Case 1:20-cv-03812 Document 1 Filed 12/23/20 Page 1 of 67

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CATHOLIC LEGAL IMMIGRATION NETWORK, INC., 8757 Georgia Ave., Suite 850, Silver Spring, MD 20910;

Case No. 20-cv-3812

COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, 1861 Bay Road, East Palo Alto 94303;

COMPLAINT

KIND, INC., d/b/a KIDS IN NEED OF DEFENSE, 1201 L St. NW, 2nd Floor, Washington, DC 20005; and

COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, 2533 West 3rd Street, Suite 101, Los Angeles, California 90057;

Plaintiffs,

vs.

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, 20 Massachusetts Ave. NW, Washington, DC 20529;

JAMES MCHENRY, in his official capacity as DIRECTOR OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW; 20 Massachusetts Ave. NW, Washington, DC 20529;

U.S. DEPARTMENT OF JUSTICE, 950 Pennsylvania Ave., NW, Washington, DC 20530; and

WILLIAM P. BARR, in his official capacity as ATTORNEY GENERAL OF THE UNITED STATES, U.S. Department of Justice, 950 Pennsylvania Ave., NW, Washington, DC 20530

Defendants.

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INTRODUCTION 1. Plaintiffs bring this action to prevent Defendants from imposing prohibitive fees on individuals who are defending themselves against deportation from the United States. The fees would be mandated by a Final Rule issued by the Executive Office for Immigration Review (“EOIR”), a sub-agency of the Department of Justice (“DOJ”), on December 18, 2020, at 85 Fed. Reg. 82,750 (the “Final Rule”). 2. The Final Rule would apply to respondents in proceedings in Immigration Courts and before the Board of Immigration Appeals (“BIA” or “Board”), which are components of EOIR. In this Complaint, such proceedings are referred to as “Removal Proceedings.” 3. The Final Rule at issue here was not created in isolation. It is one product of a flurry of interrelated but staggered rulemakings that Defendants held this year to curtail access to critical procedural and substantive protections from deportation. For Removal Proceedings, Defendants here and elsewhere gave short shrift to fundamental fairness and the importance of an accurate outcome—particularly where the respondents are indigent. 4. The Final Rule would require respondents in Removal Proceedings to pay significantly higher fees for applications, motions, and appeals in Immigration Courts and before the BIA. Those elevated fees would place long-established statutory protections, procedural safeguards, and even access to federal court review, out of reach of indigent United States residents, including longtime residents with spouses and children who are U.S. citizens, and individuals and families who have fled persecution and torture to seek asylum in this country. The Final Rule would thus deprive them of access to procedures for full and fair and constitutionally compliant adjudication of the government’s case against them. Unless the fees are enjoined, tens of thousands of low-income individuals facing deportation from the United States will be expelled from their homes and separated from their families without a meaningful hearing. Many may be removed to countries where they face certain persecution and even
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torture—not because their claims failed after an adjudication on the merits, but because they could not pay the toll for access to this country’s immigration court system.
5. The Final Rule would increase almost eight-fold the fees to seek reopening or reconsideration before the BIA and to appeal an Immigration Court decision; a respondent would need to work more than 130 hours at minimum wage to afford the proposed $975 fee. It would increase six-fold the charge to appeal a decision of a Department of Homeland Security (“DHS”) officer. It would more than triple the fees to seek cancellation of removal or suspension of deportation. And it would impose an entirely new fee for those seeking asylum in the United States.
SUMMARY OF CLAIMS 6. In promulgating the Final Rule, Defendants violated requirements of the Administrative Procedure Act (“APA”), which bars rules that are arbitrary or capricious, an abuse of discretion, or contrary to law, and which provides multiple procedural safeguards, such as requiring meaningful notice and opportunity for the public to comment on proposed rules. 7. First, the Final Rule is arbitrary and capricious, and violates the requirement that agencies engage in reasoned decision-making. The Final Rule provides no reasoned explanation for Defendants’ abrupt departure from decades-long agency policy with regard to fees in Removal Proceedings, for the fees themselves, or for the Rule’s impact. To the contrary, the record shows that Defendants failed to give adequate consideration or weight to the burden the fees would impose on individuals in immigration proceedings and on organizations providing representation or advice to such individuals. For example:
a. Defendants did not examine whether the increased fees would foreclose eligible individuals from seeking asylum, cancellation of removal, or suspension of deportation, or filing motions or appeals.
b. Defendants’ position that the possibility of “fee waivers” mitigates any burden imposed by the fee increases is without support, because it ignores
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that fee waivers are not available at all for asylum applicants; that Immigration Court fee waivers are entirely discretionary; that the time to file an application, motion, or appeal is not tolled if the fee waiver is denied; and that preparing and filing fee waiver applications may prove insurmountable hurdles (in cost and complexity) for indigent individuals. The Final Rule thus fails under the APA because it is arbitrary, capricious, an abuse of discretion, without reasoned basis, and contrary to law. 8. Second, Defendants violated APA procedure in the rulemaking process. Defendants published their Notice of Proposed Rulemaking (“NPRM”) on February 28, 2020, just as the COVID-19 pandemic began to sweep across the United States, yet they gave the public just 30 days to submit comments. That period was just half of the 60 days generally regarded as the reasonable minimum period for public comment on a proposed rule and would be onerous even in ordinary times. With a global pandemic necessarily consuming the resources of the public, including organizations and individuals who advocate on behalf of those facing deportation, the abbreviated comment period denied the public a meaningful opportunity to submit comments. Despite requests from scores of stakeholders to extend or freeze the comment period, Defendants, without explanation, adhered to the 30-day comment period, precluding many organizations from providing the robust analysis and comments that they would otherwise have provided, and denying others the time needed to develop and submit any comments at all. 9. Third, a welter of other APA violations infected the rulemaking process, misleading the public and otherwise constraining its ability to provide fulsome comments. a. The NPRM included false statements, such as that no new fees were proposed. That is false. The Final Rule creates an entirely new nonwaivable $50-fee just to apply for asylum in Immigration Court proceedings.
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b. Defendants’ stated justification for the Final Rule relied heavily on the results of a “comprehensive study” on fees that EOIR had purportedly conducted, yet Defendants withheld from the commenting public the fee study’s methodology and the data it generated that were used to calculate the proposed fees.
c. Defendants did not disclose information about how the fees would be used, further hampering the public’s ability to analyze and provide robust comment on the rules.
d. Defendants also concealed from the public the full impact of the proposed rule: after the comment period closed, they published five additional Notices of Proposed Rulemaking to implement a raft of procedural changes to Immigration Court and BIA proceedings. Those changes would render the terms of the Final Rule even more onerous and less rational, but their publication after the NPRM’s comment period closed prevented the public from making comments directed to the full impact of the Final Rule’s operation.
10. Fourth, despite the direct impact that the Final Rule would have on small entities that provide guidance or legal services for respondents in the proceedings subjected to the increased or new fees, Defendants failed to consider the impact of the Proposed Fee Rule in the manner required by the Regulatory Flexibility Act (“RFA”). Rules enacted in violation of the RFA may be set aside under the RFA, or under the APA.
11. Fifth, because the Final Rule leaves persons in the United States subject to deportation without access to procedural protections, particularly those persons who are unable to pay the increased fees, the Final Rule violates the Due Process and Equal Protection Clauses of the Fifth Amendment to the United States Constitution.
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12. Plaintiffs in this action provide legal services for, or have as members, individuals whom the U.S. government is seeking to deport through Removal Proceedings before EOIR. Plaintiffs also support, and have as members, others who provide such services. The Final Rule will devastate Plaintiffs—expanding the amount of time and cost required for each respondent’s case, leaving less funding for removal defense, and resulting in diminished capacity to take on new cases. The Final Rule will hamper the ability of Plaintiffs to place clients’ and members’ cases with pro bono counsel. It will leave the ultimate beneficiaries of Plaintiffs’ work— including asylum seekers and other indigent individuals and families at risk—without counsel in adversarial proceedings that threaten their life, liberty, and families. For Plaintiffs’ clients, members, and countless others, the Final Rule will force choices such as between food or rent and defense against removal, and will lead to deportations that should not happen.
13. For the foregoing reasons, and as detailed below, Plaintiffs seek vacatur of the Final Rule, and preliminary relief pending final judgment.
PARTIES I. Plaintiff Catholic Legal Immigration Network, Inc. (CLINIC)
14. Plaintiff Catholic Legal Immigration Network, Inc. (“CLINIC”) is a not-for-profit organization incorporated in Washington, DC, and headquartered in Silver Spring, MD.
15. Pursuant to its mission, CLINIC coordinates and provides technical support and services to a network of approximately 400 dedicated affiliate organizations, spread out across 48 states and the District of Columbia. CLINIC also provides legal representation directly and in partnership with bro bono attorneys to vulnerable adults, children, and families in proceedings in Immigration Courts and before the BIA, including Removal Proceedings, and including in connection with the applications, motions, and appeals that are subject to the Final Rule, and it partners with pro bono counsel to provide such representation.
16. Among other services, CLINIC provides its affiliates with trainings, expert technical support, and other resources as needed. These include providing the trainings,
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technical support, and expertise related to the applications, motions, and appeals subject to the Final Rule.
17. The affiliates pay membership fees to CLINIC to receive these services, which are directed at better equipping the affiliates to perform their client-based services.
18. CLINIC operates a “Defending Vulnerable Populations Program” that seeks to increase the number of fully accredited representatives and attorneys who are qualified to represent immigrants in Removal Proceedings and other Immigration Court proceedings. Through the Defending Vulnerable Populations Program, CLINIC conducts court skills training for affiliate staff, pro bono attorneys, and other attorneys working for not-for-profit organizations, and develops practice advisory materials on removal defense, asylum appeals, and other topics to assist affiliate staff.
19. CLINIC’s Defending Vulnerable Populations Program also operates a “Motion to Reopen Project” that assists immigrants with reopening their Removal Proceedings and with pursuing protection, such as asylum, for themselves and their children.
20. CLINIC’s Defending Vulnerable Populations Program also operates a “BIA Pro Bono Project” that identifies detained individuals who have received a removal order but have appealable issues. CLINIC places some of the individuals with pro bono counsel who receive training and mentorship from CLINIC. CLINIC also represents some of the individuals directly in their appeals.
21. CLINIC’s affiliate organizations provide services to approximately 500,000 immigrants each year. These services include advising, counseling, providing resources, and representing individuals in Immigration Courts throughout the country and before the BIA, including with respect to the applications, motions, and appeals that are the subject of the Final Rule.
22. In addition to providing benefits to the affiliates, many of CLINIC’s programs also advance CLINIC’s overall mission of providing services and benefits to immigrants.
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CLINIC’s support of its affiliate programs and its direct representation work and support of pro bono attorneys and projects are undertaken in service of CLINIC’s broader purpose of promoting the dignity, and protecting the rights, of immigrants.
23. CLINIC is a “small entity” under the RFA because its revenues for 2019 were just over $10 million. II. Plaintiff Community Legal Services in East Palo Alto (CLSEPA)
24. Plaintiff Community Legal Services in East Palo Alto (“CLSEPA”) is a not-forprofit legal services provider.
25. CLSEPA is incorporated in California and has its headquarters in East Palo Alto, CA.
26. CLSEPA’s mission is to provide legal services that are transformative in nature, enabling diverse communities in and around East Palo Alto to achieve a secure and thriving future.
27. CLSEPA’s staff includes attorneys, paralegals, and social workers. 28. Pursuant to its mission, CLSEPA’s staff provides direct legal services to individuals in its target communities, including legal advice and representation to hundreds of individuals in Removal Proceedings, or who may be subject to Removal Proceedings, in Immigration Court and before the BIA, including with respect to the types of applications, motions, and appeals that are the subject of the Final Rule. 29. In furtherance of its mission, CLSEPA also operates a pro bono program, through which CLSEPA places individuals with pro bono attorneys to represent them in Immigration Court and before the BIA. CLSEPA provides the pro bono attorneys with whom it places individuals continued training and technical support, including with respect to the applications, motions, and appeals that are the subject of the Final Rule. 30. Pursuant to its mission, CLSEPA also trains and supports community members in matters of immigration, and trains and supports attorneys at other not-for-profit organizations to
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represent individuals in Immigration Court and before the BIA, including with respect to the types of applications, motions, and appeals that are the subject of the Final Rule. III. Plaintiff KIND, Inc., D/B/A Kids in Need of Defense (KIND)
31. Plaintiff KIND, Inc., d/b/a Kids in Need of Defense (“KIND”), is a not-for-profit organization incorporated in Washington, DC.
32. KIND’s headquarters are located in Washington, DC, and KIND has field operations in Atlanta, GA, Baltimore, MD, Boston, MA, Houston, TX, Los Angeles, CA, Newark, NJ, New York, NY, San Francisco and Fresno, CA, Seattle, WA, and Washington, DC, and Northern Virginia.
33. Pursuant to its mission, KIND advocates throughout the United States for the rights of unaccompanied migrant and refugee children in this country.
34. KIND provides free legal representation for unaccompanied migrant children through its field offices across the country, directly and through partnerships with pro bono counsel.
35. Pursuant to its mission, KIND also provides programs that educate unaccompanied minors about their rights.
36. Pursuant to its mission, KIND also provides mental health and social services for its clients, advocates for new law and policy in the United States and in countries where child refugees originate, and educates policymakers and the broader public about issues impacting refugee and migrant children.
37. Pursuant to its mission, KIND has represented, or referred to pro bono attorneys for representation, many children in proceedings in Immigration Court and before the BIA, including representations that have involved the types of applications, motions, and appeals that are the subject of the Final Rule.
38. For cases that KIND refers to pro bono attorneys, KIND provides the assigned pro bono attorneys with continuing technical guidance and training, including as to the types of
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applications, motions, and appeals that are the subject of the Final Rule. KIND provides similar training to its own in-house attorneys.
39. Pursuant to its mission, KIND has provided numerous training programs on how to represent children who are alone in immigration proceedings, including in Removal Proceedings. More than 50,000 slots have been filled for these programs. IV. Plaintiff Coalition for Humane Immigrant Rights of Los Angeles (CHIRLA)
40. Plaintiff Coalition for Humane Immigrant Rights (“CHIRLA”) is a not-for-profit membership-based organization.
41. CHIRLA is incorporated in California and has its headquarters in Los Angeles. CHIRLA has additional offices in California and also has an office in Washington, DC.
42. CHIRLA’s mission is to ensure that immigrant communities are fully integrated into society with full rights and access to resources. For more than 30 years, CHIRLA has worked to empower immigrants to advocate for and secure policies that promote freedom of movement, full human rights, and the vigorous civic action that strengthens democracy.
43. In furtherance of its mission, CHIRLA carries out a range of programs, services, and activities, including grassroots organizing and advocacy with and on behalf of its members and a legal services program that provides representation to clients, which includes members of CHIRLA and others in proceedings before EOIR and USCIS.
44. CHIRLA has approximately 13,000 dues-paying and active members. 45. The majority of CHIRLA’s members are low-income immigrants in mixed status families, in which one or more members are undocumented. 46. Some of CHIRLA’s members became legal service clients after joining CHIRLA as members, while other CHIRLA members joined as members after being clients of CHIRLA. V. Defendant Executive Office For Immigration Review (EOIR) 47. Defendant Executive Office for Immigration Review (“EOIR”) is an Agency of the Executive Branch of the United States government.
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48. EOIR is a component agency of the U.S. Department of Justice. 49. EOIR includes the Office of the Chief Immigration Judge (“OCIJ”), which establishes operating policies and oversees policy implementation for approximately 460 immigration judges located in more than 60 Immigration Courts and two adjudications centers located across the country. 50. EOIR also includes the Board of Immigration Appeals (“BIA,” or the “Board”). The BIA is the highest administrative body for interpreting and applying immigration laws. 51. The BIA is located at EOIR headquarters in Falls Church, Virginia, and has nationwide jurisdiction to hear appeals from decisions rendered by Immigration Judges and by district directors of DHS in a range of proceedings between the government of the United States and a citizen, non-citizen, or business. VI. Defendant James McHenry 52. Defendant James McHenry (“McHenry”) is the Director of the EOIR. 53. McHenry’s responsibilities include overseeing Immigration Court proceedings, appellate reviews, and administrative hearings, as well as supervising Immigration Judges and members of the BIA. 54. McHenry is sued in his official capacity. 55. McHenry authorized the promulgation of the Final Rule at issue here. VII. Defendant U.S. Department of Justice (DOJ) 56. Defendant U.S. Department of Justice (“DOJ”) is an executive Department of the United States. 57. EOIR is an office within DOJ, and EOIR’s director reports directly to the Deputy Attorney General and ultimately to the Attorney General. VIII. Defendant William P. Barr 58. Defendant William P. Barr (“Barr”) is the Attorney General of the United States.
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59. As Attorney General of the United States, Barr is the head of the DOJ and its component agencies, including the EOIR.
60. Barr is sued here in his official capacity. JURISDICTION AND VENUE
61. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because the claims in this case arise under the laws of the United States, including but not limited to the immigration laws and the Administrative Procedure Act, 5 U.S.C. § 702.
62. The promulgation of the Final Rule setting forth the EOIR Fee Schedule on December 18, 2020, is a “final agency action” and therefore subject to judicial review by this Court. 5 U.S.C. §§ 704, 706.
63. Venue is proper under 28 U.S.C. § 1391(e) because Defendants are agencies and officers of the United States, the action does not involve real property, and at least one Plaintiff resides in this district.
THE FEE RULE I. Introduction: The System of Immigration Courts
64. Immigration proceedings in Immigration Courts and before the BIA determine whether respondent individuals and families in such proceedings may remain in the United States or whether they will instead be “removed” (i.e., deported).
65. Removal Proceedings are initiated by the United States government and prosecuted by the United States government.
66. Respondents in Removal Proceedings have the right to representation at their own expense. Unaccompanied immigrant children are provided government-appointed counsel while in government custody. Other individuals who are unable to afford counsel must seek out and obtain assistance from not-for-profit legal services providers or pro bono counsel, or they must proceed pro se.
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67. Respondents in Removal Proceedings are entitled to due process under the Constitution and as provided by statute and regulations. See, e.g., 8 U.S.C. § 1229a; Bridges v. Wixon, 326 U.S. 135, 154 (1945) (“[Because removal] visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom[,] . . . meticulous care must be exercised lest the procedure by which [an alien] is deprived of that liberty not meet the essential standards of fairness.”).
68. Respondents in Removal Proceedings have a right to defend themselves against removal, which may include seeking protection or relief from removal by, for example, applying for asylum or other forms of relief. See 8 U.S.C. § 1229a(c)(4). Certain long-time legal permanent residents and others may seek cancellation of removal, see 8 U.S.C. § 1229b, which allows individuals to remain in the United States with lawful immigration status. Individuals fearing persecution or torture in the country or countries to which they would otherwise be returned may apply for asylum, withholding of removal, and/or protection under the Convention Against Torture.
69. If the judge presiding over an Immigration Court proceeding (viz., an Immigration Judge) finds that a respondent in Removal Proceedings is removable, and the Immigration Judge does not grant asylum or some other protection or relief and instead enters an order of removal, the individual has the right to appeal that order to the BIA. See 8 U.S.C. § 1229a(c)(5). The government, too, may appeal the decision of an Immigration Judge.
70. Such appeals must be filed within 30 days of the Immigration Judge’s decision. 8 C.F.R. § 1003.38(b).
71. An individual may also appeal certain decisions of DHS officials to the BIA. Such appealable decisions may include a denial of a family-based visa (I-130) petition. This type of appeal also must be filed within 30 days of the decision.
72. If the BIA affirms a removal order, the individual may seek judicial review through a petition for review by a United States Court of Appeals. See 8 U.S.C. §§ 1252(a)(1);
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1252(a)(5); 1252(d)(1). Appeal to the BIA is a remedy that must be exhausted as a condition precedent to seeking federal court review. 8 U.S.C. § 1252(d)(1).
73. An individual who claims that an Immigration Judge or the BIA made an error of law or fact in issuing a removal order has a statutory right to file a motion to reconsider that removal order within 30 days of its entry. See 8 U.S.C. § 1229a(c)(6).
74. An individual who claims that there are new facts that warrant reopening Removal Proceedings that previously resulted in a removal order has a statutory right to move to reopen such proceedings. With some exceptions, such motions must be brought within 90 days of a removal order. See 8 U.S.C. § 1229a(c)(7); see also Dada v. Mukasey, 554 U.S. 1, 18 (2008) (describing the “important safeguard” of a motion to reopen, the purpose of which “is to ensure a proper and lawful disposition” in Removal Proceedings).
75. The procedural rights set forth in paragraphs 66–74 supra, and codified by statute, serve to ensure that individuals facing “the loss of all that makes life worth living,” Bridges, 326 U.S. at 147, receive due process and have meaningful access to judicial review.
76. The availability of federal court review of BIA decisions is critical to due process and to development of the law.
77. Over the years the Courts of Appeals have remanded thousands of cases to the BIA. EOIR, Adjudication Statistics – Circuit Court Remands Filed, https://tinyurl.com/y8z55tbc.
78. Because legal expertise is valuable for navigating the complex statutes and regulations underlying Removal Proceedings, and because so many respondents in Removal Proceedings are indigent, many respondents seek and obtain assistance from not-for-profit legal services providers and pro bono attorneys.
79. Respondents represented by counsel in Removal Proceedings have greater success defending against removal than do respondents without legal representation.
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80. Nevertheless, large numbers of respondents appear without counsel in Immigration Court and BIA proceedings. See, e.g., Ingrid Eagly & Steven Shafe, American Immigration Council, Access to Counsel in Immigration Court (Sept. 28, 2016), https://tinyurl.com/ya3geod8; TRAC, Representation Makes Fourteen-Fold Difference in Outcome: Immigration Court “Women with Children” Cases (July 15, 2015), https://trac.syr.edu/immigration/reports/396/. II. EOIR Filing Fees
A. INS (formerly of DOJ), USCIS (of DHS), and EOIR (of DOJ). 81. Before 2002, the former Immigration and Naturalization Service (“INS”), then a sub-agency of the DOJ, was responsible for both immigration enforcement and the adjudication of applications for immigration benefits and naturalization. 82. In 1983, EOIR was formed as a sub-agency of DOJ, as part of a reorganization that combined the BIA with the Immigration Judge functions previously performed by the INS. EOIR remains part of DOJ to this day. 83. The Homeland Security Act of 2002 created the executive department of the Department of Homeland Security (DHS), dissolved the INS, and allocated immigration functions formerly performed by INS to DHS and its component agencies. See Homeland Security Act of 2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002) (codified at 6 U.S.C. §§ 251, 255). 84. The HSA created an agency within DHS that focused on adjudication of immigration benefits and naturalization. That sub-agency is now known as U.S. Citizenship and Immigration Services (“USCIS”). HSA § 451, 116 Stat. at 2195 (codified at 6 U.S.C. § 255). 85. USCIS’s duties include the adjudication of visa and naturalization petitions, affirmative asylum applications, refugee applications, and “all other adjudications” previously performed by the INS. HSA § 451(b)(1)-(5), 116 Stat. at 2195-2196.
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86. The Homeland Security Act maintained EOIR as part of the DOJ. HSA § 1102, 116 Stat. at 2273-2274 (codified at 6 U.S.C. § 521); see also 8 U.S.C. § 1103(g)(1) (Attorney General authority over EOIR).
B. The 1986 Fee Rule. 87. In 1986, EOIR promulgated a rule (the “1986 Fee Rule”) raising the cost for filing appeals from removal decisions (of non-bond decisions), motions to reopen Removal Proceedings, and motions to reconsider removal decisions from $50 to $110, and raising other immigration-related fees by smaller amounts. For example, the fee for an application for suspension of deportation was increased $25, from $75 to $100. 51 Fed. Reg. 39,994 (Nov. 4, 1986). 88. In proposing the 1986 Fee Rule, EOIR stated the “[c]harges [we]re to be fair and equitable, taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts.” 51 Fed. Reg. 2895 (Jan. 22, 1986). 89. To account for the risk that the increased fee for suspension of deportation applications could be burdensome for families applying in the same proceeding, the 1986 Fee Rule provided that one fee could cover two or more individuals in the same proceeding. Id. 90. The 1986 Fee Rule set “several fees for administrative appeals processes . . . at less than full recovery recognizing longstanding public policy and the interest served by these processes.” 51 Fed. Reg. at 39,993. 91. Since 1986, the maximum assessed fee for an application filed with the Immigration Court has not exceeded $100; there has never been a fee for an asylum application; the fee to appeal has not exceeded $110; and the fee to file a motion to reopen or to reconsider has not exceeded $110 (in some instances, there was no fee), as shown in the following table:
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Type of Application, Motion, or Notice of Appeal
Before an Immigration Judge EOIR-40 Application for Suspension of Deportation (EOIR-40)

Filing Fee (19862020)
$100

EOIR-42A Application for Cancellation of Removal for $100 Certain Permanent Residents (EOIR-42A)

EOIR-42B Application for Cancellation of Removal and $100 Adjustment of Status for Certain Nonpermanent Residents (EOIR-42B)

Application for Asylum and For Withholding of Removal (I-589)
Motion to Reconsider Motion to Reopen Notice of Appeal from a Decision of an Immigration Judge (EOIR-26)
Before the Board of Immigration Appeals Notice of Appeal to the Board of Immigration Appeals from a Decision of a DHS Officer (EOIR-29) Motion to Reopen Motion to Reconsider

No Fee $110 $110 $110
$110 $110 $110

92. In 1997, EOIR updated the fee schedule to account for the new Form EOIR-42, Application for Cancellation of Removal, setting the cancellation of removal fee at $100. 62 Fed. Reg. 10,312, 10,336 (Mar. 6, 1997) (interim rule). The new fee schedule did not raise any of the fees set in the 1986 schedule.
93. The fee increases that would be imposed by the Final Rule are the first fee increases for applications, motions, and appeals subject to the Final Rule since 1986.
C. EOIR Operations Are Funded By Congressional Appropriation. 94. For decades, Immigration Court and BIA operations have been funded almost entirely by congressional appropriation. 95. The Final Rule states that the DOJ, including EOIR, is funded by congressional appropriations. 85 Fed. Reg. 82,750, 82,754.
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96. In Fiscal Year 2020, EOIR received nearly $673 million in congressional appropriations. Pub. L. 116-93, 133 Stat. 2317, 2396 (Dec. 20, 2019).
97. For Fiscal Year 2021, Congress has appropriated $734 million to EOIR, a nine percent increase from Fiscal Year 2020. Consolidated Appropriations Act, Senate Amendment to H.R. 33 (Dec. 21, 2021).
98. The Final Rule does not state that EOIR had a budgetary shortfall. 99. The Final Rule does not state that DOJ needs the fees collected by EOIR to meet its costs. 100. By enacting the Final Rule, EOIR fundamentally shifted from a congressional appropriation model of funding, to a model in which the so-called “beneficiary” pays. In this case, however, the “beneficiary” is a respondent in Removal Proceedings commenced by the United States government. 101. The June 2020 report of the DOJ Office of the Inspector General critiqued the current EOIR leadership’s “lack of knowledge” of the EOIR budget. https://tinyurl.com/ybgpty33. III. Fee Waivers in Removal Proceedings 102. Many respondents in Removal Proceedings have not been able to afford the existing fees. 103. Many more respondents in such proceedings will not be able to afford to pay the fees set by the Final Rule. 104. Respondents in Removal Proceedings may apply for a discretionary fee waiver. See 8 C.F.R. §§ 1003.8(a)(3), 1003.24(d), 1103.7(c); EOIR, Immigration Court Practice Manual, supra, at 53 (last updated July 2, 2020), https://tinyurl.com/y9flwne6; EOIR, BIA Practice Manual at 4445 (last updated Oct. 5, 2020), https://tinyurl.com/y9bu6p8v. 105. Applicants for a fee waiver generally submit Form EOIR–26a to Immigration Courts or the BIA. That form asks for detailed information about income, assets, and expenses.
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The applicant must sign under penalty of perjury, but the form provides no accompanying instructions. Some Immigration Judges require that significant documentation be submitted with Form EOIR–26a.
106. The form requires that any attorney or other legal representative for the respondent attest that he or she “reviewed the details provided herein and [is] satisfied that this fee waiver request is made in good faith.”
107. A decision by the Immigration Court or by the BIA to grant or deny a fee waiver request is entirely discretionary. See 8 C.F.R. §§ 1003.8(a)(3), 1003.24(d); see also Immigration Court Manual, supra, at 55; EOIR, BIA Practice Manual at 45 (last updated Oct. 5, 2020), https://tinyurl.com/y9bu6p8v (“When an appeal or motion normally requires a filing fee, the Board has the discretion to waive that fee upon a showing of economic hardship or incapacity.”); 85 Fed. Reg. at 82,759 (“fee waivers are discretionary by nature”).
108. There is no requirement that a decision by the Immigration Court or by the BIA to grant or deny a fee waiver be committed to writing. See https://tinyurl.com/y99d3xj3 (“the regulations do not require a written ruling on a fee waiver request”).
109. There are no publicly available guidelines or standards as to what a showing of economic hardship or incapacity entails. See Id. (“EOIR has no policy directing the automatic grant or denial of a fee waiver request. IJs and AIJs retain independent judgment and discretion in assessing fee waiver requests. 8 C.F.R. §§ 1003.1(d)(1)(ii), 1003.10(b).”).
110. By regulation, no fee waiver is available for a DHS fee that that agency identifies as non-waivable. 8 C.F.R. § 1103.7(c).
111. If an application, motion, or appeal made in Immigration Court or the BIA is filed with a fee waiver application, but without payment of the fee whose waiver is sought, and the fee waiver application is denied, EOIR regards the underlying application, appeal, or motion as not properly filed. See 8 C.F.R. §§ 1003.8(a)(3), 1003.24(d), 1103.7(c); EOIR; Fee Review, 85 Fed. Reg. at 11,874 n.21 (stating that if a waiver request is not granted, “the filing will not be deemed
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properly filed”); Immigration Court Practice Manual, supra, at 55 (“If a filing is submitted without a required fee and the request for a fee waiver is denied, the filing will be deemed defectively filed and may be rejected or excluded from evidence.”).
112. The time for filing the application, motion, or appeal is not tolled if a fee waiver is denied.
113. If a fee waiver request is denied after the filing deadline has passed for the application, motion, or appeal for which the fee waiver request was made, the respondent often must file a motion seeking acceptance of the now-untimely application, motion, or appeal, and has no guarantee that the motion will be granted.
114. Concerns about seeking fee waivers also arise in cases involving the cancellation of removal for non-permanent residents, which requires a positive exercise of discretion. Some Immigration Judges may regard the need for a fee waiver as a factor weighing against cancellation.
115. Defendants have not systematically tracked data pertaining to respondents’ fee waiver requests, or data pertaining to the adjudication of fee waiver requests.
116. For example, Defendants do not maintain statistics regarding the rate at which fee waiver applications for proceedings in Immigration Court or before the BIA are requested and either granted or denied. Similarly, Defendants do not track the impact of fee waiver denials on respondents.
117. The Immigration Court and the BIA have denied fee waiver applications for the applications, motions, and appeals that would be subject to the Final Rule. The denials have been decided under varying and inconsistent standards for a variety of reasons, including because fee waivers are discretionary and there is no clear standard governing such applications.
118. Immigration Courts and the BIA have denied applications for fee waivers for the applications, motions, and appeals subject to the Final Rule without explaining the reason for such denial.
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IV. The Rulemaking Process for the Final Rule A. Notice of Proposed Rulemaking Was Issued. 119. On February 28, 2020, defendants DOJ and EOIR issued a Notice of Proposed
Rule Making (NPRM) that proposed to increase fees associated with certain applications, motions, and appeals in Immigration Court and before the BIA (the “Proposed Fee Rule”).
120. The NPRM proposed increases for the fees assessed in “eight distinct types of filings.” Executive Office for Immigration Review; Fee Review, EOIR Docket No. 18–0101; A.G. Order No. 4641–2020; RIN 1125–AA90, 85 Fed. Reg. 11,866 (Feb. 28, 2020).
121. The eight distinct types of filings for which the NPRM proposed fee increases included applications for three types of relief in proceedings before an Immigration Judge (together, “Applications”).
a. One such Application fee increase would apply to applications for suspension of deportation, for which the fee would increase from $100 to $305. See Form EOIR–40.
b. A second Application fee increase would apply to applications for cancellation of removal for certain permanent residents, for which the fee would increase from $100 to $305. See Form EOIR–42A.
c. The third Application fee increase would apply to applications for cancellation of removal and adjustment of status for certain nonpermanent residents, for which the fee would increase from $100 to $360. See Form 42–B
122. The eight distinct types of filings for which the NPRM proposed fee increases included two types of motions that could be filed in proceedings before either an Immigration Judge or the BIA, motions to reopen proceedings and motions to reconsider (together, “Motions”).
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a. The applicable fees for Motions made before the Final Rule was $110, except that there was no charge for a motion to reopen based exclusively on a claim for asylum or for a motion to reconsider based on an underlying claim for asylum and no charge to file a motion to rescind and reopen based on lack of notice.
b. The NPRM proposed increasing the fee for filing Motions to $145 when made to the Office of the Chief Immigration Judge (i.e., the Immigration Courts), and proposed increasing the fee for filing Motions to $895 when made before the BIA. See MTR BIA.
123. The eight distinct types of filings for which the NPRM proposed fee increases included three types of Notices of Appeal to the BIA (together, “Appeals”).
a. One such Appeal fee increase would raise the fee for filing a Notice of Appeal from a decision of an adjudicating official in a practitioner disciplinary case from $110 to $675. See EOIR–45.
b. A second Appeal fee increase would raise the fee for filing a Notice of Appeal to the BIA from a decision of a DHS officer from $110 to $705. See EOIR–29.
c. The third Appeal fee increase would raise the fee for filing a Notice of Appeal to the BIA from a decision of an Immigration Judge from $110 to $975. See EOIR–26.
124. In addition to the eight distinct types of filings for which the NPRM proposed fee increases, the NPRM also proposed to adopt a $50 fee for filing an application for asylum in Immigration Court, based on a proposal by DHS and USCIS to require such a fee for an application filed with USCIS; there was no fee for such applications prior to the Final Rule.
125. All of the proposed fee increases significantly exceed the increase that could be attributed to the rate of inflation since the 1986 Fee Rule or the 1997 Fee Rule.
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B. The Comment Period for the Proposed Fee Rule Was Limited to 30 Days. 126. On or about February 28, 2020, the date that the NPRM was published, concerns about COVID-19 were becoming widespread in the United States. 127. The NPRM indicated that the comment period on the Proposed Fee Rule would be limited to 30 days. 128. The NPRM offered no explanation or justification for limiting the comment period to 30 days. 129. Executive Orders reflect that a 60-day period is generally understood to be the minimum amount of time that allows for a meaningful opportunity to comment. See, e.g., Executive Order 13563 (Jan. 18, 2011); Executive Order 12866 (Sept. 30, 1993). 130. On March 6, 2020, one week after the NPRM, ninety-one (91) organizations, including Plaintiffs CLINIC, CLSEPA, KIND, and CHIRLA submitted a written request to EOIR to increase the comment period to sixty days (the “March 6, 2020 Request”). 131. Defendants did not respond to the March 6, 2020 Request. C. The Comment Period for the Proposed Fee Rule Was Particularly Inadequate
Given the Onset of the Global COVID-19 Pandemic, Yet Requests to Extend the Comment Period Were Denied. 132. On March 11, 2020, the World Health Organization declared COVID-19 to be a global pandemic. 133. On March 13, 2020, the President declared a national emergency based on the COVID-19 pandemic. See White House, Remarks by President Trump, Vice President Pence, and Members of the Coronavirus Task Force in Press Conference (Mar. 13, 2020), https://tinyurl.com/wdlj4ra. 134. Over the course of the 30-day comment period for the Proposed Fee Rule, forty (40) states issued “shelter in place” orders, covering more than 310 million Americans. 135. While the public reeled from impact of the pandemic, organizations (such as Plaintiff CLINIC’s affiliates, Plaintiff CLSEPA, and Plaintiff CHIRLA) that represent
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individuals in Removal Proceedings, and organizations (such as Plaintiff CLINIC, Plaintiff CLSEPA, and Plaintiff KIND) that provide advice and services to such individuals, or that provide support and other services to the organizations and attorneys that represented such individuals, scrambled to continue to provide such representation, advice, support, and services.
136. Those efforts were made more challenging because those organizations’ offices either closed or were forced to limit public access, the staff members working for such organizations lost childcare as schools and day care centers closed, and such organizations and their staff had to adapt to providing services online and by telephone.
137. Many Immigration Court cases and matters before the BIA had March filing deadlines that needed to be met, and many organizations that provide a full range of legal services to immigrants, including proceedings before USCIS, had to meet March filing deadlines in those other proceedings as well.
138. Detained immigrants were disproportionately impacted by the COVID-19 pandemic, requiring more services from the organizations that serve them, including CHIRLA and KIND.
139. On March 23, 2020, one hundred seven (107) organizations, again including Plaintiffs CLINIC and KIND, wrote to EOIR for the second time about the abbreviated comment period for the NPRM (the “March 23, 2020 Letter”). Their letter noted the lack of response to the March 6, 2020 request and requested a freeze of the comment period.
140. The March 23, 2020 Letter discussed the impact on immigration legal service providers, including those providing services related to EOIR Proceedings, of the pandemic and of orders across the country to shelter in place as entire workplaces, including some Immigration Courts, school systems, and childcare centers, had shut down.
141. EOIR did not respond to the March 23, 2020 Letter. 142. The comment period for the Proposed Fee Rule closed on March 30, 2020.
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143. On March 30, 2020, the United States had the highest number of COVID-19 cases in the world.
144. The need to divert resources to respond to conditions created by the COVID-19 pandemic meant that interested persons and organizations did not have resources that would have otherwise been available to prepare and submit comments on the Proposed Fee Rule within the 30-day period.
145. Many United States government agencies, including the Consumer Financial Protection Bureau, Food and Drug Administration, National Credit Union Administration, the Securities and Exchange Commission, Department of Agriculture, and U.S. Forest Service, reopened or extended comment periods on proposed rule changes in the period between February 28 and March 30, 2020.
146. Ordinarily, the public submits extensive and numerous comments to proposals related to immigration fees. For example, in late 2019, USCIS proposed an increase for certain immigration-related fees. Although USCIS initially limited the comment period to 30 days, it extended the comment period to several months. The public ultimately submitted more than 43,000 comments on the proposed rule. Other proposed rulemakings impacting low-income immigrants have similarly led to the submission of thousands of comments.
147. Gripped by the challenges of a global pandemic, the public submitted only 601 comments on the Proposed Fee Rule to EOIR by the end of the 30-day comment period.
148. For example, because Plaintiff CLSEPA had to direct staff to respond to demands and exigencies created by the COVID-19 pandemic, it was unable to submit comments on the Proposed Fee Rule during the 30-day period, despite a strong interest in doing so.
149. Similarly, among the 147 organizations that had requested that the comment period for the Proposed Fee Rule be extended or frozen, nearly 100 did not submit comments.
150. Following the close of the comment period for the Proposed Fee Rule, CLINIC requested that EOIR re-open the comment period. As with the March 6 and March 23, 2020
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Letters requesting EOIR to extend or freeze the comment period during the pandemic, the government did not respond to this request until it published the Final Rule.
D. The NPRM Was Inaccurate and Inadequate. 151. The NPRM stated that the Proposed Fee Rule included no new fees. 152. The Proposed Fee Rule, however, included a $50 fee to file a “defensive” asylum application before the Immigration Court. 153. Before the Proposed Fee Rule, the United States has never charged a fee for filing a defensive asylum application. 154. Defendants’ NPRM attributed the addition of a “defensive” asylum application fee to an earlier proposed rule by DHS and USCIS to add a $50 fee for the filing of an “affirmative” asylum application with USCIS. The NPRM from DHS and USCIS stated that its proposal to add this fee applied only to DHS and USCIS, and not to EOIR. See 84 Fed. Reg. 62,280, 62,318 (Nov. 14, 2019). 155. The NPRM stated that fee waivers would be available, but did not state that EOIR would not be able to waive this new “defensive” asylum application fee. 156. The NPRM did not provide any justification for the new “defensive” asylum application fee, or for Defendants’ failure to make their own determination regarding fees for “defensive” asylum applications. The NPRM did not discuss the impact of the new “defensive” asylum fee. 157. DHS and USCIS subsequently issued a final rule setting forth a new USCIS fee schedule that included a mandatory, non-waivable $50 asylum application fee. See 85 Fed. Reg. 46,788 (Aug. 3, 2020). In the final rule issued by DHS and USCIS, those agencies stated that the affirmative asylum fee applied to asylum applications filed “with DHS only” and that “[w]hether the fee also will apply to a Form I-589 filed with EOIR is a matter within the jurisdiction of the Department of Justice (DOJ).” Id. at 46,793. That final rule was clear: “DHS does not directly set any fees for DOJ.” Id.
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158. The Final Rule promulgated by Defendants includes the $50 fee for filing “defensive” asylum applications in the Immigration Court. The Final Rule expressly incorporates the new USCIS fee schedule, which includes a mandatory, non-waivable $50 asylum application fee. See, e.g., 85 Fed. Reg. at 82,751 (incorporating citations to “8 C.F.R. part 106” into 8 C.F.R. 1103.7).
159. In response to concerns about the new asylum fee, Defendants wrote in the Final Rule that the Final Rule did not establish a new fee for asylum applications filed before Immigration Courts and the BIA. 85 Fed. Reg. at 82,767, n.31 (“the DHS regulation setting the fee for [the asylum application] form determines the fee charged for it in EOIR immigration proceedings.” (emphasis added)). The Final Rule therefore did not address either Defendants’ failure to independently determine whether to require a fee for “defensive” asylum applications, or DHS’s representation that the decision whether to adopt the fee rested with Defendants.
160. This new EOIR asylum fee is the first time in U.S. history that the Immigration Courts have charged a fee for “defensive” asylum applications.
161. The addition of a new fee to file a “defensive” asylum application has the effect of subjecting asylum applicants to additional fees in connection with motions they may make to reopen or to reconsider asylum applications. Before the Final Rule, applicants did not need to pay any fee in connection with such motions because existing regulations specified that no fee was required for motions to reopen or reconsider that are based exclusively on applications for relief that do not require a fee. The Final Rule would add a fee for asylum applications, and thereby take asylum applications out of the category of “applications for relief that do not require a fee.” The Final Rule would thus impose on such applicants the fees for motions to reopen or reconsider, which previously they did not have to pay.
162. The NPRM omitted other important information about the Proposed Fee Rule that would have permitted the public to make meaningful comments.
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163. The missing information included the very basis for the fee increases being proposed.
164. For example, the NPRM stated that EOIR had conducted a “comprehensive study” in spring 2018 to determine the cost to EOIR for each type of application, motion, and appeal for which the NPRM proposed to increase fees.
165. The “comprehensive study” was not published with the NPRM or at the time of the NPRM.
166. The NPRM did not provide sufficient information about the methodology of the “comprehensive study” to allow meaningful comments about whether the “comprehensive study” was reliable.
167. The NPRM did not disclose the data generated from the “comprehensive study” so that the public could not make meaningful comments about whether such data supported the proposed fees.
168. Following the NPRM’s publication, but before the close of the comment period, Plaintiff CLINIC, contacted the Office of Management and Budget (OMB) on March 6, 2020 and requested the “comprehensive study” referenced in the NPRM as well as the data underlying the calculations that the NPRM cited as reflecting cost to the agency.
169. CLINIC reiterated its request for the “comprehensive study,” to both OMB and DOJ, on March 18, 2020.
170. By the close of the comment period, CLINIC still had not received a response and was forced to submit comments without any ability to review the “comprehensive study” or otherwise assess EOIR’s purported calculations in support of the Proposed Fee Rule.
171. Defendants did not publish the data collected for their spring 2018 “comprehensive study” until they issued the Final Rule. See 85 Fed. Reg. at 82,755.
172. Defendants still have not released a full set of data or complete information regarding the methodology of the “comprehensive study.”
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173. The NPRM stated that EOIR allocated salary costs from General Services Administration (GSA) and Office of Personnel Management (OPM) data to each step in the process, based on the time the step takes, the average salary of the responsible staff, and the percentage of total cases in which the step occurs.
174. The NPRM did not, however, disclose the assumptions, or the data, or the calculations pertaining to that putative salary cost allocation.
175. The limited data that were provided in the NPRM contained errors. 176. For example, the NPRM included errors in calculations of the compound annual growth rate. 177. The limited data provided in the NPRM also raised red flags about the accuracy of the analysis and conclusions reached. 178. For example, the NPRM reported that the cost allocated to staff time for adjudications before the BIA was identical regardless of the BIA procedure—i.e., regardless of whether the adjudication was an appeal, a motion to reopen, or a motion to reconsider. See 85 Fed. Reg. at 11,873 (showing $76.38 for Board member time for appeal from Immigration Judge decision (Final Rule sets fee for appeal at $975), for motions to reopen or reconsider (Final Rule set fee for motion at $895), for appeals of decisions of DHS Officers (Final Rule sets the fee at $705), and for appeals of the decisions of adjudicatory officials in practitioner disciplinary cases (Final Rule sets the fee at $675)). 179. On information and belief, the different types of procedures performed at the BIA each requires different amounts of staff time. E. The NPRM Withheld Important Information About Fee Waivers. 180. The NPRM announced that “EOIR recognizes that the new fees will be more burdensome.” 85 Fed. Reg. at 11,874.
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181. The NPRM purported to address concerns about the added burden presented by the new fees in the Proposed Fee Rule by stating that “fee waivers are still possible for those who seek them.”
182. The NPRM, however, withheld from the public the information that it would need to comment properly on whether the “possib[ility]” of fee waivers offsets or mitigates the burdens of the fee increases set forth in the Proposed Fee Rule.
183. For example, the NPRM did not provide any information related to the current number or frequency of fee waiver requests, the grant or denial rates for such requests, how respondents proceeded when requests are denied, or the time involved to adjudicate fee waiver applications.
184. EOIR has access to every fee waiver application filed in the Immigration Courts and before the BIA and every adjudication of those fee waiver applications. EOIR declined to examine or make publicly available the data in its possession.
185. Such information would have helped the public analyze the Proposed Fee Rule, and provide meaningful commentary on whether the mere “possib[ility]” of fee waivers would overcome the certain burden of the fee increases.
186. The NPRM did not address the anticipated impact that the new and increased fees set forth in the Proposed Fee Rule would have on the fee waiver request process, including what increased percentage of respondents could be expected to need fee waivers as a consequence of the new fee schedule, the likely corresponding increase in time needed to adjudicate the requests, or the impact of the foregoing on the calculations and conclusions in the NPRM.
187. Such information would have helped the public analyze the Proposed Fee Rule, and to provide meaningful commentary on whether the mere “possib[ility]” of fee waivers would overcome the certain burden of the proposed fee increases.
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188. Before the NPRM was published with the proposed fee schedule, Plaintiff CLINIC made a Freedom of Information Act (“FOIA”) request to EOIR for records related to fee waiver applications received and adjudicated from EOIR.
189. The requested records would have helped CLINIC analyze the Proposed Fee Rule, and to provide meaningful commentary on whether the mere “possib[ility]” of fee waivers would overcome the certain burden of the fee increases.
190. EOIR failed to disclose responsive records, or make any response to the request for such records, within the statutorily required timeframe.
191. After the NPRM was published, CLINIC asked EOIR to produce the past-due records before the comment period closed.
192. EOIR did not provide any responsive records until after the comment period closed.
193. After the comment period closed, EOIR produced to CLINIC some documents responsive to its FOIA request.
194. The data provided by EOIR to CLINIC included numerous facially inaccurate entries, including dates that precede EOIR’s existence, and revealed that Defendants have not consistently maintained fee waiver data and do not know the number or rate of fee waiver denials under the fee structure in place before the Final Rule nor whether there has been any consistency to the adjudication of fee waiver requests.
195. The data provided by EOIR to CLINIC reveal that Defendants did not have sufficient information to evaluate whether fee waivers would provide relief from the burden of fee increases and sufficiently mitigate the due process concerns raised by the NPRM.
196. In the Final Rule, Defendants stated that “Respondents’ financial information submitted in support of fee waiver requests has not been tracked or universally evaluated . . . .” 85 Fed. Reg. at 82,759.
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F. Defendants’ Decision to Publish Notices of Additional Proposed Rulemakings After the Comment Period on the Proposed Fee Rule Closed Deprived the Public of the Opportunity to Comment on the Significant Cumulative Effects that the Proposed Fee Rule Would Have if Those Other Proposed Rules Were Promulgated.
197. At the time that EOIR published the NPRM for the Proposed Fee Rule, EOIR was also preparing to propose other rules relating to asylum law and procedure, Immigration Court practice, and BIA practice.
198. One proposed rule was published on June 15, 2020. See Dep’t of Homeland Security and EOIR, Joint Notice of Proposed Rulemaking, Procedures for Asylum and Withholding of Removal; Credible Fear and Reasonable Fear Review, 85 Fed. Reg. 36,264 (June 15, 2020) (“Asylum Rule”).
199. Another proposed rule was published on August 26, 2020. See Executive Office for Immigration Review, Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 52,491 (Aug. 26, 2020) (“Appellate Procedures and Administrative Closure Rule”).
200. A third proposed rule was published on September 23, 2020. See Executive Office for Immigration Review, Notice of Proposed Rulemaking, Procedures for Asylum and Withholding of Removal, 85 Fed. Reg. 59,692 (Sept. 23, 2020) (“Asylum and Withholding of Removal Procedures Rule”).
201. The rules proposed in the three Notices of Proposed Rulemaking set forth in paragraphs 198–200 supra, are referred to herein as the “Subsequent Proposed Rules.”
202. In December 2020, Defendants published final rules that resulted from the rulemaking processes for the three Subsequent Proposed Rules. See 85 Fed. Reg. 80,274 (Dec. 11, 2020); 85 Fed. Reg. 81,698 (Dec. 16, 2020); 85 Fed. Reg. 81,588 (Dec. 16, 2020).
203. Those three final rules are referred to herein as the “Final Subsequent Rules.”
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204. The Final Subsequent Rules, individually and together, would exacerbate the impact that the fee increases set forth in the Final Rule would have on respondents in Removal Proceedings, on Plaintiffs, and on the public in general.
205. The NPRM did not disclose the content or relevant details of the Notices of Proposed Rulemaking for the Subsequent Proposed Rules.
206. Because the Notices of Proposed Rulemaking for the Subsequent Proposed Rules were not published until after the comment period on the Proposed Fee Rule closed, the public had no opportunity to comment on the true impact that the Proposed Fee Rule would actually have soon after it went into effect.
207. For example, the Asylum and Withholding of Removal Procedures Rule set forth a new requirement for individuals in “asylum only” proceedings—including individuals who arrived in the United States with only the clothes that they wore—to pay any assessed filing fee for such asylum applications within 15 days of their first Immigration Court hearing.
208. Readers of the NPRM for the Proposed Fee Rule, which proposed a $50 filing fee for asylum applications, could not have foreseen that if the Asylum and Withholding of Removal Procedures Rule went into effect, the new $50 filing fee for asylum applications would need to be made with 15 days of asylum applicants’ first Immigration Court hearing, and therefore their comments on the Proposed Fee Rule could not address such concerns.
209. The Appellate Procedures and Administrative Closure Rule also significantly impacts the motions and appeals to which the Final Rule’s new fees attach, and the fee waiver application process. For example, Defendants have now restricted the BIA’s authority to selfcertify cases for review and to sua sponte reopen Removal Proceedings.
210. Readers of the NPRM for the Proposed Fee Rule also could not have foreseen that if the nearly eight-fold increase in the filing fee for BIA appeals and motions went into effect— forcing many more individuals to seek a fee waiver—the Board would be stripped of authority it has traditionally used to accept late-filed appeals and motions.
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211. Self-certification and sua sponte reopening are mechanisms the BIA has traditionally used to accept timely appeals and motions that are subsequently rejected because the Board denies the accompanying fee waiver request after the filing deadline has passed. Without notice that Defendants planned to eliminate these important mechanisms, comments on the Proposed Fee Rule could not address the inadequacy of the fee waiver request process in light of this new rule.
212. The Proposed Fee Rule and the Subsequent Proposed Rules are only part of a concerted effort by Defendants to limit due process for individuals subject to Removal Proceedings using piecemeal, staggered rulemaking in a manner that hides the full scope of the expected and intended harm of each rule.
213. Indeed, a fourth proposed rule was published on November 27, 2020. See Executive Office for Immigration Review, Notice of Proposed Rulemaking, Good Cause for a Continuance in Immigration Proceedings, 85 Fed. Reg. 75925 (Nov. 27, 2020).
214. A fifth proposed rule was published on November 27, 2020. See Executive Office for Immigration Review, Notice of Proposed Rulemaking, Motions To Reopen and Reconsider; Effect of Departure; Stay of Removal, 85 Fed. Reg. 75942 (Nov. 27, 2020).
215. These additional proposed rules continue Defendants’ practice of engaging in piecemeal, staggered rulemaking so that the public cannot fully comment on the expected and planned impact of each interrelated rule that modifies the immigration court system. IV. Defendants Ignored Significant Considerations When They Promulgated the
Proposed Fee Rule, and They Provide No Reasoned Basis for the Final Rule A. There Is No Basis For Changing Longstanding Policy. 216. The Final Rule adopts, and would implement, each of the fee increases set forth in the NPRM. 217. The Final Rule adopts, and would implement, each of the fee increases described in paragraphs 121–124 supra.
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218. The Final Rule also adopts, and would implement, a $50 charge for asylum applications, triggering a slew of other fees in connection with such asylum applications.
219. When the United States last raised fees for some of the applications, motions, and appeals covered by the Final Rule, it set “several fees for administrative appeals processes . . . at less than full recovery recognizing longstanding public policy and the interest served by these processes.” 51 Fed. Reg. at 39,993. The agency held those fees constant for three and a half decades.
220. The Final Rule provides no reasoned support for changing this longtime policy. 221. The NPRM states that EOIR had “determined that it was necessary to conduct an updated assessment of the costs for processing the forms and motions for which EOIR sets the appropriate fees.” 85 Fed. Reg. at 11,688. 222. The Final Rule would change the fees for applications, motions, and appeals, with no explanation or justification for the change to longstanding public policy regarding setting these fees. 223. The Final Rule would change the fees for applications, motions, and appeals, but provides no adequately reasoned basis for such change. B. Defendants Lack Authority to Promulgate the Final Rule. 224. Defendants lack statutory authority under INA Section 286 to impose the fees that comprise the Final Rule because that provision relates to fees for petitions for immigration and naturalization benefits previously adjudicated by the INS, and thereafter transferred to the auspices of the USCIS. It does not relate to EOIR court filings, which are the province of the Final Rule. 225. Defendants lack statutory authority under the Independent Offices Appropriations Act of 1952 (“IOAA”) to impose the fees that comprise the Final Rule. 226. To the extent that Defendants purported to rely on the IOAA in promulgating the Final Rule, Defendants did not adhere to the IOAA’s standards for such promulgation, including
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the IOAA requirement that any fees imposed be fair and based on government costs, value provided to the recipient, the public policy or interest served, and certain other factors.
227. EOIR is obligated to make fundamentally fair and equitable proceedings available to respondents in Removal Proceedings.
228. Defendants abrogated that obligation in promulgating the Final Rule. C. The Final Rule Does Not Analyze the Impact of the Fee Increases or Provide
Reasoned Bases for Allowing That Impact. 229. The NPRM did not discuss the full expected impact of the proposed fees on the public. 230. In promulgating the Final Rule, Defendants did not consider the full expected impact of the proposed fees on the public. 231. The Final Rule does not provide a reasoned basis for a rule that has such a harmful impact on the public. 232. Moreover, because the Final Rule would deprive persons in the United States of Due Process and Equal Protection under the law, in violation of the Fifth Amendment to the United States Constitution, the public is irreparably harmed by the government’s abridgement of these Constitutional rights and norms through promulgation of the Final Rule. 233. Most respondents in Immigration Court proceedings have very limited resources available to them. 234. In promulgating the Final Rule, Defendants did not consider that most respondents in Immigration Court proceedings have very limited resources available to them. 235. The Final Rule does not provide a reasoned basis for the fee increases in view of the fact that most respondents in Immigration Court proceedings often have very limited resources available to them. 236. For many respondents in Immigration Court, the services provided by Plaintiffs will be material to preventing their removal or the removal of their family from this country.
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237. In promulgating the Final Rule, Defendants did not consider that for many respondents in Immigration Court, the services provided by Plaintiffs will be material to preventing their removal or the removal of their family from this country.
238. The Final Rule does not provide a reasoned basis for the fee increases in view of the fact that for many respondents in Immigration Court, the services provided by Plaintiffs will be material to preventing their removal or the removal of their family from this country.
239. In Removal Proceedings, unaccompanied immigrant children are afforded numerous substantive and procedural protections due to their vulnerabilities. See generally Trafficking Victims Protection Reauthorization Act, 8 U.S.C. § 1232.
240. In promulgating the Final Rule, Defendants did not give adequate consideration to the impact of the proposed fee increases on unaccompanied immigrant children’s vulnerabilities and their ability to pay the fees or seek a fee waiver.
241. The Final Rule does not provide a reasoned basis to impose increased fees on unaccompanied immigrant children, considering their vulnerabilities and limited means.
242. Removal can wreak havoc on individuals in Removal Proceedings and their families, including on their spouses and citizens who may be U.S. citizens.
243. In promulgating the Final Rule, Defendants did not consider that most respondents in Removal Proceedings have very few avenues available to defend themselves and their families against removal.
244. The Final Rule does not provide a reasoned basis for the fee increases in view of the fact that most respondents in Removal Proceedings often have very few avenues for defending themselves and their families against removal.
245. Respondents in Removal Proceedings have due process rights, including but not limited to respondents who are wrongly placed in Removal Proceedings because they are U.S. citizens or have lawful immigration status and are not deportable.
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246. In promulgating the Final Rule, Defendants did not give adequate consideration to the impact of the fee increases on the due process rights of respondents in Immigration Court, including but not limited to respondents who are wrongly placed in Removal Proceedings because they are U.S. citizens or have lawful immigration status and are not deportable.
247. The Final Rule does not provide a reasoned justification for the impact that the fee increases would have on the due process rights of respondents in Immigration Court, including but not limited to the due process rights of respondents who are wrongly named in Removal Proceedings because they are U.S. citizens or have lawful immigration status and are not deportable.
248. The Immigration Court and BIA applications and procedures to which the Final Rule pertains include procedures that provide respondents with statutorily authorized protection and relief from removal as well as low-income individuals’ access to appeals and procedural safeguards afforded by motions to reopen and motions to reconsider.
249. In promulgating the Final Rule, Defendants did not give adequate consideration to the Rule’s impact on respondents’ ability to seek statutorily authorized protection and relief from removal or low-income individuals’ access to appeals and procedural safeguards afforded by motions to reopen and motions to reconsider.
250. The Final Rule does not provide a reasoned basis for permitting the fee increases’ impact on respondents’ ability to seek statutorily authorized protection and relief from removal or low-income individuals’ access to appeals and procedural safeguards afforded by motions to reopen and motions to reconsider.
251. Respondents in Immigration Court proceedings and BIA proceedings generally have the right to access federal court review of agency actions.
252. In promulgating the Final Rule, Defendants did not adequately consider the Rule’s impact on respondents’ access to federal court review of agency actions.
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253. The Final Rule does not provide a reasoned justification for the impact that the fee increases will have on respondents’ ability to access federal court review of agency actions against them.
254. In promulgating the Final Rule, Defendants did not adequately consider that the new defensive asylum application fee could force respondents in Removal Proceedings to file a withholding of removal application rather than an asylum application, and that the legal standard for withholding of removal is higher than the standard for asylum.
255. In promulgating the Final Rule, Defendants did not adequately consider that withholding of removal grants significantly fewer rights and protections than does asylum.
256. The Final Rule does not provide a reasoned justification for the impact that the new defensive asylum application fee would have by forcing respondents in Removal Proceedings to file a withholding of removal application rather than an asylum application, where the legal standard for withholding of removal is higher than the standard for asylum and where a withholding of removal grants significantly fewer rights and protections than does asylum.
257. The increased fees set forth in the Final Rule will impact respondents’ access to counsel, and some respondents will be forced to choose between paying the fees in order to file the applications, motions, and appeals, or paying for counsel.
258. In promulgating the Final Rule, Defendants did not consider that the increased fees will impact respondents’ access to counsel, and that some respondents will be forced to choose between paying the fees in order to file the applications, motions, and appeals, or paying for counsel.
259. The Final Rule does not provide a reasoned basis for the fee increases given that the increased fees will impact respondents’ access to counsel, and that some respondents will be forced to choose between paying the fees in order to file the applications, motions, and appeals, or paying for counsel.
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260. The increased fees set forth in the Final Rule will burden the nonprofit organizations and pro bono counsel that provide representation to respondents who lack the means to pay for counsel.
261. In promulgating the Final Rule, Defendants did not consider that the increased fees will burden the nonprofit organizations and pro bono counsel that provide representation to respondents who lack the means to pay for counsel.
262. The Final Rule does not provide a reasoned basis for increasing fees in view of the burden that such increased fees will have on the nonprofit organizations and pro bono counsel that provide representation to respondents who lack the means to pay for counsel.
263. At the fee levels set forth in the Final Rule, it will not be possible for many nonprofit providers and pro bono attorneys to continue their practice of paying the fees for applications, motions, or appeals of clients who are unable to do so, or of assisting such clients in accessing funds to cover such fees, or at least to do so with the same regularity.
264. In promulgating the Final Rule, Defendants did not consider that at the new fee levels, it will not be possible for many nonprofit providers and pro bono attorneys to continue their practice of paying the fees for applications, motions, and appeals of clients who are unable to do so, or of assisting such clients in accessing funds to cover such fees, or at least to do so with the same regularity.
265. The Final Rule does not provide a reasoned basis for increasing fees given that at the new fee levels, it will not be possible for many nonprofit providers and pro bono attorneys to continue their practice of paying the fees for applications, motions, and appeals of clients who are unable to do so, or of assisting such clients in accessing funds to cover such fees, or at least to do so with the same regularity.
266. Some nonprofit providers and pro bono attorneys are small entities protected by various statutes from onerous rules that affect their business.
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267. In promulgating the Final Rule, Defendants did not adequately consider that some of the nonprofit providers and pro bono attorneys are small entities protected by various statutes from onerous rules that affect their business.
268. The Final Rule does not provide a reasoned basis for increasing fees in view of the effect they will have on nonprofit providers, pro bono attorneys, and other legal service providers who are small entities protected by various statutes from onerous rules that affect their business.
269. As a consequence of the Final Rule, legal services providers will need additional time to assist clients in preparing fee waiver applications, which will impact the overall number of clients they would be able to represent.
270. In promulgating the Final Rule, Defendants did not consider that legal services providers will need additional time to assist clients in preparing fee waiver applications, which will impact the overall number of clients they would be able to represent.
271. The Final Rule does not provide a reasoned basis for increasing fees in view of the burden it would place on legal services providers, who will need additional time to assist clients in preparing fee waiver applications, which will impact the overall number of clients they would be able to represent.
272. For many legal services providers, the fee increases set forth in the Final Rule will reduce the number of their clients who are able to pay the fees for counsel, or for applications, motions, and appeals, and reduce the number of clients overall that they can represent in connection with Removal Proceedings.
273. In promulgating the Final Rule, Defendants did not consider that as a consequence of the increased fees, many legal services providers will have fewer clients able to pay fees for counsel or for applications, motions, and appeals, and fewer clients overall that they can represent in connection with Removal Proceedings, and that there will be diminished funding for and capacity of legal services providers.
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274. The Final Rule does not provide a reasoned basis for increasing fees in view of the impact that the increased fees will have on legal services providers, which include but are not limited to such providers having fewer clients able to pay fees for counsel or for applications, motions, and appeals, and fewer clients overall that they can represent in connection with Removal Proceedings, and that there will be diminished funding for and capacity of legal services providers.
275. The fee increases set forth in the Final Rule will deprive many respondents in Removal Proceedings of the opportunities for legal representation that they would have had in the absence of such increases or to make applications, motions, and appeals that they otherwise would have been able to make, leading to adverse outcomes in situations that otherwise would not have been adverse for them, and resulting in deportations that would not otherwise take place, leading to a host of harms that extend beyond such individual respondents.
276. In promulgating the Final Rule, Defendants did not consider that the increased fees will deprive many respondents in Removal Proceedings of the opportunities for legal representation that they would have had in the absence of such increases or to make applications, motions, and appeals that they otherwise would have been able to make, leading to adverse outcomes in situations that otherwise would not have been adverse for them, and resulting in deportations that would not otherwise take place, leading to a host of harms that extend beyond such individual respondents.
277. The Final Rule does not provide a reasoned basis for the fee increases in view of the fact that such increases will deprive many respondents in Removal Proceedings of the opportunities for legal representation that they would have had in the absence of such increases, or to make applications, motions, and appeals that they otherwise would have been able to make, leading to adverse outcomes in situations that otherwise would not have been adverse for them, and resulting in deportations that would not otherwise take place, leading to a host of harms that extend beyond such individual respondents.
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D. The Final Rule Does Not Provide Reasoned Support for the Fee Increases. 278. The calculations supporting the fee increases set forth in the Final Rule allocate almost all costs of an immigration proceeding to the respondent, without allocating a portion of the value to the government, in view of the important public interests that are served by the proper functioning of the Immigration Court system, the adversarial nature of the proceedings, Congress’s intent that certain defenses and protections from removal be available to respondents, and the fair administration of justice. See 85 Fed. Reg. at 82,751 (“EOIR recognizes that these applications for relief, appeals, and motions represent statutorily provided relief and important procedural tools that serve the public interest.”); id. at 82,783 (“As DHS is the party opposite the alien in these proceedings, EOIR’s hearings provide value to . . . the Federal interests that DHS represents.”). Defendants nonetheless assigned almost the entirety of the costs of staff time purportedly involved in processing and adjudicating applications, motions, and appeals to respondents. 279. The calculations supporting the fee increases failed to adequately account for the fact that EOIR is an appropriated agency, receiving nearly $673 million in congressional appropriations in Fiscal Year 2020. 280. In promulgating the Final Rule that allocates almost all costs of a Removal Proceeding to the respondent, Defendants did not give adequate consideration to EOIR’s status as a congressionally appropriated agency. 281. The Final Rule provides no reasoned basis for allocating almost all costs of an immigration proceeding to the respondent when EOIR is a congressionally appropriated agency. E. The Availability of Fee Waivers Does Not Mitigate the Impact of the Fee
Increases. 282. Under the Final Rule, fee waivers will not be available for asylum seekers.
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283. In promulgating the provisions of the Final Rule that create new fees for asylum seekers, Defendants did not consider that fee waivers provide no protection for asylum seekers because they are not available to such individuals.
284. The Final Rule does not provide a reasoned basis for creating new fees for asylum seekers where fee waivers provide no protection for such individuals because they are not available to such individuals.
285. Even for respondents who are eligible for fee waivers, those respondents cannot rely on the availability of such fee waivers because the waivers are discretionary. Moreover, there is no statutory or regulatory standard for adjudicating requests for fee waivers; denials of fee waivers are not clearly appealable; there is no ready way to predict whether fee waivers will be granted in many cases; it is time consuming to apply for such waivers; and in some circumstances it is risky to pursue fee waivers because a decision on the fee waiver request may not issue until after the underlying filings were due.
286. In promulgating the Final Rule, Defendants did not consider that even for respondents who are eligible for fee waivers, those respondents cannot rely on the availability of such fee waivers because they are discretionary. Moreover, there is no statutory standard for determining fee waiver applications; denial of fee waivers are not clearly appealable; there is no ready way to predict whether fee waivers will be granted in many cases; it is time consuming to apply for such waivers; and in some circumstances it is risky to pursue fee waivers because a decision may not issue until after the underlying papers were due or because the need for the fee waiver may be considered a negative factor when discretion is exercised in the adjudication of the underlying application.
287. The Final Rule does not provide a reasoned basis for imposing fees where even for respondents who are eligible for fee waivers, those respondents cannot rely on the availability of such fee waivers because they are discretionary. Moreover, there is no statutory standard for determining fee waiver applications; denial of fee waivers are not clearly appealable; there is no
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ready way to predict whether fee waivers will be granted in many cases; it is time consuming to apply for such waivers; and in some circumstances it is risky to pursue fee waivers because a decision may not issue until after the underlying papers were due or because the need for the fee waiver may be considered a negative factor when discretion is exercised in the adjudication of the underlying application.
288. The increased fees set forth in the Final Rule will generate an increased need for fee waivers, and impose a corresponding burden on Immigration Judges and the BIA to adjudicate fee waiver requests.
289. In promulgating the Final Rule, Defendants did not consider that the increased fees will generate an increased need for fee waivers, and impose a corresponding burden on Immigration Judges and the BIA to adjudicate fee waiver requests.
290. The Final Rule does not provide a reasoned basis for increasing fees in view of the increased need for fee waivers that will arise, and the corresponding burden on Immigration Judges and the BIA to adjudicate fee waiver requests.
F. The Subsequently Promulgated Rules Would Amplify the Harmful Impact of the Final Rule.
291. In promulgating the provisions of the Final Rule that add a new $50 “defensive” asylum application fee, Defendants did not consider the impact of that “defensive” asylum fee in view of their Asylum Rule, which became final on December 16, 2020 (see 85 Fed. Reg. 81,588 (Dec. 16, 2020)), and which requires that such fee be paid within 15 days of the first master calendar hearing for those in “asylum only” proceedings.
292. The Final Rule does not provide a reasoned basis for instituting the new “defensive” asylum application fee in combination with a 15-day deadline to pay that fee and fails to account for or provide a reasoned basis for the refoulements that can result from the combined impact of these two Rules.
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293. Defendants did not consider comments regarding the new $50 “defensive” asylum application fee, asserting that most of the comments regarding that fee were “beyond the scope of this rulemaking.” 85 Fed. Reg. at 82,767.
294. The Final Rule stated: “[B]ecause the Form I-589 is a DHS form, the DHS regulation setting the fee for that form determines the fee charged for it in EOIR immigration proceedings, and neither the NPRM nor the final rule purports to change that structure.” Id. n.31.
295. Defendants’ position that the provisions of the Final Rule requiring a $50 fee for defensive asylum applications does not establish a new fee is unreasonable because there has never been a fee charged for defensive asylum applications filed in Removal Proceedings.
296. Defendants’ position that the provisions of the Final Rule requiring a $50 fee for defensive asylum applications does not establish a new fee is also unreasonable in view of DHS’s statement that “[w]hether the fee also will apply to a Form I-589 filed with EOIR is a matter within the jurisdiction of the Department of Justice (DOJ) rather than DHS.” 85 Fed. Reg. 46,788 (Aug. 3, 2020).
297. Despite Defendants’ statement that the Final Rule does not establish a $50 fee for asylum applications, the Final Rule effectively adopts for EOIR proceedings the $50 asylum application fee instituted by DHS and USCIS under the authority of Chad Wolf and his deputy Ken Cuccinelli (Final Rule at 67-68), both of whom served in their positions in violation of the Federal Vacancies Reform Act and/or the Homeland Security Act.
298. Defendants’ Final Rule thus adopts and imposes a DHS fee that was itself unlawfully promulgated. Defendants relied wholly on the unlawful promulgation by DHS of their $50 asylum application fee as the justification for imposing the new $50 “defensive” asylum application fee, without independent reasoning, analysis, or support for the institution of such a fee.
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299. The Final Subsequent Rules affect the impact of the Final Rule, including the circumstances in which individuals will be required to pay the fee increases, and thereby render obsolete and irrelevant any basis that the “comprehensive study” and other putative analysis by Defendants might have provided for the Final Rule, and further exacerbate the impact of the Final Rule. In promulgating the Final Rule, Defendants did not consider that if the Subsequent Proposed Rules issued in their proposed form, they would interrelate with Defendants’ proposed fee increases, and thereby render obsolete and irrelevant any basis that the “comprehensive study” and other putative analysis by Defendants might have provided for the Final Rule, and further exacerbate the impact of the Final Rule. The Final Rule does not provide a reasoned basis for increasing fees in view of the Subsequent Proposed Rules, which would render Defendants’ reliance on the “comprehensive fee study” and other putative analysis obsolete and irrelevant, and would exacerbate the impact of the Final Rule. V. The Final Rule Will Irreparably Harm Plaintiffs
300. The Final Rule will cause immediate and irreparable harm to Plaintiffs CLINIC, CLSEPA, KIND, and CHIRLA and its members. The steep fee increases would require the staff of CLINIC and its affiliates, and their pro bono partners, to spend significantly more time applying for fee waivers for their clients and litigating issues relating to such applications.
301. This additional work would represent a significant new burden on CLINIC and its affiliates.
302. In order to do this additional work, CLINIC and its affiliates would have less time to spend working on the merits aspect of specific Removal Proceedings, including the Applications, Motions, and Appeals filed in such cases.
303. If the Final Rule goes into effect, because the staff and affiliates of Plaintiff CLINIC would need to spend increased time preparing and consulting on fee waiver applications for individuals in Removal Proceedings, they would have less time to spend on other aspects of CLINIC’s core programs, including CLINIC’s Defending Vulnerable Populations Program and
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that Program’s BIA Pro Bono Project, and CLINIC’s Estamos Unidos (“We Are United”) Program serving vulnerable asylum seekers who have been forced to remain in Mexico to await their asylum hearings.
304. The Final Rule would also negatively impact CLINIC’s ability to place cases with pro bono partners for several reasons.
305. First, as a result of the Final Rule, any representation taken on by a pro bono partner would include additional work beyond the work on the merits of the client’s case—such as preparing and filing applications for fee waivers and motions to accept late-filed notices of appeal, and litigating fee waiver denials. The additional work, which relates to fee waivers, is much less attractive to potential pro bono partners than merits-related work.
306. Second, in addition to diverting resources from merits-related work to fee waiverrelated work, CLINIC and its pro bono partners would also need to devote resources to seek alternative (and limited) sources of funding for the increased filing fees. Pro bono attorneys working with CLINIC have sometimes covered the filing fees for clients when such fees were at the relatively modest rates that have been in effect for the past 34 years, but such attorneys would not do so as often under the new fee schedule.
307. Finally, CLINIC currently leverages its expertise by working with pro bono counsel, allowing CLINIC’s staff to advise on a great many individual cases instead of directly handling those cases in Immigration Court and before the BIA. With fewer such cases handled by pro bono partners, CLINIC will not be able to exploit its expertise as fully through this model, reducing the number of overall cases on which it can advise and requiring its staff to take on a greater number of individual cases for direct representation (and allocate staffing to do so).
308. The Final Rule’s fee increases would also significantly impact members of Plaintiff CLINIC’s affiliate network, whose staff will have to spend more time advising or representing each individual who is or could be in Removal Proceedings. Such additional time would involve (i) helping clients obtain funding or resources to find the money to pay for the
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Applications, Motions, or Appeals; (ii) helping respondents in Removal Proceedings determine whether making a fee waiver application is worth the risk, given the time required to prepare such applications and the possibility that the waiver will not be timely granted; and (iii) if a client decides to file a fee waiver application, helping the client prepare such application, including gathering the required supporting documentation.
309. As a consequence of spending more time advising or representing each individual who is or could be in Removal Proceedings, many members of Plaintiff CLINIC’s affiliate network could not handle as many cases as they currently do using the resources they currently have. Because many such affiliates rely on grant funding that requires them to serve a specified number of clients or complete a specified number of cases, they may be unable to satisfy their grant funding obligations, and may therefore lose such grant funding.
310. In order to spend the additional time required to prepare fee waiver applications, or to obtain funding to pay for the new fees, members of Plaintiff CLINIC’s affiliate network would be forced to reallocate resources away from other projects, impacting their core missions. Because of the impact of the fee increases on CLINIC’s affiliate network, including but not limited to those set forth in paragraphs 300–309 supra, many of CLINIC’s affiliates would no longer be able to retain their membership as affiliates in the CLINIC network. Accordingly, CLINIC’s affiliate network would decrease in size, which will cause a corresponding decrease in the dues that CLINIC receives and relies on for its programs, thus diminishing the resources CLINIC has available for activities such as providing live training, consultancy, and training materials for affiliate staff. This would frustrate CLINIC’s mission of providing low-cost legal services to indigent immigrants. The Final Rule would also require CLINIC to update its training materials to reflect the consequences of the fee increases, including strategic considerations in making fee waiver requests, and the addition of a non-waivable defensive asylum fee.
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311. The Final Rule will also lead to a decrease in the number of individuals who will be able to afford even the lower non-profit rates that many CLINIC affiliates charge to clients to represent them in Removal Proceedings, because such individuals will be faced with the choice of paying higher filing fees or paying an attorney or other representative to represent them. The loss of this revenue resulting from these challenges, combined with the loss of grant funding, would likely cause many affiliates to reduce the scope of the services that they provide to individuals in Removal Proceedings.
312. Faced with a reduction in fees and membership, CLINIC would need to reduce the scope of programs that it provides, including programs associated with its core mission.
313. Plaintiff CLSEPA will also face irreparable harm as the result of the Final Rule. CLSEPA has a large removal defense program that provides representation to hundreds of individuals facing removal in Immigration Courts and before the BIA. A critical part of the funding for this work is on a “per case” basis, with the payments staged in a way that recognizes the significant staffing and resource demand at the screening and initial stages of a case, but requires a completion of a certain number of cases by the end of a given funding cycle. This means that when cases take longer or require more staff hours, CLSEPA can promise fewer deliverables to funders and takes in less funding.
314. With the Final Rule’s fee increases, CLSEPA’s staff would have to shift their work to applying for and litigating fee waiver applications, thus increasing the work required for each individual case. This would cause a drop in the number of cases that CLSEPA can take on through completion, negatively impacting its funding.
315. The Final Rule’s fee increases would also directly harm CLSEPA’s pro bono program, because fewer pro bono attorneys would be able to pay the filing fees for indigent clients and the additional fee waiver work would increase the burden on pro bono attorneys. CLSEPA would be unable to place clients’ cases with its pro bono partners at the rate it has the
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past, which would lead to even fewer individuals in Removal Proceedings gaining access to counsel.
316. The increased need for work on fee waivers by CLSEPA staff and the decrease in pro bono case placement would frustrate CLSEPA’s mission to provide transformative legal services that enable diverse communities in East Palo Alto and beyond to achieve a secure and thriving future.
317. Plaintiff KIND will also face irreparable harm as the result of the Final Rule. It is difficult, if not impossible, for KIND’s clients in Removal Proceedings—children and young adults—to pay fees as high as those in the Final Rule.
318. KIND frequently pays the Immigration Court and BIA fees for its clients in Removal Proceedings. The Final Rule’s steep fees would put such payments out of reach for KIND, necessitating more fee waiver work.
319. The increased need for fee waivers would have a significant impact on KIND’s program and practice due to the volume of Applications, Motions, and Appeals the organization files on behalf of its clients.
320. The increased need for fee waivers would divert attorney and paralegal resources away from KIND’s core programmatic work, which includes preparing and filing applications and motions before USCIS and in Immigration Courts on behalf of unaccompanied immigrant children, including applications for asylum and Special Immigrant Juvenile Status.
321. KIND would need to divert resources to prepare training materials and provide technical assistance to staff and pro bono partners on the consequences of the fee increases that would be imposed by the Final Rule and best practices for fee waiver applications, including strategic considerations about whether to file such applications.
322. The organization would also need to divert resources to fundraising efforts in order to pay the fees for some subset of its clients’ Immigration Court and BIA Motions and Appeals.
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323. Because of this diversion of resources, if the Final Rule goes into effect, KIND would see an immediate impact on its programming.
324. As a consequence of spending more time advising or representing each young person who is or could be in Removal Proceedings, KIND’s staff could not handle as many clients as they currently do using the resources they currently have.
325. The fee increases would also affect KIND’s ability to refer clients to its pro bono partners, which is a cornerstone of its representation model. KIND places the majority of its cases with pro bono attorneys.
326. KIND’s pro bono attorneys often pay the filing fees for BIA Appeals or Immigration Court Motions and Applications because it would be more cost-effective than spending the time to prepare a fee waiver application under the current fee structure. But they would be far less likely to pay the significantly increased fees imposed by the Final Rule, requiring pro bono attorneys to need to file more fee waiver applications.
327. Given the increased need for fee waivers, pro bono attorneys would need to expend more time on their clients’ cases and, in some cases, to file motions to accept late-filed briefs if the fee waiver is denied. This additional work would likely result in pro bono attorneys taking fewer cases from KIND.
328. A reduction in the number of clients that its pro bono attorneys could represent would have an immediate harmful impact on KIND’s programming, given that the organization places most of its cases with pro bono attorneys.
329. To the extent that higher EOIR fees and a larger number of fee waiver applications absorb attorney time and other resources, and diminish KIND’s ability to place cases with pro bono attorneys, KIND would likely be able to serve fewer children at its present funding level.
330. CHIRLA’s members would be immediately harmed by the Final Rule, as would CHIRLA as an organization.
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331. Many of CHIRLA’s members are in Removal Proceedings or are likely to be placed in Removal Proceedings.
332. CHIRLA has members with a foreseeable need to file applications for asylum, members with a foreseeable need to file applications for cancellation of removal, members with a foreseeable need to file motions to reopen, members who have a foreseeable need to file motions to reopen before the Immigration Court or the BIA, and members who have a foreseeable need to file appeals to the BIA after the Final Rule takes effect.
333. CHIRLA’s members are predominantly low-income with extremely limited financial resources.
334. Relatively few of CHIRLA’s members would be able to afford the Immigration Court and BIA fees under the Final Rule.
335. A fee waiver will not be available for the asylum fees that CHIRLA’s members would face.
336. For fees that may be waivable, CHIRLA’s members in some cases would not be able to pursue fee waivers without risk of compromising their claims, and in nearly all cases, would not be assured that their respective fee waiver requests will be granted.
337. CHIRLA does not have sufficient funds to cover fees for all members who would be subjected to the Final Rule’s fees in Removal Proceedings.
338. CHIRLA has members who have defenses to removal but who will not have the ability to pay the Final Rule’s fee for pursuing a BIA appeal.
339. CHIRLA has members who would file motions to reopen in Immigration Court or before the BIA but who will not have the ability to pay the Final Rule’s fee for filing motions to reopen.
340. CHIRLA has members who would file asylum claims but who will not have the ability to pay the Final Rule’s fee for filing defensive asylum applications in Removal Proceedings.
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341. CHIRLA has members who would file cancellation of removal claims but who will not have the ability to pay the Final Rule’s fee for filing defensive cancellation applications.
342. CHIRLA has members who would file suspension of deportation claims but who will not have the ability to pay the Final Rule’s fee for filing their suspension of deportation applications.
343. CHIRLA members at risk of not receiving a fee waiver for an Application, Motion, or Appeal will suffer immediate, irreparable harm.
344. Many CHIRLA members will not be able to wait to make their filing for an Application, Motion, or Appeal in the hope that a fee waiver will be available to them and will have to begin to sacrifice other critical needs in order save money to be prepared for the possibility of a fee waiver denial or other inability to secure a fee waiver.
345. CHIRLA members who are unable to file the above-mention Applications, Motions, or Appeals will be removed from the United States, causing harm to themselves and their families.
346. CHIRLA members who are unable to pursue Applications, Motions, or Appeals due to the increased fees and lack of a reliable, predictable fee waiver process will in many instances be removed from the United States based on errors and without having had access to procedures, safeguards and review that are critical to due process.
347. CHIRLA members who lack the financial resources to pay the increased fees implemented by the Final Rule will be limited in their access to defenses to removal, access to asylum, access to relief, access to BIA review, access to reopening and reconsideration, and ultimately access to federal court review of agency action.
348. CHIRLA members will be irreparably harmed by the limited availability and inadequacies of Immigration Court and BIA fee waiver processes as set forth in paragraphs 102– 118 supra.
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349. CHIRLA members who submit a fee waiver application will be harmed if their fee waiver application is denied and their Application, Motion, or Appeal is rejected because of failure to pay the fee required by the Final Rule. Such rejection, and failure to accept an untimely Application, Motion, or Appeal may result in the harm of removal.
350. CHIRLA members who apply for asylum once the Final Rule is in effect will be harmed because the fee for asylum cannot be waived, forcing them to pay the fee or forego their asylum claim. Failing to file for asylum presents a significant risk for such members that they will be returned to persecution or death in their home country.
351. CHIRLA has members who will file for asylum as a family, and each family member must pay the non-waivable asylum fee. Multiple asylum fees will cause harm to lowincome families who will have to choose between paying their asylum fees and basic necessities.
352. CHIRLA members who pay the EOIR fees rather than submitting a fee waiver request, despite being indigent, will likely sacrifice other essential expenditures, causing harm to themselves and their families.
353. The financial harms to CHIRLA members are particularly acute due to the impact of COVID-19 on low-income individuals and families who comprise CHIRLA’s membership.
354. CHIRLA will also be harmed as an organization if the Final Rule goes into effect. CHIRLA’s mission is to ensure that immigrant communities are fully integrated into our society with full rights and access to resources.
355. The Final Rule frustrates CHIRLA’s purpose and directly harms the organization. 356. CHIRLA will experience a reduction in membership and/or membership fees as a result of those members who are removed from the United States or who cannot afford membership in the face of the asylum fees, or the increased fees required for Applications, Motions, and Appeals in connection with their EOIR proceedings. 357. CHIRLA will suffer further harm in its own right due to the Final Rule.
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358. CHIRLA will need to undertake additional, time consuming fee waiver work, divert resources to raise funds for clients and members to cover fees, and suffer a drain on the organization’s resources.
359. The Final Rule will require CHIRLA to spend more time on cases and will reduce the organization’s capacity to accept new cases.
360. CHIRLA will lose funding that is on a “per case basis” where it cannot satisfy previously determined deliverables.
361. CHIRLA will suffer irreparable harm to its reputation among members, with funders, and in the larger community.
CLAIMS FOR RELIEF COUNT ONE
The Final Rule Should Be Vacated Because It Is Arbitrary, Capricious, an Abuse of Discretion,
and Not in Accordance with Law 362. Plaintiffs repeat and reallege the allegations in paragraphs 1 to 361 as though fully set forth herein. 363. 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 . . . .” 5 U.S.C. § 706(2). 364. An agency action, including a final rule, should be vacated if the promulgating agency failed to “examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citation omitted). 365. When an agency substantially alters its position, it must “supply a reasoned analysis for the change,” State Farm, 463 U.S. at 42, and may not “depart from a prior policy sub silentio or simply disregard rules that are still on the books.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
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366. As set forth above, Defendants failed to consider numerous relevant factors in promulgating the Final Rule.
367. As set forth above, the Final Rule fails to provide a reasoned basis for the fee increases in view of any stated goals for the Final Rule.
368. As set forth above, the Final Rule fails to provide a reasoned basis for the changes implemented by the Final Rule in view of numerous relevant factors, including but not limited to costs and harms on respondents, Plaintiffs, and others.
369. In promulgating the Final Rule, Defendants offer no justification or rationale for departing from longstanding agency policy and practice regarding fees for Applications, Motions, and Appeals.
370. The Final Rule is arbitrary, capricious, and contrary to law. 371. The Final Rule will cause ongoing and irreparable harm to Plaintiffs.
COUNT TWO The Final Rule Should Be Set Aside Because The Thirty-Day Comment Period During a Global Pandemic Violated the APA’s Notice and Comment Requirements 372. Plaintiffs repeat and reallege the allegations in paragraphs 1 to 361 as though fully set forth herein. 373. Under the APA, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . (D) without observance of procedure required by law.” 5 U.S.C. § 706(2). 374. The APA, 5 U.S.C. § 553(b), provides that “[g]eneral notice of proposed rule making shall be published in the Federal Register.” After giving the required notice, “the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. § 553(c). The “opportunity for comment must be a meaningful opportunity.” Gerber v. Norton, 294 F.3d 173, 179 (D.C. Cir. 2002).
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375. Although comment periods can vary, “a sixty-day period” is generally accepted as the “reasonable minimum time for comment” on a typical rule.” Petry v. Block, 737 F.2d 1193, 1201 (D.C. Cir. 1984) (quoting Administrative Conference of the United States, A Guide to Federal Agency Rulemaking 124 (1983)); Executive Order 12866 (Sept. 30, 1993) (stating that agencies should allow “not less than 60 days” for public comment in most cases, in order to “afford the public a meaningful opportunity to comment on any proposed regulation”); Executive Order 13563 (Jan. 18, 2011) (stating that “[t]o the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should generally be at least 60 days”).
376. Defendants violated the foregoing requirements of the APA by allowing the public only 30 days to comment on their proposed fees following publication of their NPRM— and doing so in the early days of an unprecedented global COVID-19 pandemic and after two requests from stakeholders to extend the comment period.
377. Each of the foregoing violations is an independent and sufficient reason that the Final Rule was promulgated “without observance of procedure required by law,” or was otherwise promulgated in violation of the APA, and thus should be vacated.
COUNT THREE The Final Rule Should Be Set Aside Because The Rulemaking Process Violated
Violated the APA 378. Plaintiffs repeat and reallege the allegations in paragraphs 1 to 361 as though fully set forth herein. 379. Under the APA, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . (D) without observance of procedure required by law.” 5 U.S.C. § 706(2). 380. The APA, 5 U.S.C. § 553(b), provides that “[g]eneral notice of proposed rule making shall be published in the Federal Register.” After giving the required notice, “the agency
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shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation.” 5 U.S.C. § 553(c). The “opportunity for comment must be a meaningful opportunity.” Gerber v. Norton, 294 F.3d 173, 179 (D.C. Cir. 2002).
381. Notice of a proposed rule must include sufficient detail on its content and basis in law and evidence to allow for meaningful and informed comment.
382. The APA requires an agency to make available to the public, in a form that allows for meaningful comment, the data the agency used to develop the proposed rule. See 5 U.S.C. § 553(b) (agency must give notice of proposed rulemaking); Conn. Light and Power Co. v. NRC, 673 F.2d 525, 530–31 (D.C. Cir. 1982) (notice includes available data and studies in intelligible form so that public sees “accurate picture of reasoning” used by agency to develop proposed rule).
383. Defendants violated the foregoing requirements of the APA in numerous distinct ways, including but not limited to failing and refusing to offer an adequate justification of need for their proposed rulemaking, failing and refusing to indicate for what purpose or purposes additional fees would be used, including misleading statements that masked the introduction of new fees, failing and refusing to provide information regarding the methodology of the EOIR “comprehensive study” on which the NPRM purportedly relied, and failing and refusing to disclose the data and calculations of such study.
384. Defendants also violated the foregoing requirements of the APA by closing the comment period on the Proposed Fee Rule before the public had notice of the Subsequent Proposed Rules, depriving Plaintiffs and the larger public of the opportunity to understand and comment on the full extent and import that the fee increases set forth in the Proposed Fee Rule would have if such increases were promulgated.
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385. Under the APA, a reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be . . . (D) without observance of procedure required by law.” 5 U.S.C. § 706(2).
386. Defendants violated the foregoing requirement of the APA by closing the comment period on the Proposed Fee Rule before the public had notice of the Subsequent Proposed Rules, abusing their discretion in promulgating multiple interconnected rules without notice to the public.
387. Each of the foregoing violations is an independent and sufficient reason that the Final Rule was promulgated “without observance of procedure required by law,” or was otherwise promulgated in violation of the APA, and thus should be vacated.
COUNT FOUR The Final Rule Should Be Set Aside Because It Was Promulgated In Violation of Regulatory Flexibility Act 388. Plaintiffs repeat and reallege the allegations in paragraphs 1 to 361 as though fully set forth herein. 389. The RFA, as amended, requires federal administrative agencies to analyze how rules they promulgate will affect “small entities,” and to publish initial and final versions of those analyses. 5 U.S.C. §§ 603-04. 390. Plaintiffs CLINIC, CLSEPA, and CHIRLA each are small entities within the meaning of the RFA. CLINIC, CLSEPA, and CHIRLA each would be directly impacted if the Final Rule goes into effect. The impact of the Final Rule on each Plaintiff would include reduced funding and the need to divert resources from core activities, which would significantly inhibit the abilities of CLINIC, CLSEPA, and CHIRLA to accept new cases, manage their existing workload, and obtain funding.
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391. Under the RFA, the Court may set aside, stay, or grant other relief with respect to a rule that an agency enacts in violation of Sections 601, 604, 605(b), 607, 608(b), 609(a), and 610 of the RFA. 5 U.S.C. § 611.
392. The Final Rule is a “rule” within the meaning of the RFA. 5 U.S.C. § 601(2). 393. The Final Rule is a rule that affects small entities, within the meaning of the RFA. 394. In promulgating the Final Rule, Defendants did not analyze, or adequately analyze, how the Final Rule would affect small entities, including but not limited to (i) small law firms that provide advice and other services to respondents in Removal Proceedings, (ii) small non-profit organizations that provide legal services to respondents in Removal Proceedings, or (iii) small non-profit organizations that provide advice and other services to attorneys and organizations that provide legal services to respondents in Removal Proceedings, many such organizations and firms of which are “small entit[ies]” as defined by the RFA, 5 U.S.C. § 601(6). 395. In promulgating the Final Rule, Defendants did not publish, or adequately publish, an initial and final version of such analysis. 396. Instead, Defendants simply stated, erroneously, that the Final Rule “would not have a significant economic impact on a substantial number of small entities,” because the Final Rule would only regulate “individuals” and would “not limit in any way the ability of practitioners to accept cases, manage dockets, or assess fees.” 85 Fed. Reg. 82,785 (Dec. 18, 2020). 397. The RFA requires agencies to describe and estimate the number of small entities that would be affected by a rule that they promulgate. 5 U.S.C. § 604(a)(4). 398. The Final Rule does not adequately describe or estimate the number of small entities that it would affect. 399. The RFA requires agencies enacting a rule that affects small entities to describe “the projected reporting, recordkeeping and other compliance requirements of the rule, including
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an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.” 5 U.S.C. § 604(a)(5).
400. The Final Rule does not describe the projected reporting, recordkeeping, or other compliance requirements of the Final Rule, or estimate the classes of small entities that will be subject to the requirement and the type of professional skills that would be necessary for preparation of such report or record.
401. The RFA requires agencies promulgating a rule that affects small entities to describe “the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.” 5 U.S.C. § 604(a)(6).
402. In promulgating the Final Rule, Defendants did not comply with their obligations under the RFA to describe steps taken to minimize the significant economic impact on small entities, or state the factual, policy, and legal reasons for selecting the alternative adopted in the Final Rule, or state why each other significant alternatives to the Final Rule considered by the Defendants was rejected.
403. By virtue of the foregoing, promulgation of the Final Rule violates multiple requirements of the RFA, any of which requires that the Final Rule be set aside and its effect be stayed pursuant to the RFA.
404. Because the APA requires that rules be set aside if they are not promulgated “in accordance with the law,” and Defendants promulgated the Final Rule in violation of the RFA in multiple respects, the Final Rule should also be set aside pursuant to the APA.
405. The Final Rule should be set aside under 5 U.S.C. § 706 for the additional reason that it does not reflect reasoned decision-making with respect to the impact of the Final Rule on
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small entities, and fails to consider available data about the effects of the Final Rule on small entities, and fails to support its conclusions regarding such effects with substantial evidence.
COUNT FIVE The Final Rule Violates the Due Process Clause of the Fifth Amendment 406. Plaintiffs repeat and reallege the allegations in paragraphs 1 to 361 as though fully set forth herein. 407. The Due Process Clause of the Fifth Amendment to the United States Constitution (“Due Process Clause”) “applies to all ‘persons’ within the United States, including [noncitizens], whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). 408. The government may not deprive an individual of a protected liberty or property interest “without process that is due under the Fifth Amendment.” See NB ex rel. Peacock v. District of Columbia, 794 F.3d 31, 41 (D.C. Cir. 2015) (internal quotations omitted). Procedural Due Process “protect[s] a substantive interest to which the individual has a legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S. 238, 250 (1983). The Supreme Court has frequently recognized the “grave nature of deportation,” calling it a “drastic measure” resulting in “banishment or exile.” Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948), quoted in Sessions v. Dimaya, 138 S. Ct. 1204, 1212–13 (2018) (plurality opinion). 409. Individuals in Removal Proceedings have a liberty and property interest in pursuing statutorily prescribed avenues for relief, including, inter alia, asylum pursuant to 8 U.S.C. § 1158(a), and cancellation of removal and adjustment of status, 8 U.S.C. § 1229b. 410. Respondents in Removal Proceedings have a liberty and property interest in the procedural protections afforded by the immigration laws and regulations, including, inter alia, the right to file an appeal before the BIA and the right to file a motion to reopen in Immigration Court and before the BIA, 8 U.S.C. § 1229a(c)(7).
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411. The Final Rule violates the Due Process Clause because it erects an arbitrary fee schedule that denies individuals in Removal Proceedings their rights to pursue Applications, Motions, and Appeals.
412. The Final Rule violates the Due Process Clause because it denies asylum seekers their statutory right to file defensive asylum applications in Removal Proceedings without paying a nonwaivable fee, regardless of income.
413. The Final Rule violates the Due Process Clause because individuals in Removal Proceedings will be unable to pursue relief from removal because waiver from the fees set by the Final Rule are determined without statutory or regulatory standards, and the outcome of the process cannot be predicted.
414. The Final Rule violates the Due Process Clause because individuals will be removed from the United States based on errors in Removal Proceedings without having had access to procedures, safeguards, and review such errors because of the fees set forth in the Final Rule.
415. The Final Rule violates the Due Process Clause because individuals who have received a collateral immigration benefit will not be able to move to reopen their Immigration Court or BIA cases because of the fees set forth in the Final Rule.
416. Each of the foregoing violations is an independent and sufficient reason that the Final Rule violates the Due Process Clause.
COUNT SIX The Final Rule Should Be Set Aside Because It Was Promulgated In Violation of the Equal Protection Clause of the Fifth Amendment to the United States Constitution 417. Plaintiffs repeat and reallege the allegations in paragraphs 1 to 361 as though fully set forth herein.
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418. The Equal Protection Clause of the Fifth Amendment to the United States Constitution (“Equal Protection Clause”) requires that persons have equal access to administrative and judicial processes of adjudication and review.
419. Under the Equal Protection Clause, where liberty interests are at stake, as in Removal Proceedings, indigency cannot be a basis for the denial of access to administrative and judicial protections, remedies, procedures, and review.
420. Defendants’ Final Rule establishes a fee regime for Removal Proceedings, including Applications, Motions, and Appeals, that conditions access to justice and to due process, as well as Congressionally authorized protection from removal and refoulement and access to Federal Court review, on ability to pay, in violation of the Equal Protection Clause.
421. Defendants’ fee waiver system—one without standards, transparency, or oversight, and one that depends entirely on the exercise of unbridled discretion—exacerbates and does not cure the Constitutional deficiency of the Final Rule.
422. Defendants’ violation of the Equal Protection Clause through the Final Rule is knowing, intentional, and purposeful.
423. Defendants’ Final Rule violates the right to equal protection of members of CHIRLA and others without ability to pay for the Applications, Motions, and Appeals that are the subject of the Final Rule.
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 Final Rule, including the fee changes set forth in such Final Rule, under 5 U.S.C. § 705 pending the Court’s final adjudication of the claims herein;
2. Declare unlawful and set aside the Final Rule in its entirety, or in the alternative with respect to specific fee changes encompassed thereby;
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3. Enjoin Defendants and all those acting in active concert with them from enforcing or implementing the Final Rule in its entirety, or in the alternative with respect to specific rule changes;
4. Enter an order vacating the Final Rule in its entirety, or in the alternative with respect to specific fee changes set forth therein;
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: December 23, 2020

Respectfully submitted,

By: /s/ Vladimir J. Semendyai Vladimir J. Semendyai
Richard W. Mark (admission pending)
Joseph Evall (admission pending)
Katherine Marquart (D.C. Bar No. 1044618) Julianne L. Duran (pro hac vice forthcoming) Laura C. Mumm (D.C. Bar No. 1032245)
(admission pending) Alexandra Perloff-Giles (pro hac vice forthcoming) 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 jduran@gibsondunn.com lmumm@gibsondunn.com aperloff-giles@gibsondunn.com

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Vladimir J. Semendyai (D.C. Bar No. 1044217) GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 Tel: (202) 955-8500 Fax: (202) 467-0539 vsemendyai@gibsondunn.com
Anthony Moreno (pro hac vice forthcoming) GIBSON, DUNN & CRUTCHER LLP 555 Mission Street Suite 3000 San Francisco, CA 94105-0921 Tel: (415) 393-8200 Fax: (415) 393-8306 amoreno@gibsondunn.com
Robin Goldfaden (pro hac vice forthcoming) NATIONAL IMMIGRATION LAW CENTER 3450 Wilshire Blvd., #108-62 Los Angeles, CA 90010 Tel: (213) 639-3900 Fax: (213) 639-3911 goldfaden@nilc.org
Michelle Lapointe (pro hac vice forthcoming) NATIONAL IMMIGRATION LAW CENTER P.O. Box 247 Decatur, GA 30031 Tel: (213) 279-2508 Fax: (213) 639-3911 lapointe@nilc.org
Katherine Melloy Goettel (pro hac vice forthcoming)
Emma Winger (pro hac vice forthcoming) AMERICAN IMMIGRATION COUNCIL 1331 G Street NW, Suite 200 Washington, DC 20005 Tel: (202) 507-7512 Fax: (202) 742-5619 kgoettel@immcouncil.org kmacleod-ball@immcouncil.org ewinger@immcouncil.org
Counsel for Plaintiffs
67

 
 Create an Alert for This Case on RECAP
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-03812-APM

TYPE-C

CATHOLIC LEGAL IMMIGRATION NETWORK, INC. et al v. EXECUTIVE OFFICE FOR IMMIGRATION REVIEW et al Assigned to: Judge Amit P. Mehta Cause: 05:702 Administrative Procedure Act

Date Filed: 12/23/2020 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

Plaintiff
CATHOLIC LEGAL IMMIGRATION NETWORK, INC.

represented by Joseph Evall GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue New York, NY 10166 212-351-3902 Email: jevall@gibsondunn.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Richard Mark GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue New York, NY 10166 212-351-4000 Fax: 212-351-4035 Email: rmark@gibsondunn.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alexandra Perloff-Giles GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue New York, NY 10166

212-351-6307 Email: aperloffgiles@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Anthony J. Moreno GIBSON DUNN & CRUTCHER LLP 555 Mission St Suite #3000 San Francisco, CA 94105 415-393-8319 Email: amoreno@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Winger AMERICAN IMMIGRATION COUNCIL 1331 G Street, NW Suite 200 Washington, DC 20005 617-505-5375 Email: ewinger@immcouncil.org PRO HAC VICE ATTORNEY TO BE NOTICED
Julianne Lee Duran GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue New York, NY 10166 212-351-2601 Email: jduran@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine E. Melloy Goettel AMERICAN IMMIGRATION COUNCIL 1331 G Street, N.W. Suite 200 Washington, DC 20005 202-507-7552 Email: kgoettel@immcouncil.org

Plaintiff
COMMUNITY LEGAL SERVICES IN EAST PALO ALTO

ATTORNEY TO BE NOTICED
Michelle Lapointe NATIONAL IMMIGRATION LAW CENTER P.O. Box 247 30031 Decatur, GA 30031 213-279-2508 Email: lapointe@nilc.org PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Goldfaden NATIONAL IMMIGRATION LAW CENTER 3450 Wilshire Boulevard Ste # 108-62 Los Angeles, CA 90010 213-639-3900 Email: goldfaden@nilc.org ATTORNEY TO BE NOTICED
Vladimir J Semendyai GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue NW Washington, DC 20036 202-955-8274 Fax: 202-831-6075 Email: vsemendyai@gibsondunn.com ATTORNEY TO BE NOTICED
represented by Joseph Evall (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Mark (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
KIND, INC. doing business as KIDS IN NEED OF DEFENSE

Alexandra Perloff-Giles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Anthony J. Moreno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Winger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Julianne Lee Duran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine E. Melloy Goettel (See above for address) ATTORNEY TO BE NOTICED
Michelle Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Goldfaden (See above for address) ATTORNEY TO BE NOTICED
Vladimir J Semendyai (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph Evall (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Mark

Plaintiff
COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alexandra Perloff-Giles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Anthony J. Moreno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Winger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Julianne Lee Duran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine E. Melloy Goettel (See above for address) ATTORNEY TO BE NOTICED
Michelle Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Goldfaden (See above for address) ATTORNEY TO BE NOTICED
Vladimir J Semendyai (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph Evall (See above for address) LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Richard Mark (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Alexandra Perloff-Giles (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Anthony J. Moreno (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Emma Winger (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Julianne Lee Duran (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine E. Melloy Goettel (See above for address) ATTORNEY TO BE NOTICED
Michelle Lapointe (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Robin Goldfaden (See above for address) ATTORNEY TO BE NOTICED
Vladimir J Semendyai (See above for address) ATTORNEY TO BE NOTICED

V. Defendant EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Defendant JAMES MCHENRY in his official capacity as DIRECTOR OF THE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
Defendant U.S. DEPARTMENT OF JUSTICE

represented by Julie Straus Harris U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 1100 L Street NW Washington, DC 20005 (202) 353-7633 Fax: (202) 616-8460 Email: julie.strausharris@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Powers U.S. DEPARTMENT OF JUSTICE Federal Programs Branch, Civil Division 1100 L Street NW Room 11218 Washington, DC 20005 (202) 353-0543 Fax: (202) 616-8470 Email: james.r.powers@usdoj.gov ATTORNEY TO BE NOTICED
represented by Julie Straus Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Powers (See above for address) ATTORNEY TO BE NOTICED
represented by Julie Straus Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Powers

Defendant WILLIAM P. BARR in his official capacity as ATTORNEY GENERAL OF THE UNITED STATES
Movant DISTRICT OF COLUMBIA

(See above for address) ATTORNEY TO BE NOTICED
represented by Julie Straus Harris (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. Powers (See above for address) ATTORNEY TO BE NOTICED
represented by Kathleen M. Konopka OFFICE OF THE ATTORNEY GENERAL FOR D.C. Public Advocacy Division 400 6th Street, NW Ste 10th Floor Washington, DC 20001 202-724-6610 Email: kathleen.konopka@dc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/23/2020
12/23/2020

# Docket Text

COMPLAINT against WILLIAM P. BARR, EXECUTIVE

1

OFFICE FOR IMMIGRATION REVIEW, JAMES MCHENRY,

U.S. DEPARTMENT OF JUSTICE ( Filing fee $ 402 receipt

number ADCDC-7998377) filed by KIND, INC., COMMUNITY

LEGAL SERVICES IN EAST PALO ALTO, CATHOLIC LEGAL

IMMIGRATION NETWORK, INC., COALITION FOR

HUMANE IMMIGRANT RIGHTS OF LOS ANGELES.

(Attachments: # 1 Civil Cover Sheet, # 2 Summons - EXECUTIVE

OFFICE FOR IMMIGRATION REVIEW, # 3 Summons - JAMES

MCHENRY, # 4 Summons - U.S. DEPARTMENT OF JUSTICE,

# 5 Summons - WILLIAM P. BARR)(Semendyai, Vladimir)

(Entered: 12/23/2020)

2 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR

12/24/2020
12/24/2020 12/28/2020 12/28/2020 12/28/2020
12/28/2020

HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Semendyai, Vladimir) (Entered: 12/23/2020)
3 MOTION for Leave to Appear Pro Hac Vice :Attorney NameKatherine Melloy Goettel, Filing fee $ 100, receipt number ADCDC-8000647. Fee Status: Fee Paid. by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Attachments: # 1 Exhibit A- Declaration of Katherine Melloy Goettel, # 2 Text of Proposed Order)(Semendyai, Vladimir) (Entered: 12/24/2020)
4 MOTION for Leave to Appear Pro Hac Vice :Attorney NameEmma Winger, Filing fee $ 100, receipt number ADCDC-8000671. Fee Status: Fee Paid. by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Attachments: # 1 Exhibit ADeclaration of Emma Winger, # 2 Text of Proposed Order)(Semendyai, Vladimir) (Entered: 12/24/2020)
Case Assigned to Judge Amit P. Mehta. (adh, ) (Entered: 12/28/2020)
5 SUMMONS (4) Issued Electronically as to WILLIAM P. BARR, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JAMES MCHENRY, U.S. DEPARTMENT OF JUSTICE. (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 12/28/2020)
6 MOTION for Leave to Appear Pro Hac Vice :Attorney NameRobin Goldfaden, Filing fee $ 100, receipt number ADCDC8010677. Fee Status: Fee Paid. by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Attachments: # 1 Exhibit A - Declaration of Robin Goldfaden, # 2 Text of Proposed Order)(Semendyai, Vladimir) (Entered: 12/28/2020)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney NameMichelle Lapointe, Filing fee $ 100, receipt number ADCDC8010726. Fee Status: Fee Paid. by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO,

12/28/2020 12/28/2020 12/28/2020 12/29/2020 12/29/2020

KIND, INC. (Attachments: # 1 Exhibit A - Declaration of Michelle Lapointe, # 2 Text of Proposed Order)(Semendyai, Vladimir) (Entered: 12/28/2020)
8 MOTION for Leave to Appear Pro Hac Vice :Attorney NameAlexandra Perloff-Giles, Filing fee $ 100, receipt number ADCDC8010756. Fee Status: Fee Paid. by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Attachments: # 1 Exhibit A - Declaration of Alexandra Perloff-Giles, # 2 Text of Proposed Order)(Semendyai, Vladimir) (Entered: 12/28/2020)
9 MOTION for Leave to Appear Pro Hac Vice :Attorney NameAnthony Moreno, Filing fee $ 100, receipt number ADCDC8010760. Fee Status: Fee Paid. by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Attachments: # 1 Exhibit A - Declaration of Anthony Moreno, # 2 Text of Proposed Order)(Semendyai, Vladimir) (Entered: 12/28/2020)
10 MOTION for Leave to Appear Pro Hac Vice :Attorney NameJulianne Duran, Filing fee $ 100, receipt number ADCDC-8010767. Fee Status: Fee Paid. by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Attachments: # 1 Exhibit A Declaration of Julianne Duran, # 2 Text of Proposed Order)(Semendyai, Vladimir) (Entered: 12/28/2020)
MINUTE ORDER granting 3 Motion for Leave to Appear Pro Hac Vice. Attorney Katherine Melloy Goettel is hereby admitted pro hac vice to appear in this matter. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Amit P. Mehta on 12/29/2020. (lcapm1) (Entered: 12/29/2020)
MINUTE ORDER granting 4 Motion for Leave to Appear Pro Hac Vice. Attorney Emma Winger is hereby admitted pro hac vice to appear in this matter. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Amit P. Mehta on 12/29/2020. (lcapm1) (Entered: 12/29/2020)

12/29/2020 12/29/2020 12/29/2020 12/29/2020 12/29/2020 12/29/2020 12/29/2020 12/30/2020

MINUTE ORDER granting 6 Motion for Leave to Appear Pro Hac Vice. Attorney Robin Goldfaden is hereby admitted pro hac vice to appear in this matter. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Amit P. Mehta on 12/29/2020. (lcapm1) (Entered: 12/29/2020)
MINUTE ORDER granting 7 Motion for Leave to Appear Pro Hac Vice. Attorney Michelle Lapointe is hereby admitted pro hac vice to appear in this matter. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Amit P. Mehta on 12/29/2020. (lcapm1) (Entered: 12/29/2020)
MINUTE ORDER granting 8 Motion for Leave to Appear Pro Hac Vice. Attorney Alexandra Perloff-Giles is hereby admitted pro hac vice to appear in this matter. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Amit P. Mehta on 12/29/2020. (lcapm1) (Entered: 12/29/2020)
MINUTE ORDER granting 9 Motion for Leave to Appear Pro Hac Vice. Attorney Anthony Moreno is hereby admitted pro hac vice to appear in this matter. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Amit P. Mehta on 12/29/2020. (lcapm1) (Entered: 12/29/2020)
MINUTE ORDER granting 10 Motion for Leave to Appear Pro Hac Vice. Attorney Julianne Duran is hereby admitted pro hac vice to appear in this matter. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Amit P. Mehta on 12/29/2020. (lcapm1) (Entered: 12/29/2020)
11 REQUEST FOR SUMMONS TO ISSUE filed by KIND, INC., COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES.(Semendyai, Vladimir) (Entered: 12/29/2020)
12 SUMMONS (1) Issued Electronically as to U.S. Attorney (Attachment: # 1 Notice and Consent)(eg) (Entered: 12/29/2020)
13 NOTICE of Appearance by Alexandra Perloff-Giles on behalf of CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS

ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Perloff-Giles, Alexandra) (Entered: 12/30/2020)

12/30/2020

14 NOTICE of Appearance by Anthony J. Moreno on behalf of All Plaintiffs (Moreno, Anthony) (Entered: 12/30/2020)

12/30/2020

15 NOTICE of Appearance by Michelle Lapointe on behalf of CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Lapointe, Michelle) (Entered: 12/30/2020)

12/30/2020

16 NOTICE of Appearance- Pro Bono by Julianne Lee Duran on behalf of CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Duran, Julianne) (Entered: 12/30/2020)

12/30/2020

17 NOTICE of Appearance by Katherine E. Melloy Goettel on behalf of All Plaintiffs (Goettel, Katherine) (Entered: 12/30/2020)

12/30/2020

18 NOTICE of Appearance by Emma Winger on behalf of All Plaintiffs (Winger, Emma) (Entered: 12/30/2020)

12/30/2020 19

MOTION to Stay / PLAINTIFFS' MOTION FOR A STAY OF EFFECTIVE DATES UNDER 5 U.S.C. § 705 OR, IN THE ALTERNATIVE, PRELIMINARY INJUNCTION, MOTION for Preliminary Injunction by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Attachments: # 1 Declaration of Adina Appelbaum, # 2 Declaration of Mikhael Borgonos, # 3 Declaration of Casey Bryant, # 4 Declaration of Jason Scott Camilo, # 5 Declaration of Michelle N. Mendez with Exhibits, # 6

Declaration of Maria Odom, # 7 Declaration of Jehan Laner Romero, # 8 Declaration of Angelica Salas, # 9

Declaration of Cristina Dos Santos, # 10 Memorandum in Support, # 11 Text of Proposed Order)(Semendyai, Vladimir) (Entered: 12/30/2020)

12/30/2020

20 DECLARATION of MICHELLE M. ORTIZ in Support by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO

12/31/2020 01/04/2021 01/04/2021
01/04/2021 01/04/2021

ALTO, KIND, INC. re 19 MOTION to Stay / PLAINTIFFS' MOTION FOR A STAY OF EFFECTIVE DATES UNDER 5 U.S.C. § 705 OR, IN THE ALTERNATIVE, PRELIMINARY INJUNCTION MOTION for Preliminary Injunction filed by COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, CATHOLIC LEGAL IMMIGRATION NETWORK, INC., KIND, INC.. (Semendyai, Vladimir) (Entered: 12/30/2020)
21 AMICUS BRIEF by DISTRICT OF COLUMBIA (Attachments: # 1 Exhibit AMICI CURIAE BRIEF IN SUPPORT OF PLAINTIFFS MOTION FOR A STAY, OR IN THE ALTERNATIVE, FOR A PRELIMINARY INJUNCTION)(Konopka, Kathleen) Modified event title on 1/5/2021 (znmw). (Entered: 12/31/2020)
22 NOTICE of Appearance by Julie Straus Harris on behalf of WILLIAM P. BARR, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JAMES MCHENRY, U.S. DEPARTMENT OF JUSTICE (Straus Harris, Julie) (Entered: 01/04/2021)
MINUTE ORDER. The parties shall appear for a telephonic status hearing on January 5, 2021, at 10:30 a.m. The parties shall meet and confer in advance of the hearing and be prepared to discuss (1) how the change in administrations might affect the Final Rule and (2) a schedule for further proceedings. The courtroom deputy will circulate dial-in information to the parties. Members of the public may access the hearing by dialing the court's toll-free public access line: (877) 848-7030, access code 321-8747. The public access line will be muted and should be used by only non-participating parties. Signed by Judge Amit P. Mehta on 1/4/2021. (lcapm1) Modified on 1/4/2021 (lcapm1) (Entered: 01/04/2021)
Set/Reset Hearings: Telephonic Status Conference set for 1/5/2021 at 10:30 AM before Judge Amit P. Mehta. (zjd) (Entered: 01/04/2021)
23 MOTION for Leave to Appear Pro Hac Vice :Attorney NameRichard W. Mark, Filing fee $ 100, receipt number ADCDC8031205. Fee Status: Fee Paid. by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Attachments: # 1 Declaration A - Declaration of

01/04/2021 01/04/2021
01/04/2021 01/04/2021 01/05/2021
01/06/2021 01/06/2021

Richard W. Mark, # 2 Text of Proposed Order)(Semendyai, Vladimir) (Entered: 01/04/2021)
MINUTE ORDER granting 23 Motion for Leave to Appear Pro Hac Vice. Attorney Richard W. Mark is hereby admitted pro hac vice to appear in this matter. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Amit P. Mehta on 1/4/2021. (lcapm1) (Entered: 01/04/2021)
24 MOTION for Leave to Appear Pro Hac Vice :Attorney NameJoseph Evall, Filing fee $ 100, receipt number ADCDC-8031723. Fee Status: Fee Paid. by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Attachments: # 1 Declaration of Joseph Evall, # 2 Text of Proposed Order)(Semendyai, Vladimir) (Entered: 01/04/2021)
MINUTE ORDER granting 24 Motion for Leave to Appear Pro Hac Vice. Attorney Joseph Evall is hereby admitted pro hac vice to appear in this matter. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Judge Amit P. Mehta on 1/4/2021. (lcapm1) (Entered: 01/04/2021)
25 NOTICE of Appearance by James R. Powers on behalf of All Defendants (Powers, James) (Entered: 01/04/2021)
Minute Entry for proceedings held before Judge Amit P. Mehta: Status Conference held on 1/5/2021. Opposition due by 5:00 PM on 1/11/2021. Reply due by 5:00 PM on 1/13/2021. Preliminary Injunction Hearing set for 1/14/2021 at 2:00 PM via video conference before Judge Amit P. Mehta. The courtroom deputy will circulate connection information to counsel. Members of the public may access the hearing by dialing the court's toll-free public access line: (877) 848-7030, access code 321-8747. (Court Reporter: William Zaremba) (zjd) (Entered: 01/05/2021)
26 NOTICE of Appearance by Joseph Evall on behalf of CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Evall, Joseph) (Entered: 01/06/2021)
27 NOTICE of Appearance by Richard Mark on behalf of CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR

HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Mark, Richard) (Entered: 01/06/2021)

01/08/2021

28 NOTICE of Party Name Correction by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. (Semendyai, Vladimir) (Entered: 01/08/2021)

01/08/2021

29 NOTICE of Appearance by Robin Goldfaden on behalf of All Plaintiffs (Goldfaden, Robin) (Entered: 01/08/2021)

01/11/2021 30

Memorandum in opposition to re 19 MOTION to Stay / PLAINTIFFS' MOTION FOR A STAY OF EFFECTIVE DATES UNDER 5 U.S.C. § 705 OR, IN THE ALTERNATIVE, PRELIMINARY INJUNCTION MOTION for Preliminary Injunction filed by WILLIAM P. BARR, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, JAMES MCHENRY, U.S. DEPARTMENT OF JUSTICE. (Attachments: # 1 Text of Proposed Order)(Straus Harris, Julie) (Entered: 01/11/2021)

01/11/2021

MINUTE ORDER. To support their assertions of both associational standing and irreparable harm, Plaintiffs rely on injuries that three individual members of Plaintiff Coalition for Humane Immigration Rights ("CHIR") will suffer if the Final Rule goes into effect. Pls.' Mot. for Stay, ECF No. 19 [hereinafter Pls.' Mot.], Pls.' Mem., ECF No. 19-10, at 21, 41. Plaintiffs identify these three members by only their initials: T.F.F., M.S.R., and Y.M.G.R. Id.; see also Pls.' Mot., Salas Decl., ECF No. 19-8, paras. 58-59, 61. It is well settled in this Circuit that "it is not enough" for a plaintiff claiming associational standing "to aver that unidentified members have been injured." Chamber of Commerce v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011). "Rather, the [plaintiff] must specifically identify members who have suffered the requisite harm." Id. at 200-01 (internal quotation marks omitted). Although the court has not found any case from the D.C. Circuit addressing whether it is adequate to identify a member by only his or her initials to support associational standing, the court is dubious that such an approach is proper as it denies Defendants the opportunity to test the member's assertion of harm. Cf. Nw. Immigrant Rts. Project v. USCIS, No. 19-3283, 2020 WL 5995206, at *9 (D.D.C. Oct. 8, 2020) (rejecting associational standing where the complete omission of a member's identity "deprived Defendants of the ability to dispute Plaintiffs' claim of associational standing"). In view of this authority, if Plaintiffs wish

to rely on the harms alleged by the three CHIR members to establish associational standing and irreparable harm, they shall disclose their identities to Defendants by no later than noon on January 13, 2021. Plaintiffs shall make such disclosure by filing a sealed version of the Salas Declaration that reflects the members' full names. Alternatively, if Plaintiffs believe that they can validly proceed by identifying their members by only their initials, then they shall make that argument in their reply brief. Signed by Judge Amit P. Mehta on 1/11/2021. (lcapm1) (Entered: 01/11/2021)

01/12/2021

31 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 1/4/2021., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 12/29/2020. ( Answer due for ALL FEDERAL DEFENDANTS by 2/27/2021.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. WILLIAM P. BARR served on 1/4/2021; EXECUTIVE OFFICE FOR IMMIGRATION REVIEW served on 1/11/2021; JAMES MCHENRY served on 1/6/2021; U.S. DEPARTMENT OF JUSTICE served on 1/4/2021 (Semendyai, Vladimir) (Entered: 01/12/2021)

01/13/2021

32 SEALED MOTION filed by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC. re Order,,,,,,,, (This document is SEALED and only available to authorized persons.)(Semendyai, Vladimir) Modified event title on 1/15/2021 (znmw). (Entered: 01/13/2021)

01/13/2021 33

REPLY to opposition to motion re 19 MOTION to Stay / PLAINTIFFS' MOTION FOR A STAY OF EFFECTIVE DATES UNDER 5 U.S.C. § 705 OR, IN THE ALTERNATIVE, PRELIMINARY INJUNCTION MOTION for Preliminary Injunction filed by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, KIND, INC.. (Semendyai, Vladimir) (Entered: 01/13/2021)

01/13/2021

MINUTE ORDER granting Plaintiffs' 32 Motion for Leave to File Declaration out of Time. Signed by Judge Amit P. Mehta on 1/13/2021. (lcapm1) (Entered: 01/13/2021)

01/14/2021 01/18/2021
34
01/27/2021 35
01/27/2021
01/29/2021

Minute Entry for proceedings held before Judge Amit P. Mehta: Oral Argument held on 1/14/2021 via video conference. Arguments heard and taken under advisement. (Court Reporter: William Zaremba) (zjd) (Entered: 01/14/2021)
MEMORANDUM OPINION AND ORDER granting in part and
denying in part Plaintiffs' 19 Motion for a Stay of Effective Dates Under 5 U.S.C. § 705 or, in the Alternative, Preliminary Injunction. The parties shall meet and confer and, by January 27, 2021, file a Joint Status Report proposing a schedule for further proceedings in this matter. See the attached Memorandum Opinion and Order for additional details. Signed by Judge Amit P. Mehta on 1/18/2021. (lcapm1) (Entered: 01/18/2021)
Joint STATUS REPORT by CATHOLIC LEGAL IMMIGRATION NETWORK, INC., COALITION FOR HUMANE IMMIGRANT RIGHTS OF LOS ANGELES, COMMUNITY LEGAL SERVICES IN EAST PALO ALTO, DISTRICT OF COLUMBIA, KIND, INC.. (Goettel, Katherine) (Entered: 01/27/2021)
MINUTE ORDER. This matter is hereby stayed, including all responsive pleading deadlines, until April 2, 2021. On that date, the parties shall file an additional Joint Status Report that proposes a schedule for further proceedings in this matter. Signed by Judge Amit P. Mehta on 1/27/2021. (lcapm1) (Entered: 01/27/2021)
NOTICE OF ERROR re 35 Status Report; emailed to kgoettel@immcouncil.org, cc'd 18 associated attorneys -- The PDF file you docketed contained errors: 1. Invalid attorney signature, 2. FYI: DO NOT REFILE. Attorney signature must match login/password for future fillings. (zeg, ) (Entered: 01/29/2021)

PACER Service Center Transaction Receipt

01/30/2021 10:58:05

PACER Login:

CRClearinghouse Client Code:

Description:

Docket Report

Search Criteria:

Billable Pages: 12

Cost:

Kempa
1:20-cv-03812APM 1.20

Exempt flag: Not Exempt

Exempt reason:

Not Exempt

 
 Case 1:20-cv-03812-APM Document 34 Filed 01/18/21 Page 1 of 35

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________

)

CATHOLIC LEGAL IMMIGRATION

)

NETWORK, INC. et al.,

)

)

Plaintiffs,

)

)

v.

)

)

EXECUTIVE OFFICE FOR IMMIGRATION )

REVIEW et al.,

)

)

Defendants.

)

_________________________________________ )

Case No. 20-cv-03812 (APM)

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION The Executive Office for Immigration Review (“EOIR”) is an agency within the
U.S. Department of Justice that oversees and conducts immigration court proceedings, administrative hearings, and appellate reviews before the Board of Immigration Appeals (“BIA”) as part of the country’s system of immigration adjudications. EOIR charges fees for various types of motions, applications, and appeals filed in these adjudications. Since 1986, the maximum fee for any such filing has been $110. EOIR now intends to raise those fees. On December 18, 2020, EOIR promulgated a final rule that increases filing fees by between 32 and 886 percent (“Final Rule”). Most dramatically, the filing fee for a notice of appeal of an immigration judge’s decision to the BIA will increase from $110 to $975. These fee increases are set to go into effect on January 19, 2021.
Plaintiffs are non-profit organizations that provide legal and other assistance for immigrants. They seek to stay the effective date of the Final Rule or, alternatively, to enjoin it

Case 1:20-cv-03812-APM Document 34 Filed 01/18/21 Page 2 of 35
from going into effect. They raise a host of challenges to the Final Rule under the Administrative Procedure Act.
For the reasons that follow, the court grants in part and denies in part Plaintiffs’ motion to stay the effective date of the Final Rule or, in the alternative, for a preliminary injunction. The court holds that EOIR acted arbitrarily and capriciously by disregarding the Final Rule’s impact on legal service providers and their capacity to provide legal services to persons subject to removal proceedings. EOIR was obligated to address these concerns as part of the notice-and-comment process but it failed to do so. In short, EOIR “entirely failed to consider an important aspect of the problem.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. (State Farm), 463 U.S. 29, 43 (1983). The court also finds that, absent equitable relief, Plaintiffs will suffer irreparable harm, and that the balance of the equities and the public interest favor staying the effective date of a portion of the Final Rule.
Accordingly, the court will stay the effective date of the Final Rule, and enjoin its implementation, insofar as it imposes increased fees for (1) Form EOIR-26 for filing an appeal from a decision of an immigration judge; (2) Form EOIR-29 for filing an appeal from a decision of an officer of the Department of Homeland Security (“DHS”); (3) filing a motion to reopen or to reconsider before the BIA; (4) Form EOIR-40 for an application for suspension of deportation; (5) Form EOIR-42A for an application for cancellation of removal for certain permanent residents; and (6) Form EOIR-42B for an application for cancellation of removal and adjustment of status for certain nonpermanent residents. The fee increases for (1) Form EOIR-45 for filing an appeal from a decision of an adjudicating official in a practitioner disciplinary case and (2) a motion to reopen or reconsider in the Office of the Chief Immigration Judge may go into effect.
2

Case 1:20-cv-03812-APM Document 34 Filed 01/18/21 Page 3 of 35
II. BACKGROUND A. Factual Background 1. Current Fee Structure Many of the filing fees that are the subject of the challenged rule were last updated in 1986
(the “1986 Rule”). See Powers and Duties of Service Officers; Availability of Services Records, 51 Fed. Reg. 39,993 (Nov. 4, 1986). The Immigration and Naturalization Service (“INS”) and EOIR jointly promulgated the 1986 Rule, citing a statutory mandate for “Federal agencies to establish a fee system in which a benefit or service provided to or for any person be self-sustaining to the fullest extent.” Id. at 39,993 (citing 31 U.S.C. § 9701 and OMB Circular A-25). As the agencies explained, the fees were “neither intended to replace nor to be influenced by the budgetary process and related considerations, but instead, to be governed by the total cost to the agency to provide the service.” Id. In determining the appropriate fee amounts, the agencies considered the availability of fee waivers for applicants who would be unable to pay the fees and set “several fees for administrative appeal processes and for filing naturalization petitions . . . at less than full cost recovery recognizing long-standing public policy and the interest served by these processes.” Id. The 1986 Rule was challenged as exceeding the statutory authority of INS and EOIR but ultimately was upheld by the D.C. Circuit as a valid exercise of power under the Independent Offices Appropriations Act, 31 U.S.C. § 9701. See Ayuda, Inc. v. Att’y Gen., 848 F.2d 1297, 1298 (D.C. Cir. 1988).
The fees from the 1986 Rule and other fees that are currently in place for EOIR filings are as follows:
3

Case 1:20-cv-03812-APM Document 34 Filed 01/18/21 Page 4 of 35

Table 1: Filing Fees Before 2021 Final Rule

Form EOIR-40 EOIR-42A EOIR-42B
N/A EOIR-26 EOIR-29 EOIR-45 N/A

Description of Filing
Suspension of Deportation
Application for Cancellation of Removal for Certain Permanent Residents
Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents
Motion to Reopen or Reconsider Before Immigration Judge
Notice of Appeal from a Decision of an Immigration Judge
Notice of Appeal to the BIA from a Decision of a DHS Officer
Notice of Appeal from a Decision of an Adjudicating Official in a Practitioner Disciplinary Case
Motion to Reopen or Reconsider Before BIA

2020 Fee $100 $100 $100
$110 $110 $110 $110 $110

See Executive Office for Immigration Review; Fee Review, 85 Fed. Reg. 11,866, 11,867–68 (Feb. 28, 2020).
2. Notice of Proposed Rulemaking The foregoing fees remained unchanged for over thirty years. Then, on February 28, 2020, EOIR announced that it intended to increase the filing fees, in some cases quite dramatically. EOIR issued a Notice of Proposed Rulemaking that proposed to “increase the fees for [certain] EOIR applications, appeals, and motions that are subject to an EOIR-determined fee, based on a fee review conducted by EOIR.” Id. at 11,866. EOIR explained that, as the agency “ha[d] rarely taken any actions related to its fees in the intervening 33 years” since the 1986 Rule, it “determined that it was necessary to conduct an updated assessment of the costs for processing the forms and motions for which EOIR sets the applicable fees.” Id. at 11,868.

4

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To do so, “[i]n the spring of 2018, EOIR conducted a comprehensive study using activitybased costing to determine the cost to EOIR for each type of application, appeal, and motion for which EOIR levies a fee.” Id. at 11,869. The 2018 study proceeded in three stages. In stage one, EOIR collected survey data and discussed with staff in both the Office of the Chief Immigration Judge (“OCIJ”) and the BIA the staffing levels and “time required to process and adjudicate each” EOIR filing, while also gathering data on the “average salary rates for applicable staff levels.” Id. In stage two, “EOIR developed step-by-step process maps, with assigned times and staff levels, for how each application, appeal, or motion is processed in the OCIJ and the BIA,” and OCIJ and BIA staff later validated those maps. Id. Finally, in stage three, “EOIR allocated the salary costs” to each step in the process maps, “based on the time the step takes, the average salary of the responsible staff, and the percentage of total cases in which the step occurs.” Id. EOIR also determined that its estimates should “not include overhead costs, cost of non-salary benefits, or costs that stem from processing corresponding applications or documents that may be filed in conjunction with those items for which EOIR charges a fee.” Id. EOIR excluded such costs for various reasons, including that there is a “public interest in having non-parties bear some of the cost burden for filing documents associated with proper application of the law as it pertains to the statutory right to appeal or apply for certain forms of relief.” See id.
EOIR did not release the data underlying its study. It did, however, include tables showing the “average processing cost” for each filing. See id. at 11,870. It also supplied tables showing the cost attributable to each staff member involved in adjudicating a filing (immigration judge, judicial law clerk, legal assistant, interpreter), as well as tables setting forth the cost associated with each component task of adjudicating a filing (administrative, preparation time, in-court time, and written decisions). See id. at 11,872–73. According to EOIR, “these estimated costs calculated
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from the study demonstrate that EOIR’s processing costs exceed the currently assessed fees for

every fee-based form or motion processed by EOIR.” Id. at 11,873–74.

All told, EOIR proposed the following fee increases:

Table 2: Filing Fees After 2021 Final Rule

Form EOIR-40 EOIR-42A EOIR-42B
N/A EOIR-26 EOIR-29 EOIR-45 N/A

Description of Filing
Application for Suspension of Deportation
Application for Cancellation of Removal for Certain Permanent Residents
Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents
Motion to Reopen or Reconsider Before Immigration Judge
Notice of Appeal from a Decision of an Immigration Judge
Notice of Appeal to the BIA from a Decision of a DHS Officer
Notice of Appeal from a Decision of an Adjudicating Official in a Practitioner Disciplinary Case
Motion to Reopen or Reconsider Before BIA

2020 Fee $100 $100 $100
$110 $110 $110 $110 $110

2021 Fee $305 $305 $360
$145 $975 $705 $675 $895

See id. at 11,871, 11,875. In addition, the Notice of Proposed Rulemaking noted that, under an existing policy by
which EOIR collected fees set by DHS when using DHS forms, EOIR planned to incorporate DHS’s $50 filing fee associated with Form I-589 for seeking asylum. Id. at 11,871–72. A person subject to removal can assert qualification for asylum as a defense to avoid removal. According to EOIR, “in proceedings before an immigration judge a [$]50 fee would apply to a Form I-589 if the applicant seeks asylum,” unless the applicant sought asylum “for the sole purpose of applying for withholding of removal under the [Immigration and Nationality Act] or protection under the [Convention Against Torture].” Id. at 11,872 (citing USCIS Fee Schedule and Changes to Certain
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Other Immigration Benefit Request Requirements, 84 Fed. Reg. 62,280, 62,360–61 (Nov. 14, 2019)).1
The Notice of Proposed Rulemaking called for comments to be submitted on or before March 30, 2020, creating a comment period of approximately 30 days. 85 Fed. Reg. at 11,866. Less than two weeks after the Notice of Proposed Rulemaking issued, the president declared a national state of emergency dating back to March 1, 2020, due to the COVID-19 pandemic. See Presidential Proclamation 9994, 85 Fed. Reg. 15,337, 15,337 (Mar. 13, 2020). On March 5, 2020, approximately 90 interested organizations signed a request to extend the comment period from 30 days to 60 days. See Pls.’ Mot. for a Stay of Effective Dates, ECF No. 19 [hereinafter Pls.’ Mot.], Decl. of Michelle N. Mendez [hereinafter Mendez Decl.], ECF No. 19-5, Ex. A; Mendez Decl. ¶ 17. EOIR did not respond to the request. Mendez Decl. ¶ 17. On March 23, 2020, as the gravity of the COVID-19 pandemic became clearer, 108 organizations requested that EOIR “freeze the comment deadline . . . until the federal government has lifted the national emergency related to the COVID-19 pandemic.” Mendez Decl., Ex. B; see also Mendez Decl. ¶ 17. The agency did not respond to this request either. Mendez Decl. ¶ 17.
3. Final Rule After refusing to extend the comment period, EOIR promulgated “Executive Office for Immigration Review; Fee Review” on December 18, 2020. 85 Fed. Reg. 82,750. The Final Rule adopted the proposed fee schedule from the Notice of Proposed Rulemaking. See id. at 82,784 (“The final rule adopts the fee amounts set out in the proposed rule as final . . . .”).
1 Defendants’ counsel further clarified at oral argument that EOIR follows a policy of collecting the fees set by DHS when a DHS form is used in proceedings that fall within EOIR’s jurisdiction, that Form I-589 for asylum is a DHS form, and that neither the Notice of Proposed Rulemaking nor the Final Rule establishes an independent fee for asylum applications. See Hr’g Tr. (draft), Jan. 15, 2021, at 64–65; see also 8 C.F.R. § 1103.7(b)(4)(ii) (codifying this policy).
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The Notice of Proposed Rulemaking garnered 601 comments. Id. at 82,752. While many of the comments are not relevant to the grounds on which this court rests its decision, the court briefly recounts several of the themes in the comments and EOIR’s responses.
a. The amount by which the fees increased EOIR received comments “object[ing] to the amount of [the] fee increases, stating that the fee increases were too high,” that EOIR did not consider applicants’ ability to pay the increased fees, and that the fees were not set “at a rate that most aliens would be able to pay.” Id. at 82,754–56. The agency defended the significant fee increases as necessary “to ensure that U.S. taxpayers do not bear a disproportionate burden in funding the immigration system.” Id. at 82,755. EOIR also rejected the idea that the fees were prohibitive for applicants. The agency responded that, although it generally did not “have an alien’s financial records at its disposal for review,” the information it did possess—information regarding “the ability of an alien to retain representation or the ability of an alien to pay application fees set by DHS”—suggested “that most aliens would be able to afford [the] proposed fees.” Id. at 82,756. EOIR also repeatedly lodged its disagreement that the increased fees “would deter individuals from pursuing meritorious claims” and dismissed such claims as “not supported by any evidence.” Id. at 82,772. EOIR’s most frequent response to such comments was that the availability of fee waivers ameliorated any depressive effect the increased fees might have on an applicant’s decision to file for immigration relief. See, e.g., id. at 82,761 (noting that “[a]lthough the rule changes the amount that would be charged for filing an appeal, the Department has been careful through the entire process to ensure that it does not affect the availability of a fee waiver”); id. at 82,762 (“As stated in the [Notice of Proposed Rulemaking], this rule does not foreclose or limit the ability of aliens to seek a fee waiver for the appeal fee.”); id. at 82,763 (“[T]he Department again emphasizes that
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a fee waiver remains available for a cancellation applicant . . . who is unable to pay the fee.”); id. at 82,764 (“Consistent with longstanding practice, a fee waiver remains available for motions to reopen and motions to reconsider.”). Several commenters pointed out that fee waivers are “discretionary” and are “inconsistent[ly]” granted, id. at 82,758, but EOIR responded that it had “no evidence or data, and none was provided by commenters, regarding the specific adjudications of fee waivers that would support such statements,” id. at 82,760. The agency noted that it “expects its adjudicators to issue fee waiver determinations in a fair manner and consistent with the regulations” and credited “the fee waiver process [a]s a proper, viable solution for aliens who may be unable to pay updated fees.” Id.
b. The study data Other commenters took specific issue with the 2018 study that EOIR relied upon to support the fee increases, and EOIR received “numerous comment requests” seeking the study’s underlying data. Id. at 82,754–55. EOIR disputed commenters’ complaints that the agency “did not adequately explain its methodology or justification for increasing costs,” but belatedly agreed to “publish[] the data collected in its spring 2018 study.” Id. at 82,755. Of course, by the time EOIR released the study on December 18, 2020, the opportunity for interested parties to comment on it had long since passed. See id. at 82,752 (noting the comment period closed on March 30, 2020).
c. Impact on legal service providers EOIR also received “numerous” comments “express[ing] concerns that the rule would negatively affect legal service providers.” Id. at 82,774. Commenters noted that, due to the sharp increases, “legal aid organizations, small firms, and attorneys providing pro bono services would be unable to routinely pay the fees for their clients.” Id. Organizations that use their funds to pay
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their clients’ fees would, according to commenters, need to forgo key “programmatic elements” of the organization’s agenda, and the fee hikes would cause such organizations to “assist fewer aliens, especially indigent aliens and children,” “reduc[ing] the availability of pro bono counsel generally.” Id. Moreover, “[s]everal commenters noted that attorneys would be forced to spend more time on fee waiver applications rather than substantive issues, which could relatedly cause them to turn away clients for lack of time and resources to represent them.” Id. In addition to straining organizations’ resources, “commenters expressed concern that the increased fees would place aliens in a position of choosing between paying the fee or obtaining counsel.” Id.
EOIR responded that, “[o]verall,” it found such “general concerns about possible negative effects too speculative to warrant changes to the” Notice of Proposed Rulemaking and “disagree[d] with commenters’ concerns about the rule’s extensive negative impact.” Id. The Final Rule, EOIR said, “was not proposed to . . . increase aliens’ access to counsel,” and the agency expressly “decline[d] to respond to commenters’ speculative concerns regarding . . . aliens’ ability to obtain counsel, including effects on legal service providers.” Id. at 82,775. EOIR added that “commenters’ assertions concerning the burden of increased fees on organizations and the private bar fall[] outside the limited scope of this rulemaking.” Id.
The Final Rule is set to go into effect on January 19, 2021. Id. at 82,750. B. Procedural Background
1. The Parties Plaintiffs in this action are four non-profit organizations that assist immigrants in navigating proceedings before the immigration courts and the BIA. See Pls.’ Mot., Pls.’ Mem. of P. & A. in Supp. of Pls.’ Mot. for a Stay of Effective Dates, ECF No. 19-10 [hereinafter Pls.’ Br.], at 5.
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Catholic Legal Immigration Network, Inc., or CLINIC, is a non-profit organization whose mission is to “provid[e] services and benefits to immigrants,” thereby “promot[ing] the dignity, and protecting the rights, of immigrants.” Compl., ECF No. 1 [hereinafter Compl.], ¶ 22. CLINIC both supports “a network of approximately 400 dedicated affiliate organizations” and “provides legal representation directly and in partnership with pro bono attorneys to vulnerable adults, children, and families in proceedings in Immigration Courts and before the BIA.” Id. ¶ 15. CLINIC also provides affiliate organizations with training and support for representing immigrants and prepares “practice advisory materials on removal defense, asylum appeals, and other topics to assist affiliate staff.” Id. ¶ 18.
Community Legal Services in East Palo Alto, or CLSEPA, works “to provide legal services that are transformative in nature, enabling diverse communities in and around East Palo Alto to achieve a secure and thriving future.” Id. ¶ 26. CLSEPA “provides direct legal services to individuals in its target communities,” including advising and representing immigrants in removal proceedings. Id. ¶ 28. In addition, CLSEPA “operates a pro bono program” and “trains and supports community members . . . and attorneys at other not-for-profit organizations” on immigration matters. Id. ¶¶ 29–30.
Kids in Need of Defense, or KIND, “advocates throughout the United States for the rights of unaccompanied migrant and refugee children.” Id. ¶ 33. The organization provides free direct “legal representation for unaccompanied migrant children,” runs “programs that educate unaccompanied minors about their rights,” and “provides mental health and social services for its clients.” Id. ¶¶ 34–36. KIND also advocates for refugee and migrant children and operates a pro bono program, through which it supports and trains attorneys representing children pro bono. Id. ¶¶ 36, 38.
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Lastly, Coalition for Humane Immigrant Rights, or CHIR, seeks “to ensure that immigrant communities are fully integrated into society with full rights and access to resources.” Id. ¶ 42. CHIR’s members are typically “low-income immigrants in mixed status families, in which one or more members are undocumented.” Id. ¶ 45. CHIR engages in grassroots organizing and advocacy to secure policies that benefit its members and runs “a legal services program that provides representation to clients, which includes members of CHIR[] and others in proceedings before EOIR and [U.S. Citizenship and Immigration Services (‘USCIS’)].” Id. ¶ 43.
The lead defendant is EOIR, an agency within the Department of Justice that heads both the BIA and OCIJ. See id. ¶¶ 48–50. Defendant James McHenry is the director of EOIR; he reports directly to the deputy attorney general, who in turn reports to the acting Attorney General, who is also a Defendant in this suit. See id. ¶¶ 52, 57–58. EOIR is funded by congressional appropriations. For Fiscal Year 2021, Congress allocated $734 million to EOIR, just $4 million of which is to be derived from fees. See Consolidated Appropriations Act, 2021, Pub. L. No. 116260, 134 Stat. 1182, 1246 (“For expenses necessary for the administration of immigration-related activities of the Executive Office for Immigration Review, $734,000,000, of which $4,000,000 shall be derived by transfer from the Executive Office for Immigration Review fees deposited in the ‘Immigration Examinations Fee’ account . . . .”).
2. Plaintiffs’ Suit On December 23, 2020, Plaintiffs filed their Complaint. Compl. The Complaint asserts six counts: Counts I, II, and III allege that EOIR’s rulemaking violates the Administrative Procedure Act (“APA”), Compl. ¶¶ 362–387; Count IV asserts that the Final Rule violates the Regulatory Flexibility Act, id. ¶¶ 388–405; and Counts V and VI claim that the Final Rule violates
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the Due Process Clause and the Equal Protection Clause of the Fifth Amendment, respectively, id. ¶¶ 406–423.
On December 30, 2020, Plaintiffs filed the instant Motion for a Stay of Effective Dates Under 5 U.S.C. § 705 or, in the Alternative, Preliminary Injunction, ECF No. 19. The motion advocates for relief with respect to only their administrative law claims (Counts I through IV); Plaintiffs do not seek preliminary relief as to their constitutional claims (Counts V and VI). See Pls.’ Br. at 2 n.2. Following expedited briefing, the court heard oral argument on January 14, 2021. See Minute Entry, Jan. 14, 2021. III. LEGAL STANDARD
Whether Plaintiffs’ motion is treated as one to stay the effective date under 5 U.S.C. § 705 or for a preliminary injunction, the court “applie[s] the four-part test used to evaluate requests for” a preliminary injunction. Sierra Club v. Jackson, 833 F. Supp. 2d 11, 30 (D.D.C. 2012) (internal quotation marks omitted). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Prior to Winter, courts in this Circuit had employed a sliding scale analysis in which “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644 F.3d 388, 392–93 (D.C. Cir. 2011). Winter arguably casts some doubt on that approach. See id. At a minimum, the D.C. Circuit has explained, Winter means that a plaintiff must demonstrate “a likelihood of success [a]s an independent, free-standing requirement” to secure a stay or preliminary injunction. See id. at 393. And, of course, equitable relief is warranted only upon a showing that irreparable injury is likely absent an injunction. See Winter, 555 U.S. at 22. Therefore, although the court must
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apply the sliding scale here, because neither the Supreme Court nor the D.C. Circuit has expressly overruled that approach, the court must be satisfied that Plaintiffs have established both a likelihood of success and irreparable harm to award injunctive relief. IV. DISCUSSION
A. Jurisdiction The court begins with its jurisdiction to hear this matter. Defendants argue that jurisdiction is lacking over Plaintiffs’ claims because the Immigration and Nationality Act (“INA”) contains a “zipper” clause that channels through the courts of appeals judicial review of “‘all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien.’” See Defs.’ Mem. in Opp’n to Pls.’ Mot., ECF No. 30 [hereinafter Defs.’ Br.], at 11 (quoting 8 U.S.C. § 1252(b)(9)). Defendants construe Plaintiffs’ arguments that the Final Rule’s increased fees will preclude some individuals from accessing proceedings as a challenge to “the process by which their members’ removability will be determined.” Id. at 12 (cleaned up). Plaintiffs respond that they have not sought “review of any final order of removal” and that their “APA challenge does not arise from any such [removal] action or proceeding”; therefore, they argue, the court retains jurisdiction. See Pls.’ Reply Mem. of P. & A. in Further Supp. of Pls.’ Mot., ECF No. 33 [hereinafter Pls.’ Reply], at 1–2. Defendants rely on two provisions of the INA to advance their jurisdiction-stripping argument. First, Defendants cite section 1252(a)(5), which makes “a petition for review filed with an appropriate court of appeals . . . the sole and exclusive means for judicial review of an order of removal,” 8 U.S.C. § 1252(a)(5). Defs.’ Br. at 11. Second, Defendants point to section 1252(b)(9), which channels “[j]udicial review of all questions of law and fact, including interpretation and
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application of constitutional law and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States” into the “judicial review of a final order under this section,” 8 U.S.C. § 1252(b)(9). Defs.’ Br. at 11. Together, these two provisions “fold[] all precedent challenges arising from the removal proceeding or action taken to remove the alien into review of the final order of removal” before a court of appeals. O.A. v. Trump, 404 F. Supp. 3d 109, 130 (D.D.C. 2019) (cleaned up). This court must therefore determine whether Plaintiffs’ APA challenge is a question of law or fact “arising from” a removal proceeding. See 8 U.S.C. § 1252(b)(9).
On that score, courts have uniformly read “arising from” to delineate between claims that “directly regard[] the removal hearing and collateral issues.” S. Poverty Law Ctr. v. U.S. Dep’t of Homeland Sec., No. 18-cv-760, 2020 WL 3265533, at *15 (D.D.C. June 17, 2020), appeal filed, No. 20-5257 (D.C. Cir. Aug. 26, 2020); see also Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) (plurality) (finding section 1252(b)(9) did “not present a jurisdictional bar” where question presented did not directly regard removal). The Supreme Court in Jennings v. Rodriguez considered the scope of legal questions that “‘aris[e] from’ the actions taken to remove . . . aliens.” Jennings, 138 S. Ct. at 840. Justice Alito, writing for a plurality of the Court,2 assumed without deciding that “detention” could be considered an “action taken to remove an alien.” Id. at 841 n.3 (internal quotation marks omitted). But, he explained, “[t]he question is not whether detention is an action taken to remove an alien but whether the legal questions in this case arise from such an action.” Id. Looking to the origin of the legal questions before the Court, section 1252(b)(9) could
2 While Jennings was a plurality decision, because Justice Breyer, joined by Justices Ginsburg and Sotomayor in dissent, “would have read section 1252(b)(9) even more narrowly[,] . . . [a]t least five Justices . . . agreed that section 1252(b)(9) does not clearly bar challenges collateral to the removal proceeding.” S. Poverty Law Ctr., 2020 WL 3265533, at *15.
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not serve as a jurisdictional bar: “respondents [we]re not asking for review of an order of removal; they [we]re not challenging the decision to detain them in the first place or to seek removal; and they [we]re not even challenging any part of the process by which their removability w[ould] be determined.” Id. at 841; see also Nielsen v. Preap, 139 S. Ct. 954, 962 (2019) (plurality) (reiterating the reasoning in Jennings).
Courts in this Circuit, interpreting Jennings, consistently have concluded that section 1252(b)(9)’s zipper clause is inapplicable when a rule of general applicability is challenged outside the context of a removal proceeding. See O.A., 404 F. Supp. 3d at 132; Nat’l Immigr. Project of the Nat’l Lawyers Guild v. Exec. Office of Immigr. Review, 456 F. Supp. 3d 16, 29 (D.D.C. 2020). In O.A. v. Trump, for instance, the court concluded that the APA challenge before it did not arise from removal proceedings but instead required the court to “consider a series of questions of law ‘arising from’ a rulemaking of general applicability.” 404 F. Supp. 3d at 133. The court emphasized that “[t]he question is not whether an issue could be raised in removal proceedings, but rather whether it arises from those proceedings,” and the plaintiffs’ APA challenge, the O.A. court decided, did not arise from removal proceedings. Id. (cleaned up). In National Immigration Project of the National Lawyers Guild, upon which Defendants rely, the court likewise recognized the “exception” articulated in O.A. that a plaintiff’s challenge to “the validity of a regulation of general applicability based on the administrative record generated in rulemaking” was not zippered into review of a final order of removal. 456 F. Supp. 3d at 29 (internal quotation marks omitted). Similarly, the court in Southern Poverty Law Center drew on Jennings to hold that claims “alleging punitive conditions of confinement” were also “not barred by section 1252(b)(9).” S. Poverty Law Ctr., 2020 WL 3265533, at *16. The court found the confinement issues to be collateral to removal
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proceedings and agreed with Jennings that “cramming judicial review of those questions into the review of final removal orders would be absurd.” Id. (internal quotation marks omitted).
Defendants’ contention that “[t]he questions of law underlying [Plaintiffs’] Complaint arise from removal proceedings,” Defs.’ Br. at 12, is incompatible with these authorities. While the fees in the Final Rule may be associated with filings that occur because of removal proceedings, the questions presented to the court do not “arise from” removal proceedings. See Jennings, 138 S. Ct. at 841 n.3. Rather, Plaintiffs’ legal challenges to the Final Rule originate in an entirely separate agency action: a “rulemaking of general applicability.” O.A., 404 F. Supp. 3d at 133. Such questions are not subject to section 1252(b)(9)’s zippering clause.
Defendants’ citations to Ninth Circuit case law do not alter the court’s conclusion.3 First, Defendants rely on J.E.F.M. v. Lynch, which considered claims of immigrant children who had been unable to obtain counsel for removal proceedings. 837 F.3d 1026, 1030 (9th Cir. 2016). The Ninth Circuit concluded that the minors’ due process and statutory claims regarding the right to appointed counsel were “inextricably intertwined with” the administrative process of removal. Id. at 1033 (internal quotation marks omitted). That is, the claims arose because the children were in removal proceedings, during which they lacked counsel. The same cannot be said here. Plaintiffs do not challenge the validity of removal proceedings or claim that any procedures leading to removal are unfair. Rather, they challenge whether the agency used reasoned decisionmaking to increase existing fees, in some cases, by more than eight-fold. These claims are “collateral to, or independent of, the removal process” and thus beyond the reach of section 1252(b)(9). See id. at 1032.
3 Indeed, the court in Southern Poverty Law Center appears to have rejected the very same playbook Defendants follow here. See 2020 WL 3265533, at *17.
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Defendants’ reliance on Martinez v. Napolitano, 704 F.3d 620 (9th Cir. 2012), is equally unpersuasive. There, the plaintiff was seeking “a full and fair hearing to adjudicate his withholding and [Convention Against Torture] claims” and brought claims that the agency violated “the APA based on the denial of his withholding and [Convention Against Torture] claims based on arbitrary, capricious, and ultra vires criteria” and “on the [BIA’s] failure to give [him] a full and fair hearing to adjudicate his asylum claim.” Id. at 621. In determining whether Martinez’s claims were subject to the zipper clause, the Ninth Circuit explained that “the distinction between an independent claim” under the APA and an “indirect challenge” to the plaintiff’s adverse immigration decision “‘turn[ed] on the substance of the relief’” that the plaintiff requested. Id. at 622 (quoting Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011)). The court found Martinez’s claims were subject to section 1252(b)(9) because they challenged the validity of the BIA’s decision, and “[i]f Martinez had prevailed on any one of them, the BIA would not have affirmed the removal order.” Id. at 623. In contrast, none of the claims here seek to overturn an order of removal or any aspect of an existing removal proceeding. Thus, under both J.E.F.M. and Martinez, the court concludes that Plaintiffs’ claims are collateral to any removal proceedings, and it therefore retains federal question jurisdiction over Plaintiffs’ suit.
B. Standing The court next turns to standing. Defendants do not challenge Plaintiffs’ constitutional standing under Article III but do contest whether Plaintiffs satisfy considerations of prudential standing, namely, whether they fall in the INA’s zone of interests. See Defs.’ Br. at 13–14. Notwithstanding Defendants’ silence as to constitutional standing, the court briefly discusses it below before addressing Defendants’ prudential standing argument. See Summers v. Earth Island
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Inst., 555 U.S. 488, 499 (2009) (stating that the court “has an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties”).
1. Article III Standing Plaintiffs assert both organizational standing and associational standing. See Pls.’ Br. at 18. Because the court is satisfied that Plaintiffs have established a substantial likelihood of organizational standing, the court need not reach the question of associational standing. See Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015) (“[A] party who seeks a preliminary injunction must show a substantial likelihood of standing.”). If an organization “claims standing only on its own behalf, . . . it must make the same showing required of individuals: an actual or threatened injury in fact that is fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by a favorable court decision.” Am. Soc’y for the Prevention of Cruelty to Animals v. Feld Ent., Inc. (ASPCA), 659 F.3d 13, 24 (D.C. Cir. 2011). With respect to the requisite injury in fact, “if the defendant’s alleged action prompts an organization to increase the resources it must devote to programs independent of its suit against the defendant, the organization has shown an injury in fact.” Equal Rts. Ctr. v. Post Props., Inc., 633 F.3d 1136, 1139 (D.C. Cir. 2011) (cleaned up). There are two important limitations to this principle. First, the organization “must show a ‘direct conflict between the defendant’s conduct and the organization’s mission.’” ASPCA, 659 F.3d at 25 (emphasis omitted) (quoting Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1430 (D.C. Cir. 1996)). “Second, an organization may not ‘manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.’” Id. (quoting Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990)). Accordingly, the court begins its inquiry into organizational standing “by asking whether the defendant’s allegedly unlawful activities injured the plaintiff’s interest in
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promoting its mission,” and, if so, proceeds to determine “whether the plaintiff used its resources to counteract the injury.” Id.
Plaintiffs have provided numerous declarations that demonstrate that the Final Rule’s fee increases directly conflict with the organizations’ missions. For example, relying on the declaration of Michelle Mendez, director of its Defending Vulnerable Populations program, CLINIC has averred that its “mission is to provide immigration legal services to low income and vulnerable populations.” Mendez Decl. ¶ 3. CLINIC fulfills this mission by supplying training and support for a network of affiliated programs that offer pro bono or low-cost immigration legal services and by providing direct representation, as well as pro bono referrals. Id. ¶¶ 5, 8. Mendez explains that the fees imposed by the Final Rule will frustrate CLINIC’s mission by reducing pro bono participation and thus the organization’s capacity to represent immigrants in three ways. Id. ¶¶ 34, 39. First, it will harm CLINIC’s ability to place indigent clients with pro bono partners because (1) pro bono partners will no longer be able to afford their historical practice of fronting filing fees, potentially forcing them to decline clients, id. ¶ 34; and (2) pro bono partners will be forced to take on additional fee-waiver-application work, which will make pro bono representation more burdensome to counsel, reducing the maximum case load pro bono counsel can shoulder, id. ¶ 39. Second, Mendez explains that the Final Rule is likely to decrease CLINIC’s and its affiliates’ client bases because clients will need to use their modest financial resources to pay EOIR fees rather than to pay even the low-cost rates that some of CLINIC’s affiliates charge. Id. ¶ 58. CLINIC anticipates that this will in turn reduce client volume, which itself will leave some affiliates “who rely in part on the low fees they charge clients to fund their operations” unable to pay CLINIC’s membership fee. Id. Third, Mendez avers that CLINIC will need to significantly divert its resources from its core mission toward assisting and performing work related to fees,
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educating affiliates and immigrants about the new fees, and revising training materials. E.g., id. ¶¶ 35, 38, 41, 43. As a consequence, CLINIC will be hampered in “provid[ing] immigration legal services to low income and vulnerable populations.” Id. ¶¶ 3, 28. These “concrete drains on [CLINIC’s] time and resources,” Spann, 899 F.2d at 29, “are the type of substantial, tangible costs that are cognizable for purposes of organizational standing,” Nw. Immigrant Rts. Project v. USCIS, No. 19-cv-3282, 2020 WL 5995206, at *7 (D.D.C. Oct. 8, 2020) (internal quotation marks omitted).
In addition, CLINIC has explained that it will be forced to use its resources to advise clients and affiliates on how to manage the increased fees and to revise training materials regarding fees and fee waivers. See e.g., Mendez Decl. ¶¶ 35, 38, 41, 43; see also Nw. Immigrant Rts. Project, 2020 WL 5995206, at *7 (finding plaintiffs would “use their resources to counteract their injuries” where they explained “they will need to spend greater time helping clients meet the Rule’s demands” (cleaned up)). CLINIC thus has suffered an injury in fact. See Ayuda, 848 F.2d at 1298 n.3 (holding that organizational plaintiffs who challenged EOIR’s fee increase in 1986 had standing because they had alleged that “imposition of the increased fees would thwart their organizational purposes and subject them to additional financial burdens”).4
The other two elements of standing are easily satisfied. Regarding causation, CLINIC has adequately established that the Final Rule will cause fewer of its clients to be able to afford fees, thereby forcing CLINIC to divert its resources and adapt its operations to meet an increased need for fee waivers and training materials related to the new fees. Nw. Immigrant Rts. Project, 2020
4 Declarations supplied by other Plaintiffs similarly assert that their missions are in conflict with the Final Rule, see Pls.’ Mot., Decl. of Cristina dos Santos, ECF No. 19-9 [hereinafter dos Santos Decl.], ¶ 3 (CLSEPA); Pls.’ Mot., Decl. of Maria Odom, ECF No. 19-6 [hereinafter Odom Decl.], ¶ 5 (KIND); Pls.’ Mot., Decl. of Angelica Salas, ECF No. 19-8 [hereinafter Salas Decl.], ¶ 3 (CHIR), and that they also will suffer drains on their resources, see dos Santos Decl. ¶¶ 17–18, 32–34, 36–38, 40–42, 43–49; Odom Decl. ¶¶ 25–30; Salas Decl. ¶¶ 17, 35–47.
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WL 5995206, at *9 (finding causation where the rule at issue would “increase the costs of seeking the immigration benefits,” making “it more difficult for low-income individuals (including Plaintiffs’ clients and members) to qualify for those benefits, and Plaintiffs’ asserted injuries [would be] the product of those changes”). Finally, CLINIC’s injury is redressable because if the Final Rule does not go into effect—even temporarily—CLINIC will not have to adapt its operations to adjust for increased fees. Id. As one plaintiff has established Article III standing to assert APA claims, the court need not evaluate the constitutional standing of any other Plaintiff. See Carpenters Indus. Council v. Zinke, 854 F.3d 1, 9 (D.C. Cir. 2017).
2. Zone of Interests The prudential standing, zone-of-interests inquiry also presents no impediment to Plaintiffs proceeding with their APA claims. A plaintiff’s interests must “fall within the zone of interests protected by the law invoked.” Lexmark Int’l, Inc. v. Static Ctrl. Components, Inc., 572 U.S. 118, 129 (2014) (internal quotation marks omitted). The test for whether a plaintiff’s interests fall within that zone “is not meant to be especially demanding” and “forecloses suit only when a plaintiff’s interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Match-EBe-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 225 (2012) (internal quotation marks omitted). Plaintiffs readily surpass that low bar. Congress plainly had as an objective under the INA to optimize the availability of pro bono or low-cost counsel to persons subject to removal. First, the INA establishes a right to counsel in removal proceedings. See 8 U.S.C. § 1229a(b)(4)(A) (stating that “the alien shall have the privilege of being represented, at no expense to the Government, by counsel of the alien’s choosing who is authorized to practice in such
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proceedings”). A person subject to removal must be notified in writing that they “may be represented by counsel,” id. § 1229(a)(1)(E), and the INA expressly bars the setting of a hearing earlier than “10 days after the service of the notice to appear” “[i]n order that an alien be permitted the opportunity to secure counsel before the first hearing date,” id. § 1229(b)(1). Second, to effectuate that right to representation, Congress has directed the Attorney General to maintain and regularly update a list of “persons who have indicated their availability to represent pro bono aliens in [removal] proceedings” and to provide this current list to the alien upon written notice of removal. Id. §§ 1229(a)(1)(E), 1229(b)(2). Plaintiffs CLSEPA, KIND, and CHIR all appear on the list of pro bono legal service providers, and CLINIC’s affiliate organizations are also included on the list.5 Accordingly, because “Plaintiffs’ daily work is governed by the INA and the fee provisions at issue here,” and because “the INA contemplates an important role for organizations like Plaintiffs,” the court has no trouble concluding that Plaintiffs are within the INA’s zone of interests. Nw. Immigrant Rts. Project, 2020 WL 5995206, at *10.
C. The Injunction Factors 1. Likelihood of Success
The court now reaches the merits. Plaintiffs’ primary challenges to the Final Rule arise under the APA.6 The APA requires the court to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). An agency’s decision is arbitrary and capricious if the agency relies “on factors which Congress has not intended it to consider, entirely
5 See Dep’t of Justice, List of Pro Bono Legal Service Providers, http://www.justice.gov/eoir/list-pro-bono-legalservice-providers (last updated Jan. 2021); Mendez Decl. ¶ 15 (listing CLINIC’s affiliates on Department of Justice’s pro bono list). 6 Plaintiffs also challenge the Final Rule under the Regulatory Flexibility Act, see Pls.’ Br. at 36–38, but, as explained below, the court finds the Final Rule invalid under the APA and therefore does not reach that argument.
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fail[s] to consider an important aspect of the problem, offer[s] 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.” State Farm, 463 U.S. at 43. “Although the arbitrary and capricious standard of review is deferential, the court will intervene to ensure that the agency has examined the relevant data and articulated a satisfactory explanation for its action.” BellSouth Corp. v. FCC, 162 F.3d 1215, 1221–22 (D.C. Cir. 1999) (cleaned up).
Plaintiffs have identified a raft of alleged deficiencies with the Final Rule. Among them are that the Final Rule is arbitrary and capricious because EOIR (1) disregarded evidence that the higher fees will be prohibitively expensive, (2) failed to demonstrate that the availability of fee waivers will mitigate any negative effects of fee increases, and (3) ignored the adverse impact that fee increases would have on legal service providers and their ability to provide pro bono or lowcost legal services. See Pls.’ Br. at 22–25. Plaintiffs also challenge (4) the agency’s legal authority for increasing fees, (5) its policy justification for doing so, and (6) its departure from its decadeslong imposition of more modest fees. See id. at 25–30. Plaintiffs additionally complain of APA violations stemming from (7) EOIR’s failure to enlarge the comment period beyond 30 days and (8) its refusal to disclose, prior to publication of the Final Rule, the data underlying the “comprehensive study” that led to the fee increases. See id. at 30–35.
The court does not grapple with all of these claims and arguments. For present purposes, Plaintiffs need show that they are likely to succeed on only one of their claims to justify a stay of the Final Rule’s effective date or preliminary injunction. Having carefully considered all claims and arguments asserted under the APA, the court finds that Plaintiffs are likely to succeed in showing that the Final Rule is arbitrary and capricious because Defendants failed to consider “the Final Rule’s impact on legal service providers,” see id. at 24–25; Pls.’ Reply at 11–12.
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The Final Rule observes that “[n]umerous commenters expressed concerns that the rule would negatively affect legal service providers.” 85 Fed. Reg. at 82,774. Commenters identified four major categories of harm that would accrue to legal service providers, each of which is animated by the concern that the Final Rule will lead to fewer applicants obtaining representation in immigration proceedings. First, commenters explained that the Final Rule would effectively reduce representation because the higher fees would force individuals to choose “between paying the fee or obtaining counsel.” Id. Second, they noted that “legal aid organizations, small firms, and attorneys providing pro bono services would be unable to routinely pay the fees for their clients,” as they typically had in the past. Id. Because these organizations would be able to afford fees for fewer clients under the Final Rule, “they would be forced to assist fewer aliens, especially indigent aliens and children, which would . . . reduce the availability of pro bono counsel generally.” Id. Third, legal service providers “expressed concerns that the funds used to pay their clients’ fees would come at the expense of other programmatic elements of their budget” and they would therefore “be less able to provide comprehensive services to aliens.” Id. Fourth and finally, commenters explained that the Final Rule would drain their resources, as “the higher fees and resulting fee waivers would increase the time that an attorney spends on a case.” Id. This would “cause them to turn away clients for lack of time and resources to represent them.” Id.
EOIR largely disregarded these concerns. EOIR “decline[d] to respond” to what it deemed “speculative concerns regarding . . . aliens’ ability to obtain counsel, including effects on legal service providers.” Id. at 82,775. EOIR supported its declination by stating that “access to counsel [is] affected by a number of factors beyond the cost of applications and appeals” and that “such concerns” were “mere speculation.” Id. EOIR also responded that the “commenters’ assertions concerning the burden of increased fees on organizations and the private bar fall[] outside the
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limited scope of this rulemaking.” Id. Defendants reassert those same rationales in these proceedings. Defs.’ Br. at 24–25 (arguing that “Plaintiffs’ argument is both irrelevant and inaccurate”).
It is black letter law that an agency acts arbitrarily and capriciously when it “entirely fails to consider an important aspect of the problem.” State Farm, 463 U.S. at 43; Michigan v. EPA, 576 U.S. 743, 753 (2015) (noting agencies are required to “pay[] attention to the advantages and the disadvantages of agency decisions”); see also Physicians for Soc. Resp. v. Wheeler, 956 F.3d 634, 647 (D.C. Cir. 2020) (finding policy arbitrary and capricious where it failed to consider how the policy affected certain statutory mandates). An agency also must respond to “relevant” and “significant” public comments. Home Box Office, Inc. v. FCC (HBO), 567 F.2d 9, 35 & n.58 (D.C. Cir. 1977). “[N]either requirement is particularly demanding.” Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993). In this case, EOIR utterly failed to consider an important aspect of the problem, and to respond to relevant and significant public comments, when it ignored the impact that the Final Rule would have on legal service providers and their capacity to provide representation. Their concerns were neither irrelevant nor speculative.
Congress’s concern for the availability of pro bono and low-cost legal services in removal proceedings is evident on the face of the INA. As already discussed, the INA not only entitles a person to counsel in removal proceedings, but it also mandates that written notice of that right be provided, and that the Attorney General maintain a current list of pro bono legal service providers and make that list available to a person subject to removal. See supra section IV.B.2. Additionally, an initial removal hearing cannot be scheduled until 10 days after service, specifically to afford a person time to secure counsel. See supra section IV.B.2. These provisions of the INA make clear that Congress was concerned not merely about the right to counsel in removal proceedings, but
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with actual access to counsel for persons who Congress anticipated might not be able to afford to hire private lawyers. So, when multiple legal service providers raised the alarm that increased filing fees would adversely impact their organizations and would depress their capacities to provide pro bono and low-cost legal services, the APA required EOIR to acknowledge those concerns and respond to them in a meaningful way, not blithely dismiss them as “outside the limited scope of this rulemaking,” 85 Fed. Reg. at 82,775. EOIR therefore ignored “an important aspect of the problem.” State Farm, 463 U.S. at 43.
Defendants also cannot escape their obligation by dismissing the legal service providers’ comments as “speculative.” See 85 Fed. Reg. at 82,775; see also Defs.’ Br. at 24. To be sure, an agency need not respond to “comments which themselves are purely speculative and do not disclose [a] factual or policy basis . . . . There must be some basis for thinking a position taken in opposition to the agency is true.” HBO, 567 F.2d at 35 n.58. Here, the legal services providers offered ample basis for the truth of their positions: their extensive knowledge and experience with the immigration system. Who else would have a better understanding of how substantial fee increases would impact the delivery of legal services than the legal service providers themselves? They have firsthand knowledge of how their practices operate and the role of fees in their practices. They are intimately familiar with their budgets and resources and therefore have a unique capacity to estimate how the Final Rule’s significant increase in fees would upend their normal practices and would affect the number of clients they can serve. Their comments were thus the product of their deep institutional knowledge and experience, not mere conjecture, as EOIR claimed.
In these proceedings, Defendants echo EOIR’s position in the Final Rule that the commenters’ concerns were speculative because “‘access to counsel [is] affected by a number of factors beyond the cost of applications and appeal, and commenters provided no factual or policy
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bases for the Department to consider’” on these points. Defs.’ Br. at 25 (quoting 85 Fed. Reg. at 82,775). By way of illustration, Defendants suggested at oral argument that the impacts on legal service providers were speculative because Plaintiffs had not shown that their funders woud not increase their grants or donations to account for the increased fees; therefore, the organizations could not predict how the increased fees would affect them. Hr’g Tr. (draft), Jan. 15, 2021, at 41–42. But that is not how notice and comment works. It was the agency’s burden to consider the impact of the Final Rule on legal service providers, not the providers’ burden to prove to the agency that they could not affirmatively mitigate that impact. See Stewart v. Azar, 313 F. Supp. 3d 237, 268–70 (D.D.C. 2018) (finding agency “must . . . evaluate the effect of” its actions on interests protected by statute). Moreover, in referencing potential increases in Plaintiffs’ outside funding, Defendants’ argument implicitly concedes that the Final Rule may squeeze the budgets of legal service providers and that, rather than speculation, the legal service providers’ concerns about lacking the funds and resources to meet the additional fees are very much grounded in reality. EOIR was required to consider the impact of the Final Rule on legal service providers and “provide the court an explanation sufficient to allow” it to review the agency’s consideration of that impact. See Getty v. Fed. Sav. & Loan Ins., 805 F.2d 1050, 1055 (D.C. Cir. 1986). Because it did not do so, Plaintiffs are likely to succeed in establishing that the Final Rule is arbitrary and capricious.
2. Irreparable Harm Having shown that they are likely to succeed on the merits of one of their claims, Plaintiffs must next “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22 (emphasis omitted); S. Poverty Law Ctr., 2020 WL 3265533, at *32. To demonstrate irreparable harm, plaintiffs must show both (1) that the harm is “certain and great, actual and not theoretical, and so imminent that there is a clear and present need for equitable relief
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to prevent irreparable harm” and (2) that the harm is “beyond remediation.” League of Women Voters of U.S. v. Newby, 838 F.3d 1, 7–8 (D.C. Cir. 2016) (cleaned up).
Another judge in this District has previously found irreparable harm based on evidence showing that proposed fee increases for immigrant services “will interfere with the[] ability [of legal service providers] to provide essential services to their clients and/or members—in some cases irretrievably so.” Nw. Immigrant Rts. Project, 2020 WL 5995206, at *30, *32. The harms documented in Plaintiffs’ numerous declarations mirror the harms established in Northwest Immigrant Rights Project. CLINIC, for example, has submitted a declaration attesting that there will be “a significant decrease in the number of cases that CLINIC and its pro bono partners can take on due to the increased work load from preparing and verifying fee waiver requests and the “virtual[] impossib[ility]” that CLINIC and its pro bono partners will be able to front filing fees for indigent clients. Mendez Decl. ¶¶ 33–35. KIND too avers that it will face those same resource strains and “has already diverted resources from [its] other work to prepare training materials and provide technical assistance to [its] staff and pro bono partners on the forthcoming changes to the fee rule.” Odom Decl. ¶¶ 26–29. In addition, KIND “plans to divert time and resources to fundraising efforts to cover clients’” fees. Id. ¶ 29. These efforts, KIND declares, consume “time and resources that KIND attorneys would otherwise spend on additional client matters,” reducing the number of new clients the organization will be able to take on. Id. ¶ 30. CLSEPA has identified similar harms from the Final Rule. It attests that “[t]he Final Rule is already setting in motion some of the very harms [it] feared,” including the “frustrat[ion]” of CLSEPA’s “mission by increasing the amount of work required per case[,] therefore limiting [the organization’s] transformative impact by decreasing the number of individuals [it] can serve.” dos Santos Decl. ¶¶ 31, 45; see also id. ¶¶ 31–33, 36–37, 40, 44–46, 48–49 (describing harms inflicted by Final
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Rule, ultimately leading to decreased capacity for additional cases). And finally, CHIR asserts that it “has already had to divert resources” to adapting to the new fees and that it “will necessarily need to assist [clients] in preparing fee waiver applications, which will again add to the staff’s workload and limit the time available for existing cases and the new cases [it is] obligated to take on to maintain funding levels.” Salas Decl. ¶¶ 38, 43; see also id. ¶¶ 38–39, 44–47.
Collectively, these declarations show that the Final Rule will have an “immediate effect on” Plaintiffs’ “ability to serve their [existing] clients” and take on new clients. Nw. Immigrant Rts. Project, 2020 WL 5995206, at *31. The cumulative impact of the Final Rule will lead to decreased representation of applicants in immigration proceedings. Such harm is irreparable to both Plaintiffs and the immigrant populations they represent.
Defendants push back on Plaintiffs’ showing of irreparable harm in two ways. First, they argue that Plaintiffs have not “presented . . . any evidence demonstrating that any substantial decrease in immigration filings would occur as a result of these fee increases.” Defs.’ Br. at 35–36. This argument misses the mark. Plaintiffs assert that they will be able to represent fewer applicants, not that there will be fewer applicants for immigration relief overall. Second, Defendants maintain that Plaintiffs have not established that they would lose funding “immediately and before this Court can consider the merits” of Plaintiffs’ challenge to the Final Rule. Id. at 36. Again, this argument misconstrues Plaintiffs’ injuries. Regardless of when any financial harm may befall them, absent an injunction, Plaintiffs will be irreparably harmed by the damage to their core missions—providing free or low-cost representation to persons needing counsel in removal proceedings—defusing any concerns about the timing of their loss of funding. Indeed, many organizations have already diverted resources away from representing clients toward adapting to the Final Rule. See Odom Decl. ¶ 27; dos Santos Decl. ¶ 31; Salas Decl. ¶ 38.
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D. Balance of the Equities and Public Interest Having concluded Plaintiffs will suffer irreparable harm absent a preliminary injunction, the court turns to the balance of the equities and the public interest. These factors merge when, as here, the government is the defendant. See Nken v. Holder, 556 U.S. 418, 435 (2009). Plaintiffs argue that the balance of the equities and the public interest weigh in favor of injunctive relief because such relief would maintain the status quo, the public’s interests are served by the government following the law, and Defendants have identified no urgent fiscal need for the fee increases to go into effect. Pls.’ Br. at 43. Defendants, on the other hand, argue that the public’s interest in the government following the law is best served by not enjoining the Final Rule so that EOIR can work toward self-sustenance. Defs.’ Br. at 38. The court concludes that the balance of the equities tips decidedly in Plaintiffs’ favor. First, as to the public’s interest in the government following the law, the court has already ruled that Plaintiffs are likely to succeed on their claim that the Final Rule is arbitrary and capricious. “There is generally no public interest in the perpetuation of unlawful agency action.” League of Women Voters, 838 F.3d at 12; Nw. Immigrant Rts. Project, 2020 WL 5995206, at *32. Second, Defendants will suffer little, if any, harm from a delay in achieving a self-sustaining fee model; they have conceded that EOIR is not “dependen[t] on fee collections to operate,” Defs.’ Br. at 7, and Congress has already appropriated $734 million to EOIR for Fiscal Year 2021, Pub. L. No. 116-260, 134 Stat. at 1246. In contrast, Plaintiffs have already begun to suffer harm to their organizational missions, see supra Section IV.C.2, and they have presented evidence that some of Plaintiff CHIR’s indigent members have already been forced to cut spending on their basic needs to save money in anticipation of affording the new fees, see Salas Decl. ¶¶ 57–61; see also 85 Fed. Reg. at 82,763 (suggesting that “[a]n alien who is concerned that he or she may wish to appeal the
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immigration judge’s decision should, accordingly, use that time between the initiation of the proceeding and the immigration judge’s issuance of a final decision to begin arranging funds for the future payment of the appeal”). Third and finally, as the court in Northwest Immigrant Rights Project noted, it is “far from clear that Defendants would benefit from a decision that would permit the Rule to take effect, only to be set aside months from now.” 2020 WL 5995206, at *32. The equities and public interest therefore favor entry of injunctive relief.
E. Scope of Injunction The court concludes by defining the scope of the remedy. “Crafting a preliminary injunction is an exercise of discretion and judgment,” and “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 v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017) (internal quotation marks omitted); see also Winter, 555 U.S. at 24 (noting “courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief” (internal quotation marks omitted)). It is well settled “that an injunction must be narrowly tailored to remedy the specific harm shown.” Neb. Dep’t of Health & Human Servs v. Dep’t of Health & Human Servs., 435 F.3d 326, 330 (D.C. Cir. 2006) (cleaned up). Here, the court confronts two questions in tailoring the preliminary injunction: whether the effective date of each of the fee increases promulgated in the Final Rule must be stayed and whether the injunctive relief should issue nationwide. Plaintiffs have requested that the court “stay the effective date of the Final Rule in its entirety.” Pls.’ Br. at 44. But as counsel for Defendants pointed out at oral argument, there are three fees that Plaintiffs have not shown will result in irreparable harm. See Hr’g Tr. (draft), Jan. 14, 2021, at 34–37. First, Plaintiffs conceded at oral argument that they do not seek an
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injunction of the $675 fee attached to Form EOIR-45 “[f]or filing an appeal from a decision of an adjudicating official in a practitioner disciplinary case,” 85 Fed. Reg. at 82,794. Hr’g Tr. (draft), Jan. 15, 2021, at 71–72. Accordingly, the court will not stay the fee increase for Form EOIR-45.
Second, Plaintiffs have not sufficiently established that the $35 fee increase for filing a motion to reopen or reconsider in OCIJ, see 85 Fed. Reg. at 82,751, 82,794, will cause irreparable harm. An increase of this fee from $110 to $145 is too minimal to inflict the harms that Plaintiffs complain of, and Plaintiffs have not made any showing to the contrary.
Third, and finally, at oral argument counsel for Defendants clarified that the Final Rule does not impose a $50 fee for defensive asylum applications. Instead, according to counsel, there is a pre-existing EOIR policy to apply DHS’s fees to forms that DHS drafts, including the form for seeking asylum. Hr’g Tr. (draft), Jan. 15, 2021, at 64–65. Plaintiffs have not challenged that policy, and, given that the DHS fee is subject to not one but two nationwide injunctions, see Nw. Immigrant Rts. Project, 2020 WL 5995206; Immigrant Legal Res. Ctr. v. Wolf, No. 20-cv5883, 2020 WL 5798269 (N.D. Cal. Sept. 29, 2020), the court sees no pressing need to enjoin it here.
The court concludes that the remaining fee increases—which impose increases of between $205 and $865 per type of filing—are likely to cause Plaintiffs irreparable harm and enjoins those increases in their entirety. Specifically, the court enjoins:
(1) The $975 fee attached to Form EOIR-26 for filing an appeal from a decision of an immigration judge;
(2) The $705 fee attached to Form EOIR-29 for filing an appeal from a decision of an officer of DHS;
(3) The $895 fee for filing a motion to reopen or to reconsider before the BIA;
(4) The $305 fee attached to Form EOIR-40 for an application for suspension of deportation;
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(5) The $305 fee attached to Form EOIR-42A for an application for cancellation of removal for certain permanent residents; and
(6) The $360 fee attached to Form EOIR-42B for an application for cancellation of removal and adjustment of status for certain nonpermanent residents.
See 85 Fed. Reg. at 82,793–94. EOIR may continue to charge the fees already in effect for these filings.
Finally, Plaintiffs have requested that the court’s preliminary injunction issue nationwide. See Pls.’ Br. at 44–45. The court agrees that a nationwide injunction is proper here because the court finds that the Final Rule is substantially likely to violate the APA and the injunction concerns the nation’s immigration policies. The D.C. Circuit has held “that ‘when a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated— not that their application to the individual petitioners is proscribed.’” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (alteration omitted) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)). Accordingly, courts in this Circuit have “confirm[ed] the propriety of nationwide injunctions in APA cases where the challenged policy is found to be arbitrary and capricious or otherwise facially unlawful.” Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Human Servs., No. 20-1630(JEB), 2020 WL 5232076, at *43 (D.D.C. Sept. 2, 2020), appeal filed, No. 20-5331 (D.C. Cir. Nov. 9, 2020). The court finds additional support for a nationwide injunction in the Supreme Court’s recognition of the government’s interest in establishing a “uniform Rule of Naturalization.” Arizona v. United States, 567 U.S. 387, 394 (2012) (internal quotation marks omitted) (quoting U.S. Const. Art. I, § 8, cl.4). Defendants also have not asked the court to refrain from issuing a nationwide injunction, as they
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have done in other cases. Accordingly, the court will stay the effective date of and preliminarily
enjoin the aforementioned provisions of the Final Rule nationwide.
V. CONCLUSION AND ORDER
For the foregoing reasons, the court grants in part and denies in part Plaintiffs’ Motion for
a Stay of Effective Dates Under 5 U.S.C. § 705 or, in the Alternative, Preliminary Injunction, ECF
No. 19. The court stays the effective date of the final rule, Executive Office for Immigration
Review; Fee Review, 85 Fed. Reg. 82,750 (Dec. 18, 2020), as to the following fees pending final
adjudication of this action:
(1) The $975 fee attached to Form EOIR-26 for filing an appeal from a decision of an immigration judge;
(2) The $705 fee attached to Form EOIR-29 for filing an appeal from a decision of an officer of DHS;
(3) The $895 fee for filing a motion to reopen or to reconsider before the BIA;
(4) The $305 fee attached to Form EOIR-40 for an application for suspension of deportation;
(5) The $305 fee attached to Form EOIR-42A for an application for cancellation of removal for certain permanent residents; and
(6) The $360 fee attached to Form EOIR-42B for an application for cancellation of removal and adjustment of status for certain nonpermanent residents.
Defendants are hereby enjoined from implementing or enforcing the above fees pending final
adjudication of this action. The parties shall meet and confer and, by January 27, 2021, file a Joint
Status Report proposing a schedule for further proceedings in this matter.

Dated: January 18, 2021

Amit P. Mehta United States District Court Judge
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