakenly imposed a strict “good cause” requirements on asylum applicants in order to obtain an exception to the EWI Bar, failing to understand that under Article 31(1) of the 1951 Refugee Convention, which is binding on the United States through the 1967 Protocol, fleeing persecution is itself good cause to enter a country without inspection. 256. In imposing Limited EAD Validity and depriving asylum applicants of the opportunity to continue working through the federal review process, DHS stated that the administrative review that occurs prior to judicial review gives “sufficient time and a reasonable
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process for asylum seekers to establish that they warrant a favorable exercise of discretion for a grant of asylum.” This “belief” is irreconcilable with the right to pursue federal appeals court review under the asylum laws, 8 U.S.C. § 1252(b), and the fact that administrative decisions denying asylum are routinely reversed or vacated on review.
257. In imposing the Parolee EAD Removal, DHS stated that it sought to distinguish between asylum seekers and people “paroled truly for urgent humanitarian reasons or significant public benefit.” This misstates the law, as asylum seekers released from custody receive parole based on a finding of “urgent humanitarian reasons or significant public benefit.” 8 U.S.C. § 1182(d)(5)(A).
258. The APA prohibits the agency from relying on unreasonable or irrational explanations in its rulemaking.
259. In issuing the Broader EAD Rules, DHS violated this mandate by offering internally conflicting explanations for its rule changes, including as alleged in paragraphs 260-61.
260. In imposing the Biometrics Requirement, DHS first explained that this was necessary because it “is not able to refresh or reuse biometrics that were collected” for the asylum application, but then stated that EAD biometrics will benefit security by allowing the agency to compare “EAD biometrics with those collected [earlier] from the asylum applicant”—thus establishing that DHS in fact plans on reusing the earlier-collected biometrics.
261. In responding to comments that sought an exception to the EWI Bar for victims of human trafficking and smuggling, DHS stated that it believes that such asylum applicants may be able to meet the bar’s exception, but it failed to explain how, given that the exception requires asylum applicants to present themselves to a border agent within 48 hours of crossing and indicate an intention to apply for asylum or expressing a fear of persecution or torture, in addition to
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meeting an undefined “good cause” standard. Victims of human trafficking and smuggling are often unable to encounter a border agent or other government officers within 48 hours of crossing because they are held captive.
262. The APA requires an agency to respond to significant comments about its proposals when engaging in rulemaking.
263. DHS violated this mandate by failing to respond to significant comments submitted in response to the Broader EAD Notice, including as alleged in paragraphs 264-268.
264. In finalizing the Broader EAD Rules, DHS failed to respond to comments that it unreasonably relied on decades-old research to attempt to justify the Broader EAD Rules.
265. In imposing the Biometrics Requirement, DHS failed to respond to comments questioning how an asylum applicant can be required to pay a biometric fee for the initial EAD application when the applicant has not been permitted to work yet.
266. The APA requires the agency to consider reliance interests engendered by the policy that it is changing in its rulemaking.
267. DHS violated this mandate by failing to consider reliance interests of asylum seekers.
268. For example, in imposing the Parolee EAD Removal, DHS failed to consider the reliance interests of approximately 13,000 paroled asylum applicants who are already working with EADs and who will have to reapply under the Asylum EAD Rules when their work authorization expires and may be found ineligible. DHS failed to consider that these asylum seekers will lose their jobs while they wait for their new EAD applications to be processed and may not be eligible for another EAD under the Asylum EAD Rules.
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269. The APA requires the agency to consider reasonable alternatives to its rulemaking and reasonably explain its rejection of such alternatives.
270. DHS violated this mandate by failing to consider reasonable alternatives to the Asylum EAD Rules, including as alleged in paragraphs 271-73.
271. In issuing the Timeline Repeal Rule, DHS failed to reasonably explain its rejection of alternative time periods for adjudicating the EAD application. DHS alleged that it was rejecting an alternative 90-day timeline for adjudicating EAD applications because of the need for “flexibility,” but the desire to avoid all accountability is not a reasonable explanation under the APA.
272. In imposing the 365 Day Waiting Period and issuing the Timeline Repeal Rule, DHS failed to reasonably explain its rejection of the alternative of imposing a shorter waiting period. DHS alleged that it was rejecting this alternative because it would create an incentive to file a “non-meritorious” asylum application, but failed to reasonably explain why this would be so when asylum applicants would not be guaranteed work authorization within any particular time frame under the Timeline Repeal Rule. DHS alleged that it was rejecting this alternative because it would necessitate the creation of a new system to ensure that EADs would not be issued prior to 180 days as provided by statute, but failed to reasonably explain why a 180-day waiting period would not be a reasonable alternative.
273. In issuing the Asylum EAD Rules, DHS failed to consider reasonable alternatives to mitigate the alleged problem of “frivolous, fraudulent, or otherwise non-meritorious asylum applications” filed for the purpose of obtaining EADs, such as ensuring prompt processing of asylum claims so that they are adjudicated within the statutorily mandated 180 days.
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CLAIMS FOR RELIEF Count One
The Asylum EAD Rules Should Be Set Aside Because They Violate the APA 274. All the foregoing allegations are repeated and realleged as though fully set forth herein. 275. Under the APA, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . . (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;. . .” or “(D) without observance of procedure required by law.” 5 U.S.C. § 706(2). 276. Defendants violated the foregoing requirements of the APA in issuing both of the Asylum EAD Rules, and each of the rule changes contained therein, for several independent reasons, each of which is sufficient to require that the Asylum EAD Rules, or each of the rule changes contained therein, be set aside. 277. First, in issuing the Asylum EAD Rules, Defendants failed to consider the interests of asylum applicants and the humanitarian purpose of the Refugee Act, as they were required to do. 278. Second, the rulemakings relating to both of the Asylum EAD Rules were not in accordance with the law and were undertaken without observance of procedures required by law because they failed to provide the public adequate notice or a meaningful opportunity to comment on interrelated issues between the two rules and other parallel rulemakings. The Asylum EAD Rules are also arbitrary or capricious as a consequence of Defendants’ failure to consider interrelated issues between the two rules and other related parallel rulemakings.
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279. Third, Defendants violated the APA in issuing both of the Asylum EAD Rules, and each of the rule changes contained therein, by failing to reasonably explain the need for the Asylum EAD Rules.
280. Fourth, Defendants otherwise violated the APA in issuing both of the Asylum EAD Rules, and each of the rule changes contained therein, including because they failed to consider important aspects of the problem and reliance interests, to consider alternatives to the approaches they adopted, to examine relevant data, to acknowledge and/or explain various reversals of positions the agencies have long taken, to respond to significant comments, and/or to articulate a satisfactory explanation for their actions.
281. Both of the Asylum EAD Rules, or in the alternative each rule change contained therein, should be vacated as violating the APA.
Count Two The Asylum EAD Rules Should Be Set Aside Because
They Violate the Homeland Security Act (“HSA”) 282. All the foregoing allegations are repeated and realleged as though fully set forth herein. 283. Under the APA, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be…not in accordance with law,” “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (C), (D). 284. The issuance of the Asylum EAD Notices was an agency action. 285. The issuance of the Asylum EAD Rules was an agency action. 286. The issuance of the Asylum EAD Notices and the issuance of the Asylum EAD Rules were acts taken as functions or duties of the Office of the DHS Secretary.
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287. Defendant Wolf holds, and has held at all relevant times relating to the allegations in the complaint, the Office of Acting DHS Secretary in violation of the HSA and the DHS Orders of Succession & Delegation.
288. The Asylum EAD Rules should be vacated as violating the APA because Defendant Wolf unlawfully held the position of Acting DHS Secretary under the HSA when he issued the Asylum EAD Rules and accordingly any acts that he took were in violation of the HSA and the DHS Orders of Succession & Delegation.
Count Three The Asylum EAD Rules Should be Set Aside Because They Violate the Federal Vacancies Reform Act (“FVRA”) 289. All the foregoing allegations are repeated and realleged as though fully set forth herein. 290. Under the APA, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be…not in accordance with law,” “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or “without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (C), (D). 291. Under the FVRA, an “action taken by any person who is not acting” under its requirements “in the performance of any function or duty of a vacant office…shall have no force or effect.” Id. § 3348(d)(1). 292. Even assuming Defendant Wolf holds his position as Acting DHS Secretary lawfully under the HSA (which he does not), his appointment is independently in violation of the FVRA. 293. Defendant Wolf issued the Asylum EAD Rules in the performance of the function or duty of the Acting Secretary.
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294. The issuance of the Broader Asylum EAD Notice was an agency action. 295. The issuance of the Asylum EAD Rules was an agency action. 296. The Asylum EAD Rules should be held to have no force or effect under the FVRA and/or vacated as violating the APA.
Count Four The Asylum EAD Rules Should Be Enjoined Because They Are Ultra Vires 297. All the foregoing allegations are repeated and realleged as though fully set forth herein. 298. Courts have equitable authority to enjoin ultra vires agency action. See, e.g., Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 689 (1949). 299. Because Defendant Wolf’s service is not authorized by the FVRA, the HSA, or the Appointments Clause of the U.S. Constitution, any actions he or DHS may take under his purported authority, including issuing and implementing of the Asylum EAD Rules, are ultra vires and must be enjoined.
Count Five The Broader EAD Rule Should Be Set Aside Because It Violates the Regulatory Flexibility Act (“RFA”) 300. All the foregoing allegations are repeated and realleged as though fully set forth herein. 301. The Regulatory Flexibility Act (“RFA”), as amended, requires federal administrative agencies to analyze the effects on “small entities” of rules they promulgate, and to publish initial and final versions of those analyses. 5 U.S.C. §§ 603-604. 302. For purposes of the RFA, the term “small entities” includes small businesses, small nonprofit organizations, and small governmental jurisdictions. 5 U.S.C. § 601(6).
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303. The Broader EAD Rule is a “rule” within the meaning of the RFA. 5 U.S.C. § 601(2).
304. Each of the Plaintiffs is a “small entity” within the meaning of the RFA and is directly affected by the Broader EAD Rule, which requires them, inter alia, to substantially alter their programmatic activities (including the services they provide) and their employment practices.
305. The Broader EAD Rule’s final regulatory flexibility analysis does not comply with the RFA, including because of DHS’s factually and legally unsupported and unexplained conclusion that the rule does not directly affect small entities.
306. Based on that erroneous conclusion, DHS refused to describe and estimate the number of small entities that would be affected by the rule, as required by the RFA, 5 U.S.C. § 604(a)(4); and likewise failed to describe and project the rule’s compliance requirements, as is also required, id. § 604(a)(5).
307. DHS independently failed to fulfill the RFA’s requirement that the agency describe the significant issues raised by public comments in response to its initial regulatory flexibility analysis (published in the Broader EAD Notice), id. § 604(a)(2), choosing instead to limit its inquiry to discussion to a solitary public comment that “referenced small entities,” 85 Fed. Reg. at 38623, ignoring that other commenters raised significant issues with DHS’ initial regulatory flexibility analysis.
308. DHS also ignored the RFA’s requirement that it describe the steps it has taken to minimize the impact on small entities “consistent with the stated objectives of applicable statutes,” and that it provide “a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule” and why each of the other alternatives were rejected. 5 U.S.C. § 604(a)(2).
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Rather than considering “the stated objectives of applicable statutes,” including the Refugee Act, DHS instead considered only its own objectives in promulgating the Broader EAD Rule.
309. The Broader EAD Rule’s final regulatory flexibility analysis was also arbitrary or capricious because its conclusions were not reasonable nor reasonably explained; it failed to respond to significant comments; it failed to consider relevant data about the effects of the rule; it failed to consider alternatives; it failed to explain the alternative it did adopt; and its conclusions were not supported by substantial evidence.
310. The Broader EAD Rule is therefore unlawful and must be set aside. See 5 U.S.C. § 611; 5 U.S.C. § 706.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: 1. With respect to Counts 1-4, issue a preliminary injunction under Federal Rule of Civil Procedure 65 or an order to stay or postpone the effective dates of the Asylum EAD Rules under 5 U.S.C. § 705 (“On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court . . . may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings”); 2. Declare unlawful and set aside the Asylum EAD Rules in their entirety, or in the alternative with respect to specific rule changes; 3. Enjoin Defendants and all those acting on their behalf from enforcing or implementing the Asylum EAD Rules in their entirety, or in the alternative with respect to specific rule changes; 4. Enter an order vacating the Asylum EAD Rules in their entirety, or in the alternative with respect to specific rule changes;
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5. Award Plaintiffs’ counsel attorneys’ fees and costs pursuant to 28 U.S.C. § 2412, and any other applicable statute or regulation; and
6. Award such other and further relief in favor of Plaintiffs and against Defendants that the Court may deem just, equitable, and proper. Dated: July 21, 2020 Respectfully submitted,

Mariko Hirose* Kathryn Austin* Geroline Castillo* INTERNATIONAL REFUGEE ASSISTANCE PROJECT One Battery Park Plaza, 4th Floor New York, New York 10004 Tel: (516) 701-4620 Fax: (929) 999-8115 mhirose@refugeerights.org kaustin@refugeerights.org gcastillo@refugeerights.org

/s/ Justin B. Cox

d

Justin B. Cox (Bar No. 17550)

INTERNATIONAL REFUGEE ASSISTANCE

PROJECT

PO Box 170208

Atlanta, GA 30317

Tel: (516) 701-4233

Fax: (929) 999-8115

jcox@refugeerights.org

Attorneys for Plaintiffs

* Pro hac vice applications forthcoming

Conchita Cruz* Zachary Manfredi* Dennise Moreno* ASYLUM SEEKER ADVOCACY PROJECT 228 Park Avenue S. #84810 New York, NY 10003-1502 Tel: (305) 484-9260 Fax: (646) 968-0279 conchita.cruz@asylumadvocacy.org zachary.manfredi@asylumadvocacy.org dennise.moreno@asylumadvocacy.org
Richard W. Mark* Joseph Evall* Katherine Marquart* GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue New York, NY 10166-0193 Tel: (212) 351-4000 Fax: (212) 351-4035 RMark@gibsondunn.com JEvall@gibsondunn.com KMarquart@gibsondunn.com

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 Case 8:20-cv-02118-PX Document 70 Filed 09/11/20 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

* CASA DE MARYLAND, INC., et al.,

Plaintiffs,

*

v.

*

Civil Action No. 8:20-cv-02118-PX

*

CHAD F. WOLF, et al.,

*

Defendants.

* *** ORDER

Upon consideration of the pending motion for preliminary injunction or a stay pending

judicial review, ECF No. 23; the memoranda in support and opposition to this motion, and the

exhibits thereto; the arguments presented at hearings on August 14 and August 28, 2020; the

final rules, see “Removal of 30-Day Processing Provision for Asylum Applicant-Related Form

I–765 Employment Authorization Applications,” 85 Fed. Reg. 37,502-37,546 (June 22, 2020)

(“Timeline Repeal Rule); and “Asylum Application, Interview, and Employment Authorization

for Applicants,” 85 Fed. Reg. 38,532-38,628 (June 26, 2020) (“Broader EAD Rules”); and the

full record herein, it is hereby

ORDERED that Plaintiffs’ motion at ECF No. 23 is GRANTED IN PART AND

DENIED IN PART; and it is further

ORDERED that Plaintiffs’ motion for a preliminary injunction at ECF No. 23 is

GRANTED as to the following rule changes:

- The Timeline Repeal Rule, 85 Fed. Reg. at 37,545 (printing parts of the regulations to be codified at 8 C.F.R. § 208.7(a)(1));

- The 365-day waiting period, 85 Fed. Reg. at 38,626-28 (referenced throughout and

Case 8:20-cv-02118-PX Document 70 Filed 09/11/20 Page 2 of 3
as codified at 8 C.F.R. § 208.3(c)(3); § 208.7(a)(1)(ii), (a)(1)(iii)(E), and (b)(1)(i); and § 274a.12(c)(8));
- Removal of “deemed-complete” rule, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.3) (omitting instruction that if the agency has not “mailed the incomplete application back to the applicant within 30 days, it shall be deemed complete.”).
- The discretionary review rule, providing that agency is no longer required to issue EADs to eligible asylees, 85 Fed. Reg. at 38,628 (changes reflected at 8 C.F.R. § 274a.13(a)(1)).
- The one-year filing bar, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.7(a)(1)(iii)(F)).
- The rule requiring submission of biometric information as part of EAD applications, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.7(a)(1)(i) and (a)(1)(iv)(E); id. § 208.10).
ORDERED that the defendants shall be PRELIMINARILY ENJOINED from enforcing
the above rule changes against all members of the Plaintiff organizations Casa de Maryland,
Inc., and Asylum Seekers Advocacy Project, and it is further
ORDERED that Plaintiffs’ motion for a preliminary injunction at ECF No. 23 is
DENIED as to all other changes within the Timeline Repeal Rule and Broader EAD Rules that
were not expressly listed above; and it is further
ORDERED that Plaintiffs’ motion for a stay pending judicial review at ECF No. 23 is
DENIED; and it is further

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ORDERED that the motions for leave to file amicus curiae briefs filed by the Constitutional Accountability Center (ECF No. 38); Kids in Need of Defense (ECF No. 39); Morton Rosenberg (ECF No. 40); the District of Columbia and the State of New York, among other states (ECF No. 42); and the Oxfam America and the University of Maryland Carey Immigration Clinic (ECF No. 44) are GRANTED.

_9/11/2020__________________ Date

______/S/_________________ Paula Xinis U.S. District Court Judge

 
 Case 8:20-cv-02118-PX Document 69 Filed 09/11/20 Page 1 of 69

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

* CASA DE MARYLAND, INC., et al.,

Plaintiffs,

*

v.

*

Civil Action No. 8:20-cv-02118-PX

*

CHAD F. WOLF, et al.,

*

Defendants.

* *** MEMORANDUM OPINION

This case concerns the validity of eighteen final agency rules that overhaul the criteria for

issuing work authorization to asylum applicants. Plaintiffs, five non-profit organizations

providing services to immigrant and asylum populations across the country, bring this action

against Defendants Chad F. Wolf (“Wolf”), in his official capacity as Acting Secretary of

Homeland Security, and the U.S. Department of Homeland Security (“DHS” or “agency”). ECF

No. 1. Plaintiffs mount a full-throated attack on the challenged agency rules, invoking the

Administrative Procedure Act (“APA”), the Federal Vacancies Reform Act (“FVRA”), and the

Homeland Security Act (“HSA”).

Plaintiffs now move to stay or preliminarily enjoin enforcement of the challenged these

rules, which went into effect on August 21 and August 25, 2020. ECF No. 23-1 at 8–9; ECF

No. 24-2; ECF No. 24-3. For the following reasons, the Court grants in part and denies in part

the motion. Until this Court reaches the merits of Plaintiffs’ claims, it will preliminarily enjoin

Defendants from enforcing a subset of the rule changes as applied to the individual members of

Plaintiffs Casa de Maryland, Inc. (“CASA”) and Asylum Seeker Advocacy Project (“ASAP”).

Case 8:20-cv-02118-PX Document 69 Filed 09/11/20 Page 2 of 69
I. Background For the last forty years, the United States Government has permitted any migrant
“physically present” in the United States—regardless of where or under what status they enter— to apply for asylum.1 8 U.S.C. § 1158(a)(1)( “Immigration and Nationality Act” or “INA”), (2009); see also Refugee Act of 1980, Pub. L. No. 96–212 § 208, 94 Stat. 102, 105 (1980) (amending the INA). A person is eligible for asylum when unable or unwilling to return to her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42), 1158(b)(1)(A). The United States boasts of a generous tradition of granting asylum seekers a critically important avenue to becoming a lawful permanent resident and ultimately a United States citizen. See id. §§ 1159(b), 1427(a).
This road to asylum, however, is long and winding. While the INA requires immigration judges and the Department of Homeland Security’s Citizenship and Immigration Services office (“USCIS”) to adjudicate asylum applications within 180 days, id. § 1158(d)(5)(A)(iii), the process often takes years to complete. See Asylum Application, Interview, and Employment Authorization for Applicants (“Broader EAD Rules”), 85 Fed. Reg. 38,532, 38,548 (June 26, 2020) (detailing asylum “backlog” resulting in “years-long wait” to obtain asylum); ECF No. 2419 at 6 n.14; ECF No. 24-20 at 43; ECF No. 24-4 ¶ 10; ECF No. 24-6 ¶ 13; ECF No. 24-7 ¶ 10. During this time, asylum applicants are not eligible for a wide variety of social or medical benefits.2 ECF No. 24-20 at 42.
1 Among other changes, the Refugee Act of 1980 amended the definition of “refugee” within the INA to conform to the United States’ treaty obligations; Congress also for the first time required the Attorney General to enact “procedures for determining eligibility for asylum.” East Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 839–40 (9th Cir. 2020). 2 Plaintiff Centro assists affirmative asylum seekers and juveniles whose asylum applications have been pending since 2014. ECF No. 24-6 ¶ 13. Asylum hearings cancelled because of the COVID-19 pandemic have been reset
2

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To mitigate this evident economic hardship on asylum applicants, the agency has historically granted asylum seekers work authorization in the form of an employment authorization document (“EAD”), so that applicants may lawfully support themselves while they await final decision on their asylum applications. See Broader EAD Rules, 85 Fed. Reg. at 38,544. In addition, an EAD is often the first identification document an applicant receives, which asylum applicants can then use to obtain other critical documents such as a driver’s license or social security number. See Timeline Repeal Rule, 85 Fed. Reg. at 37,527. Also with an EAD, an applicant can more easily enroll in job training programs or college, conduct personal banking, and obtain health insurance. See id.; ECF No. 24-4 ¶¶ 14–16.
For twenty-five years, the EAD application process has largely remained unchanged. See ECF No. 23-1 at 10; ECF No. 41 at 7; Rules and Procedures for Adjudication of Applications for Asylum or Withholding of Deportation and for Employment Authorization (“1994 Reforms”), 59 Fed. Reg. 62,284, 62,289-62,303 (Dec. 5, 1994). Pertinent to this motion, these rules worked as follows. Asylees first had to submit a completed application for asylum and then wait 150 days from the date the asylum application was deemed complete before the applicant could also apply for an initial EAD. Id. at 62,289; Broader EAD Rules, 85 Fed. Reg. at 38,598. To ensure the 150-day clock started ticking, the USCIS deemed any asylum application pending for 30-days without further agency notification as “complete” for purposes of the EAD waiting period. Id. Thus, functionally, the applicant had to wait a total of 180 days—150 days from the time she submitted a complete asylum application before she could apply for an EAD. Then, once an applicant submitted an EAD application, the agency had thirty days to grant or deny the initial EAD application. See 1994 Reforms, 59 Fed. Reg. at 62,299; Removal of 30-Day Processing
for as late as fall of 2023. Id.; see also ECF No. 24-7 ¶ 10 (of Oasis’ 500 clients with pending asylum applications, over half have been waiting more than three years for adjudication).
3

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Provision for Asylum Applicant-Related Form I–765 Employment Authorization Applications (“Timeline Repeal Rule”), 85 Fed. Reg. 37,502, 37,505 (June 22, 2020); Broader EAD Rules, 85 Fed. Reg. at 38,545; see also ECF No. 41 at 8.
Importantly, these regulations represented a purposeful decision to stagger the asylum and EAD application process to deter asylum applicants from filing boilerplate asylum applications solely to obtain work authorization. ECF No. 23-1 at 11; ECF No. 23-10 (cited at 85 Fed. Reg. 38,544 n.30). That said, DHS took great pains to minimize the hardship to asylum seekers, stating unequivocally that the 150-day waiting period represented the time “beyond which it would not be appropriate to deny work authorization to a person whose claim ha[d] not been adjudicated.” See Rules and Procedures for Adjudication of Applications for Asylum or Withholding of Deportation and for Employment Authorization (“Notice of 1994 Reforms”), 59 Fed. Reg. 14,779, 14,780 (proposed Mar. 30, 1994). And in the event the underlying asylum application was not timely resolved, the agency also imposed a backstop in requiring USCIS (then the Immigration and Naturalization Service) to process EAD applications within 30 days. See 1994 Reforms, 59 Fed. Reg. at 62,284. Congress later codified the 180-day waiting period for filing EAD applications to mirror these regulations. See Broader EAD Rules, 85 Fed. Reg. at 38,545; Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104208, § 208, 110 Stat. 3009-693 (1996).
The challenged rules overhaul the EAD application process entirely. See Timeline Repeal Rule, 85 Fed. Reg. at 37,545-46; Broader EAD Rules, 85 Fed. Reg. at 38,626-28. DHS maintains the challenged rules are necessary to mitigate the increased strain on the agency’s limited resources and to “disincentivize aliens who are not bona fide asylum seekers from exploiting a humanitarian program to seek economic opportunity in the United States.” Broader
4

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EAD Rules, 85 Fed. Reg. at 38,546; see also Timeline Repeal Rule, 85 Fed. Reg. at 37,502. The challenged rules are complex, and in practice they make it substantially harder, if not nearly impossible, to obtain pre-asylum work authorization.3 Below more particularly describes those changes at the heart of this litigation and their combined impact on asylees’ ability to work lawfully while awaiting a decision on their underlying asylum claims.
A. Changes to the EAD Rules On September 9, 2019, DHS began the process of changing the entire EAD scheme by eliminating 30-day EAD processing rule. See Removal of 30-Day Processing Provision for Asylum Applicant-Related Form I-765 Employment Authorization Applications, 84 Fed. Reg. 47148 (proposed Sept. 9, 2019) (to be codified at 8 C.F.R. pt. 208). Over the sixty-day comment period, DHS received roughly 3,200 comments. See Timeline Repeal Rule, 85 Fed. Reg. at 37,510. DHS published the final Timeline Repeal Rule unchanged on June 22, 2020, which took effect on August 21, 2020. Id. at 37,502. The Timeline Repeal Rule now eliminates any deadlines previously imposed on the agency to process EAD applications, allowing the agency unfettered time to determine whether to grant the asylum applicant an EAD. Id. at 37,505. The comment period on the Timeline Repeal Rule closed on November 8, 2019. 84 Fed. Reg. 47,148. Six days later, on November 14, 2019, the agency issued a second notice of proposed rulemaking for seventeen additional rule changes, all related to the EAD application process. See Asylum Application, Interview, and Employment Authorization for Applicants, 84 Fed. Reg. 62,374 (proposed Nov. 14, 2019) (to be codified at 8 C.F.R. pts. 208 and 274a). The
3 In the last year, the agency has also pursued other rulemakings, which are not the subject of this challenge but would make it more difficult to secure asylum. See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 84 Fed. Reg. 62,280 (proposed Nov. 14, 2019); see also Procedures for Asylum and Bars to Asylum Eligibility, 84 Fed. Reg. 69,640 (proposed Dec. 19, 2019); Procedures for Asylum and Withholding of Removal, Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 36,264 (proposed June 15, 2020).
5

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seventeen proposed additional rule changes are collectively termed the “Broader EAD Rules.” See 85 Fed. Reg. 38,598-38,600. A sixty-day comment period followed, during which the agency received 1,074 comment submissions. See id. at 38,553. The agency issued the final Broader EAD Rules on June 26, 2020, which remained largely unchanged save for clarifying that the rules, in their entirety, would apply only to those EAD applications submitted after the effective date of the Broader EAD Rules, August 25, 2020. See id. at 38,536, 38,626–28.
The Broader EAD Rules alter an array of interlocking substantive and procedural requirements. First, the new rules more than double the waiting period before an asylum applicant may file for EAD—from 150 to 365 days. Compare 8 C.F.R. §§ 208.3(c)(3), 208.7(a)(1)(ii), and 274a.12(c)(8) (effective until Aug. 25, 2020) (“the filing of an incomplete application shall not commence the 150–day period”) with Broader EAD Rules, 85 Fed. Reg. at 38,626 (to be codified at 8 C.F.R. §§ 208.3(c)(3), 208.7(a)(1)(ii), and 274a.12(c)(8)) (“Receipt of a properly filed asylum application will commence the 365-day period after which the applicant may file an application for employment authorization.”); (“An applicant for asylum cannot apply for initial employment authorization earlier than 365 calendar days after the date USCIS or the immigration court receives the asylum application.”) (discussing work-eligible asylee who has waited 365-day waiting period).
Second, the new rules eliminate the “deemed complete rule” that triggers the now 365day waiting period. Where previously agency silence on whether an asylum application was complete automatically deemed it complete and started the EAD application clock, now the applicant must wait an unspecified time to receive agency notice that the underlying asylum application is complete. Compare 8 C.F.R. § 208.3(c)(3) (effective until August 25, 2020) (“[An] incomplete application shall not commence the 150–day period after which the applicant
6

Case 8:20-cv-02118-PX Document 69 Filed 09/11/20 Page 7 of 69
may file an application for employment authorization.”) (“If the [agency] has not mailed the incomplete application back to the applicant within 30 days, it shall be deemed complete.”) with Broader EAD Rules, 85 Fed. Reg. at 38,626 (to be codified at 8 C.F.R. § 208.3(c)(3)) (“Receipt of a properly filed asylum application will commence the 365–day period after which the applicant may file an application for employment authorization.”). The elimination of the “deemed complete” rule could conceivably result in an asylum applicant waiting an indefinite period of time for confirmation that her underlying asylum application is complete before the 365-day EAD clock begins to run.
Third, the Broader EAD rules eliminate automatic EAD authorization where the asylum applicant met preexisting criteria; now such EAD applications may be denied at the discretion of the agency. Compare 8 C.F.R. § 274a.13(a)(1) (effective until August 25, 2020) (“The approval of applications filed under 8 CFR 274a.12(c), except for 8 CFR 274a.12(c)(8), are within the discretion of USCIS.”) with Broader EAD Rules, 85 Fed. Reg. at 38,628 (to be codified at 8 C.F.R. § 274a.13(a)(1)) (eliminating asylee exception and stating that the “approval of applications filed under 8 CFR 274a.12(c) is within the discretion of USCIS.”). Fourth and relatedly, the Broader EAD Rules also eliminate the agency’s preliminary review process whereby if an applicant received a “notice of recommend approval”—indicating the asylee is likely to secure an ultimate grant of asylum—the applicant could apply for an EAD before the expiration of the waiting period. Compare 8 C.F.R. § 208.7(a)(1) (effective until August 25, 2020) (“In the case of an applicant whose asylum application has been recommended for approval, the applicant may apply for employment authorization when he or she receives notice of the recommended approval.”) and § 274a.12(c)(8)(ii) (asylee is eligible for EAD who “[h]as been recommended for approval, but who has not yet received a grant of asylum or withholding
7

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or deportation or removal”) with Broader EAD Rules, 85 Fed. Reg. at 38,626-28 (to be codified at 8 C.F.R. § 208.7(a)(1) and § 274a.12(c)(8)) (omitting reference to notice of recommended approval in both provisions); (requiring that asylee wait full 365-day waiting period).
Fifth, any applicant with unresolved, applicant-caused delays in the underlying asylum application will be denied an EAD. Applicant-caused delays include the applicant’s requesting to amend or supplement the pending asylum application; failing to appear to receive and acknowledge receipt of the asylum decision; requesting an extension of time to submit additional evidence; or submitting additional documentary evidence fewer than 14 days before the asylum interview. See Broader EAD Rules, 85 Fed. Reg. at 38,626-27 (to be codified at 8 CFR §§ 208.4, 208.7(a)(1)(iv) and 208.9(e)) (“[A]ny delay in adjudication or in proceedings caused by a request to amend or supplement the application will be treated as a delay caused by the applicant for purposes of § 208.7 and 8 C.F.R. § 274a.12(c)(8).”); (“Any delay requested or caused by the applicant … that is still outstanding or has not been remedied when the initial application for [EAD] … is filed will result in a denial of such application.”); (“[T]he asylum officer may consider evidence submitted within the 14–day period prior to the interview date or may grant the applicant a brief extension of time during which the applicant may submit additional evidence. Any such extension will be treated as a delay caused by the applicant for purposes of § 208.7.”).
Sixth, the Broader EAD Rules allow the agency—for the first time—to deem either a failure to appear for an asylum interview or a biometric services appointment, a newly added requirement in the EAD application process, an “applicant-caused delay” for purposes of § 208.7(a)(1)(iv). Compare Broader EAD Rules, 85 Fed. Reg. at 38,627 (to be codified at 8 C.F.R. § 208.10(a)) (“The failure to appear for an interview or biometric services appointment
8

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may result in …. [w]aiver of the right to an interview or adjudication; [d]ismissal of the application for asylum; [r]eferral … to the immigration court; or, [d]enial of employment authorization.”) with id. at 38,599 (explaining no such penalties in prior rule). Under the old rules, applicant-caused delays did not result in the agency’s denial of an EAD application but rather tolled the 180-day EAD clock. See 8 C.F.R. §§ 208.4(c) and 208.9(e) (effective until August 25, 2020) (“[A]ny delay caused by such request shall extend the period within which the applicant may not apply for employment authorization in accordance with § 208.7(a).”); (An “asylum officer may grant the applicant a brief extension of time following an interview during which the applicant may submit additional evidence. Any such extension shall extend by an equivalent time the periods specified by § 208.7 for the filing and adjudication of any employment authorization application.”).
Seventh, an EAD will be denied to anyone who has not filed for asylum within one year of entering the United States,4 unless and until an asylum officer or immigration judge finds applicable one of the statutory exceptions to the one-year filing bar. Compare Broader EAD Rules, 85 Fed. Reg. at 38,626 (to be codified at 8 C.F.R. § 208.7 (a)(1)(iii)(F)) (making ineligible for purposes of EAD an asylee who filed his or her asylum application on or after August 25, 2020 and “filed after the one-year filing deadline, unless and until the asylum officer or immigration judge determines that the applicant meets an exception for late filing … or unless the applicant was an unaccompanied child on the date the asylum application was first filed.”) with 8 C.F.R. § 208.7 (effective until August 25, 2020) (no such restriction).
Eighth, the Broader EAD Rules require applicants to submit biometric information— including fingerprints, photographs, and signatures—at a scheduled biometric services
4 This new rule does not apply to unaccompanied minors. See Broader EAD Rules, 85 Fed. Reg. at 38,533 (explaining the “the one-year filing deadline does not apply to unaccompanied alien children”).
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appointment. See Broader EAD Rules, 85 Fed. Reg. 38,626 (June 26, 2020) (to be codified at 8 C.F.R. § 208.7) (“The applicant must request employment authorization … in the manner prescribed by USCIS … and must submit biometrics at a scheduled biometrics services appointment.”). Applicants will also be required to pay a fee of $85 for this service. See id. at 38,576 (“DHS anticipates that the biometrics fee that (c)(8) EAD applicants will pay… at least $30 and no more than $85.”). The new biometric rule and fees will apply to both the asylum and EAD applications. See id. at 38,599 (“no such requirement” but “there is a requirement to submit biometrics with an asylum application.”).
The remaining rule changes introduce a host of individual “disqualifying” events that limit access to EAD authorization. They include refusal to grant EAD to any applicant who crosses into the United States anywhere but an authorized port of entry, absent certain exceptions, see Broader EAD Rules, 85 Fed. Reg. at 38,626 ((to be codified at 8 C.F.R. § 208.7(a)(1)(iii)(G)); disqualification for having sustained a conviction for a “particularly serious crime” or where there is “serious” evidence suggesting the applicant committed a “serious nonpolitical crime” outside the United States, id. (to be codified at 8 C.F.R. § 208.7(a)(1)(iii)(B)(C)); earlier termination of EAD once the underlying asylum application is denied, see id. at 38,599, 38,627-28 (to be codified at 8 C.F.R. § 208.7(b) and § 274a.13(d)(3)); and terminating EAD authorization after two years in all cases, see id. at 38,599, 38,627 (to be codified at 8 C.F.R. § 208.7(b)(1)).
B. The Plaintiffs The five organization Plaintiffs take umbrage with the eighteen separate rule changes, and thus ask this Court to enjoin their enforcement wholesale. The named Plaintiff, CASA, is the largest member-driven organization with over 100,000 members and whose mission is to
10

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assist immigrants in relocating to the United States lawfully. ECF No. 24-4 ¶ 2-3. Since its founding in 1985, CASA has provided social, health, job training, employment, and legal services to immigrant and refugee communities in Maryland, Virginia, and Pennsylvania. Id. ¶¶ 3-5. Most of CASA’s services are offered only to members at a reduced cost. Id. Its members pay an annual membership fee between $35 and $40, which in turn allows them to take advantage of CASA’s various services. Id. ¶ 8. CASA members are part of the organization’s leadership and are active participants in the organization’s advocacy and development efforts. Id. ¶¶ 7-8. Thousands of CASA’s members have applied for asylum and work authorization. Id. ¶ 9.
ASAP, too, is a member-driven organization. It currently retains over 4,000 members, the majority of whom are mothers who sought asylum at the Mexico-U.S. border, were initially detained by border agents, then released and placed in removal proceedings. ECF No. 24-5 ¶ 7. ASAP members live throughout the United States, in over 40 states, and in the District of Columbia. Id. ¶ 9. ASAP provides its members with “community support and legal services regardless of where they are located.” Id. ¶ 4.
The remaining three organizations, Centro Legal de la Raza (“Centro Legal”), Oasis Legal Services (“Oasis”), and Pangea Legal Services (“Pangea”), are non-profit organizations whose missions include providing to asylum seekers direct legal representation as well as other social and educational services. While each organization has a slightly different business model, they primarily offer pro-bono immigration related legal services. See generally ECF No. 24-6; ECF No. 24-7; ECF No. 24-8. Centro Legal provides direct legal services, hosts educational trainings for lawyers and clients, and engages in advocacy efforts. ECF No. 24-6 ¶¶ 2, 3, 17-19, 24. It also partners with local law firms to host single-day workshops for asylum seekers who
11

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need help preparing their asylum or EAD applications. Id. ¶¶ 1-4, 17. Centro Legal does not charge clients for any of its services. Id. ¶ 25.
Oasis provides direct legal services to clients in the San Francisco Bay area. ECF No 247 ¶¶ 3, 44. It operates on a “low bono/pro bono model,” in which it uses a sliding scale based on a client’s income. Id. ¶ 44. For an asylum case, its fees range from $0 to $4000, and its clients are only expected to pay what they can afford. Id. Many of its clients can afford Oasis’ services once they receive an EAD and find lawful employment. Id.
Pangea is a nonprofit organization focused on direct legal services and advocacy work for immigrant populations, including asylees. ECF No 24-8 ¶¶ 2, 4. It provides services to its clients either at a low cost or free of charge. Id. For clients who do not qualify for free services, Pangea typically charges $200 to prepare an EAD application. Id. ¶¶ 10, 38.
All five Plaintiffs aver that the challenged rules frustrate their missions by requiring diversion of already-precious time and resources to processing as many asylum and EAD applications as possible before the challenged rules took effect. ECF No. 24-4 ¶¶ 29-30; ECF No. 24-5 ¶¶ 35-36; ECF No. 24-6 ¶¶ 20-23; ECF No. 24-7 ¶¶ 36-38; ECF No. 24-8 ¶ 12. Plaintiffs also assert that with far stricter rules now in place, each organization will have to devote more time and resources to counsel their clients properly and then prepare their applications. See, e.g., ECF No. 24-7 ¶ 36. Oasis specifically maintains that because it derives a third of its revenue from its clients—many of whom only become paying clients once they are work-approved—the challenged rules “jeopardize” its “ability to stay open.” Id. ¶ 46.
The Complaint and accompanying declarations identify five individual members—three from CASA and two from ASAP—for whom the Asylum EAD Rules will adversely affect their
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prospects of obtaining an EAD.5 ASAP member, W.L., fled Guatemala with her eight-year-old son after being raped repeatedly and then threatened with death by a man whose prominence in Guatemala allowed him to evade arrest. ECF No. 1 ¶ 7. W.L. currently shares a single room with her children and is supported by family. Id. W.L. filed her asylum application on April 3, 2020. Id. ¶ 8. Under the old rules, she would have been eligible to apply for an EAD by August 31 and have her application processed within 30 days. Id. Also, under the old rules, the agency was required to issue her an EAD provided she is work-eligible. W.L. planned to work either at a local church, or another stable job once she could do so legally. Id.
Under the challenged rules, W.L. will be forced to wait at least seven more months before she can even apply for an EAD. Id. ¶ 9. She must then wait an indeterminate length of time for USCIS to process her application. As a result, W.L. is stripped of opportunity for gainful employment necessary to feed, clothe, and house her children or hire an immigration attorney to pursue her asylum claim. Id.
ASAP member N.G. escaped Honduras with her daughter and entered the U.S. in May 2019. Id. ¶ 134; ECF No. 24-5 ¶ 26. N.G. filed for asylum in April of this year. ECF No. 1 ¶ 133. Under the old rules, N.G. would have been eligible to apply for work authorization this month but will now have to wait at least seven more months to apply and an indeterminate time until she hears back from the agency. See id.; see also Broader EAD Rules, 85 Fed. Reg at 38, 626 (to be codified at §§ 208.7(a)(1)(ii) and 274a.13(a)(1)). In the meantime, N.G. has been unable to work, secure stable housing, alleviate her family’s food insecurity, or hire a lawyer to assist with her asylum application. ECF No. 1 ¶ 134. N.G. and her daughter have survived on the generosity of others. Id.
5 Four of these individuals are specifically identified in the Complaint, while the fifth, H.V., is discussed only in CASA’s submitted declaration. See ECF No. 24-4 ¶ 23.
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CASA member, M.C., came to the United States in December 2017 after fleeing Honduras with her eleven-year-old daughter. Id. ¶ 131; ECF No. 24-4 ¶ 25. M.C. found a place to live with a man who ended up abusing her and preventing her from applying for asylum within one year after her arrival. Id. As of the filing of the Complaint, CASA was helping M.C. prepare and submit her asylum application. Id. ¶ 26.
CASA member, H.V., has struggled to find work without an EAD since arriving with her four-year-old daughter in May 2019. Id. ¶ 23. That hardship—exacerbated by the lasting effects of the trauma that required her to flee Honduras—has prevented H.V. from finding a lawyer and applying for asylum before the challenged rules went into effect. Id. Given that H.V. will submit her asylum application after August 25, 2020, she is now ineligible under the challenged rules to receive pre-asylum work authorization unless and until an immigration judge concludes that she has demonstrated “good cause” for filing beyond the one-year deadline. See Broader EAD Rules, 85 Fed. Reg. at 38,626. The practical effect is that H.V. will be deprived any opportunity to receive work authorization timely and in advance of adjudication of her asylum application. ECF No. 24-4 ¶ 23.
A.O., a Venezuelan national who entered the U.S. on a non-immigrant visitor’s visa in December 2019, is also a CASA member. ECF No. 1 ¶ 132. A former journalist in Venezuela, A.O. and her family fled Venezuela and are now seeking asylum from protracted physical violence and threats after publicly opposing President Nicolás Maduro. Id. CASA is now assisting A.O. with submitting her asylum application. Id. She too will have to wait a significantly longer time to obtain an EAD under the new rules. Id.
II. Procedural Background On July 21, 2020, Plaintiffs filed their Complaint, attacking the entirety of the challenged
rules. ECF No. 1. They soon after moved for a stay of the challenged rules or alternatively for a 14

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nationwide injunction pending resolution on the merits. ECF No. 23-1. In support of their requested relief, they make three bold and complicated arguments.
First, they argue that Wolf’s appointment and tenure as Acting DHS Secretary violate section 3346 of the Federal Vacancies Reform Act (“FVRA”). Id. at 27. With certain exceptions, the FVRA generally bars acting officials from serving for more than 210 days in a position that requires Presidential appointment and Senate confirmation (“PAS”). See 5 U.S.C. § 3346. The last Senate-confirmed DHS Secretary, Kirstjen Nielsen (“Nielsen”), resigned on April 10, 2019. ECF No. 41-1 at 44-45. Acting Secretary Wolf did not assume the role of Acting Secretary until his predecessor, Kevin McAleenan, resigned on November 13, 2019—217 days after Nielsen resigned and the office first became vacant. ECF No. 23-1 at 34; ECF No. 41-1 at 71. Thus, according to Plaintiffs, the FVRA timing provision applies to Wolf’s designation, Wolf acted beyond the 210-day FRVA time limit when promulgating the challenged rules, and thus the FVRA demands vacatur of the rules. ECF No. 23-1 at 33.
Second, Plaintiffs assert Wolf’s appointment violated the succession provisions of the agency’s enabling statute, the Homeland Security Act (“HSA”). 6 U.S.C. § 113(g)(2). The HSA statutorily sets an order of succession in the event of a vacancy, id. §§ 113(a)(1)(A), (a)(1)(F) and (g)(1), and if such pre-identified positions are vacant, allows the Secretary to designate a “further order of succession,” id. § 113(g)(2). However, because the installation of Wolf’s predecessor, Acting Secretary Kevin McAleenan, contravened Secretary Nielsen’s order of succession, McAleenan’s later amendment of the order was unlawful, as was Wolf’s ascension. ECF No. 23-1 at 34-37.
Third, Plaintiffs contend that the agency’s rulemaking process violated the APA. Id. at 16-31. They challenge the new rules as procedurally deficient and as arbitrary and capricious.
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As for the Timeline Repeal Rule, Plaintiffs maintain that the agency’s elimination of any processing deadline lacked a reasoned basis and runs counter to the agency’s stated rationale for implementing the rules. See id.
With only 28 days from the request for injunctive relief to the effective date of the Timeline Repeal Rule—and the Broader EAD Rules scheduled to go into effect four days after that—the Court put the parties and itself on an expedited briefing schedule. ECF No. 28.6 However, as is often the case lately with challenges to executive agency action, the sands shifted in the legal landscape during briefing.
On August 5, 2020, the United States Court of Appeals for the Fourth Circuit issued its decision in Casa de Maryland, Inc. v. Trump, No. 19-2222, 2020 WL 4664820 (4th Cir. Aug. 5, 2020), which addressed questions of standing and the propriety of issuing the very nationwide injunction that the Plaintiffs press here. To complicate matters further, the parties had not briefed standing, a fundamental question invoking this Court’s jurisdiction to hear the case at all. See ECF Nos. 23-1 & 41. With five organizations challenging the entirety of eighteen rule changes, it was incumbent upon the Court to require further briefing and argument on standing. ECF No. 53.
Also, on the morning of the first hearing, the U.S. Government Accountability Office (“GAO”) issued its advisory opinion that Wolf had taken office as Acting Secretary in violation of the applicable succession order and thus has been acting without lawful authority. ECF No. 51-1 (U.S. Government Accountability Office Decision, Department of Homeland Security— Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official
6 The Court also permitted the Constitutional Accountability Center (ECF No. 38); Kids in Need of Defense (ECF No. 39); Morton Rosenberg (ECF No. 40); the District of Columbia and State of New York (ECF No. 42); and Oxfam America and the University of Maryland Carey Immigration Clinic (ECF No. 43) to file briefs as Amici Curae.
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Performing the Duties of Deputy Secretary of Homeland Security (Aug. 14, 2020)). The GAO’s decision mirrored many of the arguments Plaintiffs had put before the Court, although neither the parties nor the Court had any meaningful opportunity to digest the decision. Most pertinent to this case, the Government could not yet take a position on its impact. ECF No. 56 at 16-17. The Court, therefore, requested additional briefing related to the validity of Wolf’s appointment, and thus his authority to promulgate the challenged rules. See ECF Nos. 53 & 64.
Lastly, the Court was mindful that the additional briefing and careful consideration of these fundamental issues would mean that this opinion could not issue prior to the challenged Rules taking effect on August 21 and 25, 2020 respectively. The Court thus allowed briefing on the Plaintiffs’ urgent plea for a “stay” to issue pursuant to section 705 of the APA. ECF No. 53. The Government rightly responded that a section 705 stay, in effect, functions similarly to a preliminary injunction and so it would not contest this Court’s power to issue such a stay after the effective date of the challenged rules. ECF No. 55.
The Court conducted a subsequent hearing on August 28, 2020, and allowed further expedited briefing. ECF No. 64. Based on a careful consideration of the parties’ submissions, and for the following reasons, Plaintiffs’ motion for injunctive relief is granted as to some, but not all, of the challenged rules.
III. Standing As a preliminary matter, the Court must determine whether the Plaintiffs have standing to
bring this case. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Pursuant to Article III of the United States Constitution, federal courts are of limited jurisdiction, hearing only live “cases” and “controversies.” Id. at 559; U.S. Const. art. III, § 2. A legal action meets the case-or-controversy requirement where the “questions [are] presented in an adversary context.” Massachusetts v. E.P.A., 549 U.S. 497, 516 (2007) (quoting Flast v. Cohen, 392 U.S.
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83, 95 (1968)) (internal quotation marks omitted). Standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Overbey v. Mayor of Baltimore, 930 F.3d 215, 227 (4th Cir. 2019) (citations omitted). “Thus, when a defendant challenges a plaintiff’s standing, we analyze the challenge differently depending on the stage of litigation at which the challenge is brought and the substance of the defendant’s arguments.” Id.
Because the Government challenges standing “on the pleadings, [the court will] accept as true all material allegations of the complaint and construe the complaint in favor of the complaining party.’” Deal v. Mercer Cty. Bd. of Educ., 911 F.3d 183, 187 (4th Cir. 2018) (quoting S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 181–82 (4th Cir. 2013)). Plaintiffs also have submitted detailed declarations regarding the structure and function of their organizations and the challenged rules’ impact on selected members. The Court construes such facts most favorably to Plaintiffs when assessing whether jurisdiction is proper. See Lizarbe v. Rondon, 642 F. Supp. 2d 473, 479 (D. Md. 2009) (citing Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004)).
Standing “is an essential and unchanging part of the case-or-controversy requirement of Article III.” Davis v. FEC, 554 U.S. 724, 733 (2008) (citations omitted). It requires a plaintiff to have “suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical,” “fairly traceable to the challenged action of the defendant,” and “likely . . . [to] be redressed by a favorable decision.” Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009) (quotations omitted). A plaintiff must have a cognizable and redressable injury as to “each claim” presented and “each form of relief” sought. Davis, 554 U.S. at 734 (citations omitted). In this way, “the standing inquiry remains focused on whether
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the [plaintiff] … ha[s] the requisite stake in the outcome when the suit was filed.” Id. (citations omitted).
Plaintiffs argue that standing is proper under two alternative yet related theories. They each claim organizational standing to pursue injuries sustained to the organization directly, as well as associational standing to pursue claims on behalf of their members. Each theory, they argue, confers standing as to all claims applicable to all eighteen rules. The Court, therefore, must determine whether any one Plaintiff has sufficiently demonstrated either organizational standing or representational standing to challenge each rule change. See Casa de Maryland, 2020 WL 4664820, at *10; Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014) (citing Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 330 (1999) (holding that a case is justiciable if some, but not necessarily all, of the plaintiffs have standing as to a particular defendant); Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 52 n.2, (2006) (“[T]he presence of one party with standing is sufficient to satisfy Article Ill's case-or-controversy requirement.”)). The Court concludes that no Plaintiff has organizational standing but two Plaintiffs, CASA and ASAP, maintain representational standing to challenge certain Asylum EAD rules.
A. Organizational Standing Organizational standing is conferred when an organization must show it has suffered an “injury in fact,” in that defendant’s “actions impede its efforts to carry out its mission.” Lane v. Holder, 703 F.3d 668, 674 (4th Cir. 2012) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982)); see also Warth v. Seldin, 422 U.S. 490, 511 (1975). Organizational standing, therefore, derives from injury the organization itself has suffered. In this respect, the Fourth Circuit recently clarified that an organization’s “voluntary budgetary” choices or shifts in
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priorities do not constitute a constitutionally cognizable injury. See Casa de Maryland, 2020 WL 4664820, at *9. This is because “[o]rganizational injury … is measured against a group’s ability to operate as an organization, not its theoretical ability to effectuate its objectives in its ideal world.” Id.
Plaintiffs respond that they have suffered the same type of direct injury that conferred standing in Havens Realty Corp. v. Coleman. ECF No. 66 at 2-3. The Court disagrees. In Havens, the plaintiff organization, “HOME,” provided counseling and referral services to its minority clients in an effort to promote equal opportunity in housing. 455 U.S. at 368. The Supreme Court found that HOME had standing because the defendant’s alleged practices “perceptibly impaired” its “ability to provide counseling and referral services for low and moderate-income homeseekers.” Id. at 379.
Plaintiffs maintain that, like HOME, each has organizational standing because the challenged rules frustrate their missions. ECF No. 59 at 1; ECF No. 62-1 at 2. Each organization describes the same injury but in different terms: that the rules have already required them—and will continue to require them—to devote significantly more time and resources to understanding the rule changes, advising their staff attorneys and clients accordingly, and then processing asylum and EAD applications at the expense of other clients they serve and other important services offered. ECF No. 24-4 ¶¶ 29-30; ECF No. 24-5 ¶ 35; ECF No. 24-6 ¶¶ 20-23; ECF No. 24-7 ¶ 36; ECF No. 24-8 ¶ 25. The Rules, in short, put further strain on their already precious time and resources.
This financial strain, however, does not constitute a cognizable injury. A “diversion of resources might harm the organization by reducing the funds available for other purposes, [but] ‘it results not from any actions taken by [the defendant], but rather from the [organization’s] own
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budgetary choices.’” Lane, 703 F.3d at 675 (quoting Fair Emp’t Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir. 1994)). As the Fourth Circuit made clear in Lane, prioritization of resources to combat a perceived ill does not constitute cognizable injury: “To determine that an organization that decides to spend its money on educating members, responding to member inquiries, or undertaking litigation in response to legislation suffers a cognizable injury would be to imply… that any sincere plaintiff could bootstrap standing by expending its resources in response to actions of another.” Lane, 703 F.3d at 675 (citations omitted).
Any potential doubt as to the proper reading or scope of Lane is extinguished by the Fourth Circuit’s recent decision in Casa. See 2020 WL 4664820, at *9. There, the Fourth Circuit cautioned that “standing is not measured by the intensity of the litigant’s interest or the fervor of his advocacy.” Id. (internal citations omitted). It distinguished between “voluntary expenditure of resources to counteract governmental action” and governmental action that “directly impairs” an organization’s ability to “provide counseling, referral, or other services to immigrants.” Id.
In light of this clear guidance, and on the current record, the Court cannot find that any one Plaintiff has organizational standing. The Plaintiff organizations aver facts that are indistinguishable from those averred in Casa: that each will experience the financial impact of choosing to reallocate resources to help its members respond to the challenged rules. See id. But none aver the kind of direct impairment necessary to confer standing. Making voluntary choices about redirecting resources does not suffice. See id. (“CASA’s unilateral and uncompelled response to the shifting needs of its members cannot manufacture an Article III injury.”).7
7 The Court recognizes that as the record currently stands, Plaintiff Oasis has inched substantially farther than the others, given that its business model relies on asylee clients to be able to pay at some point, and that many can only
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B. Representational Standing
Representational standing, in contrast, concerns injury suffered by an organization’s
members as opposed to the organization itself. To establish representational standing, the
organization must establish that: “(1) its own members would have standing to sue in their own
right; (2) the interests the organization seeks to protect are germane to the organization’s
purpose; and (3) neither the claim nor the relief sought requires the participation of individual
members in the lawsuit.” S. Walk, 713 F.3d at 184 (citing Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 343 (1977)). This requires that the organization put forward facts to
make plausible that “at least one identified member had suffered or would suffer harm.” S.
Walk, 713 F.2d at 184.
On the current record, the Court concludes that Plaintiffs CASA and ASAP have
demonstrated representational standing vis-à-vis their individual members. Specifically, when
construing the facts alleged most favorably to the Plaintiffs, the members have alleged injury arising from enactment of the Timeline Repeal Rule8 and five of the Broader EAD Rules:
• The 365-day waiting period, 85 Fed. Reg. at 38,626-28 (referenced throughout and as codified at 8 C.F.R. § 208.3(c)(3); § 208.7(a)(1)(ii), (a)(1)(iii)(E), and (b)(1)(i); and § 274a.12(c)(8));
• Removal of “deemed-complete” rule, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.3) (omitting instruction that if the agency has not “mailed the incomplete application back to the applicant within 30 days, it shall be deemed complete.”).
• The discretionary review rule, providing that agency is no longer required to issue EADs to eligible asylees, 85 Fed. Reg. at 38,628 (changes reflected at 8 C.F.R. § 274a.13(a)(1)).
do so once they have obtained an EAD. In this way, Oasis’ financial concerns do not relate to voluntary expenditures but rather the organization’s future revenue streams. But where Lane and Casa de Maryland emphasized the difference between the direct and indirect effects of governmental action, the Court finds that Oasis’ theory—that it will suffer the downstream effects of the direct, financial injury to its asylee clients—cannot confer standing. 8 85 Fed. Reg. at 37,545 (printing parts of the regulations to be codified at 8 C.F.R. § 208.7(a)(1)) (omitting language stating that agency has 30-day processing deadline).
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• The one-year filing bar, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.7(a)(1)(iii)(F)).
• The rule requiring submission of biometric information as part of EAD applications, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.7(a)(1)(i) and (a)(1)(iv)(E); and § 208.10).
The identified members will suffer concrete and particularized injury arising from this subset of the challenged rules which add economic burdens to the application process and indefinitely delay or deny advance work authorization. See, e.g., ECF No. 24-6 ¶¶ 11-12 (explaining how delay or denial of EAD will exacerbate “physical or mental harm” and exacerbate already existent “economic insecurity”). With many asylees waiting years for their underlying asylum claims to be adjudicated—and no assurance under the new rules as to whether or when they will ever hear from the agency regarding their EAD application—these new rules also undermine the applicants’ ability to pursue their asylum claims, and may well result in some of them abandoning such claims altogether.
As to the remaining elements of representational standing, both CASA and ASAP easily satisfy them. See S. Walk, 713 F.3d at 184. The interest of these individual members squarely within CASA and ASAP’s respective missions, and each devote significant time and resources to representing asylees as they navigate the EAD and asylum application process. See id. (interests must be “germane” to organization’s purpose). As to the third prong, Plaintiffs’ legal challenges do not require the participation of individual members in the lawsuit. Id. Plaintiffs seek the ultimate remedy of setting aside the rules, not money damages or other remedy that requires the individual member to join the litigation as a party. See ECF Nos. 1 & 23. Thus, with each prong satisfied, the Court concludes CASA and ASAP have demonstrated representational standing on the current record.
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The Court settled on the above-identified rules after concluding that at least one identified member would have individual standing in her own right to challenge each of these rule changes. See Casa de Maryland, 2020 WL 4664820, at *9 (citing Friends of the Earth, Inc. v. Laidlaw Envt’l. Servs., Inc., 528 U.S. 167, 183–84 (2000)). Unsurprisingly, Plaintiffs oppose the Court’s winnowing down of their claims. Instead, they offer a theory of standing that would treat the Broader EAD Rules as a “package” whereby this Court may reach all seventeen rule changes, because some of them will work a concrete and particularized harm on their five members. ECF Nos. 64 & 66. This theory cannot be squared with the well-established requirement that to have standing a plaintiff must state a cognizable and redressable injury as to “each claim” presented and “each form of relief” sought. See Davis, 554 U.S. at 734 (to challenge two different subsections within the same statutory provision, plaintiff needed to show a cognizable injury flowing from the application of each subsection).
Certain rule changes help illustrate the point. For instance, one of the challenged rules prohibits pre-asylum work authorization for any applicant who enters the United States on or after August 25, 2020, at a place other than an authorized port of entry (the “unlawful entry bar”). See Broader EAD Rules, 85 Fed. Reg. at 38,626 (to be codified at 8 C.F.R. § 208.7(a)(1)(iii)(G)). Each of the five members identified entered the U.S. long before August 25, and so they do not appear subject to this prohibition. Thus, this Court strains to see how this rule change visits any harm on Plaintiffs. To the extent it does, Plaintiffs have not identified “at least one member” who has or will be harmed by this rule change, as required under the applicable pleading standards. S. Walk, 713 F.2d at 184.
Similarly, another rule change broadens the category of criminal convictions that disqualify an applicant from receiving an EAD. See id. (to be codified at 8 C.F.R. §
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208.7(a)(1)(iii)(B)-(C)). But no member appears to have criminal records or pending charges. This Court cannot divine how this rule change would visit any harms on them. When representational standing is the only basis on which this Court has jurisdiction, the Court simply cannot endorse challenge to a wide swath of rule changes that bear no relation to the harms that their identified members have suffered.9
With standing established as to six identified rules, the Court next turns to the merits of Plaintiffs motion. See Casa de Maryland, 2020 WL 4664820, at *10 (finding jurisdiction where only some parties adequately alleged a constitutionally cognizable injury); see also Casa de Maryland v. DHS, 924 F.3d 684, 701 n.14 (4th Cir. 2019) (finding that because certain individual plaintiffs have standing, Court need not consider whether other plaintiffs also have standing).
IV. Standard of Review for Requested Injunctive Relief A preliminary injunction “is a stopgap measure, generally limited as to time, and
intended to maintain a status quo or ‘to preserve the relative positions of the parties’” pending final judicial review. Sherley v. Sebelius, 689 F.3d 776, 781–82 (D.C. Cir. 2012) (quoting Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981)). Because a preliminary injunction often issues on an incomplete record and, in the context of agency rulemaking, compels the defendant to act or refrain from acting on such rules, the Court must proceed with a healthy appreciation for the substantial dangers inherent in granting such extraordinary relief. See Hughes Network Sys., Inc. v. InterDigital Commc’ns Corp., 17 F.3d 691, 693 (4th Cir. 1994) (citations omitted). For this reason, a preliminary injunctive is warranted only upon “a clear showing that the plaintiff is entitled to relief.” Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011)
9 Had Plaintiffs carried their burden to demonstrate the Broader EAD rules were non-severable, see infra pp. 67-68, they may have otherwise maintained standing to challenge the rules package entirely.
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(quoting Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008)) (internal quotation marks omitted).
A preliminary injunction must not issue unless the Plaintiffs demonstrate, by a preponderance of the evidence, four well-established factors: (1) a likelihood of success on the merits; (2) a likelihood of suffering irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the party’s favor; and (4) that issuing the injunction is in the public interest. See Winter, 555 U.S. at 20; Dewhurst, 649 F.3d at 290. At this stage, the first factor is the “most important” one. Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014). Where the government is a party, the final two factors merge. See Kravitz v. U.S. Dep’t of Commerce, 366 F. Supp. 3d 681, 755 (D. Md. 2019) (quoting Pursuing Am. Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016)).
Similarly, pursuant to section 705 of the APA, a reviewing court may stay “agency action” pending judicial review “to prevent irreparable injury.” 5 U.S.C. § 705. “The factors governing issuance of a preliminary injunction also govern issuance of a § 705 stay.” Dist. of Columbia v. Dep’t of Agric., 444 F. Supp. 3d 1, 16 (D.D.C. 2020), appeal filed, No. 20-5136 (D.C. Cir. filed May 15, 2020) (citations omitted); see Texas v. EPA, 829 F.3d 405, 424, 435 (5th Cir. 2016); Humane Soc’y of United States v. Gutierrez, 558 F.3d 896, 896 (9th Cir. 2009); Assoc. Sec. Corp. v. SEC, 283 F.2d 773, 774–75 (10th Cir. 1960); Virginia Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam); Cronin v. U.S. Dep’t of Agric., 919 F.2d 439, 446 (7th Cir. 1990) (“The standard is the same whether a preliminary injunction against agency action . . . or a stay of that action is being sought.”); see also South Carolina v. United States, 907 F.3d 742, 756 (4th Cir. 2018) (comparing the court’s
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discretion under section 705 to stay rules pending final review with its mandatory obligation to set aside unlawful agency action under section 706).
With this framework in mind, the Court addresses each of the four Winter factors separately.
A. Likelihood of Success on Merits For purposes of this motion, Plaintiffs argue they will succeed on three claims, each of which renders the challenged rules a nullity. Plaintiffs first argue that because Acting Secretary Wolf promulgated the challenged rules in violation of the FVRA, they “have no force and effect.” ECF No. 23-1 at 33. Second, and alternatively, the rules are null and void because Wolf’s ascension to the position of Acting DHS Secretary violated the agency’s succession order. Id. at 34. Third, the rules are arbitrary and capricious in violation of the APA, U.S.C. § 706(2). Id. at 16. The Court recognizes that Plaintiffs need only demonstrate success on the merits of one claim. However, because each claim is one of first, or near first, impression, the Court will address each in turn.
1. Challenge under the FVRA It is undisputed that the office of the DHS Secretary is one subject to Presidential nomination and Senate Confirmation, otherwise known as a “PAS” position. 6 U.S.C. § 112(a). The last time the office of DHS Secretary had been occupied by a PAS officer was April 10, 2019, when Secretary Kirstjen Nielsen (“Nielsen”) resigned and made way for two successive Acting Secretaries.10 ECF No. 41 at 29; ECF No. 41-2 at 45. First, Customs and Border Patrol Commissioner, Kevin McAleenan (“McAleenan”), assumed the role of Acting Secretary until he
10 The parties dispute whether Nielsen’s resignation became effective on April 7, 2019, when she announced her resignation, or whether it occurred on April 10, 2019, when she took her last action in office. See ECF No. 23-1 at 33-34; ECF No. 41 at 29. The Court does not find it necessary to resolve this factual dispute.
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resigned on November 13, 2019. ECF No. 41-1 at 2. Next, upon McAleenan’s departure, thenUnder Secretary of Homeland Security for Strategy, Policy and Plans, Chad Wolf, slotted into the position of Acting Secretary and has served in that capacity ever since. Id. at 71; ECF No. 41 at 32. All told, as of the writing of this opinion, the DHS has been without a PAS Secretary for 520 days.
As this vacancy underscores, the confirmation process can be less than a model of efficiency. The Appointments Clause of the U.S. Constitution requires presidentially appointed “Officers of the United States” to receive Senate confirmation, U.S. Const. art. II, § 2, cl. 2. But where a vacancy arises and “the President and Senate cannot promptly agree on a replacement,” the ensuing delay risks that the PAS office remains unfilled and its official acts go “unperformed.” N.L.R.B. v. S.W. General, Inc., 139 S. Ct. 929, 934 (2017). To avoid an unnecessary standstill, Congress has enacted legislation (collectively referred to as “vacancies acts”), that imports flexibility into an otherwise fixed constitutional requirement. See id. These vacancy statutes have taken many forms, but they all are animated by a common unifying principle—the Senate ceding limited authority to the Executive Branch to appoint an interim officer so as to maintain orderly administration of agency functions. Id. at 935 (citing Act of July 23, 1868, ch. 227, 15 Stat. 168; Act of Feb. 20, 1863, ch. 45, 12 Stat. 656).
Passed in 1868, the original Vacancies Act generally designated the “first or sole assistant” as the acting official but gave the President the option to appoint someone “already serving in a PAS office.” Id. (citing 15 Stat. 168). By 1891, Congress put time limits on such interim appointments to serve for not more than 30 days. Id. (citing Act of Feb. 6, 1891, ch. 113, 26 Stat. 733). Later versions of the Act maintained similar features, including time limitations on interim service. See Pub. L. No. 89–554, 80 Stat. 378, 426 (Sept. 6, 1966); Pub. L. No. 100–
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398, 102 Stat. 985, 988 (Aug. 17, 1988). The Acts were amended over time because, as one Court aptly observed, Presidents did “not always compl[y].” SW General, Inc. v. N.L.R.B., 796 F.3d 67, 70 (D.C. Cir. 2015) (quoting M. Rosenberg, Congressional Research Service Report for Congress, 98–892 A., The New Vacancies Act: Congress Acts to Protect the Senate’s Confirmation Prerogative 2–3 (1998)).
By the 1980s, the Executive Branch had taken the position that heads of executive agencies retained independent authority apart from the Vacancies Act to temporarily fill PAS offices. See S.W. General, 137 S. Ct. at 935. To hold agencies accountable, Congress extended an olive branch by lengthening the period of acting service to 120 days under the Act, with the period tolled while a nomination for a PAS was pending. Id. at 936 (citing Presidential Transitions Effectiveness Act, § 7, 102 Stat. 988). Despite this, “tensions” between timely appointment and confirmation of PAS offices and lengthy service of acting officers “did not ease.” Id. In fact, as of the FVRA’s enactment in 1998, roughly 20% of PAS positions were filled by acting officials, many of whom were serving beyond the 120-day limit under the Vacancies Act. Id. But a court’s “sanctioning this conduct . . . was the straw that broke the camel’s back.” ECF No. 40-1 at 14 (citing Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203 (D.C. Cir. 1998)).
In Doolin, the United States Court of Appeals for the D.C. Circuit essentially read the 1988 Vacancies Act as permitting seriatim temporary appointments that, taken together, allowed a PAS office to be filled indefinitely by interim officers. Id. 139 F.3d at 208–09. In response to this decision, a Senate Committee Report noted that “this portion of the court’s opinion necessitate[d] legislative action.” S. Rep. No. 105-250, at 6 (1988). Accordingly, Congress passed the FVRA in 1998, which totally replaced the former Vacancies Act. See Pub. L. No. 105
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-277, Div. C, tit. 1, § 151, 112 Stat. 2681-611-16 (codified at 5 U.S.C.§§ 3345-3349d); see also S.W. General, 796 F.3d at 70 (citing 144 Cong. Rec. S6413-14 (daily ed. June 16, 1998) (statement of Sen. Thompson)). As promised, the FVRA fixed the timing problem identified in Doolin. 139 F.3d at 208–09. It made clear that the timing provision—which sets the default maximum length of acting service at 210 days—begins to run from the date the vacancy arises, rather than the date when the acting official assumes office. See 5 U.S.C. § 3346(a)(1).
From this change, the Plaintiffs argue quite simply that because Wolf became Acting Secretary after the 210th day from when the office’s vacancy arose, Wolf assumed office in violation of the FVRA, and thus the challenged rules must be declared “without force and effect,” as mandated by the Act. ECF No. 23-1 at 33. If it were only that simple. To understand why not requires a careful walk-through of the FVRA. See S.W. General, 796 F.3d at 74. (“Throughout the FVRA, the Congress was precise in its use of internal cross-references.”) (citations omitted).
Section 3345 of the FVRA sets out three avenues for an acting officer to assume a PAS office when a vacancy arises. The first, known as the default rule, provides:
(a) If an officer of an Executive agency ... whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office— (1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346; 5 U.S.C. § 3345(a)(1) (emphasis added). Section 3345 also permits “the President (and only the President)” to direct a PAS official to “perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346”; or to “direct an officer or employee of such Executive agency to perform the functions and duties of the vacant
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office temporarily in an acting capacity, subject to the time limitations of section 3346,” if such
officer of employee meets certain criteria not relevant here. Id. § 3345(a)(2) and (a)(3).
With regard to an acting officer selected under the default rule or by the President under
3345, section 3346 provides:
(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office—
(1) for no longer than 210 days beginning on the date the vacancy occurs; 5 U.S.C. § 3346(a)(1). Accordingly, notwithstanding certain exceptions not relevant here, a
person who is tapped to fill a vacant PAS office pursuant to section 3345 of the FVRA may only
serve in that “office” for 210 days as measured from the date of vacancy. See id.
However, Congress enacted the FVRA against the backdrop of several agency-specific
succession statutes applicable to PAS offices. See S. Rep. No. 105-250, at 15-17. To
accommodate these agency-specific statues, Congress added section 3347. 5 U.S.C. § 3347.
Known as the “exclusivity” provision, section 3347 makes clear that the FVRA is the exclusive
mechanism for temporary appointments of PAS offices, unless an agency-specific statute
provides an alternate method of selection. Section 3347 states:
(a) Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless—
(1) a statutory provision expressly—
(A) authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or
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(B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity Id. § 3347(a)(1) (emphasis added). Accordingly, when such an agency-specific succession statute exists, the FVRA is no longer the “exclusive” means, but rather is “a means” of selecting a person to serve in an acting capacity for a vacant PAS office. See Hooks v. Kitsap Tenant Support Servs., 816 F.3d 550, 556 (9th Cir. 2016); see also Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 143 (D.D.C. 2019)(“Agency-specific statutes like the AG Act were expected to operate alongside the FVRA, not to displace it”), aff’d on other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam); United States v. Castillo, 772 Fed. Appx. 11, 13 n.5 (3d Cir. 2019) (collecting cases); cf. United States v. Smith, 962 F.3d 755, 762–63 n.1 (4th Cir. 2020). Critically, section 3347 also makes clear that when the FVRA operates as the exclusive means for filling a temporary PAS position via section 3345, the 210-day time limit plainly applies. See 5 U.S.C. § 3347. Congress took great pains to identify “Sections 3345 and 3346” as the “exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office … unless” an agency-specific statute authorizes the agency head to designate an order of succession. Id. § 3347(a)(1)(A) (emphasis added). Congress thus tied the timing provision of section 3346 only to offices filled under section 3345, and no others. See id. §§ 3346, 3347. Next, section 3348, known as the “enforcement mechanism” of the FVRA, limits the sanction for violating the FVRA only to those serving pursuant to its specific provisions. S. Rep. 105-250, at 17. Section 3348(b) makes clear that “[u]nless” an officer is performing “in accordance with sections 3345, 3346, and 3347,” then the office “shall remain vacant.” 5 U.S.C.
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§ 3348(b)(1). The purpose of 3348(b) is to clarify that any person installed pursuant to the FVRA will be considered in lawful service only if compliant with the provisions of the Act, including the time limitation in section 3346. After such time, the office is considered vacant. See id.
Section 3348(d) also makes clear that as for acts taken by a person selected under the FVRA but in excess of the FVRA’s terms have no force and effect. It states:
(d)(1) An action taken by any person who is not acting under section 3345, 3346, or 3347, or as provided by subsection (b), in the performance of any function or duty of a vacant office to which this section and sections 3346, 3347, 3349, 3349a, 3349b, and 3349c apply shall have no force or effect. Id. § 3348(d)(1). Thus, where a person selected to serve pursuant to the FVRA exceeds the limits of the FRVA (“not acting” under the relevant provisions) in the performance of a function or duty covered by the act (“to which this section and sections 3346, 3347, 3349, 3349a, 3349b, and 3349c apply”), then their actions “shall have no force or effect.” Id. Importantly, nowhere does this enforcement provision specify that it applies to those acting officials who serve pursuant to an exception to the FVRA—one of the agency-specific succession statutes. Congress passed the HSA in 2003, five years after enacting the FVRA and clearly with the FVRA in mind. See Pub. L. No. 107-296, § 103, 116 Stat. 2144 (2002). After identifying other PAS officers serving under the Secretary, Congress expressly designated the Deputy Secretary as the official who, for “purposes of subchapter III of chapter 33 of title 5” (the FVRA), “shall be the Secretary’s first assistant.” Id.; see also 6 U.S.C. § 113(a)(1)(A) (the updated provision but containing identical language). That Congress used the term “first assistant” with reference to the Deputy Secretary is significant. Historically, each Vacancies Act since 1868 identified the “first assistant” as the most senior and capable official to serve in an
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acting capacity as the head of the agency. See supra pp. 28-29. And the FVRA’s default provision specifies that the “first assistant” is the officer who “shall” assume the office subject to the time limitations of section 3346. 5 U.S.C. § 3345(a)(1). Congress, therefore, unambiguously identified the Deputy Secretary as the officer who will slot into the Secretary position in accordance with the default provision of the FVRA, section 3345(a)(1). See 6 U.S.C. § 113(a)(1)(A). In 2016, Congress amended section 113 of the HSA, again with the FVRA as its beacon. It added that the Under Secretary for Management “shall be first assistant to the Deputy Secretary of Homeland Security for purposes of subchapter III of chapter 33 of title 5,” (the FVRA). See National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, §1903, 130 Stat. 2000, 2672 (2016) (codified at 6 U.S.C. § 113(a)(1)(F)). It also added section 113(g) to address the order of succession applicable solely to the office of the Secretary. The section reads in its entirety:
(g) Vacancies (1) Absence, disability, or vacancy of Secretary or Deputy Secretary Notwithstanding chapter 33 of Title 5, the Under Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the Secretary. (2) Further order of succession Notwithstanding chapter 33 of Title 5, the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary. (3) Notification of vacancies The Secretary shall notify the Committee on Homeland Security and Governmental Affairs of the Senate and the Committee on Homeland Security of the House of Representatives of any
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vacancies that require notification under sections 3345 through 3349d of Title 5 (commonly known as the “Federal Vacancies Reform Act of 1998”). 6 U.S.C. § 113(g). Thus, section 113(g) set a clear order of succession—the Deputy Secretary followed by the Under Secretary for Management—pursuant to the FVRA’s default provision, section 3345(a). But it also established a “further order of succession” as designated by the Secretary, in the event that the predetermined “first assistant” offices are both vacant. Id. § 113(g)(2). In this respect, the HSA’s succession provision is uniquely hybrid. It, at once, statutorily designates the “first assistant”—as well as the back-up “first assistant”—for purposes of the FVRA’s default provision, but then also provides a clear “further order of succession” to designate in advance an “Acting Secretary” to serve where the first assistant positions are vacant. Id. § 113(g). Although this distinction between “first assistant” and “acting” officers vexes academics, practitioners and now judges alike,11 the use of these terms supports that the further order of succession establishes an alternative and non-exclusive means to filling the office of the Secretary. Id. § 113(g)(2). Congress knew how to designate expressly who will serve as “first assistant,” and it did so in rich tradition. See id. § 113(a)(1)(A) and (F); see also S. Rep. 105250, at 12. This Court must credit that Congress uses such terms of art purposely and consistently. See S.W. General, 796 F.3d at 74. Had Congress meant to provide a “further order of succession” relative to section 3345(a)’s default provision, it could have easily done so by using the term “first assistant.” It did not. And this Court cannot rewrite the statute otherwise. With this statutory backdrop in mind, the Court returns to Plaintiffs’ argument. To begin, Wolf did not assume the position of “Acting Secretary” pursuant to 3345 of the FVRA.
11 See, e.g., Anne Joseph O’Connell, Actings, 120 Colum. L. Rev. 613 (2020).
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ECF No. 41 at 31-32. As the Under Secretary for Strategy, Policy, and Plans, Wolf was not in one of the statutorily proscribed positions to slot in as “first assistant.” 6 U.S.C. § 113(a)(1)(A) & (F). Nor was he tapped by the President. 5 U.S.C. § 3345(a)(2)-(a)(3). Rather, he was named in the Secretary’s further order of succession. 6 U.S.C. § 113(g)(2) (“Notwithstanding chapter 33 of Title 5, the Secretary may designate such other officers of the Department in further order of succession to serve as Acting Secretary.”). The parties do not dispute that Wolf was selected pursuant to the HSA’s specific succession provision applicable to the office of the Secretary. Accordingly, by the FVRA’s terms, the Court cannot generally extend the FVRA’s timing provisions to a person serving temporarily and in an acting capacity pursuant to an agencyspecific statute.
Here, Wolf’s designation pursuant to section 113(g)(2) is no exception. See id. This provision establishes its own separate mechanism for appointment to be read alongside the FVRA. But unlike certain other succession statutes, nowhere does this subsection (g)(2) itself establish any length of service for those who assume the position of “Acting Secretary,” 12 as opposed to “first assistant.” Cf. 5 U.S.C. §§ 3345, 3346. Nor does the language of the provision permit importing the timing and sanction provisions of the FRVA to the further order of succession. See 6 U.S.C. § 113(g)(2). Thus, the Court cannot find that Wolf’s tenure contravenes the FVRA, despite his serving well past the FVRA’s 210-day time frame.
Plaintiffs respond, rightly, that this reading imposes no time limitations for those who
12 Notably in other agency specific succession statutes, Congress has provided time limits on interim service. See, e.g., 29 U.S.C. § 153(d) (acting officer may not serve in position of General Counsel for the National Labor Relations Board for “more than forty days when the Congress is in session … or after the adjournment sine die of the session of the Senate in which such nomination was submitted.”); 28 U.S.C. § 546 (providing that acting U.S. Attorney may serve until the earlier of the “the qualification of a United States attorney for such district appointed by the President …. or the expiration of 120 days after appointment by the Attorney General”); 44 U.S.C. § 304 (“A vacancy occasioned by death or resignation may not be filled temporarily under this section for longer than ten days, and a temporary appointment, designation, or assignment of another officer may not be made except to fill a vacancy happening during a recess of the Senate.”).
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ascend to the position of Acting DHS Secretary pursuant to § 113(g)(2). Thus, say Plaintiffs, the Court must apply the FVRA 210-day limit to subsection 113(g)(2), so as to avoid an interpretation that may run afoul of Constitution’s Appointments Clause. ECF No. 66 at 3-4. The Court acknowledges the tension of crediting an agency succession statute as one that provides “temporary” service that can continue indefinitely. But for several reasons, this tension is not one the Court can or should resolve as Plaintiffs suggest.
First, the Court disagrees that the doctrine of constitutional avoidance is triggered here. The doctrine applies only where a statute is ambiguous, or subject to more than one meaning. See Clark v. Martinez, 543 U.S. 371, 381 (2005). In such circumstance, the Court should construe the ambiguity in a way that avoids an unconstitutional result. See id. That is not this case. Although the FVRA and HSA are complex, and at times maddening, as to the application of the FVRA’s timing and sanction provisions, they are not ambiguous. Sections 3346 and 3348 are cabined to those acting officers serving under section 3345, and neither statute authorizes this Court to extend the FVRA’s timing provision to selections made pursuant to the “further order of succession” in section 113(g)(2). See 5 U.S.C. §§ 3345, 3346, 3348; 6 U.S.C. § 113(g)(2). Nor does section 113 of the HSA include an express timing provision or can be read in a way that imports the FVRA’s timing provision to succession under its terms.
Second, to the extent the statutes are ambiguous, the FVRA’s legislative history clarifies that Congress never intended to displace agency-specific succession statutes even if such provisions had no time limitation. See S. Rep. 105-250, at 17. The Senate Report accompanying the FVRA expressly noted that preexisting agency succession statutes did not “place time restrictions on the length of the acting officer,” and that “the various authorizing committees may choose in the future to reexamine whether these positions should continue to be filled through
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the existing procedure.” Id. But nowhere does it articulate an intention to apply the FVRA’s timing provision to such statutes. Instead, the Report reaffirmed that “even with respect to the specific positions in which temporary officers may serve under the specific statutes this bill retains, the Vacancies Act would continue to provide an alternative procedure for temporarily occupying the office.” Id. Simply put, Congress envisioned the FVRA operating alongside agency-specific statutes but not engrafting the FVRA’s requirements onto selections made pursuant to such statutes.
Third, the Court is not as convinced as are Plaintiffs that its reading of the HSA raises “serious constitutional doubts,” such that the Court must read the FVRA’s timing provision into the statute. Clark, 543 U.S. at 381. The Vacancies Acts have always represented the Senate’s ceding of its confirmation power to the Executive Branch to ensure continuity in agency administration. See S.W. General, 137 S. Ct. at 935 (“Since President Washington’s first term, Congress has given the President limited authority to appoint acting officials to temporarily perform the functions of a vacant PAS office without first obtaining Senate approval.”). This is particularly relevant when reading the succession provision here. Section 113(g) applies solely to the head of the agency, the Secretary. As the chief of DHS, the agency created in the wake of the September 11 attacks to combat terrorism and maintain national security, see 6 U.S.C. § 111, it is not unthinkable that Congress would prioritize continuity of service over quick nomination. Stated otherwise, to require the office of Secretary be subject to the FVRA could very well risk that the agency’s top office remain “vacant,” and acts taken only to be nullified, if eventual nomination for the permanent officer holder falls victim to the delays associated with the nomination process. See S. Rep. 105-250 at 30-31 (“We must be sure that the operation of [3348] does not cause an unintended shutdown of the Federal agency within which the vacancy
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exists due to administrative paralysis and that the provision is drafted clearly so that its scope, mainly the extent of government functions and duties it would affect, is well understood”).
Plaintiffs press that reading section 113(g) exclusive of the FVRA and not applying its timing provisions to the “further order of succession” results in the absurdity of the 210-day limitation applying to the Deputy Secretary or Under Secretary of Management (as the “First Assistant” under the FVRA), but not to inferior officers selected to serve as Acting Secretary under section 113(g)(2). ECF No. 66 at 3-4. Although the point is intuitively appealing, it is ultimately unavailing. The “further order of succession” provision is triggered only if the top three positions at the agency are vacant. See 6 U.S.C. § 113(g)(2). Where the agency has been stripped of such permanent positions (perhaps because the President has called for their resignations and then chosen not to submit nominations), Congress logically would want to instill continuity in the functioning of the agency. Relaxation of the timing provisions is certainly one way to do so.
For the above reasons, Plaintiffs are not likely to succeed in establishing that Wolf’s promulgation of the challenged rules outside the FVRA’s 210-day time limit requires that this Court declare them without force and effect. Accordingly, as to this theory of relief, Plaintiffs’ request for preliminary injunction is denied.
2. Challenge to the Order of Succession Plaintiffs next argue that because Acting Secretary McAleenan ascended in contravention of Secretary Nielsen’s succession order, Delegation Order 01006, McAleenan’s subsequent change to Delegation Order 00106 for Wolf to succeed him as Acting Secretary was issued without authority. ECF No. 23-1 at 34. Thus, say Plaintiffs, the challenged rules have likewise been enacted “without lawful authority” and must be set aside under section 706 of the APA. Id.
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at 36-37. The Government does not contest that if the Court credits Plaintiffs’ argument, the rules
were promulgated without authority and must be set aside. ECF No. 65 at 3 (citing 5 U.S.C. § 706). Instead, the Government counters, essentially, that Delegation Order 00106 does not mean what it says, and that this Court should deduce Nielsen’s true intent to change the succession order so that McAleenan would replace her, as evident from her contemporaneous public statements and DHS press releases. ECF No. 41 at 30-31; ECF No. 60 at 4-8. But Delegation Order 00106 is plain, and the Government provides no support for this Court to look beyond the Order itself. For the following reasons, the Plaintiffs are likely to succeed on the merits of this claim.
Broadly speaking, Delegation Order 00106 has been the DHS’ repository for changes to the order of succession for the office of the Secretary and twenty-eight other PAS positions within the agency. ECF No. 41-1 at 3-68; see also ECF No. 41 at 30. First issued by former Secretary Jeh Johnson in December 2016, Delegation Order 00106 is updated any time the Secretary changes the succession orders. See ECF No. 41-1 at 3-6. During Nielsen’s tenure, she had changed Delegation Order 00106 several times by similarly styled amendments. See id. at 6 (showing changes made during Nielsen’s tenure to Annexes G, U, and Z). However, each change left in place the framework set by Secretary Johnson which had provided succession orders applicable to two different scenarios. See id. at 3-6. The first covered succession in the event of the Secretary’s death, resignation, or inability to perform the functions of the office. See id. at 3. The second covered succession if the Secretary was unavailable to act during a disaster or catastrophic emergency. See id.
At the time of the April 2019 amendment, Delegation Order 00106 stated that in the
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event of the Secretary’s death, resignation, or inability to perform the functions of the office, the order of succession was governed by Executive Order 13753 (E.O. 13753). See id. at 3; see also ECF No. 51-1 at 5. But for the Secretary’s unavailability during a disaster or catastrophic emergency, Delegation Order 00106 referred to a different list, entitled “Annex A.” See ECF No. 41-1 at 3; see also ECF No. 51-1 at 5. As of April 2019, however, both succession lists— E.O. 13753 and Annex A—happened to list the same offices in the same order. See ECF No. 511 at 5.13
On Nielsen’s last day of service, she amended Annex A of Delegation Order 000106, which applied only to succession “in the event of disaster or emergency.” Delegation Order 00106 now read:
Annex A of DHS Orders of Succession and Delegations of Authorities for Named Positions, Delegation No. 00106, is hereby amended by striking the text of such Annex in its entirety and inserting the following in lieu thereof: Annex A. Order for Delegation of Authority by the Secretary of the Department of Homeland Security. ECF No. 41-1 at 70 (emphasis added); see also ECF No. 51-1 at 5-6.14 As for the order of succession triggered by vacancy, it was unchanged and still referred to E.O. 13753. See ECF No. 41-1 at 3; ECF No. 51-1 at 6-7. Yet when Nielsen vacated the office, and McAleenan assumed the position of Acting Secretary, he was not next in line pursuant to E.O. 13753; Director of the Cybersecurity and Infrastructure Security Agency, Christopher Krebs, was. See ECF No. 1 ¶ 179; ECF No. 51-1 at
13 The first four offices to assume the role of Acting Secretary either upon vacancy or emergency were: (1) Deputy Secretary, (2) Under Secretary for Management, (3) Administrator of the Federal Emergency Management Agency (FEMA), and (4) Director of CISA. See ECF No. 51-1 at 5. 14 The Order of succession under new Annex A was: (1) Deputy Secretary of Homeland Security; (2) Under Secretary for Management; (3) Commissioner of U.S. Customs and Border Protection; (4) Administrator of the Federal Emergency Management Agency.
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8 n.11.15 McAleenan’s leapfrogging over Director Krebs therefore violated the agency’s own order of succession. From this record, the Court cannot help but conclude that McAleenan assumed the role of Acting Secretary without lawful authority.
McAleenan next amended Delegation Order 00106 on November 8, 2019. But unlike Nielsen’s amendment, McAleenan actually changed the order of succession applicable in the event of a vacancy, such that Wolf—then Under Secretary for Strategy, Policy, and Plans—was next in line to take over as Acting Secretary. Compare ECF No. 41-1 at 70 with id. at 71. However, McAleenan had not lawfully assumed the office of “Acting Secretary,” and because only the Secretary may designate such “further order of succession,” see 6 U.S.C. § 113(g)(2), his changes to the succession order were likewise without authority. See also ECF No. 51-1 at 710. And because Wolf promulgated the challenged rules without authority, they are likely to be invalidated under the APA. See 5 U.S.C. § 706 (directing courts to “set aside” agency action that is “not in accordance with law” or “in excess of … authority”); see also L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 35-36 (D.D.C. 2020); see also ECF No. 65 at 3 (Government acknowledging that “if Acting Secretary Wolf were not lawfully serving in an acting capacity under the HSA, the rules challenged here [can] be set aside under the APA.”).
In response, the Government singularly urges the Court to read Nielsen’s April 2019 amendment to Delegation Order 00106 to also apply in the case of resignation, despite its clear
15 The position of Under Secretary for National Protection and Programs, as designated in E.O. 13753, refers to the Director of CISA. Since the E.O.’s issuance in December 2016, that agency has been re-designated as the Cybersecurity and Infrastructure Security Agency, and its statute instructs that moving forward, the Under Secretary for NPP is the Director of CISA. See Cybersecurity and Infrastructure Security Agency Act of 2018, Pub. L. No. 115-278, § 2202 132 Stat. 4169 (2018) (codified at 6 U.S.C. § 652) (“Any reference to the National Protection and Programs Directorate of the Department in any law, regulation, map, document, record, or other paper of the United States shall be deemed to be a reference to the Cybersecurity and Infrastructure Security Agency.”); (“Any reference to an Under Secretary responsible for overseeing critical infrastructure protection, cybersecurity, and any other related program of the Department as described in section 103(a)(1)(H) … shall be deemed to be a reference to the Director of Cybersecurity and Infrastructure Security of the Department.”).
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language limiting application to disaster and emergency. ECF No. 41 at 29-31; ECF No. 60 at 48. The Government relies on a memorandum from then-General Counsel, John Mitnick, to Nielsen that accompanied Delegation Order 00106. ECF No. 41 at 30-31; ECF No. 60 at 4-8. The memorandum states in pertinent part that “[b]y approving the attached document, you will designate your desired order of succession for the Secretary of Homeland Security in accordance with your authority pursuant to Section 113(g)(2) of title 6, United States Code.” ECF No. 41-2 at 5. That language, says the Government, must be read with the precatory language in Delegation Order 00106 which states: “[b]y the authority vested in me as Secretary . . . I hereby designate the order of succession for the Secretary of Homeland Security as follows.” Id. at 6. Together, the Government says, these preambles support Nielsen’s intention to change both succession lists, not just Annex A. ECF No. 41 at 30-31; ECF No. 60 at 4-8.
But this language at best states the obvious—that Nielsen had the authority to change the succession order as applied to the office of the Secretary. It does not support that Nielsen changed two separate succession lists applicable to each scenario. See ECF No. 41-2 at 5-6. Minnick’s memorandum applies with equal force to the changes that Nielsen did make to Annex A in that she made them pursuant to her authority under section 113(g). The memo does nothing to undermine the basic proposition that “the plain language [of the Order] … controls [and] speaks for itself.” ECF No. 51-1 at 9; see also Kingdomware Tech., Inc v. United States, 136 S. Ct. 1969, 1978 (2016) (“prefatory clauses or preambles cannot change the plain meaning of the operative clause.”); DHS v. Regents of the Univ. of California, 140 S. Ct. 1891, 1908 (2020) (stating agency action “must be viewed critically to ensure that the rescission is not upheld on the basis of impermissible post hoc rationalization.”) (citations omitted); see Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (“[C]ourts may not
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accept … post hoc rationalizations for agency action.”) (citations omitted). The Government next asserts that Delegation Order 00106 is “administrative” and a
“non-binding document” and so the Court should not accord it any real weight. ECF No. 41 at 30. But oddly, the Government cites no authority—none—for its position. See id; see also ECF No. 60 at 4-8. In fact, the parties agree that the Delegation Order 00106 is the only written repository that memorializes Secretary’s changes to the succession orders. See ECF No. 41 at 30 n.10; ECF No. 23-1 at 35.
Predictably, the Government next reverts to the April Delegation Order 00106 itself and, embracing its force, attempts to spin its text to its advantage. ECF No. 41-1 at 70; ECF No. 60 at 4-7. The Government focuses on the phrase “I hereby designate the order of succession,” and concludes from it that Nielsen must have meant to change E.O. 13753, because Annex A is an “Order for Delegation of Authority,” not a succession order. ECF No. 60 at 5-6 (discussing ECF No. 41-1 at 70). Thus, the Government contends, Nielsen’s invocation of section 113(g)(2), which applies to the Acting Secretary’s further order of succession, reflects that Nielsen had every intention of making the same changes to both lists. ECF No. 60 at 4-7. Again, the Government provides no authority for this Court to eschew the plain meaning of Nielsen’s order and divine her intent as meaning something else. Holding senior government officials to their word is not an “idle and useless formality.” Regents of the Univ. of California, 140 S. Ct. at 1909 (quotations omitted). As the Supreme Court recently reminded: “[P]articularly when so much is at stake …. the Government should turn square corners in dealing with the people.” Id. (citations omitted). For the reasons articulated, the Court finds Nielsen’s order changed Annex A, and Annex A only.
In sum, the Court concludes that Plaintiffs are likely to demonstrate McAleenan’s
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appointment was invalid under the agency’s applicable order of succession, and so he lacked the authority to amend the order of succession to ensure Wolf’s installation as Acting Secretary. By extension, because Wolf filled the role of Acting Secretary without authority, he promulgated the challenged rules also “in excess of …authority,” and not “in accordance with the law.” 5 U.S.C. § 706(2)(C) and (a)(2). On this ground, therefore, Plaintiffs have established their likely success on the merits of this claim.
3. APA violations The Court lastly turns to the likelihood of success on Plaintiffs’ APA claims. ECF No. 23-1 at 16-31. The APA requires courts to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). While courts are not to “substitute its judgment for that of the agency,” Bowman Transp., Inc. v. Arkansas–Best Freight System, Inc., 419 U.S. 281, 285 (1974) (quotations omitted), it must ensure the agency has “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action,” State Farm, 463 U.S. at 43 (quotations omitted). Courts must “engage in a searching and careful inquiry of the administrative record …. [to] consider whether the agency considered the relevant factors and whether a clear error of judgment was made.” Casa de Maryland, 924 F.3d at 703 (quotations omitted). “An agency action that ‘entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise’ is arbitrary and capricious.” Gresham v. Azar, 950 F.3d 93, 99 (D.C. Cir. 2020) (quoting State Farm, 463 U.S. at 43). The requirement that an agency engage in reasoned decision-making is further reflected
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in the APA’s three-step process for notice-and-comment rulemaking. See Perez v. Mortgage Bankers Assoc’n, 575 U.S. 92, 96 (2015). The agency must first “issue a ‘[g]eneral notice of proposed rulemaking,’ ordinarily by publication in the Federal Register.” Id. (citing § 553(b)). Second, where notice is required, the agency must “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments.” Id. (citing § 553(c)). Third, to afford the public meaninful participation, the agency must “consider and respond to significant comments received during the period for public comment.” Id. (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); Thompson v. Clark, 741 F.2d 401, 408 (D.C. Cir. 1984)). In promulgating the final rule, the agency “must include in the rule’s text ‘a concise general statement of [its] basis and purpose.’” Id. (citing § 553(c)). Rules properly enacted through this process have the “force and effect of law.” Perez, 575 U.S. at 96 (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302–303 (1979)).
Because this process is designed to ensure the agency engages in reasoned decisionmaking, see North Carolina Grower’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 763 (2012) (quoting Spartan Radiocasting Co. v. FCC, 619 F.2d 314, 321 (4th Cir. 1980); Chocolate Mfrs. Ass’n v. Block, 755 F.2d 1098, 1103 (4th Cir. 1985)), concerns raised by the public can alert the agency to “an important aspect of the problem,” for the purposes of arbitrary and capricious review, Gresham, 950 F.3d at 103; see also Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 924 (D.C. Cir. 2017). Where a significant concern is raised, the agency must “adequately analyze . . . the consequences” of its actions. Id. at 931. It cannot “brush[] aside” important facts, id. at 932, or offer “conclusory statements” to prove that it “consider[ed] [the relevant] priorities,” Getty v. Fed. Savs. & Loan Ins. Corp., 805 F.2d 1050, 1057 (D.C. Cir. 1986). The agency must actually give meaningful consideration to these concerns, lest its action
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be deemed arbitrary and capricious. See Gresham, 950 F.3d at 103. Plaintiffs offer several reasons as to why the challenged rules violate the APA, a number
of which are unavailing at this stage. ECF No. 23-1 at 16-31. That said, Plaintiffs have shown that in both rulemakings the agency either failed to respond to significant concerns raised or to consider an important aspect of the problem, as more fully explained below.
i. Challenge to The Timeline Repeal Rule The Court begins with Plaintiffs’ challenge to the Timeline Repeal Rule. ECF No. 23-1 at 29–31. This rule eliminates the agency’s twenty-five-year practice of processing asylees’ initial EAD applications within thirty days. Moving forward, the agency provides no timeframe by when it will determine eligibility for an EAD. See Timeline Repeal Rule, 85 Fed. Reg. at 37,545. Plaintiffs contend that the Timeline Repeal Rule is arbitrary and capricious because its rationale for eliminating this deadline is not only belied by the record but shows that the agency failed to consider the important alternative of a longer processing timeline. ECF No. 23-1 at 2930. In support, Plaintiffs point to numerous comments urging the agency to extend the thirtyday deadline rather than eliminate it outright. See Timeline Repeal Rule, 85 Fed. Reg. 37,512, 37,520-21. Even the agency itself recognized the wisdom of imposing on itself a 90-day processing deadline, which would provide “more predictability to asylum seekers and [give] USCIS … more time to adjudicate.” Id. at 37,521. But it ultimately concluded that imposing “hard processing deadlines” would be “imprudent,” because USCIS cannot reliably predict future workload, processing, and other changes.” Id. The Court agrees with Plaintiffs that the agency’s response to this concern likely rendered its decision arbitrary and capricious in two ways: first, the agency’s claimed inability to
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reliably predict future processing timeline runs counter to the record; and second, the agency’s “conclusory” responses to considered commentary reflects a total failure to consider the important alternative of a longer timeframe. See State Farm, 463 U.S. at 43; Getty, 805 F.2d at 1057.
To begin, the Court must step back. In 2017, individual asylum applicants filed a class action in Rosario v. USCIS, 365 F. Supp. 3d 1156, 1162 (W.D. Wash. 2017), challenging USCIS’ failure to process EAD applications within the 30-day deadline set for itself. At that time, USCIS was taking as much as 60 or 90 days to process the EAD applications. See id. at 1163. The Rosario plaintiffs sought an injunction requiring USCIS to abide by its own 30-day processing rule. Id. at 1159–60. The Plaintiffs prevailed, and the Court granted both preliminary and permanent injunctive relief, requiring that USCIS process work applications within the 30day processing period. Id. at 1158.
The Rosario Court, citing to the statement of basis and purpose for the agency’s thenexisting 30-day rule, explained that a “chief purpose” of the rule was “to ensure that bona fide asylees are eligible to obtain employment authorization as quickly as possible.” Id. at 1160 (quotations omitted). The Court further noted that the agency had originally selected the 30-day processing rule, in combination with the 150-day waiting period prior to application, because that represented a time “‘beyond which it would not be appropriate to deny work authorization to a person whose claim has not been adjudicated.’” Id. at 1161 (quoting Notice of 1994 Reforms, 59 Fed. Reg. 14,779). Thus, the Court correctly concluded that the agency intended to “cabin what was already—in the agency’s view—an extraordinary amount of time to wait for work authorization.” Id.
Shortly after Rosario, the agency promulgated the Timeline Repeal Rule to “ensure
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USCIS has sufficient time to receive, screen and process applications” and “reduce opportunities for fraud.” See Timeline Repeal Rule, 85 Fed. Reg. at 35702. To afford itself greater flexibility, the agency landed on the solution of completely eliminating the 30-day rule. When pressed as to why a longer timeline would not solve its problem—an alternative that would also ensure agency accountability and a certain level of predictability in the process for asylees—the agency maintained that it “cannot predict” the processing times for future applications. See id. at 37,519; 37,520-21.
This response runs counter to the agency’s findings elsewhere. In its responses, the agency reassures the public that it “expects to return to the adjudicatory timeframe before Rosario” because that timeframe is “sustainable” and in line with future agency expectations. Id. at 37,521. The agency cites the pre-Rosario processing times as roughly 60 days for 78% of the applications, and 90 days for 92% of all applications. Id. at 37,503, 37,513. If the agency is to be believed, it can certainly “predict” processing times, and can therefore implement a timeframe processing rule in line with such predictions. On this basic point, the agency’s sole rationale for rejecting this alternative—that it cannot reliably predict future expectations—runs counter to its findings and reassurances elsewhere that it can. See State Farm, 463 U.S. at 43. In this respect, the agency’s explanation as to why a longer timeframe would not suffice runs counter to the record. See id. at 51; Timeline Repeal Rule, 85 Fed. Reg. at 37,521.
The agency’s reasoning also reveals its failure to consider an important “policy alternative.” See State Farm, 463 U.S. at 51; see also Regents of the Univ. of California, 140 S. Ct. at 1913. Given the original purpose of the 30-day rule—to limit asylees’ waiting time once they became work-eligible, to ensure the application process has some level of predictability, and to hold the agency accountable in its timely processing of these applications—the proposed
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alternative of a longer timeframe falls squarely within the “ambit of the existing policy.” See id. (quoting State Farm, 463 U.S. at 51). But rather than giving adequate consideration to this important alternative, the agency provided a half-baked and internally contradictory explanation for rejecting it. Its rationale does not pass muster. See State Farm, 463 U.S. at 57.
Nor does the agency’s general need for “flexibility” adequately explain its rejection of a longer processing timeline. Timeline Repeal Rule, 85 Fed. Reg. at 37,509. The agency has historically processed 78% of the applications in 60 days, and 92% of all applications within 90days. Id. at 37,503, 37,513. Where the agency has committed itself to returning to this timeframe, the Court cannot see how eliminating any deadlines affords the agency any more flexibility than simply lengthening the processing time to the agency’s reasonable satisfaction.
The agency’s attempts to respond to this very point are wholly unsatisfactory. The agency first notes the fact made self-evident by Rosario—that it has failed to adjudicate applications within the 30-day time frame. See id. at 37,513. While the agency’s difficulty in complying with the 30-day deadline supports extending the timeline, it hardly explains why there should be no timeline at all. Next, the agency notes that it considered extending the time frame to “60 or 90 days,” but rejects that alternative because “it would not be feasible in all cases.” Id. By its own account, DHS can and has predicted how long it will take to process the lion’s share of EAD applications. See id. at 37,513, 37,521. And to the extent the agency wishes to achieve perfect compliance with any timeframe it selects, it provides no rationale for why it cannot use past as prologue to fashion a longer, sufficient timeline, rather than repeal the rule in total.
The agency further notes that it is unable to plan its workload and staffing needs “with the level of certainty that a binding timeframe may require and has no way of predicting what national security fraud concerns may be or what procedures would be necessary in the future.”
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Id. at 37,513. As stated above, this response runs counter to the agency’s affirmative assurances that it will adhere to the pre-Rosario processing timelines, and that such a goal is “sustainable” one. Id. at 37,503. But even more to the point, accepting this argument would allow agencies to do away with their internal deadlines because of a remote and hypothetical possibility that such a deadline might become unworkable. This sort of “conclusory” statement falls short of the “reasoned decisionmaking” required under the APA. Am. Wild Horse, 873 F.3d at 932.
Lastly, the agency’s attempts to minimize the import of its decision are unavailing. In rejecting the public’s suggestion of a longer deadline, the agency explains that the Timeline Repeal Rule does not “prohibit or otherwise limit an asylum applicant’s eligibility for an EAD or to apply for or receive asylum.” Timeline Repeal Rule, 85 Fed. Reg. at 37,513. The agency utters this talismanic phrase as if saying it makes it true. Id. at 37512, 37520, 37527, 37528. But logic and the record thus far demonstrate otherwise. Doing away with any processing deadline will likely reduce or even eliminate advance work authorizations because nothing now renders the agency bound to adjudicate them. And, as more fully discussed below, the Timeline Repeal Rule, in combination with the Broader EAD Rules, will indeed impact an asylee’s chances of success on the underlying application. Accordingly, the Court concludes that on this record, the agency has failed to consider any legitimately raised policy alternatives. Plaintiffs have demonstrated a likelihood of success on the merits as to their challenge to the Timeline Repeal Rule.
ii. Depriving the Public its Right to Comment via Staggered Rulemaking
The Court next turns to Plaintiffs’ challenges regarding the agency’s failure to consider the rules’ combined effect. ECF No. 23-1 at 17-23. Although Plaintiffs’ arguments reach far and wide, the Court focuses solely on those that appear likely to succeed on the merits.
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Plaintiffs argue that because DHS staggered the notice and comment period for the Timeline Repeal Rule and the Broader EAD rules, it deprived the public of the right to comment, and ensured no consideration of how the rules together would adversely disadvantage applicants. See id.; 5 U.S.C. §§ 553(b), (c); United Farm Workers, 702 F.3d at 769-70 (to comply with sections 553(b) and (c), the agency must “receive comments on” and respond to “relevant and significant issues” in the rulemaking); see also State Farm, 463 U.S. at 43 (emphasizing that agency action is “normally” arbitrary and capricious when the agency “entirely failed to consider an important aspect of the problem”). For the following reasons, the Court agrees with Plaintiffs.
The public comments repeatedly draw the agency’s attention to the combined adverse effect of the challenged rules. Yet time and again, the agency sidesteps this fundamental concern. First, in the Timeline Repeal Rule, the agency declines to address the “interaction or overlap” between the rules and notes it will address such concerns if it finalizes the broader rule.” Timeline Repeal Rule, 85 Fed. Reg. at 37,530. But then in the Broader EAD Rules, the agency acknowledges the “potential interaction[]” of the rules, but concludes that “incorporating such interactions in the impact assessments for this rule would be speculative as it assumes [the Timeline Repeal Rule] will be finalized, and without change.” Id. at 38,590. The problem for the agency is that the Timeline Repeal Rule had already been finalized without change. Compare Timeline Repeal Rule, 85 Fed. Reg. at 37,502 (effective August 21, 2020) with Broader EAD Rules, 85 Fed. Reg. at 38,532 (effective August 25, 2020). The record reflects that the agency first delayed, then denied, any meaningful consideration of the rules’ interaction. Indeed, the agency only refers to the Timeline Repeal Rule twice in the proposed Broader EAD Rules, neither of which constitutes a discussion of their interplay. See Broader EAD Rules, 84 Fed. Reg. 62,389, 62,392 (proposed Nov. 14, 2019). Because the agency never meaningfully
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addressed the interaction of these rules, it also never accounted for those comments cutting to the heart of the adverse impact the rules visit in combination. ECF No. 23-1 at 18.
That said, if the agency’s only sin was to stagger the notice and comment period of the rules, that alone may not support a finding that the agency violated the APA. See United Farm, 702 F.3d at 770. However, when considering the agency’s circular deferral of assessing the combined impact of the rules, the force of the claim is strengthened when also considering the cumulative impact of the rules on bona fide asylum seekers. See id. (finding the agency’s staggered rulemakings violate notice-and-comment procedures and precluded consideration of important issues); see also Perez, 575 U.S. at 96 (stating the agency must “consider and respond to significant comments received during the period for public comment” to comply with the APA’s procedural requirements). The Court next addresses this impact as part of the Plaintiffs’ third argument—that the agency failed to consider the impact of the rules on such applicants. ECF No. 23-1 at 23–24.
iii. Agency Failure to Consider Harms to Bona Fide Asylum Seekers
The Court agrees with Plaintiffs that consideration of the effects on bona fide asylum seekers is of paramount importance. See Judulang v. Holder, 565 U.S. 42, 55 (2011); see also Regents of Univ. of California, 140 S. Ct. at 1913 (identifying policy alternatives that fell within “ambit” of previous regulation as important concerns that must be considered). The Government does not dispute this proposition. ECF No. 41 at 20, 25-27 (arguing agency gave adequate consideration, not that concern was unimportant for purposes of arbitrary and capricious review). But so long as the agency considered, and rationally responded to, this relevant and important issue, this Court cannot “substitute its own analysis [or Plaintiffs’ analysis] for the agency’s.” State v. United States Nuclear Regulatory Comm’n, 824 F.3d 1012,
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1022 (D.C. Cir. 2016) (quotations omitted); see also Regents of the Univ. of California, 190 S. Ct. at 1905 (quoting Volpe, 401 U. S. at 416) (asking whether the agency’s decision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment”).
Even with this appropriate deference, the Court finds little evidence that the agency addressed the clear economic harm the rule changes will visit on bona fide asylum seekers. The commenters highlighted that the rules work together to erect a series of procedural and financial barriers that render nearly impossible pre-asylum work authorization. See Broader EAD Rules, 85 Fed. Reg. at 38,558 (the combined effect of the rules making pre-asylum work authorization “virtually unattainable”). Yet the agency responded with a series of non-sequiturs and generalized “understandings” of the commenters’ positions that cannot substitute as reasoned responses. See Mayor and City Council of Baltimore v. Azar, No. 19-1614 & No. 20-1215, 2020 WL 5240442, at *10 (4th Cir. Sept. 3, 2020).
As to the several changes to the EAD timing provisions, the new rules first eliminate the 30-day default period after which a pending asylum application is deemed complete—a critical change because now applicants do not have any way of knowing whether their EAD clock has actually started. See Broader EAD Rules, 85 Fed. Reg. at 38,626 (to be codified at 8 C.F.R. § 208.3(c)(3)). Second, after the agency deems the asylum application complete, the applicant must wait a full 365 days before applying for an EAD. See id. (to be codified at 8 C.F.R. §§ 208.3, 208.7(a)(1)(ii), and 274a.12(c)(8)). Third, once the EAD application can finally be submitted, the agency is no longer bound to process the application by any specified time. See Timeline Repeal Rules, 85 Fed. Reg. at 37545-46. On these timing changes alone, an applicant no longer has any safeguards to prevent the agency from delaying and deferring any advance adjudication of an EAD application. The Court’s understanding of how these timing provisions
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intersect is further confirmed by another one of the agency’s rule changes, in which it clarifies that asylees are not entitled to pre-asylum work authorization, and that the agency’s review of these applications is purely discretionary. See Broader EAD Rules, at 38,599, 38,628 (to be codified at 8 C.F.R. § 274a.13(a)(1)).
In response, DHS simply paid lip service to a certain “degree of economic hardship” that the new rules inflict. See id. 38,549 (“DHS acknowledges that these reforms will also apply to aliens with meritorious asylum claims, and that these applicants may experience some degree of economic hardship as a result of heightened requirements for an EAD.”); see also Timeline Repeal Rule, 85 Fed. Reg. at 37,526. DHS declared the rule changes necessary to “maintain integrity in the asylum process” and that “it is not unreasonable to impose additional time and security requirements on asylum seekers before they may apply for an EAD.” Broader EAD Rules, 85 Fed. Reg. at 38,549. But the agency never addressed how it can maintain “integrity” in a system that will now foreclose advance work authorization for legitimate asylum seekers as a means to address non-specific fraudulent applications. Stated differently, the agency has not “display[ed] awareness” of the extent to which it is “changing position,” and so its responses do not provide a “reasoned” basis for departing from the “circumstances that underlay … the prior policy.” F.C.C. v. Fox Tel. Station, Inc., 556 U.S. 502, 515 (2009).
Of greatest concern to Plaintiffs is the agency’s failure to address how the new rules will “actually discourage and reduce legitimate claims for asylum.” ECF No. 23-1 at 24 (citing Broader EAD Rules, 85 Fed. Reg. at 38,564-65; Timeline Repeal Rule, 85 Fed. Reg. at 37,520). It is axiomatic that without being able to work, asylum applicants lack the resources to pursue their claims. See ECF Nos. 24-19 & 24-25. Indeed, the denial of work hits an already destitute population,” many of whom are “relying on limited savings to survive.” Broader EAD Rules, 85
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Fed. Reg. at 38,575. Several public comments brought to the agency hard evidence that having the means to pay for legal counsel can “triple asylum seekers’ odds of success,” and the lack of resources can mean utter failure. Id. at 38,585, 38,591. Not to mention a host of other hidden costs necessary to pursue valid asylum claims, such as hiring an interpreter for the initial “credible fear” interview (a new agency-imposed requirement); biometric information fees; fees for FOIA requests; and transportation costs. Id. at 38,576, 38,591; 38,627; see also Timeline Repeal Rule, 85 Fed. Reg. at 37,525.
The agency, in response, completely sidestepped this critical impact of the new rules. The DHS merely noted that these rules do not “change the eligibility requirements or process by which asylum seekers obtain employment authorization or asylum status.” Id. at 37,527-28; see also id. at 37,520; Broader EAD Rules, 85 Fed. Reg. 38,591, 38,592 (“Asylum applicants will not be impacted in their pursuit of their asylum claims because this rule does not change any eligibility criteria for asylum.”). This non sequitur is not a meaningful answer. See Azar, 2020 WL 5240442, at *10. The issue is not whether the rules visit substantive changes on the asylum criteria for those who apply; it is whether the new rules make it substantially harder, if not impossible, to apply in the first place.
In the end, the agency never wrestled with the fundamental implications of deferring or denying advance work authorization. Substantially limiting approval of work authorization for bona fide asylees will inevitably affect their ability to afford the costs of seeking asylum, including hiring legal counsel. See ECF Nos. 24-19 & 24-25; see also Timeline Repeal Rule, 85 Fed. Reg. at 37,520, 37,525 (citing studies that even with pro bono legal representation, applicants cannot afford the “other costs inherent” to the application process without work authorization); Broader EAD Rules, 85 Fed. Reg. at 38,591 (citing “reports and research … on
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monetary and qualitative impacts to asylum applicants”). By glossing over the above comments, the agency failed to address this important concern or explain why, notwithstanding this cost to bona fide asylum seekers, the rule changes were justified. See F.C.C. v. Fox Tel. Stations, Inc., 556 U.S. 502, 537 (2009) (“An agency cannot simply disregard . . . inconvenient facts[.]”).
The agency’s failure to consider the impact on bona fide applicants is made more indefensible when considering that the agency’s stated impetus for the Broader EAD Rules was to reduce the asylum backlog for the long-term benefit of bona fide asylum seekers. See 85 Fed. Reg. at 38,554; see also Bedford Cty., 769 F.2d at 1022 (explaining the agency’s rationale for a rule change is an “important issue” for purposes of reviewing agency action). Taking the agency’s stated goal at face value, it was irrational to not also consider whether the same rules visit substantial hardship on those the agency claims to protect. See State Farm, 463 U.S. at 43. Moreover, where the old rules “engendered serious reliance interests,” if anything the agency was required to provide a “more detailed justification” for its changes. Fox. Tel. Stations Inc., 556 U.S. at 515; see also Regents of the Univ. of California, 140 S. Ct. at 1913 (“When an agency changes course … it must be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.”) (citations omitted). At the very least, it was required to give a “reasoned explanation” for “disregarding … [its] prior policy,” which granted work authorization to asylees as they navigated the protracted and costly asylum process. F.C.C. v. Fox. Tel. Stations, 556 U.S. at 516.
In sum, the Plaintiffs have demonstrated that they are likely to succeed in showing that the challenges rules for which they have standing are not the product of reasoned decisionmaking. See Regents of Univ. of California, 140 S. Ct. at 1913 (citations omitted); see
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also State Farm, 463 U.S. at 43. Having found that Plaintiffs are likely to succeed on the merits as to two of their three liability theories, the Court next turns to the remaining Winter factors.
B. Irreparable Harm The Court considers next whether Plaintiffs have shown a likelihood of irreparable harm. To succeed, Plaintiffs must establish they will suffer harm that is “‘neither remote nor speculative, but actual and imminent.’” Direx Israel, Ltd. v. Breakthrough Med. Group, 952 F.2d 802, 812 (4th Cir. 1991) (quoting Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989)). “Additionally, the harm must be irreparable, meaning that it ‘cannot be fully rectified by the final judgment after trial.’” Mountain Valley Pipeline, LLC v. 6.56 Acres of Land, 915 F.3d 197, 216 (4th Cir. 2019) (quoting Stuller, Inc. v. Steak N Shake Enters., 695 F.3d 676, 680 (7th Cir. 2012)); see also Winter, 555 U.S. at 22 (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)) (explaining injunctive relief is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”). Plaintiffs have met their burden. Plaintiffs CASA and ASAP have established representational standing based on five of their members. Since the rules took effect on August 21, and August 25, 2020, Plaintiffs, by way of their individual members, have suffered and will continue to suffer a concrete harm—one that cannot simply be rectified at final judgment. See Diaz. v. I.N.S., 648 F. Supp. 638, 647-48 (E.D. Cal. 1986) (quoting Nat’l Center for Immigrants Rights, Inc. v. I.N.S., 743 F.2d 1365, 1369 (9th Cir. 1984) (“The hardship [to aliens] from being unable to work to support themselves and their dependents ... is beyond question.”)). ASAP’s members, W.L. and N.G., only became eligible to apply for work authorization under the old 180-day rule shortly after these rules went into effect. ECF No. 1 ¶¶ 8, 133. Under the old rules, each could have applied for EAD immediately and have their applications
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processed within thirty days. Now they must wait an additional 215 days to apply and then indefinitely for a decision. ECF No. 23-1 at 39. Moreover, nothing suggests that either would be ineligible to work. Meanwhile, H.V. is in an even worse predicament; absent exceptional circumstances, she is now disqualified from receiving pre-asylum work authorization under the one-year filing bar. ECF No. 24-4 ¶ 23. Thus, every additional day these individuals wait will visits on them crippling dependence on the charity and good will of others.16 ECF No. 24-5 ¶¶ 23-29; ECF No. 24-25 at 3; Broader EAD Rules, 85 Fed. Reg. at 38,501 (acknowledging “there could be monetary and qualitative impacts to applicants and their support networks, including numerous types of hardships.”);
Further, any potential form of relief at the merits stage cannot retroactively repair the ongoing and concrete harm that will befall bona fide asylees whose EAD applications are delayed or denied. See Ramos v. Thornburgh, 732 F. Supp. 696, 699 (E.D. Tex. 1989) (“It cannot validly be disputed that an unreasonable denial of work authorization, or … delay … in work authorization, results in a substantial threat of harm to plaintiffs, by preventing them from working to support themselves pending resolution of their claims for asylum.”); (“Monetary damages at some future time can never adequately compensate aliens living at or below the poverty line, for the hardships they must endure as a result of presently existing unlawful denials of employment authorization.”) (citations omitted). Most irreparable is the damage to bona fide applicants’ ability to seek asylum in the first instance. Plaintiffs have demonstrated that the rules strip such applicants of lawful employment and likewise of the ability to pay the myriad costs inherent to the asylum process. See supra pp. 54-56. While adjudication times for asylum applications vary, they are consistently long; applicants wait years to learn whether they have
16 Plaintiffs’ argument is well taken that “[t]hese harms will only be more severe in the context of the current pandemic, which makes access to medical care and stable housing especially vital.” ECF No. 23-1 at 39-40.
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received asylum. See Broader EAD Rules, 85 Fed. Reg. at 38,548 (agency describing the “yearslong wait”); ECF No. 24-4 ¶ 10; ECF No. 24-6 ¶ 13; ECF No. 24-7 ¶ 10; ECF No. 24-19 at 6 n.14; ECF No. 24-20 at 43. What is more, the fees and costs associated with pursuing the claim are steep. And without any ability to work for at least a year and likely far longer, it is plain that legitimate asylum claims may be abandoned altogether. See ECF No. 23-1 at 40 (citing ECF No. 24-5 ¶ 31; ECF No. 24-6 ¶ 15); Ramos, 732 F. Supp. at 700 (“[T]he inability to work for the extended period … may compel an applicant to abandon his or her asylum application … [and] subject the applicant to even more severe persecution upon return to the country he or she has attempted to flee.”); see also Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 544 (4th Cir. 2007) (attributing irreparability to the intangible nature of the injury, and that calculating such injury at the merits stage would “entail a substantial amount of speculation and guesswork”).
In response, the Government points to supposed alternative “avenues to address excessive delays” such as “case status inquiries, expedite requests when circumstances warrant, and even judicial redress through filing a mandamus action to compel a decision.” ECF No. 41 at 34 (citing 85 Fed. Reg. at 37,511). These avenues are dead ends. The challenged rules eliminate any timeline on the agency and render the adjudication of EADs entirely discretionary. So any claimed “redress” within the application process itself is illusory. Nor can the Court take seriously any reference to “mandamus” as an available path to redress. Legitimate asylum applicants seek refuge under dire circumstances and will be stripped under the new rules of affording the necessities to apply for asylum in the first instance. How the same population would be expected to pursue the extraordinary judicial remedy of mandamus is confounding, if even available as a matter of law. See 5 U.S.C. §§ 555(b) and 706(1); cf. Norton v. S. Utah
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Wilderness Alliance, 542 U.S. 55, 64 (2004) (explaining a “claim under § 706(1) [of the APA] can proceed only when a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take”) (emphasis in original). The delay inherent in mandamus actions alone underscores the absurdity of this position. See Telecomm. Research & Action Center v. FCC, 750 F.2d 70, 80-81 (D.C. Cir. 1984) (delay of five years did not warrant grant of mandamus); Debba v. Heinauer, 366 Fed. Appx. 696, 699 (8th Cir. 2010) (delay of ten years found reasonable); In re City of Virginia Beach, 42 F.3d 881, 886 (4th Cir. 1994) (despite four-and-ahalf year delay on the city’s application for a water pipeline, mandamus unwarranted where agency has “promise[d] to adhere to a tight[er] schedule”).
The Court accordingly concludes that the kind of harm identified to the members of Plaintiffs CASA and ASAP is indisputably irreparable.
C. Balance of Equities and the Public Interest Finally, Plaintiffs must establish that “the balance of equities” tips in its favor and that “an injunction is in the public interest.” Winter, 555 U.S at 20. Because the Government is a party in this case, these factors merge. See Kravitz, 366 F. Supp. 3d at 755 (quoting Pursuing Am. Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016)). The balance of equities tips in favor of granting Plaintiffs’ preliminary relief. The Court balances on the one hand the Plaintiffs irreparable harms against the Government’s asserted harms that arise from temporarily enjoining the enforcement of the challenged rules against two of the parties, until the Court can reach final judgment on the merits. ECF No. 41 at 36-37. For the Timeline Repeal Rule, the Government contends that the agency will be irreparably harmed because such relief will require it to continue devoting more resources than it would like to meet its 30-day processing deadline. Id. at 36. Where the agency has functioned
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with this deadline since 1995, the Court does not find this argument persuasive. Further, because the Court must draw injunctive relief narrowly, it will not at present require the agency to set aside the new rule for all applicants. Considering that the scope of the injunctive relief afforded will reach only those members of the Plaintiff organizations with representational standing, see Trump, 137 S. Ct. at 2087-88 (accounting for the scope of relief granted when balancing the equities), the Government has offered no reason to believe it will suffer irreparable harm that outweighs that visited on the members of the Plaintiff organizations.
As to the Broader EAD Rules, the Government maintains that preliminary relief—in whatever form and of whatever scope—is contrary to the public interest, because it will delay the agency’s ability to “address the crisis at the Southern border,” as well as “strain [its] sovereignty, [the] rule of law, and [its] resources.” ECF No. 41 at 36-37. Again, in light of the narrowly drawn relief this Court will issue, such sweeping pronouncements are unpersuasive. See Trump, 137 S. Ct. at 2087-88.17 As for the Government’s larger philosophical concerns about strain on the “rule of law,” the agency would do well to look inward. The agency cannot itself violate those principles, then claim irreparable harm because it is held to account for such violations.
D. Remedy Finally, all that is left for this Court to decide is the scope of preliminary relief. While this decision “rests within the sound discretion” of this Court, see South Carolina v. United States, 907 F.3d 742, 753 (4th Cir. 2018) (quotations omitted), the relief granted should “carefully address[] … the circumstances of the case,” Va. Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001), overruled on other grounds by Real Truth About Abortion,
17 Indeed, if Plaintiffs ultimately succeed on its APA claims, the Government will have to likely revert to the previous rules. See Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (the “ordinary result” for agency action found in violation of the APA is vacatur).
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Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012), and “should be no more burdensome … than necessary to provide complete relief to the plaintiffs,” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). For this reason, a court “need not grant the total relief sought by the applicant but may mold its decree to meet the exigencies of the particular case.” Trump, 137 S. Ct. at 2087 (citations omitted).
Plaintiffs seek a stay or alternatively a nationwide injunction as to all the challenged rules. ECF No. 23-1 at 41; ECF No. 59 at 7. The Government asks the Court to limit relief to the five individual organization members whom CASA and ASAP have identified in support of associational standing, and only as to the Timeline Repeal Rule, the 365-day waiting period, and the one-year filing ban. ECF No. 60 at 3; ECF No. 65 at 5. The Court cannot credit either argument.
Turning first to the Plaintiffs argument, the Court recognizes that section 705 of the APA grants to the Court, as it does to the agency itself, the power to “issue all necessary and appropriate process” to “preserve status or rights pending conclusion of the review proceedings.” 5 U.S.C. § 705. Section 705 operates broadly to allow the agency to postpone enactment of a rule for a host of reasons, or for a Court to suspend enforcement or enjoin its application. See, e.g., Dept’ of Agric., 444 F. Supp. 3d at 48. And although the standard for a preliminary injunction and a stay pursuant to 5 U.S.C. § 705 are the same, see e.g., Texas v. EPA, 829 F.3d at 435, section 705 is a congressionally conferred remedy exclusive in the APA context and available to the Court when necessary to “prevent irreparable injury,” Mexichem Specialty Resins, Inc. v. EPA, 787 F.3d 544, 562 (D.C. Cir. 2015) (Kavanaugh, J., dissenting in part); see also In re GTE Service Corp., 762 F.2d 1024, 1026 (D.C. Cir. 1985) (recognizing that § 705 supplies “statutory authority to stay agency orders pending review in this court.”); Nken v.
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Holder, 556 U.S. 418, 428 (2009) (An injunction “direct[s] the conduct of a particular actor, [whereas] a stay operates upon the judicial proceeding itself … by halting or postponing some portion of the proceeding, or by temporarily divesting an order of enforceability.”); id. (citing Black’s Law Dictionary 1413 (6th ed.1990) (defining “stay” as “a suspension of the case or some designated proceedings within it”)); Washington v. DHS, 408 F.Supp.3d 1191, 1212 (E.D. Wash. 2019) (“Section 705 and preliminary injunctions under Rule 65, although determined by application of similar standards, offer different forms of relief.”) (quotations omitted).
Employing this authority to afford uniform preliminary relief seems especially warranted here, to avoid running “‘afoul of the constitutional and statutory requirements for uniform immigration law and policy.’” Regents of Univ. of California v. DHS, 279 F. Supp. 3d 1011, 1049 (N.D. Cal. 2018) (quoting Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017)), aff’d, 908 F.3d 476 (9th Cir. 2018); see also Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 (2018) (“Because this case implicates immigration policy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights.”). At the same time, the Court is bound to draw such preliminary relief, even in the APA context, narrowly, and to avoid issuance of nationwide injunctions absent the most extraordinary circumstances not present here. See Casa v. Trump, 2020 WL 4664820, at *26. The Court so concludes, especially in light of the Fourth Circuit’s recent pronouncement on this very issue.
In Casa, the Fourth Circuit was called upon to review the issuance of a nationwide injunction as applied to DHS’ changed definition of the “public charge” rule. Id. at *1. The Court not only reversed on the merits but took the opportunity to offer a stinging and lengthy rebuke of implementing a nationwide injunction to prohibit enforcement of the challenged public charge rule. See id. at *23. In so doing, the Fourth Circuit expressly rejected the propriety of
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injunctive relief even though such nationwide application would promote uniform enforcement of immigration regulations over haphazard and patchwork application. Cf. Casa de Maryland, Inc. v. Trump, 414 F. Supp. 3d 760, 785 (D. Md. 2019) (quoting Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir.), as amended (June 15, 2017), vacated and remanded on other grounds sub nom., Trump v. Int’l Refugee Assistance, 138 S. Ct. 353 (2017)).
Relatedly, the Fourth Circuit concluded that the district court erred in not limiting preliminary relief to only the two individual Plaintiffs with standing, and so effectively rejected the well-established principle that in the APA context, a district court retains discretion to accord the same preliminary relief that would be available at the merits stage. See Nken, 556 U.S. at 425-26; Sierra Club v. United States Army Corps of Eng’rs, 909 F.3d 635, 647 (2018) (vacatur as available form of final relief); Portland Cement Ass’n v. EPA, 665 F.3d 177, 189 (D.C. Cir. 2011).
Nor did the Fourth Circuit address whether the APA’s specific statutory power codified in section 705 to “stay” enforcement of a challenged rule reflects considerations beyond those invoked in the exercise of the Court’s general equitable powers to grant injunctive relief. See Casa v. Trump, 2020 WL 4664820, at *24 (quotations and citations omitted) (“Our power to grant equitable remedies is commensurate with this duty”); (“It is, to put it mildly, hard to see how the court could still be acting in the judicial role of resolving cases or controversies when it issues such a far-reaching and pervasive equitable remedy”); (“Nationwide injunctions also run afoul of the prescribed scope of our equitable power.”); (“Any inherent equitable authority that the courts possess under Article III is likely bounded by the same”).
That said, this Court cannot meaningfully distinguish this case from Casa. The Plaintiffs in Casa sought the same injunctive relief under 705 and the Court’s equitable powers to stave off
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application of an immigration rule which, in its view, likely violated the APA. See Casa v. Trump, 414 F. Supp. 3d at 788. And the Plaintiffs here have done little to set this case apart from the reach of Casa. Accordingly, even though this Court remains concerned about “slicing and dicing”18 application of the rules in a manner contrary to the uniform administration of immigration laws, the Court believes itself bound to follow the Circuit’s binding precedent.19 The Court will limit the injunctive relief to the members of CASA and ASAP, the two organizational plaintiffs who have demonstrated associational standing at this stage. See Casa v. Trump, 2020 WL 4664820, at *25; see also Trump v. Int’l Refugee Assistance Project, 137 S. Ct. at 2087 (“[T]he purpose of preliminary equitable relief is not to conclusively determine the rights of the parties, but to balance the equities as the litigation moves forward.”).
Finally, this Court must make clear that the scope of the relief is limited to the rules for which Plaintiffs have standing. Plaintiffs view the challenged rules as a “package,” which are interconnected and “infected by the same procedural improprieties.” ECF No. 66 at 2 n.2. Thus, according to Plaintiffs, all the rules must be enjoined. Id. Conversely, the Government contends that because the rules are severable, each rule stands alone, and any challenges are limited to those rules for which the Plaintiffs have standing and otherwise meet the Winter factors. ECF No. 60 at 3. The Government has the better argument.
The doctrine of severability arises where, as here, a subset of the rule changes within a broader rule are found invalid or unlawful. In deciding whether to enjoin enforcement of the
18 See District of Columbia v. Dep’t of Agric., 444 F. Supp. 3d at 37. 19 The dissent in Casa v. Trump views the decision on remedy as dicta in light of its reversal on the merits. 2020 WL 4664820, at *47. This Court is not as convinced when considering that if the panel decision on the merits is reversed en banc or by the Supreme Court, the scope of the remedy remains a live controversy. See, e.g., United States v. Ford, 703 F.3d 708, 711 n.2 (4th Cir. 2013) (citations omitted) (“Where a court makes alternative holdings to support its decision, each holding is binding precedent.”); Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir. 2008) (same); United States v. Wright, 496 F.3d 371, 375 n.10 (5th Cir. 2007) (same).
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entire rule, including the non-offending provisions, courts must ascertain the “intent of the agency and … whether the remainder of the regulation could function sensibly without the stricken provision.” MD/DC/DE Broadcasters Ass’n v. F.C.C., 236 F.3d 13, 22 (D.C. Cir. 2001); see also Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999) (Unless “it is evident that the [lawmaking body] would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.”); see also Azar, 2020 WL 5240442, at *24. Thus, the Court must determine whether the rules for which Plaintiffs clearly have standing are severable from the remaining broader package of rules, either because the remaining provisions cannot function on their own, or because the agency would not have wanted them to. See MD/DC/DE Broadcasters, 236 F.3d at 22.
As clear evidence of agency intent, the Government points to the severability provision in the Broader EAD Rules, which states: “[t]he provisions in this section are intended to be independent severable parts. In the event that any provision in this section is not implemented, DHS intends that the remaining provisions be implemented as an independent rule.” 85 Fed. Reg. at 38,627 (codified at 12 C.F.R. § 208.7(c)). This provision creates a presumption that the agency “did not intend the validity of the [remaining rules] …. to depend on the validity of the . . . offensive provision.” Azar, 2020 WL 5240442, at *24 (quoting Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987)). Therefore, unless Plaintiffs marshal “strong evidence” to the contrary, the “objectionable provision[s]” are to be “excised” from the remaining provisions within the Broader EAD Rules. Azar, 2020 WL 5240442, at *24 (quoting Brock, 480 U.S. at 686).
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Plaintiffs have not overcome this presumption. Nor have they explained how the remaining rules are unable to “function independently” from the enjoined rules. See MD/DC/DE Broadcasters, 236 F.3d at 22. Without any help from Plaintiffs, the Court does not see how an injunction limited to the rules that Plaintiffs have standing to challenge will interfere with, for instance, the agency’s continued enforcement of the unlawful entry rule, the criminal bar rule, or the rules governing when EADs terminate following a denial of asylum. See Broader EAD Rules, 85 Fed. Reg. at 38626-28. Thus, at least at this stage, Plaintiffs have not shown how the “whole structure” of the Broader EAD Rules would be undermined were the Court to enjoin only those rules for which Plaintiffs have demonstrated standing and success on the merits. See MD/DC/DE Broadcasters, 236 F.3d at 22.
Therefore, the Court will preliminarily enjoin enforcement of the following rule changes against CASA and ASAP’s members:
- The Timeline Repeal Rule, 85 Fed. Reg. at 37,545 (printing parts of the regulations to be codified at 8 C.F.R. § 208.7(a)(1));
- The 365-day waiting period, 85 Fed. Reg. at 38,626-28 (referenced throughout and as codified at 8 C.F.R. § 208.3(c)(3); § 208.7(a)(1)(ii), (a)(1)(iii)(E), and (b)(1)(i); and 8 C.F.R. § 274a.12(c)(8));
- Removal of “deemed-complete” rule, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.3);
- The discretionary review rule, providing that agency is no longer required to issue EADs to eligible asylees, 85 Fed. Reg. at 38,628 (changes reflected at 8 C.F.R. § 274a.13(a)(1));
- The one-year filing bar, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. § 208.7(a)(1)(iii)(F)); and
- The rule requiring submission of biometric information as part of EAD applications, 85 Fed. Reg. at 38,626 (codified at 8 C.F.R. §§ 208.7(a)(1)(i) and (a)(1)(iv)(E), 208.10).
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V. Conclusion The Court is convinced that preliminary injunctive relief limited to the members of
Plaintiff organizations CASA and ASAP is both proper and necessary to avoid irreparable harm. Accordingly, the Court GRANTS in part and DENIES in part Plaintiffs’ motion for a stay or a preliminary injunction. ECF No. 23-1. A separate order follows.

9/11/2020 Date

/S/ Paula Xinis United States District Judge

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